Retirement Plan.jpgAfter 36 years of family law practice, I pride myself on having a good idea of what I don’t know.

The good news is that I can reach out for the help needed to make sure the bases are covered when drafting a divorce settlement agreement.  Matrimonial litigation has spawned a host of forensic specialities eager to offer proof on issues and to implement settlements and awards.  They’re also there to assist a settlement.

Consider pensions.  There are plans covered by the Employee Retirement Income Security Act (ERISA), a federal law that sets minimum standards for most voluntarily established pension and health plans in private industry. There are also private plans which are not covered by ERISA, military and other governmental plans, etc.

Generally, pension rights or benefits accumulated during a marriage are to be divided on divorce, whether or not the pension is in “pay status.”  However, unlike dividing a bank account, splitting one spouse’s retirement benefits is not as simple as writing a check.  A Domestic Relations Order (DRO) or a Qualified Domestic Relations Order (QDRO) is necessary to effectively transfer rights to the employee’s spouse.  Such an Order may also be used to divide I.R.A.s, 401(k)s, and other assets without triggering a taxable event.  Without such an Order, the “owner” might be exposed an income tax liability were the plan to be accessed to get the money to pay the spouse.

Pension plans carry benefits beyond the monthly payment after retirement.  There may be health and/or death benefits.  Elections may be allowed which significantly effect available benefits. May a spouse collect before the employee retires?  May a joint survivorship option be pursued? Keeping track of what those benefits may be for any particular plan and how to divide them is a specialty unto itself.

Consider the March 15, 2011 decision of the Second Department in Coulon v. Coulon. In that case, the parties’ settlement provided for the wife to receive a share of the husband’s pension. However, the stipulation was silent with regard to the plan’s death benefits.  The wife was not, by the settlement agreement, entitled to be designated as a surviving spouse under the pre-retirement and post-retirement survivor annuity provisions of the plan.  The court held the wife was not entitled to the any portion of the plan’s death benefits.

A Qualified Domestic Relations Order . . . entered pursuant to a stipulation of settlement ‘can convey only those rights to which the parties stipulated as a basis for the judgment’. . . . Thus, a court cannot issue a QDRO more expansive or ‘encompassing rights not provided in the underlying stipulation.’

When drafting settlement agreements, I often place a call to Bill Burns of Lexington Pension Consultants, Inc. Since I will probably use Lexington after the agreement is signed to draft the Plan and arrange for its approval by the Plan Administrator, on occasion I will call Lexington to make sure that I am made aware of the plan options in advance of drafting the settlement agreement.  I may have Lexington review my proposed agreement provision.  Lexington, itself, markets its service of providing the specific information needed to structure a settlement that addresses all pension/retirement assets, while assuring that the terms of the agreement will conform to the rules of the particular retirement plan.  There certainly are other specialists, but I have worked with Lexington for years; and if it ain’t broke, I won’t fix it.

Making use of the forensic specialists to craft the setllement agreement is cost efficient for the client and better assures that disputes will be avoided in the future.

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The February 15, 2010 [sic] decision of Rockland County Supreme Court Justice Alfred J. Weiner in C.K. v. M.K., adds to what is shaping up to be a remarkable string of cases applying the 2010 temporary maintenance and counsel fee amendments to the Domestic Relations Law.  The decision was published March 15, 2011, the same day as Margaret A. v. Shawn B. also applying the recent amendments.  That case was the subject of my March 21st blog.

Here, the wife commenced her divorce action on October 13, 2010, the day after the effective date of these amendments and New York’s no-fault law.

The parties were married in 1988.  The marital residence was now occupied by the wife and 20 and 17 year-old children, after the husband moved out last August.

The parties’ 2009 (last-filed) tax return showed adjusted gross income of $424,240, of which $155,818 was the husband’s W-2 income from his own business. Notably, $136,780 of the income was reflected on the wife’s W-2 income from the husband’s business (although she apparently did no work for that business). The wife listed herself as a part-time dog-walker.  The remaining $131,642 in AGI is not described in the opinion.

At the December, 2010 Preliminary Conference the husband agreed to deposit $2,000 monthly to the wife’s account for child support, pay the martal residence mortgage, the family’s auto expenses, and to pay the expenses on the parties Pennsylvania vacation home which he would occupy exclusively.  It was also agreed that the husband’s business would deposit $1,732.24 monthly to the wife’s account (I am advised by the husband’s counsel, Ostrer Rosenwasser, that this reflects $2,000 per month, less withholding).  These temporary arrangements, however, did not resolve the wife’s motion.

