judge exasperated.jpgTwo December, 2010 appellate decisions reveal the colossal waste of judicial resources resulting from the failure to have no-fault apply to divorce actions “in the pipeline,” i.e., commenced on or before October 11, 2010.  Certainly, the time, money and angst of the battling spouses is just as important a concern.

On August 13, 2010, New York did add “no-fault” to its grounds for divorce (D.R.L. §170[7]).  Now, either spouse is able to end the marriage simply by stating under oath that the marriage has been broken down irretrievably for at least six months.

Unfortunately, the new law applies only to divorce actions commenced after October 11, 2010.

On December 2, 2010, in Dodd v. Colbert, the Third Department of New York’s Appellate Division affirmed a Ulster County Supreme Court’s ruling that fact issues in a divorce action commenced in 2008 precluded a summary finding that the husband was entitled to a divorce on cruelty grounds.  A grounds trial would be necessary to establish the nature of the wife’s relationship with another man since 2005 (the wife admitted that her “friend” had spent the night in her home and had gone on vacations with her).  Moreover, a trial was necessary to determine the physical and/or emotional impact on the husband of the wife’s conduct, to see whether it was “unsafe or improper” for the spouses to remain together.

On December 28, 2010, in Dayanoff v. Dayanoff, the Second Department affirmed a 2009 judgment of the Queens County Supreme Court, which denied a divorce to a husband because his testimony was inconsistent about his wife’s refusal to engage in sexual relations despite his repeated requests (the parties had been sleeping in separate bedrooms for three years [although, concededly, this fact, alone, may not indicate trouble in paradise).  Such a continual refusal by wife, if established, and if continual for a period of year would have constituted “constructive abandonment,” the tamest of New York’s pre-no-fault grounds for divorce.

One cannot fault the Supreme and Appellate Courts in these cases.  Their rulings appear clearly consistent with New York law.  However, and regardless of the religious pressure or politics which delayed New York from joining every other state in granting no-fault divorces, the days of requiring proof of fault are over.

Every practitioner (and spouse now involved in divorce litigation) knows of the delays incident to the tremendous caseload burdening matrimonial judges.  No useful purpose is served by continuing the grounds game.

The complaint in every pending action should be deemed to be amended to include the no-fault ground effective October 12, 2011.  If necessary, any dispute over the “date of commencement,” as it relates to the division of marital property, can be preserved.  Obviously, such can only be accomplished with legislative action.  Such action is needed quickly: time, money and emotions are wasting.

suicidal man.jpgA large, nationally representative sample was used in a Canadian study to look for a link between parental divorce and suicidal ideation. The conclusion: even in the absence of other childhood stressors, men who had experienced parental divorce had twice the odds of having seriously considered suicide compared to men from intact families. When combined with other childhood stressors such as parental addiction, physical abuse, and parental unemployment, men were three times as likely to have seriously considered suicide.

In the absence of such other stressors, parental divorce was not seen to increase suicidal ideation in women. However, women who were minor children of divorced parents were 83% more likely to seriously consider divorce if the other stressors were present.

Esme Fuller-Thomson of the University of Toronto, lead author of the survey, cautioned:

These findings are not meant to panic divorced parents. Our data in no way suggest that children of divorce are destined to become suicidal [press release].

However, the study did suggest that the pathways linking parental divorce to suicidal ideation are different for men and women. The association between parental divorce and suicidal thoughts in men was unexpectedly strong. It was speculated that men might be more negatively impacted by parental divorce due to the absence of close contact with a father that may occur after a divorce.

The study, published this week in the journal Psychiatry Research, is available for purchase.

The study should be used to impress upon divorcing parents the need for continuing meaningful, regular contact between children and both parents, particularly boys with their fathers. Custodial parents should actively encourage close emotional relationships between the children and the “non-custodial” parent.

Parenting Time Calendar.jpgHoward v. Laird, a recent decision of New York’s Appellate Division, Second Department, highlights the usefulness of a parenting-time calendar when entering a divorce settlement.

In Howard, the appellate court had occasion to reverse an initial post-divorce Supreme Court decision in a visitation dispute, and to send the case back to the lower court for still further proceedings.  At issue was a parenting-time dispute over whether thw weekday visits of the father during the school year continued into the Summer recess. The source of the problem was an apparent gap or oversight in the parents’ divorce settlement stipulation.

