contract ripped by angry woman.jpgIn its December 5, 2012 decision in Petracca v. Petracca, the Second Department affirmed the decision of Nassau County Supreme Court Justice Jeffrey S. Brown that set aside a postnuptial agreement due to the husband’s overreaching at the time of signing.

Four months after the parties’ 1995 marriage, they entered into a postnuptial agreement. The agreement provided that the jointly-owned marital residence, which had just been purchased for approximately $3.1 million and which was subsequently renovated at a cost of between $3 million and $5 million, was the husband’s separate property.

The agreement further provided that if the parties divorced, the wife, who had not been employed other than as a homemaker since just before the marriage, would waive her interest in any business in which the husband had an interest, including any appreciation in the value of such interests accruing during the marriage. At the time the agreement was entered into, the husband valued his interests in these business entities at over $10 million. The wife also waived any and all rights she had to the husband’s estate, including her right to an elective share. At the time the agreement was entered into the husband valued his net worth at more than $22 million.

Finally, the agreement provided that if the parties divorced, the wife would waive maintenance, except in the sum of between $24,000 and $36,000 per year, for varying lengths of time, depending on the duration of the marriage.

In 2008, the wife commenced this action for a divorce. In his answer, the husband sought enforcement of the postnuptial agreement. A hearing was held to determined its validity.

The wife testified that her husband had bullied her into signing agreement, shortly after she had suffered a miscarriage, by threatening that they would not have any children and that the marriage would be over if she did not sign. The wife further testified that she signed the agreement within days of receiving it and, although she reviewed some portions of it, she did not understand its terms and did not consult an attorney. At the hearing, the wife also demonstrated that the statement of the husband’s net worth contained in the agreement was inaccurate at the time it was made, and was undervalued by at least $11 million.

For his part, the husband denied any knowledge of his wife’s miscarriage. He had wanted the postnuptial agreement in order to protect his son from a prior marriage. The husband testified that the parties had discussed the issue of entering into a postnuptial agreement prior to the marriage and that they had negotiated the postnuptial agreement over the course of many weeks.

The husband’s attorney drafted the agreement. Although she had not disclosed the name, the husband believed that his wife had consulted with her own attorney.

Continue Reading Postnuptial Agreement Vacated for Overreaching 16 Years After Entry

Calulator on 100s 3.jpgTwo decisions last month of Queens County Supreme Court Justice Pam Jackman Brown provide insights on how courts might cope with the overlap of the statutory temporary maintenance formula and the payment of marital residence carrying charges.

Yesterdays blog reported upon the Second Department’s November 21, 2012 agreement in Woodford v. Woodford with the First Department in Khaira v. Khaira that the statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse.

In the November 5, 2012 decision in Liebman v. Liebman, Justice Jackman Brown balanced the factors presented by directing the husband to continue to make the marital residence carrying charge payments, but deducting the full amount of those charges from the presumptive maintenance formula.

The wife had sought an award of temporary maintenance based upon husband’s 2011 W-2 income. The wife also asked that in addition to the calculated temporary maintenance sum, the husband should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence.

The Court found that the presumptive temporary maintenance award would be $6,337.70 monthly. However, under the facts presented, Justice Jackman Brown found that the presumptive award would be unjust or inappropriate. Specifically, the Court adjusted the presumptive temporary maintenance award after considering factor: (q) any other factor which the court shall expressly find to be just and proper.

The Court noted that the statute is silent regarding whether the Court shall order the presumptive maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. In Liebman, it was undisputed that the husband had been paying the carrying charges, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly.

The Court deducted the sum of $1,739.91 from the husband’s presumptive monthly temporary maintenance obligation $6,337.70, and awarded the wife $4,597.79 monthly. The Court also directed the husband to continue to pay the mortgage, maintenance and insurance on the marital residence.

Continue Reading Temporary Maintenance Awards and Marital Residence Carrying Charges: Justice Jackman Brown Weighs In

Calulator on 100s 5.jpgThe statutory temporary maintenance formula is intended to include the portion of marital residence carrying costs attributable to the nonmonied spouse. So concluded the Appellate Division, Second Department in its November 21, 2012 decision in Woodford v. Woodford.

