A belated qualified domestic relations order (QDRO) is not barred by the contract Statute of Limitations. It may also be used to collect arrears in the ex-spouse’s share of pension payments paid to the retiring employee before the post-retirement QDRO first goes into effect. Moreover, while the employee’s post-divorce loan against the pension will be charged only against the employee’s share, the reduction in monthly benefits attributable to the employee electing after the divorce joint and survivor benefits with the next spouse is to be shared with the first spouse.

So held the Appellate Division, Second Department, in last month’s decision in Krause v. Krause. In that decision the appellate court addressed for the first time the question of whether the submission for judicial approval of a proposed QDRO, instead of a motion made on notice, may be employed by a party to a matrimonial action to obtain pension arrears. The Second Department held that a QDRO may be used for such a purpose. [A QDRO is a court decree recognized by the Internal Revenue Service that allows the division of retirement plan benefits incident to a divorce, without triggering current income taxation or early withdrawal penalties.]

Carol and Richard Kraus were married in 1973. During a portion of the marriage, the wife was employed by the State of New York as a hospital nurse. The husband was employed by the Fire Department of the City of New York (the FDNY) as a firefighter from 1977 to 2008. As a firefighter, the husband was a member of a pension system for much of the parties’ marriage. The wife was also a member of a pension system as a State employee.

In 1993, the wife commenced a divorce action. On November 1, 1995, the parties reached a settlement, pursuant to which each spouse was entitled to a marital share of the other spouse’s pension in accordance with the formula set forth in Majauskas v Majauskas (61 N.Y.2d 481). The stipulation expressly provided that “[a] Qualified Domestic Relations Order shall be prepared in the course of any divorce and forwarded to the Court for signature and filed with the Husband’s employer.” A judgment of divorce was signed by the Supreme Court on February 21, 1996.

Continue Reading Oops! I Forgot To Submit A QDRO: Delays, Arrears, Loans and Options

Legal feesIn its May 1, 2015 decision in Mura v. Mura, the Appellate Division, Fourth Department, affirmed an order of Monroe County Supreme Court Justice Richard A. Dollinger that enforced an ex-wife’s attorney’s charging lien against a fund from which child support arrears were to be paid.

The parties were divorced in 1993. The Monroe County judgment of divorce awarded the wife child support and ordered the husband to pay $25,226.72 in child support arrears that had accrued from the commencement of the divorce action through entry of the judgment.

For 16 years, the child support obligation was not enforced. In April 2011, the wife hired Mark Chauvin Bezinque, Esq., to recover the accumulated child support arrears that, with interest, totaled $549,403.62 as of September 2011.

At the time, the husband owned real property in Ontario County. Bezinque filed the judgment in Ontario County and commenced actions in both Ontario County and Monroe County to restrain the sale of the Ontario property. While those proceedings were ongoing, the husband sold the property in violation of a court order. Upon Bezinque’s motion, the husband’s share of the proceeds from the sale of the home was placed in escrow “in anticipation of a final judgment for unpaid child support.” Bezinque referred the wife to another law firm for the preparation of executions and levies against the escrowed funds held by the husband’s then attorneys, and requested payment of the outstanding balance of his legal fees from those funds. The wife did not respond to that request. Bezinque thereafter moved by order to show cause seeking, inter alia, a charging lien pursuant to Judiciary Law § 475 against the escrowed funds sufficient to cover his outstanding fees. The wife opposed Bezinque’s motion.

Continue Reading Attorney's Charging Lien Enforced Against Child Support Arrears

The third of four decisions this month with an international context was decided by New York County Supreme Court Justice Manuel J. Mendez.

In Bond v Lichtenstein (pdf), decided July 15, 2014, Justice Mendez granted a mother summary judgment in lieu of complaint under C.P.L.R. §3213 domesticating a $570,110.05 Hong Kong judgment for child support arrears.

The parties lived together for approximately one year beginning in April of 2006. The mother is a citizen of the United Kingdom and the father is a citizen of the United States. Not long after the mother found out she was pregnant, the relationship fell apart, and by April of 2007, the parties had separated.