What a colossal waste of the resources of the courts and the time, energy and money of the parents! Such continuing post-divorce litigation can only damage the post-divorce relationship between the parents. The impact of such continuing battles on the children, and the children’s relationships with their parents, cannot be understated.

Had the parties themselves, or their counsel, simply prepared and distributed a parenting-time calendar when the settlement stipulation was being negotiated and drafted, gaps and oversights could have been eliminated. The parents would have reached a more workable and practical stipulation.

What is a parenting-time calendar? It’s simply a calendar upon which the visitation schedule is written. It will include the basic plan, plus secular and religious holidays, school recesses, birthdays, and other dates of significance. Activities of the children, important family celebrations, and other matters may be included.

By completing the calendar, say, for the two years following the settlement, parents are able to catch most oversights and conflicts. When visualized in this fashion, changes to a settlement stipulation can be made at inception.

Moreover, posting the calendar on the refrigerator, or even online, for the children to see can help them incorporate the schedule into their lives.

How does one go about making a parenting time calendar? There’s no wrong way. Take any printed calendar and fill it out. As a practical matter, I use Microsoft Outlook and Gmail calendars at work, and both can easily be adapted to make a separate parenting time calendar or to add parenting time to a single all-purpose calendar. There are also a host of online and downloadable programs available at varying prices and even at no cost. Here are a few, without endorsement of any:

No parent should complete divorce proceedings without obtaining this very simple device which will so easily avoid years of tension, anxiety and heartache.

Mom with daughter homework.jpgThe November/December issue of Scientific American Mind magazine presents the article, What Makes a Good Parent? A growing body of research conducted over the past 50 years shows fairly clearly that some parenting practices produce better relationships between parent and child and happier, healthier, better functioning children.

A new study by the article’s author, Robert Epstein, conducted with Shannon L. Fox, a student at the University of California, San Diego, was presented at the annual meeting of the American Psychological Association this past August. Dr. Epstein, a longtime researcher and professor of psychology, is a contributing editor for Scientific American Mind and former editor-in-chief of Psychology Today.

The study compared the effectiveness of 10 parenting competencies recognized as predictors of good parenting outcomes. Although this blog article will leave the “Ten Competencies” for another discussion, the author concludes, not surprisingly, that the best thing parents can do for their children is to give them lots of love and affection.

Getting along with the other parent is necessary. Even in co-parenting situations where parents live apart, it is crucial to adhere to practices that do not hurt children, to resolve conflicts out of sight of the children, to apologize to one another and forgive each other (both can be done in front of the kids), to speak kindly about the other parent, and so on. Stress management is also important for good parenting.

The study also determined that all types of people are equally competent at child-rearing; that the characteristics that people often associate with good parenting are probably not very significant.

  • Women appear to be only a hair better than men at parenting (women scored 79.7 percent on the study’s test, compared with 78.5 percent for men).
  • Parents who were older or who had more children also did not produce significantly better parenting outcomes.
  • Parents seem to perform just as well whether or not they have ever been married.
  • Divorced parents appear to be every bit as competent as those who are still married, although their children are somewhat less happy than the children of parents who were never divorced.
  • Neither race, nor ethnicity seems to contribute much to parenting competence.
  • Gays and straights are just about equal in parenting ability (gays are a “hair” better).

One characteristic that did seem to make a difference was education: generally speaking, the more education, the better the parenting.

The bottom line was that when judging an individual’s competence as a parent, one should measure that competence directly rather than default to commonly held stereotypes and prejudices.

Finally, the study concluded that parents are trainable. Parents who have taken parenting classes produce happier, healthier and more successful children; and more training leads to better outcomes.

The playing-field in custody litigation is now supposed to be gender-neutral. One cannot help but believe, however, that remnants of prejudices and stereotypes remain.

This study may not only help to level the field, it should provide a focus for facts and issues when making decisions in custody litigation. Measured against the Ten Competencies, how does each parent stack up? What is each parent doing, under the circumstances, to maximize the opportunity to raise happier, healthier, better functioning children?

