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What Happens When Parents Behave Like Children

In a recent decision in Westchester Family court, the Honorable Colleen Duffy was faced with a difficult situation where two parents seemed determined to undermine the other's relationship with the child. With some colorful language the Judge found that the court was in a difficult position and could not split the baby. In an attempt to stop the fighting the court issued an extremely detailed order in order to to stave off future problems. Anyone that is involved in a custody proceeding should take note of this ruling because it shows that when the parties are not willing to listen to the court or act amicably with each other, then the court will step in and set out every minute detail of a custody arrangement. This is a step that everyone involved in custody litigation would want to avoid.

D.G., Petitioner/Respondent,
against
S.G., Respondent/Petitioner.

Judge Colleen Duffy,

This case has had a long history before this Court as detailed extensively in this Court's Decision and Order After Fact Finding, entered December 22, 2006 (hereinafter the "2006 Order") and modified by order entered on June 25, 2007 (hereinafter the "2007 Order"), which decisions on the facts are adopted herein by reference. In short, for virtually the entire life of the Subject Child A. G (DOB: 9/15/02) (hereinafter, the "Subject Child"), the parties have been litigating matters -- specifically, family offense proceedings, custody and visitation disputes, and matrimonial and child support matters -- in this Court as well as in state court in California.

With respect to court filings in this Court by the parties subsequent to the 2006 Order, seven petitions were filed by the parties; five by Petitioner/Respondent father D. G (hereinafter "Mr. G.") and two by Respondent/Petitioner mother S. G ("hereinafter "Ms. G") each alleging that the other party violated this Court's 2006 and 2007 Orders. The petitions filed by Mr. G again requested a change in custody and any other such [*2]further relief as the Court may find just. The petitions, one of which already was dismissed by the Court, filed by Ms. G requested a change in the parties' access schedule to the Subject Child seeking to increase in Ms. G's access time.

The Court consolidated the remaining petitions for the purposes of fact-finding and held a fact finding matter on these petitions on May 28, 2008. The proceeding was not concluded on that date and was continued on May 29, October 7 and 14, 2008, and February 3, 5, 6, 9 and 10, 2009. The only two witnesses who testified are the parties. While the Court has considered all of the testimony and evidence submitted, given the extensive nature of the record -- which is more than 900 pages of trial transcripts and numerous exhibits -- the Court will address only the crucial testimony and documents critical to its decision on the best interests of the Subject Child.

This is one of the worst type of custody cases before the Court -- two parents who apparently hate each other more than they love their child. In light of the history of the parties, the likelihood is that -- notwithstanding this decision and order -- litigation between them about the Subject Child will continue until he turns 18.[FN1]

Unfortunately, although this Court truly believes that both parties love the Subject Child, it is clear that neither parent will sincerely promote the Subject Child's relationship with the other. Indeed, the evidence shows that each -- through their inability to communicate and compromise -- has attempted to undermine the other's relationship with the Subject Child. Thus, it is this Court's sad conclusion that, although each parent has demonstrated the ability to care for, shelter, and nurture the Subject Child equally well, neither party has demonstrated an ability to foster and promote the relationship between the Subject Child and the other parent.

With respect to credible testimony, the Court found that, with respect to many of the material facts, each of the parties was only marginally credible. Each party's version of events was clearly colored by each's own self interest - and motives - each purporting to act in the best interests of the Subject Child but each of whom clearly often was not. Nonetheless, the Court does not discount all of the testimony of either party. Rather, based on what the Court has found to be credible testimony and evidence, as noted further herein, this Court finds that each party has established certain of the allegations in the petitions pending against the other regarding violations of this Court's 2006 and 2007 Orders.

The Court also finds that the evidence shows that each party continues to demonstrate not only a disregard for this Court's Orders but also the authority and orders of the California Court (with respect to the undisputed testimony that the parties have failed to procure medical insurance coverage for the Subject Child despite a California court order requiring the same).

It is this Court's determination that each party also has demonstrated improper motives -- that is, without consideration of the best interests of the Subject Child --with respect to the litigation and matters herein. First, as previously noted by this Court in its 2006 Order, Ms. G has failed -- and continues to fail -- to meet her obligation as the [*3]primary custodian of the Subject Child to foster a healthy relationship between the Subject Child and the father. For example, in one instance Ms. G placed the Subject Child on the telephone with Mr. G so that the Subject Child could inform Mr. G that he did not wish to spend Halloween 2007 with his father (despite the terms of the Court order which afforded Mr. G that particular date with his son). See Ex. 7. In addition, the Court finds credible Mr. G' version of the events at the parties' chance meeting at a post office wherein Ms. G directed the Subject Child to ask Mr. G if he could leave with his mother even though it was still Mr. G' visitation with the Subject Child.

The Court also credits as credible Mr. G's testimony that Ms. G has disparaged and denigrated him in the presence of the Subject Child and others, calling Mr. G names such as "Idiot" and yelling at him in front of the Subject Child and telling him "I hope you die." See May 28, 2008 Transcript ("Tr.") pp. 76-78, 80; Feb. 3, 2009 Tr. p. 9.

