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

Under appropriate circumstances, post-divorce spousal support may last much longer than the marriage itself. So held the Appellate Division, Second Department, in its September 2019 decision in Murphy v. Murphy.

The parties were married in 2004. They had no children together. Prior to the marriage, the wife was diagnosed with multiple sclerosis.

In 2013, after 8½ years of marriage, the wife commenced this action for a divorce. After three years, the parties were able to enter a stipulation resolving the issue of equitable distribution. The issue of maintenance was tried before Supreme Court, Suffolk County Justice Carol MacKenzie. At the time of trial, the wife was 42 years old and the husband 47.

The critical issue presented was whether the wife was capable of working, and if so, in what capacity, as a result of the symptoms that she alleged she experienced due to multiple sclerosis. Justice MacKenzie concluded that the wife was incapable of maintaining employment. The wife was awarded maintenance of $10,760 per month terminating 25 years after trial when the wife turned 67 years old.Continue Reading Love, Honor and Support

It took nine years to affirm a five-year maintenance award. In an April 24, 2019 decision of the Appellate Division, Second Department, the Court in Rogowski v. Rogowski affirmed a March, 2010 divorce judgment under which the wife was awarded maintenance for five years of $2500 per month plus 60% of the husband’s annual employment bonus in excess of $14,200. The action for divorce had been commenced in 2008.

The Court held that held that Nassau County Supreme Court Justice Arthur Diamond did not improvidently exercise his discretion when determining the amount and duration of maintenance. The Court emphasized the parties agreed that the wife would quit work and care for the children, and the parties’ respective incomes and future employment prospects.Continue Reading Maintenance Award of 60% of Annual Bonus Is Affirmed

Ketuba- is a special type of Jewish prenuptial agreement. It is considered an integral part of a traditional Jewish marriage, and outlines the rights and responsibilities of the groom, in relation to the bride. Nevertheless, there is no agreement in modern times as to the monetary worth of the ketubah, and in practice it is never enforced

Imposing a higher maintenance obligation on an Orthodox Jewish husband who refused to give his wife a religious divorce (“Get”) would violate constitutional protections. So held Orange County Acting Supreme Court Justice Catherine M. Bartlett in the January 13, 2017 decision in Masri v. Masri.

The parties married in 2002, separated in 2007 and have lived separate and apart since that time. They have 14 and 11 year-old children, the older one being disabled. The wife commenced the present action for a no-fault divorce March 8, 2016.

Since the separation, the wife has attempted without success to secure from the husband a “Get”, which she requires under Jewish law in order for her to remarry. The husband refused to participate in proceedings in 2012 before a Rabbinical Court, asserting that the wife had waived her right to rabbinical arbitration by previously going to a secular court (the divorce judgment in which had been vacated). The Rabbinical Court advised the husband that he had no power to decide the issue of the wife’s alleged waiver on his own, and was required to arbitrate that issue before the Rabbinical Court. The husband refused to comply, whereupon the Rabbinical Court declared him to be a “Rabbinical Court evader.”Continue Reading Unconstitutional to Consider Husband’s Refusal to Give Religious Divorce (Get) When Granting Support

Social Security CardTwo decisions this month of the Appellate Division, Second Department, tied the termination of post-divorce spousal support (“maintenance”) to a specific ages: 65 in Duval v. Duval; and 62 in Sansone v. Sansone.

