Kaplan v. Kaplan, 21 A.D.3d 993, 801 N.Y.S.2d 391 (Second Dept. 2005)(2005 WL 2292997)(2005 N.Y. Slip Op. 06777)(Sep 19, 2005):

Supreme Court, Appellate Division, Second Department, New York.

David KAPLAN, appellant,

v.

Nicole Turano KAPLAN, respondent.

Sept. 19, 2005.

HOWARD MILLER, J.P., BARRY A. COZIER, DAVID S. RITTER, and STEVEN W. FISHER, JJ.

In an action for a divorce and ancillary relief, the father appeals from so much of a judgment of the Supreme Court, Nassau County (LaMarca, J.), entered September 1, 2004, as, after a nonjury trial, awarded the mother custody of the parties' child and permitted her to relocate, and awarded child support in the sum of $3,925 per month, maintenance in the sum of $7,500 per month for 5 years, and an attorney's fee in the sum of $100,000.

ORDERED that the judgment is modified, on the law, the facts, and as a matter of discretion, by (1) deleting the provision thereof awarding child support to the mother in the sum of $3,925 per month and substituting therefor a provision awarding her child support in the sum of $2,836 per month, (2) adding thereto a provision directing that, upon the termination of the father's maintenance obligation, the father's child support obligation shall be upwardly modified to the sum of $4,112 per month, and (3) adding thereto a provision directing that (a) the parties shall jointly consult with each other with respect to the child's education and health, including, but not limited to, decisions pertaining to his special needs arising from his hearing disability, and (b) the parents in their consultation shall always use their best efforts and good faith to arrive at a joint decision in the best interests of the child, but that the mother shall have final decision-making authority; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

In a child custody determination, a court must decide "what is for the best interest of the child, and what will best promote its welfare and happiness" (Domestic Relations Law ? 70[a]; Eschbach v. Eschbach, 56 N.Y.2d 167, 171; Miller v. Pipia, 297 A.D.2d 362, 364). Factors to be considered include "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Miller v. Pipia, supra at 364). The "existence or absence of any one factor cannot be determinative on appellate review since the court is to consider the totality of the circumstances" (Eschbach v. Eschbach, supra at 174; see Miller v. Pipia, supra at 364; Young v. Young, 212 A.D.2d 114, 118). The trial court's determination must be "accorded great deference on appeal, since it had the opportunity to assess the witnesses' demeanor and credibility" (Miller v. Pipia, supra at 364, see Eschbach v. Eschbach, supra at 173). Only where the determination "lacks a sound and substantial basis" should it be disturbed (Miller v. Pipia, supra at 364).

Given that the mother was supportive of visitation, that both parties are fit and loving parents, each capable of caring for the child, that the mother was available to care for the child and address his special needs, and that the mother was the primary caretaker since the child's birth, the trial court properly awarded custody of the parties' child to the mother (see Cohen v. Merems, 2 AD3d 663; Miller v. Pipia, supra; Forzano v. Scuderi, 224 A.D.2d 385). However, given the foregoing, we deem it appropriate to modify the judgment to add a provision directing that the parties, in good faith, jointly consult with each other regarding decisions pertaining to the child's education and health, with the mother having final decision-making authority.

Contrary to the father's contention, the trial court properly weighed the relevant factors set forth in Matter of Tropea v. Tropea (87 N.Y.2d 727), and determined that the mother's relocation to Chappaqua, in Westchester County, will serve the best interests of the child.

Further, in calculating the amount of the child support award pursuant to the Child Support Standards Act (hereinafter CSSA) (see Domestic Relations Law ? 240[1-b] ), the trial court opted to apply the child support percentage (in this case 17%) to the combined parental income over $80,000. The father contends that the Supreme Court erred in failing to articulate a reason for applying the statutory percentage to the combined parental income over $80,000. We disagree. The court's 50-page decision after trial meticulously described the parties' respective circumstances, and there is "sufficient record indication" that application of the statutory percentage was justified (see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 655). The mother was not working at the pertinent time, and was attending to child care, including the child's special needs. The father was working, and was earning in excess of $400,000 per year. We conclude that the Supreme Court providently exercised its discretion in capping his annual income at $300,000. Thus, as the Supreme Court correctly concluded, the combined parental income was $300,000, and the father's percentage obligation for child support was 100%. However, in making its child support determination, the Supreme Court failed to deduct from the father's income the amount of maintenance ($90,000 per year) that he was ordered to pay to the mother (see Domestic Relations Law ? 240[1-b][b][5] [vii] ). The court further erred in its FICA calculation.

Rather than remit the matter to the Supreme Court, Nassau County, for a recalculation of child support, in the interest of judicial economy, we do so. Thus, after deducting from the annual income of $300,000, the sums of $90,000 for maintenance and $9,768 for FICA, and applying the 17% statutory rate, we conclude that the father's child support obligation should be the sum of $2,836 per month. Upon termination of the father's maintenance obligation, his child support obligation shall be upwardly modified to the sum of $4,112 per month (see Domestic Relations Law ? 240[1-b][b][vii][C] ).

The mother was awarded maintenance in the sum of $7,500 per month for 5 years. Contrary to the father's contention, the maintenance award was a proper exercise of the trial court's discretion, taking into consideration the relevant factors, including the parties' pre-separation standard of living, the separate property retained by each party and their respective net equitable distributive awards of marital property, the mother's absence from the work force as a certified social worker for most of the period following the birth of the parties' special needs child on January 19, 2001, the mother's continued role as the primary caretaker of a special needs child, the father's significantly higher earning capacity as a successful partner in a radiology practice, and the short duration of the parties' marriage (see Domestic Relations Law ? 236[B][6][a]; Comstock v. Comstock, 1 AD3d 307; Alvares-Correa v. Alvares-Correa, 285 A.D.2d 123; Finkelson v. Finkelson, 239 A.D.2d 174; Milewski v. Milewski, 197 A.D.2d 562).

The attorney's fee award to the mother was a proper exercise of the trial court's discretion (see Domestic Relations Law ? 237[a]; Charpie v. Charpie, 271 A.D.2d 169; Vicinanzo v. Vicinanzo, 193 A.D.2d 962; Sclafani v. Sclafani, 178

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66.8.24 - - - Darrin

Darrin v. Darrin, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1555892)(2007 N.Y. Slip Op. 04558)(May 31, 2007):

Susan C. DARRIN, Appellant,

v.

David DARRIN, Respondent.

May 31, 2007

 Before: CARDONA, P.J., MERCURE, CARPINELLO, MUGGLIN and KANE, JJ.

CARDONA, P.J.

Appeal from an order of the Supreme Court (Teresi, J.), entered November 28, 2006 in Albany County, which granted defendant's motion for partial summary judgment finding the prenuptial agreement executed by the parties to be valid and enforceable.

On July 20, 1987, five days before their wedding ceremony, plaintiff and defendant entered into a prenuptial agreement wherein, among other things, defendant disclosed his financial status and acknowledged his future potential interest in a substantial family trust. In accordance with certain provisions of the agreement, defendant was to make fixed monthly payments to plaintiff which would increase upon their tenth wedding anniversary and, in the event of divorce, a cash settlement based upon the length of the marriage would be paid to plaintiff. Given these monthly payments and cash settlement, plaintiff waived, among other things, all rights to spousal support, maintenance and equitable distribution in the event the parties divorced. Thereafter, a July 25, 1987 wedding ceremony was held, however, due to a problem with the filing of the marriage certificate, the parties were not officially married until a subsequent ceremony in November 1987.

In April 2005, plaintiff commenced this action seeking a divorce as well as, among other things, maintenance and equitable distribution. Defendant moved for partial summary judgment declaring the prenuptial agreement to be valid and enforceable. In opposition, plaintiff alleged that the agreement was procured through fraud, duress and overreaching. Supreme Court granted defendant's motion, resulting in this appeal.

We find no error in granting defendant partial summary judgment upholding the validity and enforceability of the parties' prenuptial agreement. It is well settled that a prenuptial agreement is accorded the same presumption of legality as any other contract (see Matter of Garbade, 221 A.D.2d 844, 845 [1995], lv denied 88 N.Y.2d 803 [1996]; Brassey v. Brassey, 154 A.D.2d 293, 294-295 [1989] ) and the validity of such an agreement is presumed unless the party opposing the agreement comes forward with evidence demonstrating "fraud, duress, or overreaching, or that the agreement or stipulation is ... unconscionable" (Korngold v. Korngold, 26 AD3d 358, 358 [2006], lv dismissed 7 NY3d 861 [2006]; see Costanza v. Costanza, 199 A.D.2d 988, 989 [1993] ). " ?[I]n the absence of proof of facts from which concealment or imposition may reasonably be inferred, fraud will not be presumed.... Such a presumption [of fraud] must have as its basis evidence of overreaching-the concealment of facts, misrepresentation or some other form of deception? " (Matter of Sunshine v. Sunshine, 51 A.D.2d 326, 328 [1976], affd 40 N.Y.2d 875 [1976], quoting Matter of Phillips, 293 N.Y. 483, 491 [1944] ). Furthermore, where the spouse opposing the validity of the agreement fails to raise any triable issue of fact, the proponent of the agreement is entitled to summary judgment (see Tremont v. Tremont, 35 AD3d 1046, 1047 [2006] ).

Even accepting plaintiff's allegations as true, a review of the record herein fails to demonstrate any triable issues of fact with respect to fraud, duress or overreaching in connection with the execution of the prenuptial agreement. With respect to plaintiff's allegation of duress, the substantial financial disparity between the parties was fully disclosed at the time the agreement was executed. Moreover, despite the fact that plaintiff was unemployed at the time the agreement was executed and allegedly dependent on defendant's support, there is no evidence that defendant used his wealth as leverage to coerce plaintiff to sign the agreement. Although plaintiff also alleges coercion in the hurried nature of the circumstances surrounding the procurement of the agreement, the record fails to support such a contention, particularly in light of the fact that the parties were not officially married until four months after the agreement was signed. In regard to plaintiff's challenge to the effective and independent representation of her attorney, the conclusory allegations are insufficient to raise a triable issue of fact (see Korngold v. Korngold, supra at 358-359; see also Colello v. Colello, 9 AD3d 855, 858 [2004] ).