In addition, the Court finds credible Mr. G's contention that Ms. G repeatedly puts the Subject Child in a position of having to "choose" between his parents by directing the Subject Child to make such inquiry of his father, to wit: "Ask your dad if you can come with me . . ." ( see Oct. 7, 2008 Tr. p. 39); ". . .do you want your father to pick you up? . . . (see Oct. 9, 2008 Tr. p. 119); "you have to ask [your father]" (see Feb. 9, 2009 Tr. p. 125); and, when the Subject Child is speaking to Mr. G on the telephone, "get off the phone" or "hang up the phone" (see May 28, 2008 Tr. pp. 49-50).

Such behavior manifests not only poor parental judgment by Ms. G but also her contempt for Mr. G's parenting time with the Subject Child and evidences Ms. G's need to "win" the Subject Child's affections away from Mr. G.

Nonetheless, Mr. G also appears before this Court with "unclean hands." The Court notes that it has found Mr. G in contempt of court, after a hearing, in connection with these very proceedings due to his surrepetitious taping of the Court proceedings and his lying about so doing upon this Court's inquiry to him. See Feb. 5, 2009 Tr. at pp. 2-3.[FN2] The Court also notes that Mr. G surrepetitiously taped telephone conversations that he had with Ms. G as well as with his son to gather "evidence" for this proceeding. Mr. G' propensity to tape such conversations demonstrates, at the very least, poor parental judgment; to wit, placing his own need to have his child live with him above the privacy rights of the Subject Child as well as the need of the Subject Child to continue in his stable residence and to have an assurance of future stablility.

Mr. G' propensity to file violation petitions for even de minimus violations -- such as not obtaining from Ms. G certain educational, medical and school event information that she is required to provide but which information clearly is available to Mr. G to find out on his own without undue effort -- also evidences Mr. G' litigation zeal and a clear intent by Mr. G to continue to litigate the issue of the Subject Child's custody until, presumably, he obtains custody or the Subject Child turns 18.

Mr. G' own testimony also evidences his inability to make appropriate parental judgments when it relates to Ms. G's decision-making or her role as sole legal [*4]custodian. For example, Mr. G has criticized Ms. G's choice of church and religious activities although, as sole legal custodian, it is within Ms. G's purview to make such choices. Irrespective of whether the Subject Child should or should not be raised in the Assyrian faith and cultures, Ms. G is the sole legal custodian entitled to make a decision on that matter. Rather than respect Ms. G's position as sole legal guardian on this matter, Mr. G has questioned that decision-making claiming that Ms. G's choices about the Subject Child's activities and her selection of a church are inconsistent with raising the Subject Child in the Assyrian tradition.

Thus, this Court is in the unenviable position of again hearing testimony from two squabbling parents whose credibility and motives each are quite suspect and who each accuse the other of violating the terms of the 2006 and 2007 Orders and each of whom has demonstrated a propensity to ignore this Court's orders if such orders do not suit him/her.

The Court concurs with the Law Guardian's conclusion that both parties have evidenced an inability to promote the other's relationship with the Subject Child and that because each believes that the Subject Child should reside with him/her and not the other parent they each have failed to cooperate with each other to ensure the best interests of the Subject Child. Indeed, their failure to cooperate has undermined the best interests of the Subject Child. For example, Mr. G' scheduling of vacations that interfered with the mother's one weekend per month access to the Subject Child, without appropriate make-up visitation, is troubling. Ms. G's refusal to allow Mr. G to have the Subject Child during a time period which included both his graduation ceremony and his family visiting from California likewise is troubling. The Subject Child thus missed seeing relatives from California, including his grandparent, as well as missing an important milestone in his father's life. And, Ms. G's refusal to change the drop off site for visitation from Mr. G' home to the church where Mr. G was volunteering speaks volumes about the pettiness to which each party will stoop to avoid accommodating the other -- all to the detriment of the Subject Child.

What to do? Since the Court can't split the child in half nor is it terminating either parent's parental rights, in essence, this Court must choose "the lesser of two evils" in terms of a primary custodial parent and issue an order that, in theory, if not in practice (that lies in the hands of the parties), promotes the best interests of the Subject Child.

Accordingly, for the reasons articulated above and as set forth below, the Court cautiously continues the existing custody arrangement of sole legal and physical custody of the Subject Child to Ms. G with liberal visitation to Mr. G as set forth further herein, but revokes and supercedes the terms of the 2006 and 2007 Orders and replaces such Orders with the specific terms and conditions set forth further herein.

As an initial matter, while the best interests of the child is the primary consideration in a child custody proceeding, a modification of an existing custody arrangement should be allowed only upon a sufficient showing of a change in circumstances warranting a real need for a change in order to insure the continued best interests of the child. See McCauliffe v. Peace, 176 AD2d 382, 383 (App. Div. 3rd Dept. 1991); Meola v. Meola, 301 AD2d 1020. Moreover, "priority, in the first instance, will be accorded an existing custodial arrangement," with the weight accorded to such arrangement dependent upon "whether the prior disposition resulted from a full hearing [*5]or a stipulation." See Maher v. Maher, 1 AD3d 987 (App. Div. 4th Dept. 2003) citing Friederwitzer v. Friederwitzer, 55 NY2d 89.

Here, after several years of "failed" stipulated orders on consent as to legal custody and Mr. G' access to the Subject Child, the Court had a full hearing on this issue of custody and access which resulted in the 2006 and 2007 Orders.[FN3] Thus, the Subject Child's right to stability and permanency with the same parent -- after a full hearing on the issue -- should only be undermined if the "totality of the circumstances warrants a change that is in the best interests of the Subject Child." Matter of Salvati v. Salvati, 221 AD2d 541 (citations omitted).