Pinocchio female.jpgLast month, recognizing Domestic Violence Month, we reviewed the Second Department decision in Costigan v. Renner  which affirmed the granting of custody to a father because of domestic violence by the mother.  Indeed, since 1996, consideration of domestic violence has been mandated in custody and visitation cases.  Section 240(1) of the Domestic Relations Law provides in part:

Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to this section and state on the record how such findings, facts and circumstances factored into the direction.

Two recent decisions suggest that the Legislature should also give weight to the making of false allegations of domestic violence.

In Williams, the Third Department on November 4, 2010 affirmed a Broome County award of sole custody to the father of a 9-year-old daughter and 6-year-old son where the mother’s allegations of domestic violence were discredited.

Similarly, on October 21, 2010, in Jeker, the Third Department affirmed a modification of a prior joint custody award and granted sole custody to the father, substantially on the basis of the mother’s elaborate plan to falsely accuse the father of physical assaults upon her.  The record was devoid of evidence to support the mother’s claims of abuse; rather the evidence demonstrated that she had lied under oath.

Indeed, in 2008, the Second Department in Mohen recognized the substantial effects that false allegations of spousal violence may have on parenting.  The court noted:

[E]vidence of false allegations of physical abuse which interfere with parental rights, is so inconsistent with the best interests of the child that it raises, by itself, a strong probability that the offending party is unfit to act as a custodial parent.

In Mohen, the court reversed an order of custody to the mother where the mother had made numerous false charges against the father, including four accusations of physical abuse by the father against the mother. The court specifically noted that as a result of the accusations, a temporary order of protection was issued against the father that prevented contact between the father and the child for approximately one month.

In Maine, the custody statutes recognize that such willful misuse of court remedies to gain tactical advantages may tend to show a lessened ability and willingness of the accusing parent to cooperate and work with the other parent in shared responsibilities for the children.  Accordingly such misuse of the courts is to be considered by the court in making a custodial award.

The seriousness of spousal abuse, and domestic violence in general, cannot be understated.  Breaking the inter-generational cycle of abuse and protecting children from exposure to violence is a vital goal of the judicial process.  However, numbing true claims of domestic of violence by tolerating false claims without sanction does a substantial disservice to all victims of domestic violence.  Without giving equal consideration in custody matters to the making false claims simply invites a race to Family Court and calls to the police.  D.R.L. §240(1) should be amended to emphasize the damage to the family and the judicial process caused by willful false accusations.

Flag and bible.jpgIn A Taboo Exchange, an article in the July/August 2010 issue of Scientific American Mind magazine, Adam Waytz reported that a few recent studies have examined how people react when their most passionately held values are challenged.  He defined a “sacred value” as more than just a strongly-held belief, but rather a moral stance on which the holder will not budge, no matter what the conditions.

Such sacred values certainly include religious beliefs, but Waytz noted that people exhibit such boundless commitment to other values as well: nationalism, loyalty to a political party, or even a sports team.  Waytz projected that merely recognizing these issues may help resolve international disputes such as the Israeli-Palestinian conflict and the growth of the Iranian nuclear program.

When offered cash to relinquish a sacred value, people tend to react irrationality.  Financial incentives backfire. People respond to such offers with moral outrage; reacting viscerally, expressing anger and disgust, becoming increasingly inflexible in negotiations.  Psychologist Philip E. Tetlock refered to such exchanges as “taboo trade-offs.”

This concept should readily apply to divorce settlement negotiations.  While easily seen in the custody and parenting-issue context, it could also appear in discussions over support entitlement, recognizing financial or other contributions to the marriage, or dealing with the favorite chair or the family pet.

When sacred values are on the negotiating table, it pays to understand the psychology of the taboo trade-off.  Waytz noted that conflicts involving sacred beliefs may be best resolved when both sides consider compromising something they hold dear. Choosing the right words may help, too.  Emphasizing the dire, necessary nature of a trade-off may facilitate conflict resolution.

Recognizing the presence of a “sacred belief” or hot-button issue may be a crucial step when beginning settlement discussions.  Counsel should be alert to validate the belief and to search for an appropriate “trade-off.”  Simply throwing more money at a sacred position may have unanticipated and significant negative consequences.