Accordingly, the appellate court vacated so much of Suffolk County Supreme Court Justice James F. Quinn’s July 15, 2011 order as directed the husband to pay both 100% of certain carrying charges on the marital residence and temporary maintenance to the wife. The issue was sent back to Justice Quinn for a new determination of pendente lite relief as to maintenance and payment of the carrying charges on the marital residence.

The Second Department quoted with approval from the First Department’s May 25, 2012 decision in Khaira v. Khaira, the subject of an earlier blog. The court also cited with approval former Justice Anthony Falanga’s opinion in A.C. v. D.R., also the subject of an earlier blog.

The Second Department concluded:

Indeed, it is “reasonable and logical” to view the formulas set forth in Domestic Relations Law § 236(B)(5–a) “as covering all the spouse’s basic living expenses, including housing costs” (Khaira v. Khaira, 93 AD3d at 200).

The husband was represented by D. Daniel Engstrand, Jr., Esq., of Doniger & Engstrand, LLP, of Northport.

 

How.jpgIn its November 20, 2012 decision in Kang v. Kim, the First Department affirmed what appears to be an unwarranted interpretation of a divorce settlement marital residence buyout provision. In doing so, the appellate court yielded to the construction of the provision used by the “trier of fact” to resolve the ex=wife’s post-divorce motion to enforce the parties’ property settlement agreement.

That agreement gave the ex-wife the right to purchase the husband’s interest in the marital residence, a cooperative apartment. The clause provided:

If the parties are unable to agree as to the terms for such purchase within 30 days of the day that the Wife gave notice to the Husband then the value of the Husband’s interest (the ‘buy-out price’) shall be one half of the value of the apartment as determined by a Real Estate Appraisers [sic ] agreed to by the parties less the outstanding amount owed upon the First Mortgage.

The wife claimed that the provision was unambiguous. The price (“P”) she was to receive was one half of the value of the apartment (“V”) less the entire outstanding mortgage (“M”). The entirety of the mortgage was to be subtracted from the ex-husband’s half-share of the gross value.

Recalling math class from, oh, so many years ago, the wife successfully argued:

P = (V/2) – M

The husband had argued that the buyout price was half the value of the apartment less the wife’s one-half share of the outstanding amount of the mortgage. Mathematically, the husband argued:

P = V/2 – M/2

Thus, the husband asserted that the buyout price was one half of the equity in the apartment. This might also be written:

P = (V-M)/2

The First Department noted that the lower court, New York County Supreme Court Justice Matthew F. Cooper, found the provision “unambiguous.”

However, the First Department disagreed on the issue of ambiguity, nevertheless deferring to the construction used by the lower court. The appellate court found that:

upon examination of the settlement agreement in its entirety, and considering the relation of the parties and the circumstances under which it was executed, the agreement is ambiguous because the provision is reasonably susceptible of more than one interpretation.

Indeed, the First Department noted, the settlement agreement also provided that all marital property was to be divided 50/50 and that if the premises were sold to a third party, the “net proceeds of sale” were to be divided equally.

Continue Reading Drafting Formulas in Divorce Stipulations of Settlement: Use Examples and Math Concepts

Rocket launch child.jpgIn its November 14, 2012 decision in Shah v. Shah, the Appellate Division, Second Department, held that Suffolk County Supreme Court Justice Mark D. Cohen did not improperly “double count” the income generated by the husband’s business when he awarded the wife four years of maintenance.

That business was started by the husband and a partner during the marriage, and was purportedly transferred by the husband for no consideration to his partner shortly before commencement of the divorce action. Justice Cohen awarded the wife 30% of the value of the husband’s interest in the business and additionally awarded the wife $4,000 per month for four years.

Among the issues presented on the appeal was whether the income generated by the business should have been considered when making that maintenance award.

Put differently, the question is (or should be) if the income generated by assets has already been “divided,” should that income again be “divided” through a maintenance award.