The Court notes that, in its past Decision and Order arising out of the 2006 hearing, the Court had observed that a change in legal and physical custody of the Subject Child could be warranted if Ms. G were to persist in behavior that undermines Mr. G's relationship with the Subject Child.

As noted above, although the Court does find that each party has established certain violations by the other of the 2006 and 2007 Orders, and Ms. G has continued to fail to promote the relationship between the Subject Child and his father, in view of the totality of the circumstances, Mr. G has failed to establish that a change in custody to him at this time will ensure the Subject Child's best interests. Indeed, the history of the parties now has shown that neither party can be relied upon to promote the other's relationship with the Subject Child and the Court has no reason to believe that the interaction, lack of cooperation and acrimony between the parties will be ameliorated if custody were to change.

Notably, the evidence at trial demonstrates that Mr. G used the language of the 2006 Order which provided him two weeks vacation (superceding the regular visitation schedule) to effectively trump Ms. G's one weekend per month with the Subject Child. Mr. G also has precluded Ms. G from enjoying any consecutive time periods with her son beyond those prescribed in the 2006 and 2007 Orders to the Subject Child's detriment as the Subject Child has missed social and maternal family events.

In addition, Mr. G has made clear that he believes it is a priority that the Subject Child be raised with Assyrian language and traditions and that the Subject Child is exposed to Assyrian culture and religion. Feb. 5, 2009, Tr. pp. 12-14; 28-30; 42-45. Mr. G testified that Ms. G has failed to do so. Feb. 5, 2009, Tr. pp. 14-17. Mr. G's testimony made it clear to this Court that, if Mr. G were to have legal custody of the Subject Child, the child's educational, social and religious experiences would be dramatically changed so that Mr. G could achieve what he believes Ms. G has failed to do with the Subject Child.

Mr. G testified that -- on this issue which he views as paramount -- he disagrees with Ms. G's decisions up-to-now as sole legal custodian and would make changes that likely would change significantly the Subject Child's current existence in all areas -- [*6]social, educational and religious. See Feb. 5, 2009 Tr. at 16-17 (to wit, learning Assyrian language is more important than summer camp). Thus, a change in legal and physical custody from Ms. G to Mr. G would mean not only a change in the Subject Child's daily routine from living primarily with his mother to living primarily with his father, it would result in a dramatic upheaval of the Subject Child's current existence on almost all fronts.

This Court finds that, despite Mr. G having established violations by Ms. G, a change in legal and physical custody of the Subject Child to the father is not an appropriate remedy here as the mutual acrimony and lack of cooperation between the parties is not likely to be abated and the Subject Child's best interests would not be served.

Moreover, the Court notes that, with respect to his access to the Subject Child, in this current proceeding, Mr. G testified to only a handful of instances in a period of almost two years in which Ms. G intentionally interfered with his access to the Subject Child. In most of those instances, although Mr. G did not have the visitation he sought with the Subject Child, he did have access to the Child, though less than that to which he was entitled pursuant to the 2006 and 2007 Orders. Moreover, although Mr. G does not speak to the Subject Child over the telephone as often or as long as he would like to under the 2006 and 2007 Orders, he did admit that he does speak to the Subject Child.

The Court also does not find credible Mr. G's testimony that he has been unable to participate in his son's educational events and planning as the evidence is clear that it is only Mr. G' discomfort with ensuring that he is in the "loop' of information and activities that has precluded him from independently obtaining all requisite information in a timely fashion. The Court makes the same finding with respect to Mr. G' access to information about medical and other service providers. The evidence at trial makes it quite clear that Mr. G' violation petitions about Ms. G's affirmative obligation to provide to him doctor and educational information, even though established, would not, in and of themselves, rise to a level of a change of custody. The Court also finds, that despite the violations established by Mr. G, a change in physical or legal custody simply is not warranted in this case.

Nonetheless, the Court finds that the evidence adduced at trial dictates that the current Order concerning custody and visitation must be changed for the best interests of the Subject Child. Accordingly,

IT IS HEREBY ORDERED that any and all prior Orders concerning custody and/or visitation with the Subject Child are hereby superceded by this Order as set forth further herein.

Turning to the issue of this Court' s contempt finding againstMr. G, the Court notes that, the penalty for civil contempt is limited to a "fine and imprisonment, or either" (Judiciary Law Â§ 753[A]; Family Court Act Â§ 156); see Labanowski v. Labanowski, 4 AD3d 690, 693 (App. Div. 3rd Dept. 2004). Based on these proceedings, the Court finds that an appropriate remedy for Mr. G's contempt is the admonishment already given to him by this Court existing in this Court's record and financial remuneration, to wit, Mr. G will be financially obligated to pay seventy five percent of the entire cost of an approved parent coordinator as set forth further herein. [*7]

For all of the reasons articulated above, and upon consideration of all the credible testimony and evidence, and, upon consideration of all of the factors with respect to the Subject Child's best interests, the Court orders the following:

ORDERED that Ms. G be afforded sole legal and physical custody of A. G, date of birth, September 15, 2002; and it is further

ORDERED that within three months (90 days) of receipt of this Order, Ms. G shall arrange for the Subject Child to commence psychological counseling with a family therapist, psychologist or certified social worker, and both Ms. G and Mr. G shall bear the cost equally (50 percent each) of any out-of-pocket costs for such counseling (to wit, costs that are not covered by or are unreimbursed through either parties' health coverage); and it is further