Turning to plaintiff's allegation of fraud in the inducement as evidenced by defendant's failure to abide by various provisions in the agreement-specifically his failure to increase his monthly payments to her on their tenth anniversary or transfer title to certain property-such allegations relate to defendant's breach of the agreement, not the validity of the agreement itself, and are insufficient to raise a question of fact as to any undisclosed intention on defendant's part not to perform the promises therein at the time the agreement was executed (see Colello v. Colello, supra at 858).

Finally, the record does not support plaintiff's contention that the agreement is unconscionable (see Domestic Relations Law ? ? 236[B][3][3]; Colello v. Colello, supra at 859-860; Lounsbury v. Lounsbury, 300 A.D.2d 812, 814 [2002] ). Considering all the provisions of the prenuptial agreement, we cannot say that it was so unfair "as to shock the conscience and confound the judgment of any [person] of common sense" (Lounsbury v. Lounsbury, supra at 814 [internal quotation marks and citations omitted] ).

Plaintiff's remaining contentions have been reviewed and found to be without merit.

ORDERED that the order is affirmed, without costs.

Order, Supreme Court, New York County (Joan B. Lobis, J.), entered February 21, 2006, which granted plaintiff a judgment of divorce on the ground of cruel and inhuman treatment, unanimously reversed, on the law, without costs, and the complaint dismissed. The Clerk is directed to enter judgment accordingly.

"To obtain a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170[1]), the plaintiff must show serious misconduct, not mere incompatibility, i.e., a course of conduct by the defendant that is harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper (Brady v Brady, 64 NY2d 339, 343 [1985])" (Shou-Tsung Lin v Straub, 282 AD2d 234 [2001]). Moreover, in a marriage of long duration a "high degree" of proof of cruel and inhuman treatment is required (Palin v Palin, 213 AD2d 707 [1995], citing Brady, supra; Hessen v Hessen, 33 NY2d 406 [1974]).

Plaintiff was asked at trial whether defendant had ever "physically force[d] himself on [her] sexually." In response, plaintiff testified that "I would have to say yes. It's only one time that, really where he hurt me." Apparently by way of explanation, plaintiff went on to state that defendant "[r]ammed [her] up against the wall" in the bathroom of their residence. Plaintiff did not elaborate in any other way about what she meant in stating that defendant had "force[d] himself on [her] sexually." In its vagueness and generality, this testimony could include conduct ranging from the criminal (e.g., forcible rape) to the merely obnoxious. Moreover, plaintiff offered no evidence that she had sustained any injuries as a result of this incident (see generally Palin, supra [plaintiff in marriage of long duration required to satisfy a high degree of proof of cruel and inhuman treatment]). To the contrary, she testified on cross-examination that she did not suffer any physical injuries as a result of the incident.

Plaintiff also testified that defendant, on many occasions, "physically grabbed [her]." When asked to describe how defendant "grabbed" her, plaintiff stated: "[h]e'll grab me, he'll pull me down the hall, he'll block me so I can't leave the room, throw me on the bed, push me against the wall." Again, no testimony was elicited from plaintiff that she sustained any injuries as a result of defendant's conduct.

Reprehensible and highly offensive behavior, however, is not necessarily sufficient to establish the cruel-and-inhuman- treatment ground for divorce. Plaintiff's uncorroborated [*2]testimony regarding unwanted physical contact was vague and general, and no evidence was adduced from plaintiff regarding the effects, if any, of defendant's conduct on her physical or mental well-being (see Jacob v Jacob, 8 AD3d 725 [2004]; Murphy v Murphy, 257 AD2d 798 [1999]; see also Green v Green, 127 AD2d 983 [1987]; Hage v Hage, 112 AD2d 659 [1985]). In fact, plaintiff denied suffering any injuries as a result of the incident which occurred in the bathroom. Similarly, plaintiff presented no evidence regarding the effects, if any, on her mental well-being of defendant's conduct in entering the bathroom of their residence while plaintiff was showering. While a party seeking a divorce on the ground of cruel and inhuman treatment is not required to produce medical evidence demonstrating the adverse effects of the defendant's behavior (see Ridley v Ridley, 275 AD2d 941 [2000]), the absence of such evidence may be relevant (see Omahen v Omahen, 289 AD2d 890 [2001], lv denied 97 NY2d 613 [2002]). The absence of medical evidence here is particularly telling in light of plaintiff's failure to offer any other evidence tending to demonstrate that defendant's conduct was "harmful to the plaintiff's physical or mental health and makes cohabitation unsafe or improper" (Shou-Tsung Lin, 282 AD2d at 234 [citation omitted]). At bottom, we are left to speculate as to the effects, if any, of defendant's conduct on plaintiff's physical and mental well-being.^[FN1] [*3]

Other evidence militates against the conclusion that plaintiff satisfied the substantial burden the law imposes upon her. The parties were married for 37 years, eight months at the time of trial, a marriage of long duration requiring a high degree of proof of cruel and inhuman treatment (Palin, supra). Plaintiff and defendant continued to reside together in the marital residence through the trial (see Garver v Garver, 253 AD2d 512 [1998]; see also Palin, supra). Moreover, the parties were able to talk to each other in a civilized manner, have dinner together every night, go out for meals and to the movies and attend social functions (see Walczak v Walczak, 206 AD2d 900 [1994]).

In sum, given the long duration of the marriage, the absence of any evidence regarding the effects, if any, of defendant's conduct on plaintiff's physical or mental well-being and the parties' continued residence in the marital home through the trial, the evidence failed to demonstrate, with a high degree of proof, "that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as [to] render[]
it unsafe or improper for the plaintiff to cohabit with the defendant" (Domestic Relations Law § 170[1]).^[FN2]

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 22, 2007

CLERK

Footnotes

Footnote 1:Compare Echevarria v Echevarria (40 NY2d 262 [1976] [defendant severely beat plaintiff on two occasions causing bruises and black and blue marks on her face, head and body, and made her "too nervous to work"; plaintiff also obtained an order of protection against defendant]); Zhao v Li (300 AD2d 169 [2002] [defendant's serious misconduct, including spreading false rumors of extramarital affairs, affected plaintiff's physical and mental health, including loss of sleep and nervousness that caused him to lose his job], lv dismissed 100 NY2d 615 [2003]); Van Dyke v Van Dyke (273 AD2d 589 [2000] [counterclaiming defendant granted divorce on grounds of cruel and inhuman treatment where plaintiff hit defendant with frying pan causing injury, threw household items at him and, on one occasion, wrestled him to the ground]); Pompa v Pompa (259 AD2d 338 [1999] [defendant mistreated plaintiff over several years by making false, denigrating accusations, threatening violence and participating in one incident of actual violence, causing plaintiff to suffer from anxiety, palpitations and chest pain]); Bailey v Bailey (256 AD2d 1030 [1998] [defendant physically assaulted plaintiff causing facial and other injuries]); Meltzer v Meltzer (255 AD2d 497 [1998] [defendant violently pushed plaintiff to the floor, an act that caused bruising and resulted in police intervention and in the issuance of numerous orders of protection excluding defendant from the marital residence]); Feeney v Feeney (241 AD2d 510 [1997] [defendant's abusive conduct forced plaintiff to flee the marital residence on several occasions, causing her to suffer anxiety and depression]); Stoothoff v Stoothoff (226 AD2d 209 [1996] [defendant denigrated plaintiff, threatened her and committed an act of physical abuse and intimidation, causing her decreased appetite, lost sleep, nausea, stress, and anxiety]).

Footnote 2:Plaintiff's testimony regarding defendant's attitude about plaintiff's family and defendant's control of the family finances demonstrates, at most, "strained, unpleasant relations and incompatibility" (Wikiera v Wikiera, 233 AD2d 896 [1996]).

Majauskas v. Majauskas, 61 N.Y.2d 481, 463 N.E.2d 15, 474 N.Y.S.2d 699 (1984)

 
Henry MAJAUSKAS, Appellant-Respondent,

v.

Sandra MAJAUSKAS, Respondent-Appellant.

April 3, 1984.

OPINION OF THE COURT

MEYER, Judge.

Vested rights in a noncontributory pension plan are marital property to the extent that they were acquired *486 between the date of the marriage and the commencement of a matrimonial action, even though the rights are unmatured at the time the action is begun. The matrimonial court in the exercise of the discretion vested in it by part B of section 236 of the Domestic Relations Law may order distribution to one spouse of an equitable portion of that part of the present value of the other spouse's pension rights earned during marriage, or may provide that upon maturity of the pension rights the recipient pay a portion of each payment received to his or her former spouse or may, if it determines that valuation or other problems make equitable distribution impractical or burdensome, order a distributive award in lieu of equitable distribution. The order of the Appellate Division, 94 A.D.2d 494, 464 N.Y.S.2d 913, should, therefore, be affirmed, with costs to defendant.

I

Plaintiff and defendant were married on December 1, 1973. Plaintiff is a policeman with the Rochester Police Department and also works part time as a radio announcer. He became a participant in the department's pension plan on February 20, 1973, but had worked for the department since 1969. Because he had more than 10 years' service with the department when his divorce action was begun on August 4, 1980, plaintiff's rights under the pension plan were vested but he was not then entitled to benefits under the plan. On November 23, 1981, plaintiff having withdrawn his complaint, defendant was granted a divorce against him on her counterclaim.

