May a parent be directed to maintain life insurance in a Family Court support proceeding? Do an aunt and uncle awarded primary residential and, with the father, joint legal custody of his children, share responsibility for the children’s health and education expenses? Such were the questions addressed by the Appellate Division, Second Department, in its September 12, 2018 decision in Lozaldo v. Cristando.

Following the death of the children’s mother, the maternal aunt and uncle were awarded residential custody of the children and shared joint legal custody with the father. The aunt and uncle commenced this proceeding for child support from the father. After a hearing, Nassau County Family Court Support Magistrate Patricia Bannon entered a support order which, inter alia, required the father to pay 100% of the children’s unreimbursed medical and educational expenses, and to maintain a life insurance policy in the sum of $1,000,000, designating the children as irrevocable primary beneficiaries. The father objected to these provisions of the order of support. Family Court Judge Conrad D. Singer denied his objections. The father appealed.

The Second Department agreed with requiring the father to pay 100% of the children’s medical and educational expenses. There was no basis to find the maternal aunt and uncle liable for a portion of such expenses.

Continue Reading Family Court-Mandated Life Insurance | Non-Parent Liability for Health and Education Expenses

What happens when a deceased father failed to maintain life insurance for the benefit of his ex-wife and the children of the marriage entitled to receive support? Is there a claim, against whom, and for how much?

Those were the questions answered by the Appellate Division, Second Department, in its August 31, 2016 decision in Mayer v. Mayer.

There, the plaintiff (mother) was the second wife of Paul S. Mayer (father). Pursuant to their 2000 judgment of divorce, the father was, among other things, obligated to pay child support and educational expenses for the children of that marriage, Alanna and Matthew. The judgment of divorce also provided that the father was to maintain a term life insurance policy in the face amount of $1,000,000 for the benefit of Alanna and Matthew, with the mother being named as trustee on their behalf, “until such time as his support obligation is fully satisfied.”

In 2001, the father married Kristen and thereafter had two children, Jonah and Ryan.

In 2005, due to the father’s claimed inability to pay the premiums on the $1,000,000 policy required under the judgment of divorce, the policy was converted into two policies insuring his life, both of which were issued by New York Life. One policy, with a face amount of $200,000, listed the father as the owner and the mother as the beneficiary. The other policy, with a face amount of $100,000, listed the mother as both the owner and the beneficiary. The mother paid the premiums on the $100,000 policy.

In 2006, the mother moved in the Family Court to have the father held in contempt for, among other things, failing to maintain the $1,000,000 policy required by the judgment of divorce. The Family Court found the father to be in contempt and directed him to comply with the life insurance provision of the judgment of divorce. However, apparently the father could not obtain a new policy in the amount of $1,000,000 because of ill health.

Continue Reading Redressing the Failure to Maintain Life Insurance Required by Divorce Judgment

A court may order that life insurance be maintained to secure the payment of child or spousal support or the payout of a distributive award. It is not to be an award in an of itself. Its purpose is not to create an additional fund on the death of a party, but rather to secure that support and property payments contemplated by the divorce decree will be made, even on death.

Thus, in its June 20, 2014 decision in Marfone v. Marfone, the Appellate Division, Fourth Department, modified the judgment of Oneida County Acting Supreme Court Justice Joan E. Shkane to reduce the required life insurance from $500,000.

We agree with defendant, however, that the amount of life insurance the court required defendant to maintain with respect to his child support obligations is excessive, and we therefore modify the amended judgment by reducing the amount of that life insurance from $500,000 to $300,000.

Domestic Relations Law §236B(8)(a) authorizes the use of life insurance to secure the divorce payments:

8. Special relief in matrimonial actions.
a. In any matrimonial action . . . the court may also order a party to purchase, maintain or assign a policy of . . . on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage . . . as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse’s duty to provide maintenance, child support or a distributive award.

Thus, insurance can be ordered to be maintained on the life of either party, to be owned by either party, naming either spouse or the children as irrevocable beneficiaries for a period no longer than the divorce decree payments.

Continue Reading The Divorce Life Insurance Trust

A spouse’s pre-divorce judgment death results in the unenforceablitity of divorce action orders, including the automatic orders mandated by Domestic Relations Law §236(B)(2)(b). As a result, Westchester County Supreme Court Justice Paul I. Marx held in his April 17, 2014 decision in A.V.B. v. D.B. that a husband was without a remedy for his wife removing the husband as a beneficiary of her retirment account and life insurance policy.

After 13 years of marriage and two children, the wife commenced this divorce action on September 12, 2012. Pursuant to stipulated Preliminary Conference Orders, it was agreed that the wife would be awarded the divorce on the grounds of irretrievable breakdown, an Attorney for the Child was appointed and the pre-trial schedule was fixed.