Justice Weiner fillied in the temporary maintenance formula (D.R.L. §236B[5-a]) with the 2009 W-2 incomes of both parties. He found that doing so, the formula would result in an annual award of the lesser of $18,458 or negative $18,034: the guideline amount was $0.

However, as the wife’s W-2 income was only “attributed” to her and not actually received by her, Justice Weiner found that this application of the formula would be unjust and inappropriate.  Instead, he awarded the wife $2,000 per month.  The Court further awarded the wife another $2,000 per month in child support (the sum to which the husband had agreed at the P.C.)  Finally, the Court awarded $10,000 in interim counsel fees.

Justice Weiner noted that “in calculating the sums herein awarded, the Court carefully considered the amounts the Defendant separately agreed to pay at the December 10, 2010 Preliminary Conference and he is hereby ordered to pay those amounts retroactive to that date.”  Accordingly, it appears that in addition to the $4,000 per month in temporary maintenance and child support, the husband will also pay the marital residence mortgage, auto, and vacation expenses. Presumably, the husband’s business will continue to pay the wife her $2,000 ($1,732 net) per month.

Both Justice Weiner in this case, and Justice Francesca E. Connolly in Margaret A. v. Shawn B., applied the new formula to fictitious amounts. Justice Connolly used the husband’s $250,000+ 2009 income although the husband’s employment was terminated in October, 2010 while on track to earn less than $200,000 for the year.

Here, if the 2009 W-2 income was truly earned all by the husband, why not apply the formula making use of that fact?  From the husband’s combined W-2 gross of $292,598 would be deducted the $6,622 FICA cap and $4,243 in Medicare taxes.  Applying the formula (and assuming the wife had no dog-walking income) would result in an award of $84,520 per year ($7,043 per month).  Using, then, the C.S.S.A. guidelines after subtracting the maintenance award, child support would be $49,303 per year ($4,109 per month).

Knowing whether the Court considered the resulting $11,152 monthly award unjust and inappropriate would provide guidance for counsel and litigants alike.  Applying the formula to fictitious amounts does not; except to signal that when it comes to divorce, the courts [too!] engage in fictions.

Calulator on 100s 11 red.jpgThe way you phrase the credit is just as important as the amount.

Let’s assume that when the divorce action was filed, the parties’ marital residence was encumbered by a mortgage with a principal balance of $250,000.

Let’s further assume that while the divorce action is pending, the wife, only, makes all the mortgage payments.  The parties get divorced three years later and the marital residence is then sold.  At the time of sale, solely due to the payments of the wife, the mortgage principal has been reduced to $200,000.  Finally, assume there are $300,000 of sales proceeds remaining after paying off the mortgage, the broker and other closing expenses.

Is the wife entitled to a credit for “her” $50,000 reduction of the mortgage, and if so, how much?

That was the issue facing the Second Department in its March 8, 2011 decision in Le v. Le.  In that case, the Court modified the decision of Westchester County Supreme Court Justice Linda Christopher  which, I believe, correctly awarded the wife a credit against the marital residence sales proceeds for “the difference between the princip[al] balance of the mortgage as of March 22, 2007 and the amount due at closing . . . .”

As in our example, the wife had made the mortgage payments while the action was pending without any contribution from the husband. The Appellate Division recognized that the wife was entitled to be reimbursed:

Where, as here, a party has paid the other party’s share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required . . . .

Here, however, the Court held that the wife was entitled to a credit equal only to 50% of the reduction in the mortgage principal.  Such, the Court stated, reflected that it was the responsibility of both parties to maintain the marital residence while the divorce action was pending.

When reducing the credit from 100% to 50%, the Second Department cited its 2004 decision in Palumbo v. Palumbo,  In that case, the Court directed that the plaintiff wife’s “share of the proceeds” be reduced by “by one half of the total of the defendant’s payments of principal on the mortgage . . . .”

Using the numbers in our example, Mr. Palumbo would receive his own 50% share of the $300,000 in net proceeds, or $150,000.  In addition, Mr. Palumbo would receive from the wife’s share, another $25,000 (50% of the reduction).  Mr. Palumbo leaves the sale with $175,000 in proceeds; the wife with $125,000.