The trial evidence established that the parties owned no property of substance other than plaintiff's pension rights under the provisions of section 384-d of the Retirement and Social Security Law. It included no details concerning what rights ***702 plaintiff would have upon retirement or when his right to retire matured, but defendant presented, without objection, two letters from an actuarial firm, stating the present value of plaintiff's interest in the plan, prorated for the period of the marriage, **18 to be $28,204.81. [FN1] The *487 Trial Judge awarded defendant custody of the two children of the marriage, maintenance of $43 per week, to be reduced if defendant obtained employment by $1 per week for every $3 of her gross earnings and child support of $60 per child, to be increased in proportion to any increase in gross salary from plaintiff's police department job. With respect to plaintiff's pension rights, the Trial Judge found that in view of the length of his service and of his membership in the retirement system, he had a vested but unmatured right to a pension which would permit him to retire at half pay on February 20, 1993, at the earliest. He held those rights to be marital property subject to equitable distribution, and of a present value as to the portion the wife was entitled to share in of $14,102.40, and directed that defendant be paid, at plaintiff's option, as follows: (1) $14,102.40 outright to be paid within 30 days; (2) at any time before retirement, $14,102.40 plus interest at the legal rate from the date of judgment; or (3) in default of either of the above, that proportion of one half of each pension check which the number of months the parties were married bears to the total number of months plaintiff was employed as a policeman prior to his retirement. The judgment, 110 Misc.2d 323, 441 N.Y.S.2d 900, directed service upon the pension plan administrator of a copy of the judgment and enjoined the administrator to withhold and forward to defendant's attorneys the amount of defendant's benefits under the third option from each payment becoming due to plaintiff unless defendant notified the administrator that she had been paid the money to which she was entitled under option 1 or 2.

FN1. The letter erroneously used as the number of months for apportionment 90, rather than the correct figure, which is 80. In view of the Appellate Division's deletion, in the exercise of discretion, of any lump-sum award, the error has no bearing on the conclusion reached in this opinion.

On the husband's appeal to the Appellate Division, that court, two Justices dissenting, agreed that vested but unmatured pension rights constitute marital property, but, concluding that the record was insufficient for it to determine the propriety of the lump-sum award decreed by the Trial Judge and that there was little purpose to be served in ordering retrial of that question in view of plaintiff's lack of means with which to pay such an award, deleted the alternate provisions for lump-sum payment. It also modified the judgment to provide that payments out of plaintiff's retirement benefits when received be made to defendant by plaintiff, be measured against the payment received *488 by plaintiff less taxes, and that defendant's entitlement be measured by the period between the date of the marriage and the commencement of the action, and deleted from the judgment the provisions for future increase of child support and decrease of maintenance.

On plaintiff's appeal to us he argues that pension rights are not marital property and that an award to defendant of any part of those rights violates the constitutional prohibition against diminishment or impairment of the benefits derived from the pension system of a civil division of the State (N.Y.Const., art. V, ' 7). He contends also that the Appellate Division erred in deleting the provision for future reduction of maintenance. Defendant wife cross-appeals so much of the Appellate Division order as modified the method of computation and the procedure for payment of her portion of plaintiff's pension benefits and the deletion of the provision for future increases in child support.

II

Marital property is defined by statute as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or ***703 the commencement of a matrimonial action" (Domestic Relations Law, ' 236, part B, subd. 1, par. c). Expressly excluded from the definition is separate property which, as defined in paragraph d, includes only property acquired before marriage or **19 through gift or inheritance, compensation for personal injury, property exchanged for or acquired through increase in value of separate property, or property designated as separate by written agreement of the spouses. The only express reference to pension rights, however, is contained in subdivision 5 (par. d, cl. 4 [Factor 4] ), which specifies that one of the factors to be considered by the court in determining an equitable distribution of marital property is "the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution." Plaintiff husband argues that the explicit reference to loss of pension rights upon dissolution of the marriage requires the conclusion that they cannot be marital property, that pension rights are not acquired until they mature, which will be after commencement of the action, that they are only a contingent right to future *489 income, that if they constitute property they originated prior to the marriage and, therefore, constitute separate property and its increase, and that to order him to pay to defendant by way of distribution part of his future pension income, which when received may constitute the basis for maintenance payments to defendant, constitutes impermissible "double-dipping."

Those arguments misperceive the legislative intent behind the enactment of part B and the nature of rights under a pension plan. As the Governor noted on approving the statute (L.1980, ch. 281) which enacted part B of section 236 of the Domestic Relations Law, it was enacted after consideration over a six-year period and in response to his urging of the adoption of legislation which would consider the economic impact on spouses and children of the dissolution of a marriage, and it recognized "that the marriage relationship is also an economic partnership" (McKinney's Session Laws of N.Y., 1980, p. 1863). Moreover, that the Legislature intended the contribution of both spouses to the partnership to be recognized with respect to property acquired through the efforts of either becomes evident when the statutory scheme is considered as a whole. The court is empowered "in order to achieve equity between the parties," not only to make an equitable disposition of marital property between them, but also to make a distributive award "in lieu of or to supplement, facilitate or effectuate the division or distribution of property where authorized in a matrimonial action, and payable in a lump sum or over a period of time" (Domestic Relations Law, ' 236, part B, subd. 1, par. b; subd. 5, par. e). Importantly, not only is marital property defined broadly as all property acquired during the marriage prior to commencement of the action, but also the exception for separate property is narrowly written and expressly excludes from the increase in separate property which will be deemed separate property "such appreciation [as] is due in part to the contributions or efforts of the other spouse" (Domestic Relations Law, ' 236, part B, subd. 1, par. d, cl. [3] ). Significantly also, the court is enjoined in determining an equitable disposition of marital property to consider the "direct or indirect contribution made to the acquisition of such marital property *490 by the party not having title, including * * * contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party" (' 236, part B, subd. 5, par. d, cl. [6] ).

If, against that statutory background, we consider, as the Legislature may be deemed to have by reason of its specific reference to "pension rights," the rights commonly accorded an employee and his or her [FN2] spouse in a pension plan, it becomes evident that an employee's interest in such a plan, except to the extent that it is earned ***704 before marriage or after commencement of a matrimonial action, is marital property. The employee's rights [FN3] in such a plan are **20 incremental; for each month or year of service he receives credit which will enter into the computation of what the plan will pay out to him or to his family. Until he has been employed for a stated period of years his interest in the plan is defeasible; if he is fired, or leaves voluntarily, and under some, but not all, plans if he dies before expiration of that period, neither he nor his family will receive anything from the plan, unless the plan is contributory, in which event he will usually be entitled to withdraw his contributions together with the interest they have earned. Once that period is past, his rights are said to be vested, which means that if he is fired, or leaves, he can, when he reaches retirement age, draw a pension even though no longer employed, and if he dies after vesting, a death benefit will be payable under most plans. Though his rights in the plan be vested, however, he may not draw a pension until he reaches a specified age, and if he continues employment after that age, he will continue to accrue time credit and thus increase the amount of the pension he can draw when he retires. Upon retirement his rights are said to be matured, and payments will be made under one of several options he may select. If he opts for a monthly stipend for himself alone, it will be determined by multiplying his average monthly wage over a given period (usually the highest consecutive 36 months) by a fraction *491 the numerator of which is the number of months employed and the denominator of which is determined under the plan by the age at which he retires, and will be paid to him for life, any amount remaining in his pension reserve account when he dies being paid to his beneficiary. Another available option permits him to select a lesser monthly stipend for his life to be followed by a monthly stipend to his beneficiary for life, the amount of each being calculated actuarially on the basis of the life expectancies of each. [FN4]

FN2. As a matter of convenience only the pronoun "he" is used in the description of rights that follows.

FN3. (See, generally, as to such rights, Mamorsky, Employee Benefits Law, '' 1.02, 1.03, 1.04; Buck, Features of Present-Day Pension Plans, BNA Pensions & Profit Sharing [3d ed], 20-37; 1 Prentice-Hall, Pension and Profit Sharing, par 5500 ff.)

FN4. Although the record contains no complete specification of plaintiff's rights, the Trial Judge's findings and the provisions of article 8 of the Retirement and Social Security Law establish the following: He can retire after 20 years of service with an allowance of one half his final average salary, or after attaining age 62 with an allowance of 1/40 th of his final average salary for each year of service (Retirement and Social Security Law, ' 384-d, subd. e); final average salary means the highest average annual compensation earned during any three consecutive years (Retirement and Social Security Law, ' 302, subd. 9); the plan includes an ordinary death benefit payable when an employee dies before retirement to the person he nominates to receive it (Retirement and Social Security Law, ' 360, subds. a, c), and an accidental death benefit payable to his widow or, if none, other designated relative (Retirement and Social Security Law, ' 361); the plan includes a vested retirement allowance after 10 years of service payable upon discontinuance of service but not earlier than age 55 (Retirement and Social Security Law, ' 376); and the retirement allowance is payable to him and his designated beneficiary in accordance with one of five options spelled out in the statute (Retirement and Social Security Law, ' 390).

From the foregoing recital it is apparent that the nonemployee spouse may have rights under a pension plan which are independent of those of the employee: to receive the death benefit before vesting, if there is one, or before maturity; to receive the balance of the reserve if the employee retires but dies before the reserve is paid out, or to receive a monthly stipend after the death of the employee if the employee elects to take that option.

Whether the plan is contributory or noncontributory, the employee receives a lesser present compensation plus the contractual right to the future benefits payable under the pension plan. The value of those contractual rights will vary depending upon the number of years employed, but where, as here, the rights are vested, [FN5] or where they are matured, they have an ***705 actuarially calculable value. To the extent that they result from employment time after marriage and before commencement of a matrimonial action, they are contract rights of value, received in lieu of higher *492 compensation which would otherwise have **21 enhanced either marital assets or the marital standard of living and, therefore, are marital property. [FN6]

FN5. In view of that fact, we do not reach or consider the status of nonvested pension rights.

