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

Woman Tearing Up Documents in a Restaurant

Obstreperous may be defined as stubbornly resistant to control. In divorce litigation, sometimes it just doesn’t pay to be difficult.

In its decision of March 22, 2022, the Appellate Division, First Department in Gorman v. Gorman, upheld the lower court’s determination that the wife waived her interest in the shopping center by her refusal to sign an assignment agreement as required.

incident to the divorce, the wife was to have received half of the marital interest in RS Shopping Center Associates LLP. The judgment of divorce provided that the wife was to sign an assignment agreement to equally divide the marital interest. However, the wife refused to agree to the terms of that assignment agreement.

By Order entered May 27, 2021, New York County Supreme Court Justice Michael L. Katz determined that the wife would forfeit her interest in the shopping center unless she executed the assignment agreement as previously directed within five days of notice of entry. By Order entered August 3, 2021, Justice Katz denied the wife’s motion seeking a declaration that she complied with that prior order. Instead, Justice Katz granted the husband’s cross-motion finding that the wife waived her interest in shopping center by her refusal to sign the assignment as required by the court’s prior order.

Jason Advocate, counsel for the husband, reports that the wife had objected to the partnership’s requirement that the wife provide a general release of claims as a condition to the assignment. After the first motion was filed by the husband, the wife signed the assignment. However, when returning it to the partnership’s counsel, she wrote that she had signed under duress. She refused to re-sign it.

Award of Counsel fees vacated:

The First Department also held that it was a proper exercise of Justice Katz’s discretion to deny a counsel fee award to the wife who was acting pro se, “given the equities and circumstances of this case, including the relative merits of the parties’ positions” and given the provisions of Domestic Relations Law §237(a). However, the appellate court vacated the lower court’s award of counsel fees to the husband. There was no written decision below setting forth the conduct of the wife on which it would be proper to impose and award of attorneys’ fees as a sanction. An award of counsel fees cannot be imposed only to punish a party for litigation conduct.

Advocate, LLP, of Manhattan, represented the husband. On the appeal, Scott T. Horn, of Mischel & Horn, P.C., of Manhattan, represented the wife.

Drafting divorce settlement agreement provisions to dispose of the marital home is not easy. Anticipating how things will play out can be very difficult.

In some cases, one spouse may be remaining in the home with the children for a stated period of time, or until a stated event (such as the children’s graduation). How are bills to be paid in the interim? Will either spouse be entitled to credits?

What will be the procedures when the time/event happens? At the end of that period of “exclusive occupancy” (or perhaps immediately), the parties will be selling the home. Alternatively, one party may want to buy out the other. If the home is to be sold to a stranger, how is the broker to be selected, if there is to be one? How is the initial listing price determined? Must a certain bid be accepted? What happens if there are no bids?

If one spouse wants to buy out the other, how is the other’s interest to be valued? Should the amount of a broker’s commission be factored in? May one spouse have a “right of first refusal,” the right to match a bid from a third party? How will that work?

Take the April 28, 2022 decision of the Appellate Division, Third Department, in Martin v. Martin. There, the parties’ 2012 divorce settlement agreement granted the husband the right to buy out the wife’s interest. The agreement provided that if the husband elected that option, the parties would obtain three appraisals, The husband would pay the wife half the “mean” (average) of those three appraised values minus a commission.

Continue Reading Agreements to Dispose of Marital Home Interests

Man using calculator

Child support overpayments, resulting from the retroactive application of a reduced child support award, may be recouped against future add-on expenses of the children. So held the Appellate Division, First Department, in its March 31, 2022 decision in Castelloe v. Fong.

That decision affirmed an Order of New York County Supreme Court Justice Michael L. Katz, which in turn confirmed the award of a Special Referee.

The appellate court upheld the Referee’s decision to impute $250,000.00 in annual income to the father. The Court also upheld the Referee’s decision to use a $250,000.00 cap to calculate the father’s child support obligation of $3,333.33 per month ($40,000.00 per year), finding that it was sufficient to meet the children’s “actual needs” to live an “appropriate lifestyle.” The trial evidence reflected the parties’ comfortable upper-middle-class lifestyle and that both parties had significant financial resources to support the use of a $250,000 cap.

Continue Reading Overpayment Of Child Support May Offset Future Add-on Expenses

The mother had refused to agree to the vaccination of the children, resulting in one child being prohibited from school. In a March 30, 2022, decision in Matter of Soper v. Soper, the Appellate Division, Second Department, affirmed the modification of a custody stipulation to give the father sole decision-making authority with regard to the children’s medical care.

The parties were the formerly-married parents of three children. Pursuant to their 2018 custody and parental access stipulation that was incorporated but not merged into their 2019 judgment of divorce, the parties agreed to joint legal custody of the children. They agreed to defer medical decisions for the children to specified pediatricians.

Continue Reading Refusal to Vaccinate Children Results in Change of Decision-Making

Is resolving a disagreement between parents as to whether to vaccinate a child against Covid too “political” to be decided? Three recent decisions tackle this issue. The Court may shield itself from making the bottom-line decision by deciding which parent should decide.

Should deciding who will be the decision-maker be the rule when parents disagree; or should parents be able to turn to the courts for the answer to one question without changing how they will make decisions on other questions in the future?

In other contexts, judges have been tasked with making literal life-and-death decisions. On occasion, they must decide whether to override the parents’ decision to discontinue life-sustaining treatment of their terminally ill minor child. See, Matter of DH,  15 Misc. 3d 565, 834 N.Y.S.2d 623 (Sup. Ct. Nassau Co. 2007). In Matter of Matthew V. (Lynette G.), 59 Misc. 3d 288, 68 N.Y.S.3d 796 (Fam. Ct. Kings Co. 2017), the Court transferred decision-making authority from the mother of a 14-year-old child to the child services agency for the purpose of consenting to chemotherapy treatment to which the mother was opposed.

However, there seems to be a different approach to resolving parental conflicts because of the current political climate.

Continue Reading To Vaccinate Or Not To Vaccinate — That Is The Question . . . But Will A Court Answer It?