On the other hand, Ms. Le would only walk out with $162,500.  Ms. Le is first to receive her $25,000 credit (50% of the mortgage reduction) against 100% the net sales.  So, from the $300,000 in net sales proceeds, first give Ms. Le her $25,000.  Then, split the remaining $275,000: $137,500 to each party.  Ms. Le ends up with $162,500; Mr. Le with $137,500.

In order to give Ms. Le the 50% of the mortgage principal reduction with which her husband should be charged. you take 50% of the mortgage reduction from the husband’s share, as was done in Palumbo.  Alternatively, as was done by Justice Christopher in Le, you return to the wife 100% of the mortgage reduction off the top.  What you cannot do, is only give Ms. Le 50% off the top.

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The March 15, 2011 decision of Westchester County Supreme Court Justice Francesca E. Connolly in Margaret A. v. Shawn B., raises a number of questions and invites lessons to be learned. Here, the Court applied the recently-adopted temporary maintenance and counsel fee statutes to a recently-terminated substantial wage-earner.

The parties were married in June, 2007, and have three children. The plaintiff-wife is a 32 year-old homemaker; the husband, a 46 year-old Harvard MBA, terminated as a corporate Vice President in October, 2010. The wife commenced this divorce action two months later on December 30, 2010; after the October temporary relief amendments became effective.

The parties had lived together with the children in the rented New Rochelle marital residence until the wife was granted a “stay-away” Temporary Order of Protection in December, 2010. The husband went to live with his parents. Cross-offense proceedings remain pending.

The income tax returns indicated that the husband had earned $300,000.00 in 2007, $172,024.00 in 2008, and $256,909.00 in 2009 (the most recently filed income tax return). The Court was made aware that the husband had earned $156,676.00 for the first 42 weeks of 2010 (approximately $194,000.00 annualized) when he was terminated and given a $115,000 severance package.  The husband claimed to have been diligently seeking new employment. However, the Court was dissatisfied with his conclusory allegations.

Asked to award pendente lite relief, the Court first applied the temporary maintenance formula (D.R.L. §236B[5-a][c]), using the husband’s 2009 C.S.S.A.-adjusted income.  Justice Connolly found that it was not unjust or inappropriate to award the wife the calculated $6,217.42 per month ($74,609.00 per year).

Then, deducting the awarded temporary maintenance from the husband’s 2009 adusted income, Justice Connolly awarded the calculated $4,207.17 per month ($50,486.00 per year) in child support, again finding it just and appropriate to do so.  The Court declared the husband could take the three tax exemptions for the children.

Completeing the award, the husband was directed to maintain the health and life insurance policies, pay 100% of health care add-on expenses, and 50% of the “children’s reasonable add-on expenses, including pre-school and extra-curricular activities.”

From her $10,424.59 combined monthly award, the wife was directed to pay the marital residence, personal and non-listed children’s expenses.

Despite the husband’s past substantial income, there was a “lack of assets to pay for litigation fees.” The wife, represented by Frank J. Salvi, Esq., of D’Agostino & Salvi, sought $7,500.00 in temporary counsel fees.  The husband had provided a $10,000.00 retainer to his counsel, Raoul Felder and Partners, P.C.  In light of the limited assets of the parties, the Court noted that the temporary award, istelf, shifted the resources of the parties sufficient to rebut “the presumption that the [husband] is the monied spouse.” D.R.L. §237(a). However, in light of the husband’s Harvard MBA and his “ability to return to work and earn a substantial income,” Justice Connolly awarded the wife $5,000.00 of the $10,000.00 needed to match the retainer paid to the husband’s counsel.

As it would appear the husband’s severance package is at least in part a marital asset, the unemployed husband, without a hearing, has been made the sole guarantor of the family’s interim finances (at the end of the case, any arrears in support will be awarded to the wife).

As the loss of employment, after all, was a major event in the short life of this economic partnership, should not the partners share the loss?

While conclusory allegations of efforts to obtain employment should not be accepted, considering the disastrous consequences now falling on only one of the parties, perhaps an immediate hearing should have been held on the husband’s presumed ability to immediately obtain the $250,000.00-per-year job upon which the award was based.  It should not be essential at this stage of the proceedings to submit expert testimony on the job market or extensive documentation.

With a more cynical view, I cannot help but consider the husband’s re-contemplation of his decision to marry three years ago, already then having the now 5-year old child, and with the 3-year old twins either on their way or just born.  What pieces of the puzzle are we missing to explain the husband’s income and the lack of assets?