FN6. The conclusion thus reached accords with that of most out-of- State courts (e.g., Matter of Brown, 15 Cal.3d 838, 126 Cal.Rptr. 633, 544 P.2d 561; Jerry L.C. v. Lucille H.C., 448 A.2d 223 [Del]; Matter of Hunt, 78 Ill.App.3d 653, 34 Ill.Dec. 55, 397 N.E.2d 511; Hatcher v. Hatcher, 129 Mich.App. 753, 343 N.W.2d 498; Copeland v. Copeland, 91 N.M. 409, 575 P.2d 99; Kikkert v. Kikkert, 177 N.J.Super. 471, 427 A.2d 76, affd. 88 N.J. 4, 438 A.2d 317; see Foster, A Practical Guide to the New York Equitable Distribution Divorce Law, pp. 159-188, 191-200; Ann., 94 A.L.R.3d 176) and with the result though not entirely with the reasoning of those Appellate Divisions (D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23; Damiano v. Damiano, 94 A.D.2d 132, 463 N.Y.S.2d 477; Szulgit v. Szulgit, 92 A.D.2d 712, 461 N.Y.S.2d 609, on rearg. 94 A.D.2d 979, 461 N.Y.S.2d 609; see Reed v. Reed, 93 A.D.2d 105, 462 N.Y.S.2d 73, app. dsmd. sub. nom. Patricia R. v. Thomas R. 59 N.Y.2d 761) and trial courts (Hebron v. Hebron, 116 Misc.2d 803, 456 N.Y.S.2d 957; Perri v. Perri, 115 Misc.2d 478, 454 N.Y.S.2d 277; McDermott v. McDermott, N.Y.Sup., 474 N.Y.S.2d 221; see Lentz v. Lentz, 117 Misc.2d 78, 457 N.Y.S.2d 401) that have considered the question.

The husband's arguments do not require a contrary conclusion. Factor 4's reference to "loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution" must be read as speaking to the loss of the nonemployee's independent rights outlined above, which are essentially equivalent to inheritance rights, not to loss of the employee spouse's pension rights acquired during marriage, for otherwise even matured pension rights, though clearly marital property, would be excluded. Moreover, pension rights acquired incrementally during marriage cannot be characterized as the increase of separate property originating before marriage in light of the exclusion of "appreciation * * * due in part to the contributions or efforts of the other spouse" (Domestic Relations Law, ' 236, part B, subd. 1, par. d, cl. [3] ) from the definition of separate property increase and thus its inclusion in the concept of marital property. Nor does the fact that the highest consecutive 36 months' earnings upon which the employee spouse's monthly stipend depends may occur after divorce affect the conclusion, for as the Delaware Supreme Court held in Jerry L.C. v. Lucille H.C., 448 A.2d, at p. 226, "[s]ince each employment year is counted for pension purposes each contributes to the high salary years." Finally, the suggestion that by making the distribution under consideration the husband will be unjustly burdened by "double-dipping" ignores the provisions of the statute which require that in determining distribution the court must consider "any award of maintenance under subdivision six" (Domestic Relations Law, ' 236, part B, subd. 5, par. d, cl. [5] ) and that in determining the amount of *493 maintenance the court must consider "marital property distributed pursuant to subdivision 5" (' 236, part B, subd. 6, par. a, cl. [1] ).

There remains for consideration the husband's contention that to distribute his pension is to diminish or impair it contrary to the State Constitution (art. V, ' 7). The short answer is that the pension of the employee spouse is not diminished in the sense that the pension fund will pay any lesser amount. The husband's reliance upon Caravaggio v. Retirement Bd., 36 N.Y.2d 348, 368 N.Y.S.2d 475, 329 N.E.2d 165 is misplaced, for that decision depended not upon the Constitution but upon an antiassignment statute, and held that the pensioner could not contract away, by a provision in a separation agreement purporting to make his then wife the irrevocable beneficiary of all benefits payable upon his death after retirement, his right under the plan to designate his second wife as such beneficiary. Although section 410 of the Retirement and Social Security Law contains similar protection of police pensions against assignment or legal process, such provisions have been consistently construed not to have the effect of depriving ***706 the nonemployee spouse of the rights accorded him or her upon dissolution of the marriage by a decree of divorce (Monck v. Monck, 184 App.Div. 656, 172 N.Y.S. 401; Zwingmann v. Zwingmann, 150 App.Div. 358, 134 N.Y.S. 1077; Matter of Spadaro **22(Cite as: 61 N.Y.2d 481, *493, 463 N.E.2d 15, **22, 474 N.Y.S.2d 699, ***706) v. New York City Police Dept. Pension Serv., 115 Misc.2d 494, 454 N.Y.S.2d 374; seeAmerican Tel. & Tel. Co. v. Merry, 2nd Cir., 592 F.2d 118).

III

The modifications of the judgment ordered by the Appellate Division are either correct as a matter of law or matters committed to the discretion of that court and, therefore, beyond our power of review.

Whether marital property shall be distributed or a distributive award shall be made in lieu of, or to supplement, facilitate or effectuate a distribution of marital property are matters committed by section 236 (part B, subd. 5) of the Domestic Relations Law to the discretion of the Trial Judge in the first instance. The authority of the Appellate Division is, however, as we have often noted (e.g., Northern Westchester Professional Park Assoc. v. *494(Cite as: 61 N.Y.2d 481, *494, 463 N.E.2d 15, **22, 474 N.Y.S.2d 699, ***706) Town of Bedford, 60 N.Y.2d 492, 470 N.Y.S.2d 350, 458 N.E.2d 809), as broad as that of the Trial Judge, and absent an exercise of discretion on its part so egregious that it can be characterized as an abuse as a matter of law, its exercise of discretion is not reviewable by us (Patron v. Patron, 40 N.Y.2d 582, 388 N.Y.S.2d 890, 357 N.E.2d 361). Its change in the procedure of payment of defendant's portion of future pension payments received by plaintiff is, therefore, beyond our review. As concerns the method of computation, the Trial Judge had directed the use, as the numerator of the fraction, of the number of months the parties were married. By limiting the numerator to the number of months prior to commencement of the action during which the parties were married, the Appellate Division simply conformed the judgment to the statutory definition of marital property as property acquired before commencement of the matrimonial action (Domestic Relations Law, ' 236, part B, subd. 1, par. c).

Nor was there error in the deletion of the provisions for future changes in maintenance and support. The husband, having argued before the Appellate Division that both modifications should be deleted, will not now be heard to say that, because the wife did not cross-appeal to the Appellate Division, deletion of the provision for future decrease of his maintenance payments was improper. Moreover, deletion of both the increase and the decrease provisions was correct. The maintenance and support provisions of a matrimonial decree are discretionary determinations based upon not one but a number of interrelated facts found by the Trial Judge to exist (Domestic Relations Law, ' 236, part B, subds. 6, 7). To direct a future change on the occurrence of any given fact (for example, as here, the wife's obtaining employment) ignores the possibility of change in other factors affecting the computation (e.g., increased expenses for child care during the wife's hours away from home after she obtains employment). Except when a judgment provides for an imminent and measurable change (as when it directs sale of the marital residence and increases maintenance by the amount of rent that will be required after sale), or where statutory provision expressly provides otherwise (e.g., Domestic Relations Law, ' 32, subd. 3), such a judgment should not include *495 provision for increase or decrease upon the happening of a particular future event (Lesman v. Lesman, 88 A.D.2d 153, 161, 452 N.Y.S.2d 935, app. dsmd. 57 N.Y.2d 956; Golden v. Golden, 37 A.D.2d 578, 323 N.Y.S.2d 714; see 22 NYCRR 699.9[f][5] ).

Accordingly, the order of the Appellate Division should be affirmed, with costs to defendant.

COOKE, C.J., and JASEN, JONES, WACHTLER, SIMONS and KAYE, JJ., concur.

Order affirmed, etc.

