A foreign citizen wants to enter a contract to sell some goods. They would like to retain you to complete the transaction and collect the monies to be paid by the local buyer. Hundreds of thousands of dollars are involved.

I suspect that by now, every attorney has received this basic email scam (or any number of variations) at least once, if not hundreds of times.

At some point, they all end the same. The buyer sends you, the local attorney, a check or wire transfer. Upon receipt, the attorney is asked to pay the funds over to the foreign citizen. The attorney can keep a piece as a fee. After the attorney sends the net funds to the “client,” the buyer’s deposited check proves fraudulent or the wire transfer is reversed.

This month I received a new and improved version. It began with an email:

I have a divorce settlement matter with my ex-husband. I will be grateful for your assistance concerning this matter.”

I reply. I tell her my fee for a consultation.

Continue Reading Email Scammers Are Getting More Clever — Let’s Be Careful Out There!

Under the parties’ divorce settlement agreement, the parents were not obligated to share their daughter’s sorority costs whether those costs were viewed as a college expenses or as extracurricular expenses. So held Nassau County Family Court Support Magistrate Sondra M. Toscano in her July 7th decision in Matter of C.A.B. v. D.S.B.

There, the parties’ 2021 Stipulation of Settlement provided in relevant part:

The parties agree and acknowledge that they shall contribute to the costs and expenses associated with each child’s college or post high school vocational education, with the Husband paying sixty five percent (65%) of such cost and the Wife paying thirty-five (35%) of such cost. . . . [t]he educational expenses referred to as the “Cost of College Education” shall consist of tuition, room and board, required supplies by the school, required fees of the college or university, and reasonable transportation expenses for the child for (4) round trips per year.

Magistrate Toscano recognized that the parties’ agreement unambiguously listed the specific college expenses that were to be shared. Sorority costs were not one of them.

However, the Magistrate did not stop there. Instead she considered the effect of language that did not so limit the items included in “college expenses.”

Continue Reading Including “Including” in Agreements

In his June 13th decision in E.J. v. M.J., Nassau County Supreme Court Justice Edmund M. Dane resolved the complex financial issues arising when a divorce action is commenced after a child begins attending a private university, but before the child turns 21 or graduates. The fact pattern presents a blend of Equitable Distribution and child support add-on issues.

Here, the parties were married in 1997 and had two children born in 2001: a son who by the time of the decision had turned 21 and had just graduated from Quinnipiac College and a daughter with developmental disabilities for whom the parties had agreed to adult dependent support.

The wife commenced this divorce action in May 2021. The parties entered a Settlement Agreement resolving most of their issues. However, issues of their son’s college education expenses and counsel fees remained to be decided upon written submissions.

The wife alleged that in the year prior to commencement of the action, the husband signed a series of Parent Plus loans for their son, totaling approximately $141,000. She argued that the Court should consider the husband’s financial ability to contribute to those expenses, as well as the academic backgrounds of the parties and the best interests of the child. The wife further contended that if she were to be obligated to contribute to the Parent Plus loans, her obligation should be capped at a SUNY rate. The wife maintained that there was no prior agreement between the parties regarding the payment of college expenses for their child.

Continue Reading Apportioning a Child’s Pre- and Post-Divorce Action Commencement Private College Expenses

A wife commenced a New York County action to set aside three trusts created by her husband. The wife alleged that the trusts were created in an effort to ensure that the wife would be deprived of her fair and equitable share of assets in the event of a divorce. In fact, the husband had recently commenced a divorce action in Suffolk County.

In its June 20, 2023, decision in Paulson v. Paulson, the Appellate Division, First Department reversed an Order of Supreme Court New York County Justice Louis L. Nock which granted the husband’s motion to close the courtroom for oral argument on the motions to dismiss the complaint.

In the complaint, the wife had alleged that the husband funded the trusts with both spouses’ assets without the knowledge or consent of the wife. She alleged that the husband, worked in total secrecy with a cadre of hand-picked agents and advisors, to create and fund the trusts that held property now worth billions of dollars. Although the trustees had the authority to make distributions to the wife, in the twenty years since their creation, she had received nothing. Moreover, by the express terms of the trusts, upon the spouses’ divorce, the wife would automatically be eliminated as a trust beneficiary.

The wife pleaded that the husband’s actions raised an issue that was not amenable to resolution in a traditional divorce action. She contended that the complex business relationships and assets at play here and the relief sought against third-party trustees together required the commencement of two (2) separate actions: the divorce action and this action addressed exclusively to the secret trusts.

As a procedural matter, the First Department ruled that Justice Nock did not provide the public and the press adequate notice of the husband’s courtroom closure request. However, the Court also reversed on substantive grounds. “Public access to court proceedings is strongly favored, both as a matter of constitutional law . . . and as statutory imperative” Judiciary Law §4 provides:

Continue Reading No Closed Courtroom in Action to Invalidate Husband’s Billion-Dollar Trusts

In its decision this month in Vaysburd v. Vaysburd, the Appellate Division Second Department reminded us that once a parenting stipulation or order is entered, child support will not be affected until the stipulation or order is modified. This is true, even if the support award is made in the same divorce action in which the parenting stipulation was entered.

The couple, married in 1997 and had a son and a daughter. They filed for divorce in 2008. In March 2010 the parties executed a custody and parental access stipulation, agreeing on joint legal custody with residential custody going to the mother.