How carefully every act, every word by both the parties and their counsel must be considered, acted upon and artfully presented to the Court!

unhealthy senior couple 2.jpgMarital financial planning is vital for spouses dealing with advanced age and deteriorating health.  Though not arising from an orchestrated plan, the February decision of the Appellate Division, Fourth Department, in Matter of Donald L.L. (Miceli), supports that planning.

After almost 40 years of marriage, the wife in 2005 suffered a stroke that left her with severe brain damage and unable to care for herself.  Her husband was also in poor health and was not capable of caring for his wife. In Guardianship proceedings, the court in 2008 determined that the wife was incapacitated and, by agreement of the husband, appointed someone other than the husband as the Guardian of the person and property of the wife.

At that time, as well, the husband entered a settlement with the Guardian resolving property and spousal support matters.  Their stipulation was “in the nature of an opting[-]out agreement as the same is provided for under the Domestic Relations Law. [They] do not intend to make this a divorce proceeding but would like [the stipulation] to serve as their agreement as to the issues . . . set forth [herein] and to that extent would also like to sign a written adoption of the oral stipulation.”

Five months later, the Guardian commenced this action seeking to enforce the financial settlement agreement. The Guardian also sought to void various allegedly fraudulent transfers by the husband. Justice David Michael Barry upheld the financial settlement agreement.

On appeal, the husband contended that Justice Barry erred when he granted the Guardian relief in the form of equitable distribution without conducting a hearing on the economic issues between him and his wife.

The Fourth Department affirmed. The agreement was enforceable.  No separate equitable distribution relief or hearing was required as there had been, expressly, no action to abrogate the marital status.

Upholding protective and necessary financial arrangements, while preserving lengthy marriages, is increasingly necessary.  Such arrangements, when knowingly entered with independent counsel, are to be promoted.

culverchristopher.jpgIn a 3-2 decision, the Appellate Division, Third Department, in Culver v. Culver, affirmed that part of a Saratoga County Family Court decision of Judge Courtenay Hall which granted visitation to an incarcerated father with his 5-year old daughter.

The father, Christopher Culver, 35, a former Shenendehowa elementary school teacher, pleaded guilty in 2008 to a 49-count indictment which included 29 counts of first degree sexual abuse arising from his molestation of 8 of Culver’s first grade male students.

Culver, who had not seen his daughter since she was 18 months old, was granted 4 visits per year with the child at his correctional facility.   It was additionally provided that the child be accompanied by a responsible adult — other than the mother — with whom the child is familiar and who will cooperate with the mother and father in effectuating each visit; that the child and her escorts engage in counseling in preparation for and subsequent to each visit; and that the father have monitored telephone contact and written communication with the child.

Ironically, the mother was defeated in her efforts to prevent personal visits by the father by her own efforts to preserve the relationship of the child with Culver and his family.  “To the mother’s credit, the child has received mail from the father on a regular basis, and both the child’s paternal aunt and paternal grandparents — who have been permitted ongoing relationships with the child by the mother — are willing to transport the child to the correctional facility and cooperate with the mother’s related wishes — e.g., to not discuss the specific circumstances surrounding the father’s incarceration and to attend counseling in order to facilitate the visits.”  As noted by the dissent:

While the child has been described as well adjusted, the full credit for this result must be granted to the mother, for we cannot conclude that a father who leaves the home he shares with his infant daughter in the morning to molest his students during the school day could properly have a healthy emotional relationship with this child.

The Appellate Division did modify that part of Judge Hall’s decision which required the mother to pay for the telephone calls and the counseling for the child and her escorts before and after the visits.  It is now the father who will be responsible for arranging funding of all visitation expenses, including counseling and telephone calls.

Notably, the 2-judge dissent points out, neither expert who testified at the Family Court hearing evaluated the father or visited his institution. The dissent would have permitted only weekly monitored letters to the child and monthly monitored telephone calls, with all costs to be borne by the father, “given this father’s lengthy prison sentence, the horrific nature of the underlying sex offenses, his refusal to acknowledge his conduct or his need for sex abuse counseling, the distance the child would have to travel to exercise visitation in a maximum security prison setting, and the fact that more than three years have now elapsed since he has seen the child.”

Perhaps that’s why they invented Skype.