On April 22, 2013, the wife committed suicide. During the administration of her Estate, it was learned that on February 14, 2013, while the divorce action was pending, the wife had changed the named beneficiaries on her ING 403(b) account from her husband as her sole beneficiary to the parties’ two children as 50% primary beneficiaries. It was further discovered that on or about March 10, 2013, the wife changed her designation of the husband as the sole named beneficiary on her Prudential life insurance policy to the husband as a 1% primary beneficiary, the parties’ daughter K. as a 49% beneficiary and daughter R. as a 50% beneficiary.

The husband’s counsel then submitted a letter to Justice Marx with a proposed order directing that the named beneficiaries on the wife’s ING account and Prudential life insurance policy revert back to the date of the commencement of the action and directing ING and Prudential to pay out the balance in the wife’s annuity and the “death benefit” under her life insurance policy to the named beneficiaries that existed before the changes were made. At that time, the husband’s lawyer also submitted the supporting affirmation of the attorney for wife’s Estate, declaring that the Estate consented to the proposed order.

Justice Marx declined to sign the proposed order. Instead, the Court scheduled a conference at which the Court directed defense counsel to move by Order to Show Cause. Although no papers were submitted in response to that motion, Justice Marx nevertheless denied it. The relief sought in the motion was not warranted by the law, nor by a good faith extension of the law.

While it is regrettable that Plaintiff violated the automatic orders and seems to have reached beyond the grave to thwart Defendant’s efforts to recover his share of her assets, this Court is unable to remedy the violation in this proceeding.

Continue Reading Automatic Orders, Violated During Divorce Action, Cannot Be Enforced After Pre-Judgment Death

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

Life Insurance.jpgThe June 19, 2012 decision of Suffolk County Supreme Court Justice Peter H. Mayer in Mehran v. Mehran (PDF) resolved a motion made in a post-divorce judgment action by an ex-wife to enforce several provisions of the parties’ 2003 post-nuptial settlement agreement. That agreement was incorporated, but not merged into their 2004 judgment of divorce.

Among other alleged defaults, the ex-wife sought to specifically enforce those provisions of the agreement which obligated her ex-husband to maintain a $1,000,000.00 life insurance policy naming as irrevocable beneficiary the ex-wife as Trustee for the benefit of their unemancipated children.

The agreement further provided that the purpose of the provision was secure the payment of obligations of the ex-husband under the agreement in the event of his death.  Upon the ex-husband’s death, the ex-wife is to use the insurance proceeds to pay all of those obligations. If any proceeds are left over, the excess proceeds are to be distributed equally among the ex-husband’s surviving children (the ex-husband also had children of a prior marriage). The agreement provided:

1. The [ex-husband] agrees that he will maintain in full force and effect, and neither pledge, hypothecate nor encumber the existing policies insuring his life in the minimum face value of One Million ($1,000,000.00) Dollars naming the [ex-wife] as Trustee for the benefit of the children as irrevocable beneficiaries of said policy, with [sic] such time as the children are emancipated.

2. It is the intention of this article that the [ex-husband] maintain sufficient Life Insurance to cover all of his obligations to this agreement.

3. In the event of the [ex-husband’s] demise and the payment to the [ex-wife] of the life insurance proceeds as trustee, she shall pay the sums due from the [ex-husband] pursuant to this agreement. When all sums pursuant to this agreement have been fully paid, and if there is any balance in said account, said balance shall be distributed equally among the [ex-husband’s] children surviving him.

The ex-husband opposed his ex-wife’s motion for summary judgment specifically enforcing this provision by arguing that he and ex-wife were unable to agree to the terms of a proposed trust agreement and that he, in fact, had an insurance policy in existence with the children named as irrevocable trustees. He argued that he needed a trust agreement to “protect his other children” from his first marriage. He sought to name a son from his first marriage as “co-trustee.” Notwithstanding the fact that the ex-wife was not named as the trustee, the ex-husband contended he had substantially complied with the provision.

Justice Mayer disagreed. Naming a party as a “beneficiary” on a life insurance policy instead of an “irrevocable beneficiary” as required by the terms of a post nuptial agreement is not substantial compliance with the provision. Rather Justice Mayer held the ex-husband committed a material breach of the agreement for which a contempt finding and an award of counsel fees may be proper. When the terms of a written contract are clear and unambiguous, the intent of the parties must be found within the four corners of the contract, giving practical interpretation to the language employed and the parties’ reasonable expectations.

Here, the parties’ agreement is clear and unambiguous in directing that ex-husband name ex-wife “as Trustee for the benefit of the children as irrevocable beneficiaries of said policy” until such time as they are emancipated.

Declaring the ex-husband’s argument that he needed to protect his other children was “specious, at best,” the Court noted that the agreement itself provided for the distribution of any remaining funds from that policy to all of ex-husband’s children, after his obligations under the agreement were paid.

Thus, the ex-husband was directed to obtain or to amend the life insurance policy he presently maintains insuring his life in the minimum face value of one million ($1.000,000.00) dollars naming the ex-wife as Trustee for the benefit of the children as irrevocable beneficiaries of said policy, until such time as the children are emancipated.

The ex-wife was represented by Andrea Seychett Schear of Melville, NY. The ex-husband was represented by King & Streisfeld of Lake Success, NY.