Kathleen Prisco Mug Shot.jpg

Both President Obama and Governor Paterson have officially proclaimed October to be Domestic Violence Month.

Four years after the Legislature in 1996 mandated consideration of domestic violence in custody and visitation cases, Kim Susser in her 2000 Fordam Urban Law Journal article noted that it was “evident that the amendment failed to change the behavior of many judges, attorneys and forensic evaluators regarding domestic violence.”

However, the Court System has indeed focused its attention on the issue over the past decade.  As but one example, an unofficial publication of the Appellate Division, First Department, the Lawyer’s Manual on Domestic Violence: Representing the Victim, edited by Jill Laurie Goodman and Dorchen A. Leidholdt, is available in PDF format through the NYS Court system’s Judicial Committee on Women in the Courts.  That committee’s website links to the NYS Office for the Prevention of Domestic Violence and The New York State Coalition Against Domestic Violence, often a welcomed force in Family Courts around the State, whose mission is to provide effective and appropriate services to victims of domestic violence through community outreach, education, training, technical assistance and policy development.

Reviewing these and other available publications and websites, one might conclude that domestic violence is a women’s issue.  Indeed, The Coalition reports that 91 to 95 percent of all adult domestic violence assaults are perpetrated by men against their female partners.  The Lawyers Manual seems written in that tone.

However, earlier this year it was noted that “more than 200 survey-based studies show that domestic violence is just as likely to strike men as women. In fact, the overwhelming mass of evidence indicates that half of all domestic violence cases involve an exchange of blows and the remaining 50% is evenly split between men and women who are brutalized by their partners” (for the complete bibliography).

Anecdotally, Newsday recently reported that Tom Liotti, Esq., Editor-in Chief of Domestic Violence, a book published by the State Bar Association, was preparing to enter a plea of not guilty by reason of insanity on behalf of Kathleen Prisco (pictured), charged with murdering her husband, Ralph Prisco, a tax and pension attorney.  He was found dead, stabbed 15 times, hours after he attended a World Series game at Yankee Stadium with his three children.

On September 28, 2010, the Second Department in Costigan v. Renner affirmed Queens County Supreme Court Justice Maryellen Fitzmaurice’s award of custody to a father, solely on the expressed ground of that the “acts of domestic violence by the mother against the father demonstrate that the mother is ill-suited to provide the children with ‘moral and intellectual guidance.'”

We can note that our state courts have come a long way in the last decade.  What is recognized universally: the children are always the victims.

I fear that merely pointing out that both wives and husbands are the victims of domestic violence may be seen as minimizing violence upon women.  Such is not my intent.  Rather, I seek only to applaud the growing attention of the courts and bar to this urgent family problem.

Couple buying insurance.jpgThe Washington Post reported October 17, 2010 on the recent availability of Divorce Insurance. It is presented, somewhat, as an alternative or reaction to prenuptial agreements.

WedLock Divorce Insurance is an annually renewable policy of casualty insurance that pays out a lump sum of cash if a marriage ends in divorce. It is sold in payoff units of $1,250. Thus, if a 10-unit policy is chosen, the payoff on divorce would be $12,500 ($1,250 x 10).

The premium for each unit is $15.99 per month. The website points out that that’s less than 53 cents a day per unit, perhaps a tenth of the price of a cup of premium coffee.

However, there is an initial four-year Waiting Period during which divorces are not covered. So, premiums of at least $767.52 (48 months x $15.99 per month) would have to be paid get the $1,250.00 payoff for a divorce judgment entered after that period. Good news, though! For every 12 months of premiums, or $191.88 (12 x $15.99), paid after the Waiting Period, each unit does increases in value by $250.00.

For an additional payment, one can purchase the Accelerated Maturity Rider, reducing the Waiting Period to three years. A Return of Premium Rider is also available to recover premium payments made if the divorce is entered before the end of the Waiting Period.

The website provides a Divorce Probability Calculator, predicting your likelihood of a divorce, within a 13% margin of error, by answering 20 simple questions.

WedLock Divorce Insurance can be purchased by a spouse at any time with or without the knowledge or consent of the other spouse. Moreover, anybody can buy the policy: parents can bet on the success of a child’s marriage.