Cordula Bartha, Respondent-Appellant, v Nicholas Bartha, Appellant-Respondent.   State of New York, Appellate Division, First Department, January 27, 2005 of equitable distribution. Reversal of the financial provisions of the judgment is therefore necessary. Plaintiff Cordula Bartha, who was born in the Netherlands, emigrated with her family to Italy in 1960. She earned a Ph.D. in German literature from the University of Rome, after which she found employment as an assistant to a publisher. In 1973, she met defendant Nicholas Bartha, a medical student of Romanian and Hungarian heritage. The parties lived together in Rome until defendant graduated from medical school in April 1974, at which time they relocated to the United States and moved in with defendant's parents in a large house owned by defendant and his mother in Rego Park, New York. While defendant studied to pass the examination required of graduates of foreign medical schools, plaintiff worked in the cultural section of the Netherlands Consulate. In 1976, defendant passed the test that entitled him to practice medicine in the United States, and began an internship at Elmhurst General Hospital in Queens, New York. At about the same time, plaintiff learned that she was pregnant, and the parties married on January 10, 1977. The couple's two children, born, respectively, on August 5, 1977 and December 11, 1978, are now adults. Although plaintiff continued to work until shortly before their first child was born, she subsequently remained at home with the children until the youngest was approximately 11 years old. Plaintiff returned to work at the Consulate on a part-time basis in 1989, and resumed full-time status there in 1994. In the meantime, defendant completed his internship and residency, and from 1979 until the present has worked as an emergency room physician. The family, along with defendant's parents, moved to Manhattan in 1986, to a townhouse located on East 62nd Street, which was purchased in 1980 for $395,000, with cash totaling $199,699 obtained from a variety of sources, including a check from defendant's parents and a payment of separate funds belonging to plaintiff; the seller took back a mortgage for the remainder. Once the renovations on the building were completed, this townhouse contained the duplex apartment in which the parties resided, another apartment for defendant's parents, a rental apartment, and a physician's office unit on the first floor. Title to the property was placed in the name of defendant's parents at the time of the purchase; subsequently, it was put jointly in defendant's and his mother's name. Although the parties disagree as to the source of the mortgage payments between 1980 and 1985, it is undisputed that by 1988 the mortgage payments were made from the parties' joint account, as were the costs of the extensive renovations made on the property prior to their taking residence. In October 2001, plaintiff wife vacated the marital residence and commenced this action for divorce. After a fault trial, a divorce was granted in favor of plaintiff. The economic issues were referred to a Special Referee to hear and determine. The Referee found that the townhouse on East 62nd Street was not marital property, but [*2]was in part the separate property of defendant and in part belonged to the parties' children. It was noted that defendant obtained title to 50% of the marital residence as a gift from his father and another 25% as an inheritance from his mother, while the remaining 25% had been willed by his mother to the children of the marriage. The Referee then found that plaintiff was entitled to a distributive award, calculated to include (1) half the money the marital estate would have received had they rented out the apartment supplied to defendant's parents (determined to be $400,000), (2) half the income lost to plaintiff because she stayed home instead of working while the parties' children were young (determined to be $550,000), (3) half of the $1,112,467 in marital funds which the couple put into the marital residence, and (4) the $196,500 in separate property which plaintiff contributed over the years to the marital residence. The total distributive award thus came to a total of $1,227,733.50. The Referee also directed defendant to pay plaintiff maintenance of $2,000 per month for three years, and denied plaintiff an award of counsel fees. We affirm the determination awarding a divorce to plaintiff on grounds of cruel and inhuman treatment. Plaintiff's proof, when viewed cumulatively, established by a preponderance of the credible evidence that defendant had engaged in a course of conduct which was harmful to the plaintiff's physical and mental health, thus rendering cohabitation unsafe or improper (Domestic Relations Law § 170 [1]). This was not a case of ordinary marital dissatisfaction or even "riotous quarrels" as defendant suggests. Defendant intentionally traumatized plaintiff, a woman of Jewish origin born in Nazi-occupied Holland, with swastika-adorned articles and notes affixed around their home, and became enraged when she removed them. He ignored her need for support and assistance while she was undergoing surgery and treatment for breast cancer (see Siczewicz v Siczewicz, 92 AD2d 915, 916 [1983], appeal dismissed 59 NY2d 968 [1983]). He systematically cut off her access to marital funds and credit as a means of psychological abuse. Even plaintiff's assertion that defendant completely ceased speaking to her is not benign, but must be understood in the context of the prior years' verbal abuse. Physical violence is not a prerequisite for a showing that plaintiff's physical or mental well-being rendered it unsafe or improper for her to continue cohabiting with defendant as required by Domestic Relations Law § 170 (1) (see Hessen v Hessen, 33 NY2d 406, 410 [1974]; Pfoltzer v Morris-Pfoltzer, 9 AD3d 615, 616-617 [2004]). Nor did plaintiff need an expert to prove that defendant's actions had the claimed effect on her mental condition (see Levine v Levine, 2 AD3d 498, 500 [2003]), particularly in view of her explanation that she is the type of person who finds it difficult to consider seeking psychological treatment. However, the Referee's determination of the economic issues must be rejected. With regard to the Manhattan townhouse on East 62nd Street, which was purchased in 1980 for $395,000, and was valued by the neutral appraiser in June of 2002 at $5 million, it was error to accept at face value the claim that initially placing the townhouse in the names of defendant's parents, and defendant's subsequently holding joint title with his mother, rendered the property nonmarital. [*3] It is true that it was defendant's parents who took title to the townhouse when it was purchased in 1980, and that defendant's father thereafter purported to gift his half of the house to defendant, while the other half remained in his mother's name, until at her death in 1997, when defendant inherited 50% of her interest in the property, with the remainder willed to her granddaughters, the parties' children. However, the names in whom title was placed does not end the analysis, especially in circumstances such as these. It is central to the Equitable Distribution Law that the term "marital property" includes property acquired by either spouse during the marriage "regardless of the form in which title is held" (Domestic Relations Law § 236 [B] [1] [c]). That one of the spouses acquired title to property jointly with another relative would not necessarily interfere with its being considered marital, at least to the extent of the spouse's established interest (see Antenucci v Antenucci, 193 AD2d 948 [1993]). Moreover, in this instance, the manner in which defendant's parents initially obtained title, and defendant then obtained title from his parents, supports the claim that the townhouse was truly the marital property of these parties, at least in part, from the outset, and that any additional interest that defendant acquired from his parents subsequently might similarly be considered marital property as well. It is undisputed that $45,095 of the $199,699 cash used for the purchase of the townhouse came from plaintiff's separate property. Moreover, while $114,369 of the cash down payment came from a check from defendant's parents' account, in the context of the probate of his mother's estate, defendant took the position that at least $60,000 of that payment belonged to him and constituted marital assets. Indeed, that defendant considered the funds held in his parents' names to belong in part to himself and his wife was illuminated by the manner in which he and his family handled their finances generally. For instance, while defendant's mother alone received the rents on the Rego Park building that she and defendant had purchased jointly before the marriage, the building's expenses were paid by plaintiff and defendant, from marital earnings. Indeed, in the probate of his mother's estate, in which defendant successfully defended a challenge by his nephews to his right to inherit his mother's interest in the townhouse, defendant asserted that he and his parents had so thoroughly commingled their assets that while he had, technically, inherited property from his mother, the inheritance actually amounted to a repayment to him of financial loans that he and his wife had made to his mother over the course of many years. There is a "presumption in favor of marital property, premised on the contemporary view of marriage as an economic partnership, crediting each party's contributions, whether monetary or not, to the growth and value of the marriage" (DeJesus v DeJesus, 90 NY2d 643, 648 [1997]). The term marital property must be broadly construed in order to give effect to the economic partnership concept (Price v Price, 69 NY2d 8, 11 [1986]), and assure that "to the extent that the appreciated value of separate property is at all 'aided or facilitated' by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution" (Hartog v Hartog, 85 NY2d 36, 46 [1995]). To the extent defendant establishes that a portion of the down payment for the Manhattan townhouse was from funds of his parents which had not been intermingled with marital funds, or [*4]from his own separate property, he is entitled to a credit for that contribution; but, otherwise, the property, or at least the 75% interest therein currently held in defendant's name, is marital property[FN*] (see Heine v Heine, 176 AD2d 77, 84 [1992], lv denied 80 NY2d 753 [1992]). The appreciation of the value of the house, from $395,000 to $5 million, was unrelated to the down payments, but very much related to the complete gutting and renovation which was largely overseen by plaintiff, and paid for out of the parties' marital funds (id.). Furthermore, the mortgage payments were made entirely from marital funds, at least from 1988 on, and possibly during the earlier years as well. As to the distributive award that the court granted to plaintiff, both parties agree that there is neither support nor sufficient explanation of how the Referee calculated the amounts of $400,000 for loss of rental income and $550,000 for plaintiff's loss of employment income. Even if we agreed with the characterization of the marital residence as defendant's separate property, a remand would be necessary on this basis in any event. The need for reassessment of the equitable distribution award also necessitates reassessment of the court's maintenance award to plaintiff. We note, however, that the record fails to disclose how a maintenance award of $2,000 per month for three years will enable plaintiff, who currently lives in a small apartment in Washington Heights with her two adult daughters, to retain her predivorce standard of living (see Hartog v Hartog, 85 NY2d at 50-52; Summer v Summer, 85 NY2d 1014 [1995]). Finally, the question of whether or not plaintiff is entitled to an award of legal fees in connection with this matrimonial proceeding must also be reassessed in accordance with the final equitable distribution determination. Accordingly, the judgment of divorce of the Supreme Court, New York County (Joan B. Lobis, J.), entered May 9, 2003, which, inter alia, granted plaintiff a divorce, provided for a distributive award to the wife, awarded her maintenance in the sum of $2,000 per month for a period of three years, and denied her application for attorney's fees, should be modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs. Buckley, P.J., Tom, Andrias and Marlow, JJ., concur. Judgment of divorce, Supreme Court, New York County, entered May 9, 2003, modified, on the law, so as to vacate the provisions regarding equitable distribution, maintenance and counsel fees, and the matter remanded for a new fact-finding hearing and determination of those issues in accordance herewith, and otherwise affirmed, without costs. Footnotes Footnote *: While plaintiff challenges the authority of defendant's mother to bequeath 25% of the house to her granddaughters, she nevertheless does not want to challenge her daughters' ownership rights. Source: New York State Courts

 

By Eva Rosenberg, MarketWatch
New York Daily News - http://www.nydailynews.com
Sunday, September 24th, 2006

LOS ANGELES (MarketWatch) - Despite a divorce agreement that specifically said neither party shall pay or receive alimony, one reader, Divorced in New York, was hit with a $5,000 tax bill from the Internal Revenue Service for some phantom alimony.
Even though the IRS had a copy of the divorce agreement in hand, the agency insisted on assessing the taxes. Why? Because this woman's ex-husband presented canceled checks to prove he made payments to her in the amount reported as alimony. The IRS didn't really care that it wasn't alimony.

What were the payments? They were her portion of his monthly pension, as granted to her in the divorce. Unfortunately, the state was sending the money to Divorced's ex-husband, with the withholding already pulled out, and he was sending to her half of the net. Then, on his tax return, the ex-husband was deducting his full payment as alimony, and pocketing her share of the refund.

This problem could have been avoided if the attorney had set up a QDRO, says Patricia Powell, a certified financial planner and chief executive of The Powell Financial Group Inc., in Martinsville, N.J.

What's a QDRO? A qualified domestic relations order. Properly prepared, it instructs the pension plan to issue a check directly to the ex-wife for her share of the income.

With a QDRO, an ex-spouse can decide whether to get a lump sum rolled over to her IRA, cash it out and pay taxes, or continue to get monthly payments. She can designate how much she chooses to have withheld from her check. And, getting credit for her full share of the withholding, if Divorced had reported the pension income properly on her own tax return, she would have owed no tax.

This is a typical error when couples indulge in do-it-yourself divorces, said Lynne Gold-Bikin, chair of the family law practice group at Wolf, Block, Schorr and Solis-Cohen LLP in Norristown, Penn. Even seemingly simple divorces are more complex than they appear. They involve knowledge of both divorce law and tax law. Gold-Bikin says that if you're not a tax-law expert, you should get one to review the divorce agreement and settlement.

If your divorce doesn't get a tax tune-up, what kinds of errors are apt to occur? Here are some common problems.

Deceptive equality Often, assets appear to be evenly split based on fair market value. Everything looks all nice and equitable, but one person just got stuck with all the taxable assets, while the other walked off tax-free, warns Powell. One of the biggest traps for women, especially mothers, is that they often give up their right to practically everything in order to keep the house and avoid moving their children.