Divorce Agreementl.jpgIn its February decision in Fragin v. Fragin, the Second Department interpreted a 1995 separation agreement which survived the entry of the parties’ 1995 divorce judgment. Pursuant to that agreement, the ex-wife was obligated to contribute to the basic graduate school expenses of the parties’ unemancipated children. However, in fact and not surprisingly, at the time the children enrolled in graduate school, they were emancipated under the terms of the agreement.

The Court does not provide us with the precise language of the parties’ agreement, if any, which defined that point at which a child would be deemed emancipated. In the absence of such a provision, a child is “unemancipated” for support purposes upon reaching age 21.  It is common, however, for there to be such a defining provision in an agreement. Often, a child will be deemed unemancipated for the purposes of the agreement beyond age 21 if the child is in college. There may be a limit on that extension, however, e.g., reaching age 22 or 23.

Here, it would seem absurd for the agreement to discuss payments for graduate school if such payments were only to be for the graduate-school education of children who were unemancipated at the time of their attendance in graduate school. Most children will not be attending graduate school before their very early 20s, or before they finish college. However, on the surface, this is how the Court appears to have reconciled the provisions of the agreement: there was no obligation to pay graduate school expenses of emancipated children. Accordingly, the ex-husband’s motion to enforce the agreement and compel the ex-wife to contribute to the payment of graduate school expenses was denied.

If I have misconstrued the decision (and the agreement) or the facts, it certainly won’t be the first time, or the last, and I apologize.

Nonetheless, as a general rule, and particularly when interpreting the nuances of an agreement, it would be extremely helpful for the Court to quote the language of all the relevant provisions of the agreement being reconciled.

Another example: In its 2007 decision in Weinberger v. Frankel, the Second Department interpreted a stipulation under which a father obligated himself “to pay his pro rata share of the tuition charged by his younger child’s school, the Adolph Schreiber Hebrew Academy of Rockland. The stipulation limited the appellant’s payments to the pro rata cost of the younger child’s prior school, the Hebrew Academy of Nassau County” (this is a quote from the decision, but apparently not the stipulation as no quotation marks are provided in the decision). After the mother enrolled the child at a school not listed in the stipulation, she sought the father’s share of tuition. Did the stipulation obligate the father to pay his share of the tuition charged by the Hebrew Academy of Nassau County, or did the stipulation obligate the father to pay his share of tuition at any school, but limited to a particular dollar amount; i.e., a sum equal to his share of tuition at the current school? The Court held that naming the school(s) in the stipulation was not a limitation of the schools for which the father agreed to pay, but only a limitation of cost. The father was required to pay.

Splitting hairs? Yes; but that’s what we do. Consider the time and expense needed to resolve these matters for the parties, their counsel, and the court.  Consider the angst of the children.

One of the primary purposes of the publication of judicial decisions should be to announce the effect of certain words or conduct. In that way, we may be guided in the future. Hopefully, and particularly in this time of budget crisis increasingly facing the judiciary branch, each published decision will help to reduce future litigation.

In his February 9, 2011 decision in PP v. KP, Justice Robert A. Bruno of Nassau County, providing the reader with the salient facts, reflected his balancing of the various factors and policies underlying a maintenance determination.

Justice Bruno had conducted a hearing on maintenance (and counsel fees) after the parties to this 24-year marriage stipulated to equitable distribution matters (the children of the parties were all emancipated).

The wife, 58, had been an airlines customer service representative for the last 10 years and was now earning $35,000 per year.  However, the wife acknowledged that she received another $12,000 per year in rental income which she failed to report either on her tax returns or her Net Worth Statement.

The husband, 55, had been an airline mechanic for 30 years.  He was now earning $100,795.  Justice Bruno imputed another $15,000 per year for the rent-free apartment in which he resided.  Moreover, the husband, too, acknowledged additional income: $6,000 per year in rental income which he failed to report either on his tax returns or his Net Worth Statement.

Justice Bruno awarded the wife $1,200 (taxable) per month for 36 months.  The Court noted an absence of proof on the pre-commencement standard of living, and extensively analyzed and compared the incomes and expenses of the parties.  Awarding maintenance limited in time, the Court held:

Since the plaintiff is employed full time, in the same position she had during the marriage, received a large distributive award and has assets of approximately $500,000.00, this is a more appropriate case for durational maintenance.

More troubling to the Court were the parties’ admissions that each of them had excluded rental income from 2009 Form 1040 tax returns. Neither claimed to be exempt from paying taxes, nor to have any exclusion or other justification for failing to report this income.