At some point while the divorce action remained pending, the parties’ son moved in with the father. However, the father did not move to modify the stipulation. The parties agreed to submit the child support issue on papers. The father claimed that his child support obligation should be calculated based on the statutory rate for one child (17%) instead of two (25%), as the son then lived with him.

In a 2019 order, Supreme Court Kings County Justice Eric I. Prus, rejected the father’s argument and computed the $2,096 per month child support award based on 25%. The father appealed.

The Second Department affirmed. The Court rejected the father’s contention that since the parties’ son has been living with him the court should have applied the statutory rate of 17%. Instead, the Court held that, “Without a modification of custody, the [father’s] obligation remains the same despite a de facto change of custody of the parties’ son.”

Galina Feldman of Tsiring & Feldman, P.C., of Brooklyn, represented the wife.

For 13 years, Mr. De Niro and Ms. Hightower failed to account annually for their commingled separate and marital property when making investments or acquiring assets as required by their 2004 Prenuptial Agreement (PNA). In effect, the decisions in their 2018 divorce action have now interpreted this annual accounting requirement as an agreement to forever arbitrate and not litigate the marital and separate property issues of the divorce.

In his March 15, 2023 decision in Anonymous v. Anonymous, Supreme Court New York County Justice Ariel D. Chesler directed the parties to immediately provide to the parties’ chosen accountant those 13 years of disclosures . The accountant, and not the Court, would make the separate/marital property determinations. In doing so Justice Chesler applied the 2021 Appellate Division affirmance of a 2021 Order of now-retired Justice Matthew F. Cooper.

Continue Reading Lessons to be learned from the De Niro/Hightower divorce and prenuptial agreement

What is the significance in a divorce settlement agreement of the parents’ decision to apply the child support formula to all of the parents’ income in excess of the statutory “cap?” How will such an agreement affect a subsequent modification proceeding?

Such was the issue addressed in last week’s decision of the Appellate Division, Second Department, in Matter of Monaco v. Monaco, 2023 NY Slip Op 01091, 2023 N.Y. App. Div. LEXIS 1093, 2023 WL 2290584 (2nd Dept. 2023).

The parties were married in 1996 and have three children. In 2013, the parties executed a stipulation of settlement that was incorporated but not merged into their judgment of divorce. The agreement fixed the father’s biweekly child support obligation at $1,618.02. In doing so, the parties had agreed to apply the 29% Child Support Standards Act (C.S.S.A.) statutory percentage to their total combined parental income of $185,980.

In September 2020, the father filed a petition seeking a downward modification and the mother filed a petition for an upward modification. By order dated December 3, 2021, Support Magistrate Darlene Jorif-Mangane granted the father’s petition. The Magistrate found that the parties’ combined parental income was $251,708.46 and exceeded the then statutory cap of $154,000.00. The father’s child support obligation on the combined parental income up to the statutory cap was the sum of $1,220.00 biweekly for 3 children, and $1,051.00 biweekly for 2 children [1 child having been emancipated prior to the hearing].

Continue Reading The effect of divorce settlement agreements on child support modification proceedings

The petitioner, a resident of Bronx County who was born in the State of Georgia, asked the Court for orders reflecting “their” name and sex designation changes, on petitioner’s New York identification, as well as on their Georgia birth certificate.

In his July 19, 2022, decision in Matter of N.K., New York City Civil Court Judge Jeffrey S. Zellan granted the petition to change the name on the New York State and City -issued identification, as well as on the petitioner’s Georgia birth certificate.

Judge Zellan also granted the application to change the sex designation on any and all New York State and City-issued identification from “female” to the gender-neutral, non-binary gender designation of “X.” The New York aspects were covered under Civil Rights Law §§63, 67 and 67-a.

Continue Reading Court authorizes change of name and gender-neutral designation on NY and Georgia identification

Two days before the parties were married in February, 2011, they executed a prenuptial agreement. In it the wife accepted an agreed-upon maintenance provision. The husband commenced a divorce action in 2019. The wife counterclaimed, seeking an award of maintenance and a judgment setting aside the agreement as invalid.

The husband moved for summary judgment requesting the court deem the agreement valid. The wife opposed the husband’s motion and cross-moved for an award of temporary maintenance and counsel fees. Acting Clinton County Supreme Court Justice Keith M. Bruno partially granted the husband’s motion and dismissed the wife’s second counterclaim disputing the validity of the agreement. Justice Bruno also denied her cross-motion seeking temporary maintenance.

In its June 9, 2022 decision in Spiegel v. Spiegel, the Appellate Division, Third Department, reversed, finding various issues of fact raised by the circumstances surrounding the execution of the agreement that precluded an award of summary judgment. The Court reported the wife’s allegations concerning the husband’s controlling conduct leading to the execution of the prenuptial agreement. The Court concluded:

We find that the foregoing facts, if established, raise issues concerning whether the wife was meaningfully represented during the abbreviated negotiations, and also raise an inference that the husband did not intend on engaging in a good faith negotiation of the agreement from the outset, which, if true, would be sufficient to establish overreaching on his part.

The Court also found that the wife was improperly denied temporary maintenance, invalidating the maintenance provision of the agreement for failing to comply with the requirements of Domestic Relations Law former §236(B)(5-a)(f).

Continue Reading Temporary maintenance provisions in prenuptial agreements entered 2010 to 2015 must contain CSSA-type formula recitation