Here are some tax rules to consider:

Pensions, 401(k)s and IRAs are taxed at ordinary income rates. With the high distribution added to your other income, this can throw you into the top tax bracket of 35%.

Stocks and investments often get long-term capital gain treatment - limited to 15%.

The house looks like a good deal with that $500,000 personal residence exclusion. But once your ex signs it over to you, you've instantly lost half that cushion. If the appreciation on your residence is substantially more than the $250,000 personal exclusion, Powell advises you sell the house while you're still married and can use the full $500,000 joint exclusion. Then, split the money and buy your own home in the same neighborhood, which will now have a higher tax basis (basis is the cost, for tax purposes). Note: In most states, property tax keeps up with the increasing market value of the home. In California, due to Proposition 13, property taxes are based on the original purchase price. Before you do this in California, run the numbers to see whether the increased annual property tax payments on the new home might cost you more than the potential capital gains tax.

Cash is valued at face-value for tax purposes - there is no tax on cash!

How can you avoid the problem of "deceptive equality"? Powell suggests you sell off the assets with the high tax values and split the cash. Or if that's impractical, balance the split based on the tax costs. Have your certified financial planner or tax professional review the assets' tax bases to help you reach a truly equitable split.

The vanishing alimony trick Alimony recapture can be a common problem, cautions Gold-Bikin.

IRS Publication 504 explains what the recapture is: "You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year."

Why is this recapture needed if the divorce agreement is properly drafted? Gold-Bikin said this often happens when the alimony payments aren't made on schedule. If several payments are missed in one year, then made up in another year, it's easy to see that $15,000 swing take place. Or if payments are stopped altogether and there haven't been three years of regular alimony payments, that would also trigger the recapture.

Why does this matter? Because the person paying the alimony will lose the deduction. And the person who received the money may go back and file amended returns for all the alimony years - and get refunds. Read that last sentence again if you're dealing with a deadbeat former spouse. You may have a refund coming!

How can you avoid this problem? Gold-Bikin recommends you adhere to the alimony payment schedule.

Vague assignments When the divorce decree awards family support without spelling out which part is for child support and which is for spousal support, it's all taxable to the recipient as alimony, and deductible to the payer, says Gold-Bikin. This the result of a 2005 Tax Court decision in Berry v. Commissioner.

How can you avoid this problem? Spell out how much of the support is designated for each child, and how much is spousal support.

Read 

99.2.68 Hougie

Hougie v. Hougie, 261 A.D.2d 161, 689 N.Y.S.2d 490 (First Dept. 1999)

Supreme Court, Appellate Division, First Department, New York.

Anne L. HOUGIE, Plaintiff-Respondent,

v.

Robert E. HOUGIE, Defendant-Appellant.

May 6, 1999.

**490 Allan D. Mantel, for Plaintiff-Respondent.

Michael F. Teitler, for Defendant-Appellant.

ROSENBERGER, J.P., RUBIN, MAZZARELLI, SAXE and BUCKLEY, JJ.

**491 MEMORANDUM DECISION.

*161 Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered April 17, 1998, which denied defendant's motion for partial summary judgment dismissing so much of the complaint as seeks equitable distribution of defendant's enhanced earning capacity as an investment banker, unanimously affirmed, with costs.

Preliminarily we note that whether a particular marital asset, such as the enhanced earning capacity attributable to a particular career, is subject to equitable distribution is an issue that can be decided prior to trial (see, e.g., Elkus v. Elkus, *162 169 A.D.2d 134, 572 N.Y.S.2d 901, lv. dismissed 79 N.Y.2d 851, 580 N.Y.S.2d 201, 588 N.E.2d 99; West v. West, 213 A.D.2d 1025, 625 N.Y.S.2d 116, lv. dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773). On the merits, defendant's enhanced earning capacity as an investment banker is subject to equitable distribution regardless of whether or not such a career requires a license (see, Elkus v. Elkus, supra; but see, West v. West, supra), and the amount of such enhancement was therefore properly determined without regard to the existence of any such license. However, on appeal, in his reply brief, defendant for the first time acknowledges that during the marriage he obtained a Series 7 securities license, which is necessary to trade securities in the United States, and such license should also be taken into account in determining his enhanced earning capacity (see, McSparron v. McSparron, 87 N.Y.2d 275, 285- 286, 639 N.Y.S.2d 265, 662 N.E.2d 745).

a recent case from the applellate division...

Pagliaro v. Pagliaro, 31 A.D.3d 728, --- N.Y.S.2d --- (Second Dept. 2006)(2006 WL 2065028)(2006 N.Y. Slip Op. 05929)(July 25, 2006):

Supreme Court, Appellate Division, Second Department, New York.

Susan PAGLIARO, appellant,

v.

Robert H. PAGLIARO, respondent.

July 25, 2006.

ANITA R. FLORIO, J.P., GABRIEL M. KRAUSMAN, WILLIAM F. MASTRO, and MARK C. DILLON, JJ.

In a matrimonial action in which the parties were divorced by judgment dated April 30, 2003, the plaintiff appeals, by permission, as limited by her brief, from so much of a Qualified Domestic Relations Order of the Supreme Court, Orange County (Owen, J.), dated February 22, 2005, as failed to distribute to the plaintiff a portion of the defendant's Variable Supplements Fund benefits and cost of living adjustments.

ORDERED that the Qualified Domestic Relations Order is modified, on the law, by deleting the second sentence of the fourth decretal paragraph thereof, and substituting therefor the following: "The term 'retirement allowance' means the total amount payable to the participant by the New York City Police Pension Fund, including any Variable Supplements Fund benefits and cost of living adjustments; and it is further"; as so modified, the Qualified Domestic Relations Order is affirmed insofar as appealed from, with costs to the appellant.

The parties were divorced in April 2003. The judgment of divorce incorporated the terms and conditions of an amended separation agreement dated January 15, 2003 (hereinafter the Agreement). The Agreement provided, inter alia, that the plaintiff would share in the pension benefits of the defendant, a New York City Police Officer. The judgment of divorce directed, among other things, the settlement of a Qualified Domestic Relations Order (hereinafter QDRO).

On February 22, 2005, the Supreme Court signed a QDRO which had been drafted by the defendant's attorney. The QDRO, as signed, excluded any Variable Supplement Fund (hereinafter VSF) benefits from the definition of "retirement allowance" and was silent as to cost of living adjustments (hereinafter COLAs). The plaintiff argues that the Supreme Court erred in excluding from the QDRO the defendant's VSF benefits and COLAs payable in relation to his pension. The defendant concedes that the plaintiff is entitled to an equitable share of pension-related COLAs. We agree with the plaintiff that she is also entitled to an equitable share of VSF benefits.

Pensions represent a form of deferred compensation paid after retirement in lieu of the receipt of greater compensation during the period of employment (see Majauskas v. Majauskas, 61 N.Y.2d 481, 491-492). Pension rights earned during a marriage, prior to a separation agreement or matrimonial action, are marital property subject to equitable distribution (id. at 490-491). While certain assets created after the divorce do not constitute marital property, enhanced retirement income is marital property subject to equitable distribution, since a non-employee spouse is entitled to share in the pension of the employee spouse as it is ultimately determined (see Olivo v. Olivo, 82 N.Y.2d 202, 209-210). As VSF benefits and COLAs are merely supplements and enhancements to already existing pension benefits, the non-employee spouse is entitled to an equitable share (see DeLuca v. DeLuca, 97 N.Y.2d 139; Johnson v. Johnson, 297 A.D.2d 279; Flores v. Flores, 22 AD3d 372; Ross v. Ross, 16 AD3d 713, 714).

We reject the defendant's argument that the plaintiff is not entitled to a share of the defendant's VSF because the Agreement did not specifically provide for such payments. The defendant incorrectly relies upon cases which have held that parties must explicitly provide for an allocation of pre-retirement death benefits in a settlement/separation agreement in order for the non-employee spouse to receive an equitable share of those benefits (see Kazel v. Kazel, 3 NY3d 331, 334-335). Death benefits, unlike pension enhancements, are separate interests, independent of retirement benefits (id. at 334). Thus, in order for a non-employee spouse to be entitled to a share of the other spouse's death benefits, the parties must make specific provision for such entitlement in their marital agreement (id.). It was not necessary for the Agreement to specifically provide for the plaintiff to receive an equitable share of the VSF benefits and COLAs, because they were merely supplements to the existing pension asset (see Olivo v. Olivo, supra at 210). Accordingly, the QDRO signed by the Supreme Court should have conformed with the Olivo principles to ensure that the plaintiff realized her right to share in the pension benefits as they are ultimately determined (see Silver v. Silver, 278 A.D.2d 478, 479).

It is a rare case where one spouse will recieve nothing out of the property acquired during the marriage in New York. There are a number of factors which govern how Judges should decide in New York about the divsion of marital property. The first question every Judge asks me is have the parties lived together for most of the marriage and are their any children. If you have lived with your spouse for most of your marriage and their has been some sort of economic partnership, generally Judges want to resolve the case by splitting the assets in half. Judge because you think your husband or wife is good for nothing, does not mean that a Judge will think the same way. If your husband or wife is trulely worthless, i.e. he abuses your, uses drugs, refuses to work, etc... Judges will generally give that person less than half.

What can Court order a party to do?
Purchase, maintain or assign a policy of insurance for health and hospital care and related services for either spouse or children;
Purchase, maintain or assign a policy of insurance on the life of either spouse and designate either spouse or children of the marriage as irrevocable beneficiary;
Are there any restrictions or limitations on the court's ability to order Special Relief"?
The policy of insurance for health and hospital care and related services for either spouse or children cannot be for longer than party is obligated to pay maintenance, child support or a distributive award;
The life insurance may be during a period of time fixed by the Court but the beneficiaries' interest must terminate upon the termination of the spouse's obligation to pay maintenance, child support, a distributive award, or when the beneficiary remarries or predeceases the insured.

By Joel Brandeis P.C.

Following are brief summaries of these seven mistakes. Each of these areas can be quite complex, so we strongly recommend that you consult a professional prior to making a financial decision that may affect the rest of your life.