That issue became focused when the Court of Appeals in Grunfeld v. Grunfeld (94 N.Y.2d 696 [2000]) recognized the inequity of double-counting income, at least when awarding maintenance after the asset value of a license or degree has been divided. In 1985, in O’Brien v. O’Brien (66 N.Y.2d 576), the Court of Appeals had determined that New York would be unique and recognize the enhanced earnings attributable to attaining a license or degree as property to be divided upon a divorce. Earnings enhanced during the marriage through some achievement are an intangible asset capable of being divided.

Continue Reading Income Generated by Tangible Assets Divided in Divorce Is Considered on Maintenance Award

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

Marital Residence.jpgA spouse contributing separate property (most commonly pre-marital, gifted, or inherited funds) to the purchase of the marital residence does not make a gift of (half of) that payment to the other spouse, even if the residence is held by the parties jointly.

So was the holding of the Appellate Division, Fourth Department, in its September 28, 2012 decision in Pelcher v Czebatol. The appellate court affirmed the ruling of Monroe County Supreme Court Justice Joanne M. Winslow, who had granted the wife’s motion for an order determining that she was entitled to a credit from the proceeds of the sale of that residence in the amount of $149,500 used for the purchase of that home.

It is well settled that a spouse is entitled to a credit for his or her contribution of separate property toward the purchase of the marital residence, including any contributions that are directly traceable to separate property, even where, as here, the parties held joint title to the marital residence.

The wife had established that her mother had transferred approximately $150,000 in mutual funds to the wife’s mutual fund account. The wife withdrew the funds from that account and deposited them into her individual checking account. From that individual account, the wife paid $149,500 toward the purchase of the marital residence.

The appellate court noted that contrary to the husband’s contention, Justice Winslow properly determined that, although title to the marital residence was taken as tenants by the entirety (jointly-owned by the husband and wife), the wife did not contribute her separate property toward the purchase of the home as a gift to her husband.

Reading this decision, it would appear that the wife had died prior to the divorce. Thus, the divorce action should have “abated.” A divorce action must end if it is not completed before the death of a spouse (unless all that remained was the “ministerial” act of entering the Judgment of Divorce to reflect an otherwise completed matter).

However, Seema Ali Rizzo, Esq., of Gallo & Iacovangelo, LLP, of Rochester, counsel for the wife, advises that the hearing resulting in the decision was held in December, 2010. While the husband’s appeal from Justice Winslow’s decision was pending, the divorce was granted and judgment was entered. When the wife passed away, she was already divorced. The wife’s mother (executrix of the wife’s estate) was substituted for the wife on the appeal.

David A. Merkel, Esq., of Merkel & Merkel, LLP, also of Rochester, represented the husband.

Retirement egg.jpg
Almost all ERISA-Qualified Defined Benefit Plans (commonly known as “pensions”) are required to offer annuities (a stream of monthly payments). Where there is no divorce, the annuity must be paid as a Qualified Joint and Survivor Annuity unless the Participant’s spouse consents in writing at the time of retirement to a different form of payment. Moreover, any plan that offers an annuity option must also provide a Qualified Pre-retirement Survivor Annuity that will pay the surviving spouse of a Participant an annuity for the spouse’s life if the Participant dies before actually retiring.
If a Participant and his spouse divorce, then the Participant’s (former) spouse may be designated as an Alternate Payee in a Qualified Domestic Relations Order (QDRO). This will enable the divorced spouse to be treated as the Participant’s “surviving spouse.” If such a QDRO is entered, the divorced spouse may insist that the Participant choose a Qualified Joint and Survivor Annuity with the divorced spouse and also insist that the divorced spouse be designated as the surviving spouse and beneficiary of a Qualified Pre-retirement Survivor Annuity.

By definition, joint and survivor payments potentially will continue longer than a payment continuing only for the life of the Participant. As a result, the monthly payments under a Qualified Joint and Survivor Annuity will always be less than the payments under a Single Life Annuity. The longer the projected duration, the lower the monthly payment level.

Because a Single Life Annuity by definition may have a shorter duration than Qualified Joint and Survivor Annuity, it will have a higher monthly payment for the same accrued benefit. The payment level for a joint annuity will depend on the ages of the two persons whose lives are being used to measure its duration.