ORDERED that both Ms. G and Mr. G shall cooperate and participate with, as required, the Subject Child's therapy/counseling (including, but not limited to, attending any and all sessions as required by such therapist/counselor); and it is further

ORDERED that Ms. G shall provide in writing to Mr. G and to the Attorney for the Subject Child the name and contact information of such therapist/counselor on or before the expiration of the 90 days referenced above; and it is further

ORDERED that Ms. G shall execute a release provided to her by the Attorney for the Child to allow any such therapist/counsel to communicate with the Attorney for the Child so that such attorney may ensure that this Order is complied with by the parties; and it is further

ORDERED that Ms. G has an affirmative obligation to provide in writing to Mr. G on October 1 of each year the names of any and all of the Subject Child's educational, medical, dental providers and any other providers in connection with the Subject Child's general health and welfare including day care providers even if such providers have not changed from year to year as well as written notice of any changes and any new contact information for such providers within thirty days of her receipt of such information; and it is further

ORDERED that Ms. G provide to Mr. G within thirty days of receipt of this Order releases allowing Mr. G to access information, records or documents from all such educational, medical and dental providers without having to obtain same from Ms. G directly and Ms. G must provide any additional releases sought by Mr. G as to such information, records or documents within thirty days of her receipt of a written request by Mr. G for the same; and it is further

ORDERED that Ms. G provide to Mr. G in writing, via email to an email address provided, in writing, by Mr. G to Ms. G within fourteen days of receipt of this Order, notice of any and all scheduled doctor's appointments and dentist appointments within 72 hours of making such appointments or within a reasonable time frame if such appointments are made on less than 72 hours notice; and it is further

ORDERED that Mr. G shall have five weeks of visitation each year (hereinafter "vacation visitation") which is to occur within any or part of the Subject Child's February school recess, Spring school recess and summer vacation, consistent with the child's academic calendar, and that no more than two weeks visitation (fourteen days) be consecutive except as set forth further herein. During all such vacation visitation Mr. G must ensure that the Subject Child attends school if the Subject Child's school is in [*8]session during any part of the vacation visitation. Such vacation visitation shall supercede any regularly scheduled visitation except that, to the extent that any such visitation supercedes the mother's scheduled weekend with the Subject Child, Ms. G shall have make up time for such weekend during a weekend of her choosing (but not within that fourteen day or seventeen day period as noted below); and it is further

ORDERED that if any such vacation visitation abuts a weekend in which Mr. G ordinarily would have visitation such that his access to the Subject Child would exceed fourteen consecutive days, on two separate occasions during each calendar year, Mr. G may extend such vacation visitation to beyond the fourteen consecutive days, to no more than seventeen such consecutive days, unless otherwise agreed by the parties, on the condition, as noted above, that Mr. G ensures that the Subject Child attends school if the Subject Child's school is in session for any part of that extended vacation visitation; and it is further

ORDERED that any regularly scheduled visitation that Mr. G ordinarily would have that would extend such vacation visitation to beyond seventeen consecutive days becomes additional access time for Ms. Ge with the Subject Child - solely connected to that particular vacation visitation block in that particular year and then Mr. Gs' regular visitation will resume; and it is further

ORDERED that each calendar year, subject to Mr. G' selection of his five vacation visitation weeks, during the summer months in which the Subject Child's school is not in session (or, if Mr. G has not exercised his vacation visitation during the Subject Child's other school breaks such as February recess, Spring or Easter recess, Winter/Christmas recess), Ms. G shall have two weeks (seven days or fourteen days or seventeen days as set forth herein) of access time with the Subject Child (hereinafter "vacation access"), which vacation access shall supercede Mr. G' regularly scheduled visitation; and it is further

ORDERED that should Ms. G's vacation access with the Subject Child abut her regularly scheduled weekend with the Subject Child, Ms. G's vacation access may extend to seventeen consecutive days provided that Ms. G ensure that the Subject Child attend school if the Subject Child's school is in session during any part of that vacation access; and it is further

ORDERED that any regularly scheduled access that Ms. G ordinarily would have that would extend her vacation access to beyond seventeen consecutive days becomes additional visitation time for Mr. G with the Subject Child - solely connected to that particular vacation access block in that particular year and then Mr. G' and Ms. G's regular weekend access time will resume; and it is further

ORDERED that Mr. G must notify Ms. G in writing by May 15th of every year as to which weeks he plans to utilize during the summer school recess and reasonable notice (in excess of fourteen days) in advance of his intention to exercise some or part of his vacation visitation for the Winter/December or February and/or Easter/Spring School recesses; and it is further

ORDERED that if Mr. G fails to meet the timetable set forth in the paragraph above as to written notification to Ms. G of his intention to utilize his vacation visitation during any of those periods set forth above, Ms. G may notify, in writing, Mr. G of her intention to use all or part of her vacation access with the Subject Child within a [*9]reasonable time in advance of such use; and it is further

ORDERED that each month Mr. G shall have weekend visitation with the Subject Child from after school on Friday where he picks up the Subject Child until Monday morning when he transports the Subject Child to school in a timely fashion; except for the third weekend of each month which shall constitute Ms. G's access time with the Subject Child, and, if a month has more than four weekends (which means that the Friday of that weekend falls within the same month as four other Fridays of that same month), Ms. G shall have access time with the Subject Child during such "fifth" weekend; and it is further