In Duval, after 20 years of marriage, the wife commenced her action for divorce. The decision reports that “both parties are 56 years old.” During the course of their marriage, the parties had two children, one of whom was emancipated. In 1992, shortly before the birth of their first child, the husband became the sole source of financial support for the family. The wife was a stay-at-home mother prior to the commencement of the action. In approximately 1999, the wife’s father, an insurance agent, retired, and the husband took over his father-in-law’s insurance agency [how important is this fact to the decision?].Continue Reading Tying Maintenance to Social Security

Calulator on 100s 6 redUntil the amendment of the Child Support Standards Act effective January 24, 2016 (D.R.L. §240[1-b][b][5][iii][I]; Laws of 2015, c. 387, §3), the rule had been that when a divorce court awards maintenance to a spouse, the amount of annual maintenance is to be deducted from the payor’s income when calculating parental income. However, for those same C.S.S.A. calculations, maintenance was not to be added to the recipient’s income. Thus, for example if in its award, a divorce court awarded a wife (the custodial parent) who had no other income $60,000 per year in maintenance from a husband earning $250,000 per year, the husband’s income for C.S.S.A. purposes would equal $250,000 less FICA, Medicare, and the $60,000 in maintenance, but the wife’s income would still be $0.

The recent amendment changed that anomaly. Effective January 24, 2016 , the alimony or maintenance actually paid or to be paid to a spouse is to be added to the income of the recipient when calculating parental income.

Although it does not expressly so state, it has been held that this amendment is to be applied to cases commenced on or after January 24, 2016, and not to cases commenced before that date. R.I. v. T.I., 2016 NY Slip Op 50664(U), 51 Misc. 3d 1215(A) (Sup. Ct. Kings 2016); C.G. v. F.G., 2016 NY Slip Op 26220, 53 Misc. 3d 229, 235-36, 34 N.Y.S.3d 882, 887-88 (Sup. Ct. Richmond 2016).

Until the amendment, the rule had been that it was error to include maintenance awards as income to the recipient when computing the child support obligation. Krukenkamp v. Krukenkamp, 54 A.D.3d 345 (2nd Dept. 2008); Wallach v. Wallach, 37 A.D.3d 707, (2nd Dept. 2007); Shapiro v. Shapiro, 35 A.D.3d 585 (2nd Dept. 2006); Lee v Lee, 18 A.D.3D 508 (2nd Dept. 2005).

In its November 9, 2016 decision in Castello v. Castello, the Second Department ruled differently. In that case, the court modified a 2013 divorce judgment by changing the child support calculation.Continue Reading The Effect of Spousal Support on Child Support: Did the Second Department Jump the Gun?

In its August 24, 2016 decision in Maddaloni v. Maddaloni, the Appellate Division, Second Department, upheld the rulings of Supreme Court Suffolk County Justice Justice Carol Mackenzie that invalidated the all-but-complete maintenance waiver contained in a 23-year-old postnuptial agreement, awarding the wife maintenance for 10 years. The appellate court also upheld Justice Mackenzie’s award to the wife of 25% of the $2,000,000 appreciation during the marriage in the value of the husband’s pre-marital business, Maddaloni Jewelers of Huntington.

The Maddalonis were married in January, 1988. At the time of the marriage, the husband owned several cars, a house, and a jewelry business, and he was in contract to buy a shopping center. On August 22, 1988, less than eight months after the parties were married, they experienced marital difficulties and entered into a postnuptial agreement. Among other things, this agreement provided that, in the event that the parties divorced after the first five years of marriage, the wife agreed to accept the sum of $50,000, payable in five equal annual installments of $10,000, “in full satisfaction of any and all claims of whatsoever kind and nature she may have at that time for past or future support or for distribution of assets.”Continue Reading Maintenance Provision of Postnuptial Agreement Voided; Wife Awarded 25% of Appreciation of Husband’s Premarital Business

Mendel EpsteinAccording to Jewish law, God prescribed both the way to unite souls in marriage and gave instructions how those souls can be severed. While Jewish law requires one to follow the law of the land, and thus a civil divorce is required, that civil divorce cannot serve as a substitute for a halachic (conforming to the strictures of Jewish law) divorce, the “get.” Without a get, no matter how long the couple is separated, and regardless of civil law documents, in the eyes of Jewish law the couple is still married. As reported at Chabad.org:

“According to biblical law, a married couple is released from the bonds of matrimony only through the transmission of a bill of divorce from the husband to the wife. This document, commonly known by its Aramaic name, “get,” serves not only as a proof of the dissolution of the marriage in the event that one or both wish to remarry, it actually effects the divorce.”