Faced with these candid admissions, this Court believes it appropriate to forward a copy of this decision and order to the United States Internal Revenue Service for their review.

In making the decision to “report” the couple, Justice Bruno relied on former Justice Jacqueline Silbermann‘s opinion in Hashimoto v. De La Rosa and now Appellate Division, Second Department, Associate Justice Ruth C. Balkin‘s decision in Beth M. v. Joseph M.

In Hashimoto, based upon the husband’s sworn statement that he did not pay income taxes nor, as the wife alleged, file tax returns, Justice Silbermann forwarded a copy of the husband’s affidavit and Net Worth Statement to the Internal Revenue Service.  Moreover, troubled by the “disingenuous” certification of the husband’s papers by his counsel, the Court believed it “appropriate to forward the affidavit and certification to the appropriate Departmental Grievance Committee for review.”

Justice Balkin, as well, was troubled by the admissions in open court that the husband before her did not file income tax returns, nor pay income taxes.  Recognizing the court’s obligation to report admissions of possible tax evasion or fraud to the authorities, Justice Balin found it appropriate to forward a copy of the decision to the United States Internal Revenue Service for their review.

Particularly in light of the recent push toward Alternative Dispute Resolution, Justice Bruno’s recent decision is a reminder that the court’s obligation to report tax evasion to the authorites is but one more reason for parties to consider alternatives to litigation.

Muller - Robert.jpgIn actions commenced on or after October 12, 2010, Domestic Relations Law §170(7) provides for granting a divorce where one party states under oath that “the relationship between husband and wife has broken down irretrievably for a period of at least six months . . . .”

It what may be the first decision to apply this no-fault divorce law, Justice Robert J. Muller of the Essex County Supreme Court, in Strack v. Strack has effectively determined to eliminate its no-fault nature.

Justice Muller decided a motion to dismiss a no-fault complaint seeking a divorce after 47 years of marriage. First, the Court ruled that C.P.L.R. 3016(c) requires that allegations of misconduct or complained-of acts be specified in a no-fault complaint. However, the “irretrievable breakdown” ground requires no misconduct; there need be no acts complained of. There is nothing to “specify” except one party’s wholly subjective belief that the marriage has broken down irretrievably.

Second, Justice Muller ruled that as the Legislature did not include irretrievable breakdown within the exceptions to the the five-year Statute of Limitations of D.R.L. §210(a), no divorce will be granted if the marriage broke down more than five years before the action was commenced. The Strack decision does not reveal whether the wife actually pleaded that the marriage first broke down more than five years before commencement. Indeed the language quoted from the complaint pleads only that the marriage had been irretrievable for “at least six months.” Accordingly, the Statute of Limitations defense raised by Mr. Strack [i.e., you can’t have a divorce because our marriage broke down more than five years ago], and recognized by the Court, would appear a creature of speculation. Fortunately for Mrs. Strack, the “record” revealed to Justice Muller that there were “instances of marital discord” occurring within the past five years, and thus, the Statute of Limitations defense was not available under “continuing course of conduct” rules. It remains that Justice Muller’s decision would hold that where spouses separated on consent more than five years ago, they may not be divorced in New York on no-fault grounds.

The purpose of the no-fault statute was to avoid the type of “record” required by Justice Muller. There is to be no proof of misconduct; indeed, there need not be any.

Third, Justice Muller ruled that the Legislature did not exempt irretrievable breakdown from the right to a jury in divorce grounds trials under D.R.L. §173, and did not “explicitly” abolish the right to a trial, itself, for a no-fault divorce. Thus, the Court held that Mrs. Strack’s verified statement that her marriage had broken down irretrievably for a period of at least six months was refutable:

The determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

However, the Legislature did “explicitly” state that a grounds trial was not necessary. Of all the divorce grounds contained in D.R.L. §170, only “irretrievable breakdown” is to be based only on the sworn statement of one party. Even Justice Muller recognized that the ground is purely subjective:

This Court does hold, however, that whether a marriage is so broken that it is irretrievable need not necessarily be so viewed by both parties. Accordingly, the fact finder may conclude that a marriage is broken down irretrievably even though one of the parties continues to believe that the breakdown is not irretrievable and/or that there is still some possibility of reconciliation.

Thus, what is it that the fact-finder, whether it be judge or jury, is to determine?