ORDERED that Ms. G shall not be present at school during Mr. G' pick up or drop off time of the Subject Child to school; and it is further

ORDERED that in the event that the Monday following Mr. G' weekend visitation is a legally recognized holiday in which the child's school is closed, then said weekend visitation shall be extended until Monday at 5:00 p.m.; and it is further

ORDERED that Mr. G shall have visitation with the Subject Child on alternate Wednesdays commencing at 5:00 p.m. and continuing through the beginning of the Subject Child's school day the next morning where the father shall transport the Subject Child to school in a timely fashion unless the following day is a legally recognized school holiday in which the Subject Child's school is closed, and then such visitation shall be extended until 5:00 p.m. and on those alternate Wednesdays when there is no overnight visitation as set forth herein, the father shall have visitation with the Subject Child from 3:30 p.m. until 7:30 p.m.; and it is further

ORDERED that if either party travels with the Subject Child in excess of one overnight, the traveling party shall provide to the other parent, in writing, in advance of such travel, a contact telephone number and address at which the Subject Child may be reached; and it is further

ORDERED that in the event that Ms. G employs or otherwise uses a babysitter to care for the Subject Child, other than a brief excursion for errands (to wit, two hours or less) she shall first notify Mr. G, who shall have the right

Of first refusal" to care for the Subject Child in lieu of the Subject Child being cared for by a babysitter except that any summer camp in which the Subject Child is enrolled shall not constitute "babysitter" for the purposes of this paragraph but a "day care" (not day camp) shall; and it is further

ORDERED that neither party shall remove the Subject Child from the contiguous United States without the written consent of the other party, or prior Court approval; and it is further

ORDERED that the parties shall each have the right to celebrate Easter in alternate years with the Subject Child, with Mr. G having Easter with the Subject Child in odd years, and Ms. G having Easter with the Subject Child in even years irrespective of scheduled visitation weekends, vacation access or vacation visitation; and it is further

ORDERED that at 5:00 p.m. on the Wednesday prior to Thanksgiving through Friday at 10:00 a.m. Mr. G will have visitation with the Subject Child in even years and Ms. G will have the same Thanksgiving schedule in odd years. In the event that Thanksgiving falls on Mr. G' alternate weekend, the father will have visitation in accordance with the weekend visitation schedule and does not have to return the [*10]Subject Child on said Friday after Thanksgiving; and it is further

ORDERED that in even years on Christmas Eve until 10:00 a.m. on Christmas Day Ms. G shall have the Subject Child then Mr. G shall be afforded uninterrupted visitation beginning at 10:00 a.m. on Christmas Day through 6 p.m. of the evening preceding the commencement of the Subject Child's school. In odd years the parties' aforementioned access with the Subject Child during the Christmas holiday and recess shall be the reverse; and it is further

ORDERED that every Father's Day shall be spent by the Subject Child with Mr. G irrespective of any other scheduled visitation -- including vacation access by Ms. G --from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that every Mother's Day shall be spent by the Subject Child with Susy G irrespective of any other scheduled visitation -- including vacation visitation -- from 10:00 a.m. through 7:00 p.m.; and it is further

ORDERED that the mother shall list the father as an "emergency contact" person or other such contact person on any and all forms requesting such information, as same may pertain to the Subject Child; and it is further

ORDERED that each party shall have reasonable telephone contact with the Subject Child while the child is with the other parent not to exceed one telephone call per day; each party shall promote said telephone contact between the Subject Child and the other party including initiating such telephone call for the Subject Child and the other parent if no call previously had occurred that day and, under no circumstances shall either parent circumscribe the length of such telephone calls unless such call exceeds fifteen minutes in duration and then such call may be ended at the direction of either parent, and each parent must continue efforts to make such contact each day until the call occurs; and it is further

ORDERED that neither party shall disparage the other party in the presence of the child, nor allow third parties to do so in the presence of the child; and it is further

ORDERED that each parent shall encourage a healthy and loving relationship between the Subject Child and the other parent; and it is further

ORDERED that each party shall give 48 hours advance notice to the other in the event he/she will not be able to comply with the visitation terms of this order; and it is further

ORDERED that each party shall ensure that the Subject Child is properly given any and all medication as prescribed for him by a licensed physician and Ms. G shall inform Mr. G of all such medications and prescribed dosages and shall provide same to Mr. G when the Subject Child is in Mr. G's care; and it is further

ORDERED that Larry S. Horowitz, Esq., Attorney for the Child, shall remain assigned to the matter for a period of six months after the date of this Order to ensure that the Subject Child is enrolled in therapy as herein provided and shall communicate in writing to the Court with copies to each party confirmation of same; and it is further

ORDERED that other than the school pick up and drop off of the Subject Child by Mr. G as set forth in this order, Ms. G shall transport the Subject Child to commence and conclude visitation with Mr. G to Mr. G' home in Yonkers or other location identified by Mr. G such location other than his home, to be provided, in writing, via email, by Mr. G to Ms. G in advance [*11]of such drop off or pick up, but such location may not be located in an place which would require Ms. G to travel in excess of four (4) miles from the ordinary home drop off location; and it is further

ORDERED that the father shall have such other and further visitation as the parties may agree; and it is further