The website points out that since there is no accrued or accumulated cash value to the policy before the divorce is finalized, there is no marital asset to divide. (Query: would use of marital funds to pay the premiums constitute waste or a “non-marital”expenditure?).

To quote Yakov Smirnoff, “America, what a country!”

H shocked at W shopping.jpgWhen Sally Field won her second Oscar in 1984, her acceptance speech included the line often now misquoted as “you like me, you really like me.” Nancy Alper might respond to the Second Department, “you hate me, you really hate me.”

In its October 12, 2010 decision in Alper v. Alper, that court affirmed the trial decision of Kings County Supreme Court Justice Eric Prus, which awarded Mrs. Alper 0% of the marital assets.

In the Alper’s 20-year childless marriage, during which the parties were separated for 10 years, both parties worked, but Mrs. Alper spent her money on herself and her daughter of a prior marriage.  We are not told how much the parties earned, or of the decadence of their purchases.

Nevertheless, it was only last year that the Court of Appeals held that the parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.  Courts should not second-guess the economic decisions made during the course of a marriage. See, Mahoney-Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369 (2009), holding that one spouse may not recover for the money the other spouse spent on required support for a prior spouse and child.

Here, we are told Mrs. Alper contributed little, if any, financial support to the marriage, contributing nothing “to the purchase, and only minimally to the maintenance of the marital home.”  Accordingly, she was awarded no interest in that residence.  Moreover, as Mrs. Alper failed to demonstrate “the manner in which her contributions resulted in the increase in value and the amount of the increase which was attributable to her efforts,” Mrs. Alper was awarded no part of the appreciation in value in her husband’s pre-marital country home.

Also, as Mrs. Alper failed to prove whether her husband’s cash and securities were separate or marital property [doesn’t the burden rests with the titled spouse to rebut the presumption that property is marital? Fields, 15 NY3d 158, 163, 905 NYS2d 783, 785 (2010)], she was awarded no part of those assets.

Finally, as Mrs. Alper failed to prove the value of a parcel of vacant land, concededly marital property, she was not entitled to a distributive award.

Perhaps it is naive to think that the appellate decisions should pave the way towards minimizing conflict, generating guidelines to assist resolution by agreement.  This decision foreshadows the opposite; enhancing the ill will between parties as they challenge the value to the marriage of each other’s choices.

Change Buttonl.jpgEffective October 14, 2010, amendments to D.R.L. §236B(9) and F.C.A. §451 go into effect (Laws 2010, chap. 182; Bill #A8952).  They require that language be included in divorce settlement agreements to specifically opt out of a newly-created entitlement to a judicial modification of a child support order. Without such language, even a child support order based upon a surviving agreement may be modified either:

  • 3 years after the entry of the order; or
  • where there has been a 15% change to either parent’s income.

Unless agreements after October 14, 2010 specifically opt out of the applicability of these conditions, a court may modify a child support order when either condition is met.

These two new conditions supplement the ability of a court to modify a child support order, despite a surviving agreement, where there has been a “substantial change in circumstances.” That ground remains.

The amendments apply only to support orders entered on or after October 14, 2010, and to surviving agreements entered on or after that date.

F.C.A. §413-a(2) and Social Services Law §111-n(4) still provide for modification of child support orders where there has been a 10% change in the cost of living, if the custodial parent is in receipt of public assistance or uses child support enforcement services (i.e., a Support Collection Unit).

It is presumed that despite a judicial downward modification of a support order, the custodial parent will still have the right to bring a contract action for the difference between the higher amount of the agreement and the lower amount provided for in the modified order.  Sparacio v. Sparacio, 248 A.D.2d 705, 670 N.Y.S.2d 558 (2nd Dept. 1998); Voss v. Voss, 132 A.D.2d 545, 517 N.Y.S.2d 546 (2nd Dept. 1987); Bouklas v. Bouklas, 133 Misc.2d 106, 506 N.Y.S.2d 637 (Sup. Suffolk 1986)

However, if an agreement after October 15, 2010 fails to include the new opt-out language, could that failure be used to signal a loss or waiver of that contract right?