On August 31, 2007, their female child was born in England. The mother currently resides with the daughter in Hong Kong and with another man.

On November 21, 2008, the mother commenced child support and paternity proceedings in England. There was a trial and resulting December 3, 2010 Support Order from the High Court of England.

The parties then entered into a consent summons for the purpose of obtaining a “mirror order” in Hong Kong reflecting the support obligations obtained by the mother in England and vacating the English Order. In November of 2012, the father submitted to jurisdiction in Hong Kong for obtaining the “mirror order” and resolving other related issues.

In May of 2013, the proceeding brought before the High Court of Hong Kong resulted in a four-day trial concerning child support. The father appeared for the trial by video. He submitted evidence and was represented by attorneys. On June 28, 2013, the High Court of Hong Kong, by Deputy High Court Judge, Bebe Pui Ying Chu, rendered an 87-page Opinion.

Continue Reading Melting Pot (Part 3 of 4): Domesticating the Foreign Child Support Judgment

The “Voluntary Payments” clause of the parties’ divorce stipulation of settlement prevented an ex-husband from using his non-required payments as an offset against his unpaid obligations. So held the First Department in its January 28, 2014 decision in Trepel v. Trepel. Doing so, the appeallate court affirmed the order of New York County Supreme Court Justice Lori S. Sattler that had awarded the ex-wife $38,994 in arrears for unpaid cost-of-living increases in child support and distributive award interest, plus $2,500 in counsel fees.

The “Voluntary Payments” clause provided that “[a]ny payments made by either party to the other . . . shall not alter that party’s legal obligations hereunder (except to the extent it discharges or satisfies such obligations), nor create any precedent for the future.”

The First Department held that this clause clearly and unambiguously expressed the intent of the parties. Since the payments to the ex-wife that the ex-husband was not obligated to make, however generous, did not satisfy any of his obligations under the stipulation, he remained liable for the unpaid COLA increases and distributive award interest required by the stipulation.

A July 12, 2013 decision of Justice Sattler in this matter held that the fact that the father set his daughter up with her own apartment when not away at college could not be used by the father as a basis to discontinue making child support payments to the mother. That decision in Trepel v. Trepel, was the subject of my July 24, 2013 blog post. It is not stated whether the payments for the apartment were the voluntary payments made by the ex-husband which could not be used to offset other obligations.

Peter Bienstock, of Hennessey & Bienstock, LLP, of Manhattan, represented the ex-husband. Michael W. Appelbaum, of Grant & Appelbaum, P.C., of Manhattan, represented the ex-wife.


The emancipation of a child does not automatically result in the downward modification of an unallocated order of child support. Rather, the support payor has the burden of proving that the existing  amount of unallocated child support is excessive based on the needs of the remaining unemancipated children.

Such was the holding of the Appellate Division, Second Department, in its May, 2013 decision in Lamassa v. Lamassa.

In this case, the parties had entered into a stipulation of settlement of their divorce action that was read into the record. Then when the parties eldest child turned 18, the father unilaterally, and without a court order, reduced his child support payments. He then further reduced the amount of the support payments each time one of the parties’ remaining three children reached the age of 21 years.

Only then did the father move, in effect, to reduce the amount of child support payments and to cancel child support arrears accruing before that application.

At the hearing before Supreme Court, Richmond County Court Attorney/Referee Fay M. de Grimston, the father testified that as each of the children reached 21 years of age, he reduced the amount of support payments. He claimed that the mother had accepted the checks from him without objecting orally or in writing. The mother denied that she agreed to a reduction of the support payments. She claimed that she did not receive any checks directly from the father, but rather from the children. She asked the children to tell the father that the amount was wrong.

The mother also testified about an (unspecified) attempt to enforce the child support obligation. In addition, three of the parties’ children also testified and stated that the support checks were given to them to pass on to their mother; and that they never saw the father give checks directly to the mother (two of the children were still living with the mother at the time of the hearing).

The Referee concluded that the father was not entitled to a reduction in the amount of the support payments, or to cancellation of support arrears. The father had unilaterally reduced his support payments without court order, but had not provided credible proof of an oral agreement to modify the support obligation.