ORDERED that within ten days of receipt of this Court's order, unless the parties can agree on a parent coordinator, each party shall submit in writing to the Attorney for the Subject Child the names and contact information of three parent coordinators and the Attorney for the Subject Child shall then submit the list to the Court, including three names (and contact information) of his own choosing, should he so choose, without indicating which party chose which name. The Court then will randomly select one such parent coordinator from the list for the parties to use for the purposes set forth herein; to wit, should either party contend that the other party has failed to comply with the terms of this Order, the parties must meet at least once on such issue with such parent coordinator to try to resolve the matter before requesting any judicial intervention. For the reasons previously noted herein, Mr. G shall bear seventy five (75) percent of the cost of the parent coordinator; Ms. G shall bear twenty five (25) percent of the cost of the parent coordinator; and it is further

ORDERED that Ms. G's notice of motion, filed with this Court on August 7, 2009, is hereby dismissed as moot;[FN4] and it is further

ORDERED that Ms. G's petition, filed on August 14, 2009, alleging a violation of the 2007 Order is hereby dismissed, without prejudice, with leave to renew only after the parties comply with the terms of this Order, to wit, meet with the parent coordinator in an effort to resolve the matter without court intervention consistent with the terms of this order; and it is further

ORDERED that, based upon the foregoing, the scheduled court date of September 16, 2009 be and hereby is deemed moot and no court appearances are required by any party or counsel on that date.

This constitutes the Decision and Order of this Court.

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November 07, 2007

Anything Can Happen at Trial

Posted By Brian D. Perskin

64.2.12 - - - Hale

Hale v. Hale, 16 A.D.3d 231, 792 N.Y.S.2d 27 (First Dept. 2005)(2005 WL 612968)(2005 N.Y. Slip Op. 01997)(Mar 17, 2005):

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

Robert V. Hale, Plaintiff-Appellant-

Respondent,

v.

Jane Drake Hale, Defendant-Respondent-Appellant.

ENTERED: MARCH 17, 2005

Mazzarelli, J.P., Marlow, Williams, Gonzalez, Catterson, JJ.

Resettled judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered November 26, 2004, which, inter alia, awarded the wife $89,141 for her share in the parties' Connecticut condominium, permitted her to buy out husband's share of the New York co-op apartment for $324,670, determined that the distributions from the Drake Land Trust were separate property and that the alleged loans he received from his employer actually constituted part of his salary, and directed him to pay his wife $8,000 maintenance per month for four years, unanimously modified, on the law and the facts, to the extent of (1) requiring, as part of the buy-out condition for the New York apartment, that the wife pay her husband $273,846 as his separate property credit, $178,900.50 as his half share of the marital equity, as well as his post-commencement credits consisting of principal and not interest, to be determined on remand; (2) deleting the husband's award of $80,302.55 to his wife for post-commencement mortgage credits, and awarding him half of her $20,407 share of the 2000 proceeds from the Drake Land Trust; (3) deleting the provision holding the wife responsible for half the amount by which the mortgage on the parties' boat exceeds the sale price, and otherwise affirmed, without costs. The husband's appeal from order, same court and Justice, entered October 1, 2004, insofar as it denied reargument on resettling the judgment with respect to whether it should recalculate his separate property credit for the New York apartment and whether it should provide the parties the option of selling the apartment, unanimously dismissed, without costs, as taken from a nonappealable order. The husband's appeal from order, same court and Justice, entered on or about February 17, 2004, which, to the extent appealed from as limited by the briefs, denied his motion to resettle the judgment, unanimously dismissed, without costs, as taken from a nonappealable order. The husband's appeal from those portions of the divorce judgment, same court and Justice, entered October 28, 2003, "which relate to the distributive award," unanimously dismissed, without costs, as superseded by the appeal from the resettled divorce judgment. The husband's appeal from order purportedly entered July 31, 2003, unanimously dismissed, without costs, as superseded by his appeal from said order as actually entered October 22, 2003. The husband's appeal from order, same court and Justice, entered October 22, 2003, which, to the extent as limited by the briefs, refused his motion to reconsider the value of the Connecticut condominium or his wife's buy-out cost of the New York apartment, unanimously dismissed, without costs, as superseded by the appeal from the resettled divorce judgment. The wife's cross appeals from the original October 28, 2003 divorce judgment and the October 1, 2004 order directing resettlement unanimously dismissed, without costs.

As to the husband's appeal from those portions of the original divorce judgment relating to the distributive award, equitable distribution and a distributive award are two different elements of relief (see e.g. Gober v. Gober, 4 AD3d 175 [2004] ), and arguably, maintenance would not fall into either category. Where the only "distributive award" was the parties' Cadillac, precluding the husband's appeal from aspects involving equitable distribution for his choice of semantics would elevate form over substance. As for his arguments regarding maintenance, since he ultimately appealed from "each and every portion" of the amended judgment, he should not be denied the right to challenge the awards of maintenance and equitable distribution on appeal. The order denying his motion to resettle the decretal paragraphs of the judgment with respect to his separate property contribution to the New York co-op is not appealable (Hatsis v. Hatsis, 122 A.D.2d 111 [1986] ), nor does an appeal lie from the order denying reargument of that resettlement motion (Charney v. North Jersey Trading Corp., 184 A.D.2d 409 [1992] ).

The husband argues there was no evidence on which the court could have concluded the condo's appreciation in value was due in any way to the direct or indirect efforts of either party, and he thus urges that we delete the award of $89,141 for his wife's share. This issue involves a matter of credibility that the court resolved in the wife's favor (see Guarnier v. Guarnier, 155 A.D.2d 744, 745 [1989] ), and the husband only raises a challenge for the first time on appeal. Since the record contains evidence that the wife played some role in the upkeep and maintenance ofthe condo, it was not an abuse of discretion for the court to grant her a share in its appreciated value (cf. DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879 [1987] ).