Generally, where a Participant’s annuity is not yet in pay status, there are four ways in which that annuity may be divided between him and an Alternate Payee who is his spouse or former spouse.

A. Shared Single Life Annuity on Life of Participant: Payments will begin when the Participant chooses to retire and will end on the Participant’s death. A divorce court can divide this payment stream for the life of the Participant between the Participant and the divorced spouse.

B. Shared Qualified Joint and Survivor Annuity on the Lives of the Participant and Alternate Payee (the divorced spouse): Payments will begin when the Participant chooses to retire and will continue until the death of the last to die of the Participant and the Alternate Payee (divorced spouse). Within this option, it may be possible to choose either:
a 100% joint and survivor option, where after the first death, the full monthly benefit is paid to the survivor for the life of the survivor (until the first death, the monthly benefit is split between the Participant and the divorced spouse); or
a 50% joint and survivor option, where after the first death, half of the full monthly benefit is paid to the survivor for the life of the survivor (until the first death, the monthly benefit is split between the Participant and the divorced spouse).
C. Shared Qualified Joint and Survivor Annuity on the Lives of Participant and the Participant’s New Spouse: If the Participant has remarried, the Participant may choose or be forced to choose (if his current spouse will not sign a waiver) a Qualified Joint and Survivor Annuity with the Participant’s new spouse. Payments under such an annuity may still be divided between the Participant and the divorced spouse, and such payments would continue until either the death the death of the last to die of the Participant or the Participant’s new spouse.
D. Separate Interest Approach: Single Life Annuity on Life of Alternate Payee: This is the choice most divorced spouses prefer. It gives the Alternate Payee complete control over the timing of the commencement of the annuity payments, and the payments will not terminate until the divorced spouse’s death.
The Second Department in McVeigh held that a 50% Shared Qualified Joint and Survivor Annuity on the Lives of the Participant and Alternate Payee (the divorced spouse) was to be chosen, unless the Participant (here the husband) elected to insure his wife’s continuing benefit in the event the husband predeceased the wife.
The appellate court was careful to point out that any Qualified Domestic Relations Order must specify that the wife is to receive no more than her 50% share of the marital portion of the husband’s pension. That marital portion is the wife’s awarded equitable share (here 50%) of a fraction of the pension benefit determined by dividing the total months prior to the commencement of the divorce action that the participant was in the pension plan and the parties were married by the total number of months the participant is in the plan prior to retirement. This formula was adopted by the Court of Appeals in Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699 (1984).
The 50% Joint and Survivor Option does, as the Second Department noted in McVeigh (and as the Third Department noted in Erickson v. Erickson, 281 A.D.2d 862, 723 N.Y.S.2d 521 [2001]), come closer to continue the spouse’s benefit in the event the participant predeceases the spouse.
However, why should the Participant, alone, bear the cost of insuring out of this option. As each spouse will benefit by the increased monthly payment incident to electing the Single Life Annuity, why should not the spouse bear the Majauskas share of the cost of a life insurance policy to provide the equivalent of continuing payments to the spouse if the spouse survives the participant. Doing so gives both parties the incentive to choose the option that is right for them.

Absent other agreement between the parties, a divorce court must require a pension plan participant to elect the 50% joint and survivor option (if) offered by the participant’s pension fund. Alternatively, the participant may provide life insurance for the benefit of the spouse sufficient to pay the spouse’s share of the participant’s pension in the event the participant pre-deceases the spouse. So held the Appellate Division, Second Department, in its October 24, 2012 decision in McVeigh v. Curry. In doing so, the Second Department modified the decision of Rockland County Supreme Court Justice Linda S. Jamieson to require the participant’s election of the 100% joint and survivor option (or provide suitable life insurance).

 

By way of background, almost all ERISA-Qualified Defined Benefit Plans (commonly known as “pensions”) are required to offer annuities (a stream of monthly payments). Where there is no divorce, the annuity must be paid as a Qualified Joint and Survivor Annuity unless the Participant’s spouse consents in writing at the time of retirement to a different form of payment. Moreover, any plan that offers an annuity option must also provide a Qualified Pre-retirement Survivor Annuity that will pay the surviving spouse of a Participant an annuity for the spouse’s life if the Participant dies before actually retiring.

