In order to prevent the foreclosure of the marital residence, a court in a divorce action, and prior to judgment, may order the spouses to cooperate with a refinance application. Moreover, if the property is not successfully refinanced, the court, before divorce judgment, may compel a spouse to satisfy (at least) one half of the current mortgage in default.

Such was the holding of the Appellate Division, First Department, in its January 3, 2013 decision in Nederlander v. Nederlander. That decision unanimously affirmed the Order of New York County Supreme Court Justice Deborah A. Kaplan.

In this case, the bank was planning to foreclose on the marital residence. Until the wife made her motion, below, the husband had failed to submit a requested application and financial information to the bank. This was months after such was requested by the bank, and months after the wife submitted her information and application to the bank. The appellate court would not speculate whether the husband’s actions, which in effect contributed to the foreclosure, were by design or neglect.

The First Department based the authority to grant the wife her requested relief on Domestic Relations Law §234. That section empowers the court to determine questions of title to property and to “make such direction, between the parties, concerning the possession of property, as in the court’s discretion justice requires having regard to the circumstances of the case and of the respective parties.”


Continue Reading Husband in Divorce Action Ordered to Refinance Home, or Pay Off Half of Mortgage Balance

Calulator on 100s 6 red.jpgIn the first appellate decision to apply the October 12, 2010 temporary maintenance amendment to the Domestic Relations Law, it was held that the recipient’s share of marital residence carrying charges is within the temporary maintenance award, itself. It was improper to have the payor spouse pay carrying costs directly in exhange for a credit against income before calculating maintenance.

In the February 7, 2012 decision in Khaira v. Khaira, the Appellate Division, First Department, considered the breadth of D.R.L. §236B(5-a). No longer was the temporary (pendente lite) maintenance award used simply to “tide over the more needy party,” but rather to provide “consistency and predictability in calculating temporary spousal maintenance awards.” The amendment “creates a substantial presumptive entitlement.”

The First Department modified the April 1, 2011 order of New York County Supreme Court Justice Deborah A. Kaplan.  In the case before it, Justice Kaplan had “properly followed the initial procedures” to determine that the presumptive temporary maintenance award would be $138,000.00 per year ($11,500.00 per month), at least based on the husband’s first $500,000.00 of income. Justice Kaplan, then, analyzed the reasonable needs of the wife and children after taking into account husband’s payment of the mortgage and health insurance and expenses. Justice Kaplan, then, awarded the wife $13,870.00 in monthly unallocated spousal and child support payments, in addition to requiring the husband to pay the $5,317.00 monthly mortgage payments and the family’s $855.00 monthly health care premiums and medical expenses. The award and expenses totaled $20,041.00 per month. Justice Kaplan, however, did not discuss the factors required by the amendment to be considered when making an award in excess of the formula applied to the first $500,000.00 of a spouse’s income.

Before remanding the issue to Justice Kaplan for redetermination, the First Department focused on the “suggestion” inherent in her decision “that the formula was intended to cover the support needs of the non-monied spouse, such as food and clothing, but not the cost of the mortgage payments for her residence.” However, because any specific reference to the carrying charges for the marital residence was absent from the temporary maintenance formula amendment, the First Department considered:

[It was] reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the cost of food and clothing and other usual expenses.

The First Department noted that prior to the amendment, it was common to award support both in cash payments to the spouse as well as to third-parties. That practice was “not only eminently reasonable, but also the most expedient way of covering payment of the necessities, and protecting the home as a marital asset.” The “new approach” changes that, instead awarding “the amount that will cover all the payee’s presumptive reasonable expenses.”

The First Department did not rule out the possibility of a direct mortgage payment, but, as required by the statute, only after the analysis of income in excess of the $500,000.00 cap was made.

The impact of this decision is clear.  However, it also reveals the lack of logic in the remaining support calculations required by the various support provisions.


Continue Reading Appellate Decision Clarifies Temporary Maintenance Calculations; Temporary Child Support Awards Must Be Next

we are moving with question mark flipped.jpgAs noted in the February 8, 2010 post, seven very recent decisions reveal just how present are applications by separated parents to relocate with children. These decisions demonstrate that relocation applications will be decided very much on a case-by-case basis. However, common inquiries are evident:

  • To what extent is the relocation a necessity?
  • To what extent has the relocating parent fostered the relationship between the child and the parent left behind?
  • To what extent has the parent left behind exercised rights of visitation and sacrificed to be involved in the life of the child?
  • To what extent will educational and other opportunities for the child be enhanced by the relocation?

The prior blog post reported on four decisions of the Appellate Division, Third Department. This post discusses the remaining three.

In its January 31, 2012 decision in Ramirez v. Velazquez, the Fourth Department affirmed the order of Oneida County Family Court Judicial Hearing Officer John E. Flemma that denied permission to a 20-year-old mother to relocate with the parties’ three children from Utica to New York City.


Continue Reading Relocation of the Single Parent and Child: Recent Decisions (Part II)