Unavailing is the husband's assertion of error for the court to have accepted the wife's appraiser's $925,000 valuation based on comparable sales for properties much newer or larger than the condo. Substantial deference should be accorded to the court's rejection of the testimony of the husband's appraiser, whose associate left a note stating "150 K over, should be around 800 to 900 ...." (see Havell v. Islam, 301 A.D.2d 339, 347 [2002], lv denied 100 N.Y.2d 505 [2003] ).

However, it does not appear that the court, when it performed its calculations of the parties' marital share of the New York apartment, took into account the equity built through mortgage payments made during the marriage. Therefore, we calculate the wife's share of the marital equity by taking the date-of-trial equity of $631,647 ($775,000 minus the outstanding mortgage of $143,353) and subtracting the husband's $273,846 separate property equity credit (representing the purchase price of $530,000 minus the outstanding mortgage of $256,154 in 1996), yielding a difference of $357,801, and then dividing that marital equity in two, for a quotient of $178,900.50. The resettled judgment is modified accordingly.

Insofar as the husband asserts that we should modify the judgment so as to set forth the alternatives for disposition of the co-op, his claim is untenable and/or academic in light of the wife's undisputed intent to buy out his share.

Although the Drake Land Trust acquired the 2000 distributions after the parties commenced this litigation, the husband established his right to them, and they thus constitute marital property (see Capasso v. Capasso, 129 A.D.2d 267, 285-86 [1987], lv denied 70 N.Y.2d 988 [1988] ). Such a finding is consistent with the intent of the statute to expand the extent of marital property and diminish that of separate property (see Capasso, 129 A.D.2d at 286; see also Price v. Price, 69 N.Y.2d 8, 14-17 [1986] ).

Even though the wife did not produce witnesses to refute her husband's testimony that his employer loaned him substantial sums of money over the years, the burden remained on him to prove that the travelers' checks and other sums from the employer were loans and not part of his salary (see e.g. Matter of Powers v. Powers, 86 N.Y.2d 63 [1995] ). The court gave several reasons why it found that the husband failed to sustain his burden, including his acknowledgment that the writing constituted mere "housekeeping" he created subsequent to the purported loans, offering no explanation for the "moratorium." Affording the court's credibility findings great weight (see Eschbach v. Eschbach, 56 N.Y.2d 167, 173-74 [1982] ), we perceive no basis in the record to disturb its findings.

The husband argues that the court abused its discretion in distributing marital property and failing to apportion unsecured marital debt. This is unfounded since four of the "Marital Assets to Ms. Hale" on which he based his calculations are actually her separate assets and deserve to remain so.

Despite the arguments of both parties, we find the court's maintenance award resulted from a provident exercise of discretion (see Domestic Relations Law ? 236[B][6][a]; Spencer v. Spencer, 230 A.D.2d 645, 648 [1996] ). In light of the wife's age and limited earning capacity, it would be unreasonable to expect that she could support herself in a lifestyle approximating that which she enjoyed during the marriage (see Atweh v. Hashem, 284 A.D.2d 216, 217 [2001] ). During the marriage, the husband gave his wife an allowance of $2,500 per month, paid for all expenses, and they took frequent vacations. Although he has indicated his intention to retire when he is 65, this award is not for her lifetime, but only for four years, and his income and earning capacity demonstrate that he can manage the payments. While the parties were married only six years, they did live together for an additional eight years. In any event, a short marriage alone would not compel an award of lower maintenance in view of the marked disparity between the parties' income and earning capacity (see Allen v. Allen, 275 A.D.2d 225, 226-227 [2000], lv denied 96 N.Y.2d 708 [2001] ).

We agree with the wife that her husband should not have been given 100% of the credit for the mortgage payments he made on the New York co-op, including principal and interest. When he began deducting the co-op's carrying charges from her maintenance installments in May 2003, the payments he made to the third parties for the mortgage and other charges should have been viewed as in lieu of spousal support. Thus, while the court was correct in determining that he could not offset payments made in lieu of direct spousal support (see e.g. Parisio v. Parisio, 240 A.D.2d 900 [1997] ), it should have awarded him property credit for only that portion representing the principal, not interest (see Litman v. Litman, 280 A.D.2d 520, 522 [2001] ). Furthermore, since the court awarded each party a 50% interest in the co-op, it should have awarded him only 50% of the credit toward the principal of the mortgage (see Beece v. Beece, 289 A.D.2d 352, 353 [2001]; cf. Leeds v. Leeds, 281 A.D.2d 601, 602 [2001], lv denied 97 N.Y.2d 602 [2001] ). Since it is unclear how much of the $88,302.55 consisted of principal and how much was interest, we remand for a determination of that credit and entry of an appropriately amended judgment on the final distributive award.

The court should have used the value of the parties' boat at the commencement of the action, which the husband estimated at $450,000. Since he had exclusive possession, he should be solely responsible for any drop in value, in light of his witness's testimony that increased engine usage would hasten depreciation (see Heine v. Heine, 176 A.D.2d 77, 87 [1992], lv denied 80 N.Y.2d 753 [1992] ).