  • Whether the party really believes the marriage is irretrievably broken?
  • Whether the marriage is objectively irretrievably broken, even if one party believes it and the other party does not believe it?
  • Whether the breakdown occurred at least six months before the action was commenced?

None of that is required. If one party provides the Court with a sworn statement of irretrievable breakdown for more than six months, the divorce should be granted.

mediation.jpgCommencing March 14, 2011, parties to a Nassau County divorce action may be required to participate in a mediation session under a program initiated by Justice Robert A. Ross, Supervising Judge of the Matrimonial Parts. After a preliminary conference, the judge assigned to the case will decide whether the case is suitable for mediation. The parties will be allowed to mediate some issues and litigate others.

The introductory session will be free, using one of the more than 40 mediators who have been enlisted to participate in the “Matrimonial Alternative Dispute Resolution Program.” If the parties decide to continue, they will pay for further sessions.

The NYS Unified Court System has been committed to promoting the appropriate use of mediation and other forms of alternative dispute resolution (ADR) as a means of resolving disputes and conflicts peacefully. However, one may question whether mandated matrimonial mediation will be effective.

In mediation, a neutral person helps the parties try to reach a mutually acceptable resolution of the dispute. The mediator does not decide the case, but helps the parties communicate so they can try to settle the dispute themselves.

Mediation may be inappropriate if a party has a significant advantage in power or control over the other. Moreover, it may be said that any one of at least five people may prevent a piece of divorce litigation from being settled early. Of course, the expectations, needs or emotions of either of the parties (or, indeed, the children) may interfere with a reasonable exchange of ideas. Early reasonable compromise may also be inconsistent with the goals or style of one of the litigating attorneys. The judge, him/herself (or the history or prior rulings in the case) may have placed obstacles to settlement which need to be overcome. Finally, the friends or family of the parties, based on their own need for vengeance or their “knowledge” of the law, may spur the parties toward battle.

Mediation lacks some of the substantive tools of other forms of ADR. For example, Nassau County has made use of Early Neutral Evaluation panels. ENE was designed to provide parties with an early and frank evaluation of the merits of a case by an objective observer. It can provide a “reality check” for clients and lawyers, identifying and clarifying the central issues in dispute, assisting with discovery and motion planning or with an informal exchange of key information, and, if possible, facilitating settlement discussions, when requested by the parties. In practice, however, the ENE process was used late in the litigation, often when the case had already been certified ready for trial.

With arbitration, the neutral person hears arguments and evidence from each side and then decides the outcome. Arbitration is less formal than a trial and the rules of evidence are often relaxed. In binding arbitration, parties agree to accept the arbitrator’s decision as final, and there is generally no right to appeal. In non-binding arbitration, the parties may request a trial if they do not accept the arbitrator’s decision.

Much newer to New York, Collaborative Law is a process practically, financially and emotionally committed to a negotiated settlement without litigation. In Collaborative Law, each party is represented by a specially-trained lawyer. The parties sit together with their lawyers in face-to-face meetings identifying and resolving the issues. With the “interdisciplinary model,” a mental health professional is used to identify emotional issues which may be blocking the process. A commitment to financial “transparency” and the use of neutral financial specialists can greatly accelerate the exchange of information and keep matters private. If either spouse decides to go to court to litigate, both parties must hire new lawyers and other retained professionals. This motivates everyone involved to continue working toward a mutually agreeable resolution.

It is regrettable that mediation is now being mandated in large measure because the resources of the judicial system cannot properly handle the case load (1100 to 1200 cases in Nassau County annually). Moreover, mediation remains the form of ADR with the least teeth. Thus, it will only become a powerful tool if a speedy judicial resolution is the alternative.

One program to recognize this is the Martin P. Violante Alternative Dispute Resolution (“ADR”) Program for the Eighth Judicial District (Western New York). Section 6.2 of their Protocols (pdf) provides that referrasl to ADR in contested matrimonial and Family Court cases will not stay the Court proceeding. OCA policy in family cases recognizes the special need for prompt action. As a general rule, full discovery, emergency and pendente lite relief, family dynamics, and the needs of children require ongoing access to the Court. However, if the parties agree that additional time is required to fully explore resolution through ADR, they may request an adjournment of a court date from the Assigned Judge, which may be granted sparingly.

The concept that ADR is needed because the judicial system doesn’t work is offensive. However, each of the ADR forums does have a lot to offer. I fear mandating a single mediation session, though, will be of questionable value.