Brooklyn Supreme Court Justice Jeffrey S. Sunshine‘s December 19, 2011 decision in Tawil v. Tawil resolved the application of a second wife (now involved in her own New York County divorce action) to join in the post-divorce judgment proceedings between her husband and his first wife.
Justice Sunshine gave away the ending as he detailed the parties’ background.
Mary Tawil (W#1) and her ex-husband, Evan Tawil were divorced on October 24, 2001. Justice Sunshine pointed out that just four days later, Mr. Tawil married his second wife (W#2). Justice Sunshine also noted that W#2 was the daughter of an attorney who had represented Mr. Tawil on a prior post-judgment contempt enforcement application brought by W#1.
Mr. Tawil and W#1 have two unemancipated children. Mr. Tawil and W#2 also have two unemancipated children.
On October 15, 2010, three days after New York’s no-fault divorce law went into effect, Mr. Tawil commenced a New York County action for divorce against W#2. In that action, Justice Ellen Gesmer granted W#2 pendente lite relief. By July, 2011, W#2 was seeking a money judgment for $186,000 in support arrears.
Mary Tawil’s (W#1) current application was to hold Mr. Tawil in contempt for the alleged failure to pay some $57,000 in tuition for his children with W#1. W#1 also sought to restrain her former husband from disposing or encumbering the apartment in which W#2 and her children were living, the jewelry Mr. Tawil gave W#2, certain artwork, and to restrain Mr. Tawil from making certain payments towards mortgages and leases.
It was into that proceeding that W#2 wanted to intervene. She claimed that if Justice Sunshine was going make rulings that were going to have effects on her apartment, jewelry, artwork, and other property, she wanted to be heard.
Justice Sunshine said no. Any final determination of W#1’s applications would solely apply to Mr. Tawil and to his assets. As such, it could not be said that any final determination in Brooklyn would inequitably impact the “current” Mrs. Tawil. W#2 will not be bound by any final determination resulting from W#1’s applications against Mr. Tawil. W#2 may assert any claim she may have against Mr. Tawil in the New York County proceeding irrespective of the ultimate determination made regarding W#1’s applications.
On the other hand, the Court noted that if a pendente lite sale of assets were to be permitted in the New York County action, Mary Tawil (W#1) must take priority. Mr. Tawil’s obligation to his first family as a matter of law and equity must come first.
Here, the current Mrs. Tawil’s attempt to race to the courthouse to obtain a judgment cannot be used to defeat the strong public policy in favor of priority to support a first family. This is especially true where the current spouse knows, or should have known, of the any [sic] financial obligations existing to the first family.
New York’s highest court made it clear in 2009 that second spouses accept the “baggage” that comes along with the “used” spouse. In Mahoney–Buntzman v. Buntzman, the Court of Appeals held that a spouse was not entitled to a recoupment credit for maintenance payments made by the other spouse to his prior spouse. A divorce trial is not to look back to adjust the asset division because one spouse was paying child support or maintenance throughout the marriage.
[T]he current Mrs. Tawil was, or should have been, fully cognizant that the plaintiff had financial obligations to a first family and, as such, she cannot credibly aver that she was unaware that said obligations would decrease the income and assets available to the subsequent family she built with the plaintiff . . . . [T]he current Mrs. Tawil has no basis to claim that she will be inequitably affected by [her husband] fulfilling any court ordered financial obligations he owes to the prior Mrs. Tawil and the children of his first family.
Permitting W#2to join the Brooklyn action would not result in fairness to W#1. Her interests and the interests of W#2 are diametrically opposed. Justice Sunshine recognized that permitting W#2 to join the Brooklyn proceeding would almost certainly cause substantial prejudice to W#1 and the children of the plaintiff’s first family, delaying and making unnecessarily complex W#1’s post-judgment enforcement application (this was the 15thpost-judgment application since mid-2001 in the Brooklyn action; there have been 11 motions made in 2011 in the New York County action.)
Note: If a second spouse-to-be wants prior familial obligations to be taken into account in the event of the termination of the second marriage, such should be made the subject of a pre-nuptial agreement.