To appreciate the scope of the problem, note, for example, that in December, 2015 70-year old Rabbi Mendel Epstein of Brooklyn (pictured), dubbed “The Prodfather,” was sentenced to 10 years in jail after he was convicted of charging wives thousands of dollars to torture their husbands into delivering a get. See, NY Daily News.

In 1983, New York enacted Domestic Relations Law §253 to address husbands who withhold the get. That section, in combination with DRL §236(B)(5)(h), and DRL §236(B)(6)(d) empowers a court to direct specific performance of a Ketubah (the marriage contract) or other agreement by which a husband previously agreed to provide a get to his wife. Civil contempt sanctions are available for non-compliance. Additionally, for withholding a get, the court may deny a husband any right to equitable distribution of the marital estate and/or award the wife maintenance at a level designed to encourage compliance. If the husband is the plaintiff, the court may also deny him a civil divorce.

In its April 13, 2016 decision in Mizrahi-Srour v. Srour, the Appellate Division, Second Department, affirmed Kings County Supreme Court Justice Esther M. Morgenstern‘s award to the wife of maintenance of $100 per week for five years, which would be increased to $200 per week if the husband did not provide a get to the wife within 60 days, and also distributed to the wife 70% of the marital assets, and awarded counsel fees.Continue Reading What’s the Court's Dollar Value for a Religious Divorce (“Get”)?

It Need Not Be Rocket Science
It Need Not Be Rocket Science

A business, professional practice, or (until recent statutory amendments) license may be valued as a asset for divorce purposes based upon the amount of income it generates for the owner/holder. That asset may then be equitably distributed by granting the non-owner a monetary award equal to some percentage of the value.

Double-dipping, or double-counting, is the term for using the same stream of income both to value the business/practice, and then, after distributing an award to the non-owner based on the asset’s value, using the stream of income generated by the business/practice to base an award of spousal support (or child support, for that matter). If the non-owner spouse receives a “piece” of the income stream as an asset award, should the spouse get another piece as spousal support (maintenance)?

The “law” is yes, no and maybe. There is a rule against double-dipping, except when there’s not.

For the most part, if the business/practice is recognized as a “tangible asset,” just as the court would characterize a piece of real property, or publicly-traded stock, or a privately-held company whose income is a result of the work of many people, then it is generally held that the rule against double-dipping does not apply. The non-owner would get a distributive award based on the asset. Maintenance may also be awarded based upon the income generated by the tangible asset business. The rule against double-dipping rule does not apply.

If however, the business value is recognized as an “intangible asset,” then the rule against double-dipping applies, and the same stream of income may not be twice used.Continue Reading Double Dipping and the Distinction Without a Difference

As of January 31, 2016, the “income cap” for maintenance is $178,000.

The presumptive final maintenance formula on the first $175,000 of the payor’s annual income only just came into effect 6 days before that, for cases filed on or after January 25, 2016 (New York’s Laws of 2015, chapter 269 (D.R.L. §236[B][6][b][4]). For temporary maintenance, the $175,000 income cap under D.R.L. §236(B)(5-a)(b)(4) became effective for cases filed after October 24, 2015.

The Cost of Living Adjustment (COLA) to the $175,000 income cap is to be made every two years:

“[B]eginning January thirty-first, two thousand sixteen and every two years thereafter, the income cap amount shall increase by the sum of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the prior two years multiplied by the then income cap and then rounded to the nearest one thousand dollars. The office of court administration shall determine and publish the income cap.”

However, the income cap for child support purposes is still the $141,000 that has been in place since January 31, 2014.

Why? Because under New York’s Laws of 2015, chapter 347, Social Services Law §111-i was amended to change the COLA date from January 31st to March 1st. The child support cap will remain $141,000 until March 1, 2016.Continue Reading Cost of Living Adjustments to the Maintenance and Child Support Formulas