 

Where there is a divorce, the Participant’s (former) spouse may be designated as an Alternate Payee in a Qualified Domestic Relations Order (QDRO). This will enable the divorced spouse to be treated as the Participant’s “surviving spouse.” If such a QDRO is entered, the divorced spouse may insist that the Participant choose a Qualified Joint and Survivor Annuity with the divorced spouse and also insist that the divorced spouse be designated as the surviving spouse and beneficiary of a Qualified Pre-retirement Survivor Annuity.

 

By definition, as joint and survivor payments will continue potentially longer than payments continuing only for the life of the Participant. As a result, the monthly payments under a Qualified Joint and Survivor Annuity will always be less than the payments under a Single Life Annuity. The longer the projected duration, the lower the monthly payment level.

 

Because a Single Life Annuity by definition may have a shorter duration than Qualified Joint and Survivor Annuity, it will have a higher monthly payment for the same accrued benefit. The payment level for a joint annuity will depend on the ages of the two persons whose lives are being used to measure its duration.

Continue Reading Mandating a Pension's 50% Joint and Survivor Option in a Divorce

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.

 

 

College Fund 4.jpgIn last week’s blog, I discussed the extraordinary analysis undertaken by Monroe County Supreme Court Justice Richard A. Dollinger in L.L. v. R.L. in order to apply the agreement made by parents at the time of their divorce to finance their children’s college education “according to their respective means at the time the child attends college.”

On October 18, 2012, the Appellate Division, Third Department in Cranston v. Horton, affirmed the determination of Ulster County Family Court Judge Marianne O. Mizel to uphold a Support Magistrate’s order that each parent contribute 33% towards the reasonable educational expenses of their unemancipated children.

The Family Court had applied the parties’ 2007 surviving divorce settlement agreement requirement that each party “shall assist with the children’s reasonable college educational expenses according to their relative means and abilities at the time of attendance.”

Contrary to the father’s suggestion, the equal contribution level fixed by Family Court does not conflict with this provision.

In another part of the lower court decision, the father’s application for a reduction in his child support obligation was granted based upon a reduction in his reduced adjusted gross income from $98,000 to $63,000.

Justice Dollinger’s analysis would look to a variety of factors to assess the “relative means” of the parties. With how much is each parent left after considering their obligations. Here, the father had a child support obligation (apparently reduced in Cranston to $21,000), the maintenance obligation (unspecified), and the unspecified cost of student and other loans of one of the parties’ four children.

The Appellate Division concluded that the father’s income still far exceeded that of the mother (more than $23,000 at the time of the parties’ 2007 agreement). Thus, the father was in no position to claim an injustice based upon equal contributions by the parties to their children’s educational expenses. The court gave no credence to the father’s contention that the Family Court impermissibly rewrote the parties’ agreement in affirming the Support Magistrate’s determination regarding educational expenses.

Cranston is just the most recent in a never-ending line of cases in which the court was asked to apply a standard the parties created, and could have defined for themselves but did not.

Justice Dollinger’s decision in L.L. v. R.L is remarkable, if not unique in providing the parties with a formula to resolve their issue as it will continue to arise in the future.

However, the parents in Cranston, have no such guidance, unless we are to assume that in all future years, each parent will pay one third of college expenses. Does that blanket holding reflect the “relative means” of the parties when they have two or more children in college at one time or if either of their incomes, or expenses, change.

It’s common, if not easy to settle a divorce by agreeing to determine the college expense responsibility at a later time. However, these recent cases suggest that divorcing parents would be wise to reach specific guidelines, if not a precise formula by which their future income and assets will be assessed to determine both the relative contrbutions of the parents as well as their share of the total cost.

Dana M. Loiacono, Esq., of Larkin, Axelrod, Ingrassia & Tetenbaum, LLP, of Newburgh, represented the father. Joshua N. Koplovitz, Esq., of the Pro Bono Appeals Program of Albany represented the mother.