This list is not exhaustive, and depending on the complexity of your case, there may be many more areas that require thorough analysis.

Mistake #1: Not Knowing the Liquidity of Assets

Liquidity refers to the ability to access the cash value of an asset. For example, a bank savings account is highly liquid, because you can simply withdraw funds from an ATM when you need them. An antique automobile, however, is nearly illiquid because it is very difficult to quickly sell this asset to access the actual cash value.

Often in a divorce settlement, one party will receive mostly illiquid assets, including the home, while the other party receives liquid assets such as retirement plans, brokerage accounts etc.

What is the potential problem with this type of settlement?

On the surface, this scenario may appear to be equitable assuming that the home and other assets are of approximately the same value. However, the challenge lies in cash flow. How will the party that keeps the home pay the bills if his or her major asset is illiquid?

One can borrow against the equity of the home, but that's costly (closing costs, interest etc.) and it takes time to close the loan. In worst-case scenarios, the home must be sold, a smaller home is purchased and the remaining equity is utilized for living expenses.

If your proposed financial settlement has very little liquidity, be sure that you will have enough cash flow throughout the years to handle your living expenses. If not, you may have to consider selling the home, other assets or significantly decrease your expenses in order to meet your budgetary needs.

Mistake #2: Failure to Consider the Impact of Taxes

The effect of your settlement on various taxes can be very costly if not addressed thoroughly. Capital gains, income tax, and alimony are just a few of the areas that may be impacted.

Capital gains taxes need to be analyzed when property is being divided. Capital gains refer to the fair market value of an asset minus its cost. For example, if you paid $5 for a share of stock and it is now worth $25, you have a capital gain of $20. This applies to other assets such as real estate (including your home), mutual fund accounts and just about any investment that has appreciated in value.

Be very careful that the property you are receiving in a settlement does not have large capital gains as compared with your ex-spouse's property. Don't be fooled if your spouse offers you property of equal value but conveniently forgets to inform you of the tax liability.

As an example, you may be offered an investment account worth $150,000, but the cost basis is only $50,000. That means there is a gain of $100,000 that you must pay at minimum long-term capital gains tax (15% in 2004). There could possibly be short-term gains as well, which are taxed at your own marginal tax rate (as high as 35% in 2004).

In the case of your personal residence, the federal government eased the tax burden in 1997 by allowing a $250,000 capital gain exclusion per spouse if you've lived in your home for at least 2 of the past 5 years. If the home is to be sold and there is a considerable gain in value (over $250,000), you should consider selling before the divorce to take advantage of the full $500,000 exemption.

If you had sold a home prior to 1997 and rolled over the capital gain to the existing home, the old rules will apply to determine the cost basis of the current home. This will increase your gain and possibly further the need to sell while still married.

Income taxes are effected primarily by alimony payments and filing status. Alimony received is taxable as ordinary income, so a $50,000 payment received is actually worth $35,000 after taxes, assuming a 30% marginal state and federal tax bracket.

On the other hand, the payer of alimony receives a tax deduction, so the same $50,000 payment actually costs the taxpayer $35,000 assuming the same tax bracket.

Filing status is an important decision after the divorce. If you were still married on 12/31 of the tax year, you have the option of filing a joint return. If you can peacefully deal with your spouse after the divorce, you should consider this option as it could save considerable tax for both parties.

If you were divorced after 12/31 and you qualify, filing as head of household versus single can also save considerable tax dollars. Your best course of action is to consult with a tax professional regarding these options.

Mistake #3: Not Understanding the Rules of Retirement Accounts

Retirement accounts are a tax related issue, but their complexity merits a separate category. If a large portion of your settlement consists of retirement assets, you need to be aware of the many tax ramifications and potential penalties involved.

Normally, distributions from a retirement plan prior to age 591/2 are considered "early distributions" and are subject to a 10% penalty tax as well as ordinary income tax. An exception to this rule, however, is a transfer to an ex-spouse as part of a divorce settlement. A Qualified Domestic Relations Order (QDRO) is used to affect this transfer. Income taxes still apply, so any assets you receive from a "qualified plan", such as a 401(k), will be subject to a mandatory 20% tax withholding. For example, if you are awarded a $100,000 distribution from an ex-spouses 401(k) you will actually receive only $80,000.

To avoid this mandatory withholding, the transfer must be made directly to another retirement account, such as your own IRA. Once the assets are in your retirement account, you are now subject to the early distribution rules. If you need some of the assets to live on, or pay bills, make sure you take them out prior to transferring them to an IRA to avoid the 10% penalty.

To simplify, let's look at an actual example of how this transfer works:

Barbara and Stanley are both age 55 and going through a divorce. Stanley has $560,000 in his 401(k) that will be divided by a QDRO, transferring $280,000 to Barbara.

She could transfer the money directly to her IRA and pay no taxes until she starts withdrawing funds after age 591/2, at which time she would pay ordinary income tax on the amount withdrawn. But Barbara needs $80,000 for a down payment on a new house. So she holds back $100,000 before transferring the remaining amount to her IRA. 20% is withheld for taxes, leaving her with $80,000 to spend without incurring a 10% penalty.

After she transfers the remaining $180,000 to her IRA, Barbara is held to the early withdrawal rule. If she says, "Oh, I forgot, I need another $10,000 to buy a car," it is too late. She will have to pay the 10% penalty and the taxes on that money.
It is important to note that IRA's are not qualified plans, so a QDRO is not needed to divide the assets. Also, there is no 20% mandatory tax withholding on a transfer. To avoid paying taxes, you must deposit any distribution from an IRA directly to your own IRA. If a check is sent to you, you must deposit the money into your own IRA within 60 days to avoid a taxable distribution.

Mistake #4: Overlooking Debt and Credit Rating Issues

Nothing is worse than starting out a new life with bad credit. Several steps can be taken during the divorce process to minimize the chances of this occurring.

First, obtain a copy of your credit report. This will identify all joint accounts, accounts you may not have been aware of, and any potential credit problems.

Next, be sure to pay off and close all joint accounts prior to the divorce settlement and open new accounts in your own name. Unfortunately, creditors don't care how a separation agreement divides responsibility for joint debt (joint credit cards, auto loans etc.). Each person is liable for the full amount of debt until the balance is paid, hence the importance of dealing with this issue prior to your divorce.

Regarding income tax debt, even if the divorce is final, you may not be exempt from future tax liability. For three years after the divorce, the IRS can perform a random audit of a divorced couple's joint tax return. If it has good cause, the IRS can question a joint return for seven years.

To avoid any potential problems down the road, your divorce agreement should have provisions that spell out what happens if any additional penalties, interest or taxes are found as well as where the funds come from to pay for any expenses associated with an audit.

Mistake #5: Not Maintaining Control Over Insurance Policies

Most divorce decrees call for one of the parties to obtain a life insurance policy to insure the value of alimony payments, child support or some other financial need. If you are the person for whom the insurance is obtained, it is critical that you are either the owner or irrevocable beneficiary of the policy.

If you are not, the ex-spouse who took out the policy could easily stop making payments and you would never know about it until the policy is needed and it no longer exists. This could be financially devastating. As the owner or irrevocable beneficiary, you would be notified of any outstanding issues with the policy, such as non-payment of the premium, and could therefore take action and prevent the policy from lapsing or being cancelled.

Mistake #6: Failure to Budget

One of the most common mistakes made post-divorce is the failure to budget based on one's new lifestyle. We see this happen most often when one spouse keeps the home for the sake of the children or perhaps due to an emotional attachment. Because of the high value of the home, there are few other assets awarded in the settlement. The expense of maintaining the home and the lack of liquid assets often results in a rapid depletion of cash, leaving no choice but to sell the home.

This scenario can be avoided if you take a good hard look at your expenses versus liquid assets and income. A Certified Divorce Financial Analyst can help you project several years into the future and determine if you'll have enough resources to support your current lifestyle as well as your retirement years.

This analysis should be completed prior to a settlement. If it is determined that you will be unable to maintain your lifestyle with the proposed offer, you have established a good case to request more assets, alimony or child support.

Mistake #7: Failure to Identify Hidden Assets

Hopefully, you're not in a situation where you distrust your spouse and fear there are hidden assets that should be included in the settlement. Unfortunately, once a divorce is initiated, many individuals will do whatever they can to preserve what they feel is their own money. Some individuals maintain secret accounts or other financial activities throughout an entire marriage. If these assets are not exposed, one spouse is certain to obtain an unfair settlement.

There are multiple resources and methods used by financial professionals and attorneys to uncover potential hidden assets. Being aware of these may help you avoid being victimized by a dishonest spouse. Forensic accountants are generally the most commonly utilized professionals to assist in this area.

Tax returns are one of the best places to start. Most people are uneasy about misleading the IRS for fear of penalties, fines and even prison. Go back at least 5 years to look for any inconsistencies in income, the presence of trusts, partnerships or real estate holdings.

If your spouse is a business owner, corporate or partnership returns may show a change in salary, charging personal expenses to the company, or excessive retained earnings. Another common trick is to put a "friend" on the payroll, who agrees to give back the money paid to him after the divorce. A forensic tax professional is of tremendous help in this area.

Checking account statements and cancelled checks for the past few years can also be quite revealing. A cancelled check for a purchase you never knew about, such as an investment property, can make a substantial difference in total assets to be divided.

Savings accounts may reveal unusual deposits or withdrawals in amount or pattern that could point to a hidden asset such as a dividend producing investment. In addition, cash may be hidden almost anywhere.

Brokerage statements are valuable in tracking the purchase and sale of securities. If securities are sold and the proceeds are not accounted for, you can be sure that the assets are out there somewhere.

Expense accounts can be abused when corporations give employees a great deal of leeway in their expense account reporting. Cross checking between expense account disbursements and savings/checking account deposits may indicate a pattern of abuse if the deposits exceed legitimate business expenditures.

Children's bank accounts may be opened as a custodial account for the intent of hiding assets as well. In some of these cases, interest is not reported as income on tax returns, and no return is filed for the children.