Affirming the determination that the father was not entitled to retroactive relief, the Second Department held that the father was not entitled to a reduction of the amount of child support payments, or a cancellation of child support arrears:

When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children. In addition, a party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children.

Continue Reading Emancipation Of One Child Does Not Automatically Result in a Downward Modification of Unallocated Child Support

Two decisions within the last 10 days confirm the need for agreements relating to support to be in (an acknowledged) writing, and then incorporated in a court order.

In one, the Second Department affirmed the award of maintenance arrears without a hearing despite the claimed reduction of maintenance under an oral modification of the parties’ separation agreement. In the second, Albany County Family Court Judge W. Dennis Duggan directed a father to pay 71% of his older son’s private middle school expense, despite the mother’s conceded agreement to pay the full tuition.

In its January 30, 2103 decision in Parker v. Navarra, the Second Department affirmed the award of maintenance arrears by Dutchess County Supreme Court Justice James V. Brands. The ex-husband alleged that he and his ex-wife had orally modified the maintenance provisions of their separation agreement and, alternatively, that the ex-wife should be equitably estopped from enforcing the maintenance provisions of the separation agreement. The ex-husband had requested an evidentiary hearing so that he could present the testimony of witnesses on those issues. Justice Brands denied the request for an evidentiary hearing, awarding arrears on the basis of the parties’ submissions.

The Second Department affirmed, noting that the ex-husband failed to make a showing sufficient to entitle him to a hearing on this issue:

Where, as here, the parties’ separation agreement contains a provision that expressly provides that modifications must be in writing, an alleged oral modification is enforceable only if there is part performance that is unequivocally referable to the oral modification. The defendant did not demonstrate that the plaintiff’s acceptance of reduced monthly maintenance payments was unequivocally referable to an alleged oral modification by, for example, demonstrating that consideration was given in exchange for the plaintiff’s alleged oral agreement to accept reduced maintenance payments.

Moreover, to establish a defense of equitable estoppel, the ex-husband was required to have shown that the ex-wife’s conduct induced his significant and substantial reliance upon an oral modification. Again, the ex-husband was required to have shown that the conduct relied upon to establish estoppel was not otherwise  compatible with the agreement as written.

Continue Reading Support Modification Agreements: Get’em in Writing; Get’em into Court (Part II)

Bigamy.jpgDistinguishing the 2009 Court of Appeals decision in Mahoney–Buntzman v. Buntzman, the Second Department, in its October 24, 2012 decision in Levenstein v. Levenstein, has held that if marital funds are used to pay pre-marital support arrears, the non-obligated spouse may be awarded a credit towards equitable distribution.

In 1995, before the current marriage, Mr. Levenstein was convicted in the United States District Court for the Eastern District of Virginia, for the failure to pay child support (see 18 USC § 228). Incident to the criminal conviction, he was directed to pay arrears of $132,718.49 to his first wife by July 13, 1995. Mr. Levenstein failed to fully satisfy that obligation by that deadline.

Thereafter, the husband remarried twice. The second remarriage took place four years after the criminal conviction, but before the husband secured a divorce from his second wife. During the purported third marriage, the husband paid the remainder of his criminal restitution obligation, and made additional child support payments to his first wife that became due during the purported marriage.

In 2006, the third wife sought an annulment for bigamy. In 2008, grounds were established and a trial was held to determine the apportionment of the putative marital debt. In a decision dated February 25, 2009, now-retired Rockland County Supreme Court Justice Alfred J. Weiner awarded the wife a credit of 50% of the marital funds used to satisfy premarital maintenance and child support obligations that the defendant had paid to his first wife, including the amounts due under the criminal judgment. A judgment of annulment was entered in April, 2009.

One month later, in May, 2009, the Court of Appeals held in Mahoney–Buntzman v. Buntzman (12 N.Y.3d 415) that a spouse is not entitled to a credit for marital funds paid to a former spouse or a child pursuant to an order of maintenance or child support.