This is not an exhaustive list of places to look for hidden assets. If you suspect this is occurring, you owe it to yourself to seek help from a financial professional.

In Summary

There are thousands of articles, books, manuals and other publications written about the financial issues of divorce. It is a complex area, and certainly deserves the attention it gets.

But reading this article or any other resource will probably not make you an expert. If you think you may not be receiving fair treatment, or you are simply uncomfortable dealing with these issues, it might make sense for you to consult with a financial professional who is trained specifically in divorce related issues.

A Certified Divorce Financial AnalystTM (CDFA) has endured extensive training in the financial issues of divorce. He or she will analyze the long-term financial impact of a proposed settlement and help you determine if it is feasible. Remember that a proposed settlement might look fair initially, but without proper analysis and forward looking projections, it can lead you to a future of financial hardship.

The bottom line is don't settle until you know how it will affect your financial future!

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Article submitted February 2005 by William Donaldson and Adam Westphalen

In this year's DeSilva case, the husband's behavior was far less egregious than the barbell attack at issue in Havell -- and yet was used to justify an even greater deviation from the usual division of marital property. With this broadened definition of "egregious" behavior, Judge Silbermann has opened the door, in property division proceedings, to consideration of marital misconduct, more generally, in the allocation of marital property.

The DeSilvas' Marriage and Divorce: Misconduct, Some Assets, More Debt

In the DeSilva case, Mrs. DeSilva alleged that Mr. DeSilva had engaged in a long history of abuse toward her, which, she said, had increased over time in frequency and intensity, and involved his heavy drinking. Among other allegations, she said he spat in her face; while she was pregnant with their second child, threw a packed duffel bag at her stomach; and engaged in verbal tirades, during which he called her unspeakable names, often in front of their children and other people as well. Mrs. DeSilva testified that she feared for her safety and the safety of her children, and suffered extreme mental anguish because of her husband's conduct; indeed, he had been arrested at least five times as a result of physical altercations with other people, such as a coworker and a cabdriver.

At the time Mrs. DeSilva sought a divorce, the couple held less than $45,000 in assets, including a car, her pension, and the cash-surrender value of their life insurance policies, but had about $65,000 in debt. Mr. and Mrs. DeSilva had disparate earnings and earnings potential. She had a degree in fashion design and had recently held a job earning $100,000 per year. He had a degree in marketing, but earned less than half of what she did -- $45,000 per year.

Mrs. DeSilva clearly alleged and proved sufficient abuse to gain a divorce on grounds of extreme cruelty, even under New York's relatively strict laws. The tougher question in a case like this is how to apportion the couple's assets and debts and, more importantly, whether one party's misconduct ought to be part of the calculus.

Equitable Distribution: Who Gets Marital Property and Marital Debts?

When couples divorce, courts are often saddled with the task of dividing their property. In most states, this process is guided by the principle of "equitable distribution," under which the property a couple has accumulated during marriage (and even the property they brought to the marriage, in some states) will be fairly apportioned between them. Courts are rarely given unfettered discretion in this process, but, instead, are guided by legislatively mandated factors to consider.

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New York's equitable distribution law, Domestic Relations Law § 236(b)(5)(d), provides thirteen factors that courts must consider before dividing marital property. Most of the factors relate directly to economic information such as past earnings, the amount of property the parties brought to the marriage, their expected future income and property acquisition, the tax consequences of property distribution, and whether either party wasted assets during the marriage or transferred them to avoid distribution. In addition, courts are directed to consider non-economic factors such as the duration of the marriage, the age and health of the parties, and the need for a custodial parent to keep the marital residence.

With respect to these many factors, the trial judge in the DeSilva case found only a few to be relevant: Judge Silbermann held that the plaintiff should continue to occupy the marital residence because she had custody of the couple's two small children; that she greatly out-earned him; and that his future financial circumstances were uncertain because of alcohol abuse and anger issues that made it difficult for him to retain jobs.

On these findings alone, a court might well have given Mr. DeSilva a slightly greater, or at least an equal share, of the couple's assets, and perhaps a smaller proportion of the debts -- given his predicted lower future income stream. But here's where the thirteenth factor comes into play: New York's equitable distribution law also directs courts to consider "any other factor which the court shall expressly find to be just and proper."

Here, Judge Silbermann noted, "a pattern of conduct involving both physical and verbal abuse which rises to the level of egregious fault." And, based primarily on that finding, the judge awarded one hundred percent of the marital assets to Mrs. DeSilva and ninety-two percent of the debts to Mr. DeSilva.

Different States' Views on the Role of Marital Misconduct in Property Division

The decision to strip Mr. DeSilva of any marital assets and saddle him with most of the marital debts may seem an obvious penalty - or an outrageous one, I suppose, depending on your point of view -- for abusing his wife. In most states, however, a court would simply not be permitted to consider his behavior during the marriage, no matter how egregious, when apportioning marital property.

But New York is not "most states" when it comes to family law. Most states - every other one, in fact - permit couples to obtain a "no-fault" divorce, where either party can unilaterally seek to have the marriage legally dissolved, even if the desire is not mutual, and even if they cannot agree on post-marital issues like custody, alimony, and the division of property. In New York, however, a spouse must allege and prove marital fault in order to obtain a divorce, or the couple, together, must agree to separate and file a written agreement resolving these issues without court intervention.

Unsurprisingly, most states that - unlike New York -- prohibit or discourage the consideration of fault in determining whether to grant a divorce similarly restrict consideration of fault for related issues like marital property division. Two influential compilations separated by more than thirty years - the Uniform Marriage and Divorce Act (1970) and the American Law Institute's Principles of the Law of Family Dissolution (2002) - take the view that consideration of fault has no place in property division proceedings. And nearly two-thirds of the states follow this view, disallowing consideration of fault entirely for property division purposes. (The rules regarding the consideration of fault in setting alimony awards can be different, as I discussed in a prior column.)

The remainder of states do permit consideration of fault in marital property division, though often only in limited circumstances.

Among them is New York -- which permits courts to consider marital misconduct as part of the "any other factor" analysis, but only if it is egregious.

Why the Judge's Ruling Was Right: Penalizing Domestic Violence

To reach the property division result in the DeSilva case, the judge had to hold that Mr. DeSilva's behavior constituted egregious fault, in that it "shocked the conscience." In prior cases, attempted murder of a wife, and a man's rape of his stepdaughter, both qualified under the standard. And in Havell v Islam - which the judge herself had decided, as noted above, in 2001 - the standard was held to encompass domestic violence as well.

In Havell, the husband quite literally beat his wife within an inch of her life, and, as a result, she was awarded ninety-five percent of a $13 million marital estate. In the opinion, Judge Silbermann looked to the law in other states, as well as to social science evidence about the physical and psychological ramifications of domestic violence for its victims. She concluded that the "egregious fault" standard could be interpreted to include domestic violence.

The conduct in Havell was indeed egregious - almost incomprehensibly so. After beating his wife with a barbell and watching her teeth and parts of her jaw fly across the room, Mr. Islam told their frantic children not to worry about helping her because she was already dead. She survived the attack, but suffered permanent neurological damage. The trial court's ruling in that case was upheld by the appellate division, which concluded that marital misconduct could, indeed, be taken into account when dividing property as long as it was "so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship."

Does the husband's behavior in DeSilva meet that standard? The shock value of Mrs. DeSilva's story is admittedly less than in Havell. Yet, if a sustained pattern of physical and verbal abuse of a spouse does not meet the requisite standard, perhaps we should think about why: Is domestic violence such a common aspect of some marriages that we deem it within the bounds of the normal and civilized? Let us hope not.

Surely abusing a spouse is one way to exhibit "a blatant disregard of the marital relationship." Thus, if New York were to permit spouses in marriages like the DeSilva's to walk away on equal footing (as many states do), financially, it would be subtly acknowledging the normalcy of the abuser's behavior.

While Justice Silbermann has at least implicitly broadened the category of "egregious" conduct that can justify the consideration of fault in property division, in doing so, she has sent the right message: Domestic violence is not a normal part of marriage and its perpetrators must pay.
By JOANNA GROSSMAN

By Brad Marcoux

Most people take marriage seriously, and hold high hopes for their new relationships. Little wonder then that prenuptial agreements aren't high on any betrothed's desirability list. After all, thinking about a prenuptial agreement is often feared akin to planning the end of a relationship before it's even begun. But in these times of soaring divorce rates and uncertain financial stability, it only makes sense that people should be concerned with such practicalities, dreary though they may be. While deciding between a Caribbean or a Mediterranean honeymoon is undoubtedly more pleasurable, if there's any uncertainty about your forthcoming marriage, financial or otherwise, then you should consider creating a prenuptial agreement.

Simply put, a prenuptial (also known as an antenuptial) agreement is a legal agreement signed by you and your future spouse. Normally, they deal with straightforward financial and legal issues in the event of a divorce or a death -- what will be done with the house, any stocks, bonds, or other such marital assets. They might also include some extras like custody arrangements, spousal support, or even what happens to the family pet. Finances are generally the main focus, but even the pettiest details can be included. Anything and everything under the sun can go into a "prenup." So if you feel the need to restrict your intended's bathroom privileges, or outline a schedule for walking the dog, go ahead and have it included. Just be aware that such "extras" can be legally murky and expensive, and so should generally be considered as more psychologically reassuring than legally binding.

Although most agreements are relatively straightforward, this doesn't mean that they are simple. The emotional cost alone could be prohibitive: 10% of people who begin to pursue a prenuptial arrangement decide against the marriage because of the strain it causes. Arguing that such relationships wouldn't have lasted anyway doesn't make the concept any less daunting, either. "Prenuptial agreements are very stressful," warns Curtis Bennett Ross, a Chicago CPA and attorney in private practice. "But they are also very legitimate, especially if one of the pair has been through divorce in the past." It may be seem a foolish idea to put your relationship at risk over finances, but consider this: if the two of you are unable to sit down and talk rationally about your needs and fears when your relationship is good, then how bad might it be if things ever turn sour