Based on Mahoney–Buntzman, Mr. Levenstein moved for a reconsideration of the decision which had granted the 50% credit. Justice Weiner granted the husband’s motion and denied the credit. The putative marital debt was reapportioned accordingly.

On appeal, the Second Department reinstated the credit. The appellate court noted that in Mahoney–Buntzman, the wife had sought credit for maintenance payments made to the husband’s former spouse that had become due and were paid during the marriage. In holding that such payments were not subject to recoupment by the wife, the Court of Appeals reasoned that maintenance obligations to a former spouse and to children pursuant to a support order “are obligations that do not enure solely to the benefit of one spouse.” Nevertheless, the Court of Appeals cautioned:

This is not to say that every expenditure of marital funds during the course of the marriage may not be considered in an equitable distribution calculation. … There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse’s separate property.”

Continue Reading Payment of Husband's Pre-marital Support Arrears Results in Equitable Distribution Credit to the Wife

canceled stamp.jpgIs it proper, at the conclusion of a divorce action, to offset pendente lite child support arrears against the support obligor’s right to receive a share of the custodial parent’s pension or other deferred compensation plan assets?


That question was apparently answered in the affirmative by the Appellate Division, Third Department, in its October 25, 2012 decision in Bennett v. Bennett.


At the conclusion of the divorce action, the wife moved to amend the Judgment of Divorce, among other things, to clarify that she was allowed to offset her arrears in child support payments to the husband against payments owed to her from husband’s pension. Saratoga Supreme Court Justice Thomas D. Nolan Jr. granted that motion and the husband appealed.


The Third Department upheld the authority of Justice Nolan to amend a divorce judgment to “cure mistakes, defects and irregularities that do not affect substantial rights of [the] parties.” This authority included the authority to amend “a judgment to make it reflect what the court’s holding … clearly intended.”


Here, the original judgment provided that the sums owed for the pension payments “may be off-set against” the wife’s child support arrears, reflecting the language in Justice Nolan’s prior decision and order. When the husband objected to his wife’s attempt to claim the offset, Justice Nolan amended the judgment to provide that wife “shall be entitled” to the offset.


The Third Department held that the amended judgment appropriately clarified the intent of the Justice Nolan’s original holding. In doing so, the appellate court noted, Justice Nolan did not affect the amount of child support owed by plaintiff or the amount of the husband’s pension to which the wife was entitled. Thus, no substantial rights of the parties were altered.


The appellate decision does not contain enough facts to fully understand its impact or rationale.


First, it would appear that the wife was allowed to offset an after-tax obligation with pre-tax dollars. Child support is neither deductible to the payor, nor taxable income to the payee. The payor pays the child support arrears with after-tax dollars. The payee gets to keep the entire amount without incurring tax obligations.


Allowing an offset of child support arrears against a pension changes that.  For the wife to pay $1,000 in child support, in all probability she would have to earn more than that, say $1,300, and then pay $300 in Social Security, Medicare and income taxes. On the other hand, with an offset, the husband does not now receive the $1,000 in child support arrears to which he and the children are entitled. Rather, he gets to keep $1,000 in pension benefits. When he takes that $1,000 in pension benefits, that sum will be reduced by the taxes he has to pay. Thus, “substantial rights of the parties” would appear to have been altered by the offset.


Moreover, the Third Department, itself, previously recognized the inequity of allowing the child support obligor to offset arrears against assets (or by assuming liabilities). In Koren v. Koren, 279 A.D.2d 829, 719 N.Y.S.2d 347 (2001), the Third Department stated:


[T]there is a strong public policy against the use of a parent’s child support obligation as an offset in resolving other financial issues related to equitable distribution in the absence of consent by the custodial parent and a determination by the court that the child’s needs will be met. To be clear, such financial issues should not be resolved in this manner at the expense of the children. . . . In our view, using child support obligations in this manner as an offset . . . obligations effectively canceled the child support arrears to which plaintiff and the child were entitled.


To resolve these issues, it should not be the option of the parent in arrears in the payment of child support to offset the arrears against a right to receive property being distributed. The parent entitled to receive the child support should be given the choice.