We reject the wife's attempt to deprive her husband of his equal share of her frequent flyer miles. Her testimony made it clear that she did have such miles, and although he never established the exact amount, the judgment awarding him his share specified that the parties should present their mileage statements as of the commencement of the action, for comparison and balancing.

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

CLERK

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July 03, 2007

Is My Inheritance Safe?

Posted By Brian D. Perskin

The question of whether or not an inheritance is subject to equitable distribution has gotten a lot of attention. Take a look at the following excerpt from Spencer v. Spencer which finds that inheritance is separate property, but its appreciated value is marital property... Excerpt from Stencer v. Stencer,646 N.Y.S.2d 674, 230 A.D.2d 645

Decided August 15, 1996

The trial court properly concluded that an inheritance received by the plaintiff from his brother and sister, and thereafter placed in the Merrill Lynch investment account, was his separate property upon receipt, and that he continued to maintain this asset as separate throughout the marriage ( McGarrity v McGarrity, 211 A.D.2d 669, 622 N.Y.S.2d 521; Alaimo v Alaimo, 199 A.D.2d 1039, 606 N.Y.S.2d 117; Feldman v Feldman, supra). The fact that the plaintiff may have made withdrawals from his separate account to pay marital expenses does not alter this conclusion ( Feldman, supra, at 216), as there was insufficient evidence of commingling to conclude that this account was transmuted into marital property.

Pursuant to Domestic Relations Law § 236(B) (1) (d) (3), however, the appreciation of this account, due to the plaintiff's management during the marriage, must be credited to the defendant, who is entitled to a fifty percent share of such appreciated value during the marriage as part of the marital estate. As recognized by the Court of Appeals in Price v Price (supra, at 17), "where separate property of one spouse has appreciated during the marriage and before execution of a separation agreement or commencement of a matrimonial proceeding ... 'due in part' to the contributions or efforts of the non-titled spouse as parent and homemaker, the amount of that appreciation should be added to the sum of marital property for equitable distribution" (DRL § 236 [5]; see, also, Hartog v Hartog, 194 A.D.2d 286, 291-292, 605 N.Y.S.2d 749, affd as modified by Hartog v Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749). Here, the plaintiff used his experience in accounting and taxation to manage the investments in the inheritance accounts with his son. Since the defendant indirectly contributed to the appreciation of this asset by handling the household matters, thereby permitting her husband the freedom to devote energy to his financial endeavors ( Price, supra, at 16), her contribution should be given consideration in the distribution of the appreciated value of this asset...

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July 02, 2007

Imputing Income

Posted By Brian Perskin

All too often, fathers or mothers come to court and say they do not earn any income. The Courts in New York have the power to impute income to the non custodial parent, if the Court believes that a person is not being truthful about their finances. Family Courts in New York do this all the time. Read the following case from the third department......

In Yarinsky v Yarinsky --- N.Y.S.2d ----, 2007 WL 108475 (N.Y.A.D. 3 Dept.) the Appellate Division held that Courts have considerable discretion in fashioning a child support award; when assessing a parent's income from which to determine his or her child support obligation, a court should consider factors such as the parent's "gross (total) income as ... reported in the most recent federal income tax return", as well as additional income from sources other than employment and a parent's past income . Further, a court may impute income based upon a parent's prior employment experience and future earning capacity in light of his or her educational background. Notably, when a party's or an expert's account of his or her finances is not believable, a court is justified in finding an income higher than that claimed . Upon its review of the record the Appellate Division concluded that the Support Magistrate acted within his discretion in focusing on the 2003 federal tax returns of the parties and the husbands solely owned subchapter S corporation, as they were the most recent at the time of the hearing. Further, each item of income attributed to the husband for child support purposes--which totaled$189,547-- was supported in the record. It was clear that--in anticipation of an eventual full plenary hearing on child support--the husband made a number of financial decisions which effectively reduced the amount of the corporate nonemployment income received by him in 2003; the most glaring were his December 2003 decisions to purchase a new corporate vehicle for his personal use ($31,356) and to upgrade his office computer system ($15,070.16) thereby reducing the 2003 excess corporate profit--payable as income to him as sole shareholder of the corporation--by $46,426. Accordingly, it imputed $40,426 in additional 2003 income to the husband's share of the combined parental income.

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July 02, 2007

You are entitled to a Defense

Posted By Brian Perskin

April 3, 2007 Page 1.

SHAGOURY v SHAGOURY

Supreme Court of the State of New York

Appellate Division: Second Judicial Department

D14539

C/hu

AD3d Argued - February 20, 2007

STEPHEN G. CRANE, J.P.

GLORIA GOLDSTEIN

STEVEN W. FISHER

ROBERT A. LIFSON, JJ.

2005-07041 DECISION & ORDER

(Index No. 18409/02)

In an action for a divorce and ancillary relief, the defendant husband appeals from a judgment of the Supreme Court, Queens County (Fitzmaurice, J.), dated May 24, 2005, which, after a nonjury trial, inter alia, granted the plaintiff wife a divorce on the ground of cruel and inhuman treatment. ORDERED that the judgment is reversed, on the law and in the exercise of discretion, without costs or disbursements, and the matter is remitted to the Supreme Court, Queens County, for a new trial, before a different Justice. The plaintiff wife commenced this action seeking, inter alia, a divorce on the ground of cruel and inhuman treatment. The husband counterclaimed for a divorce on the same ground, but based, in effect, on allegations of abandonment and adultery. Contrary to the husband’s contention, the wife presented evidence which, if believed, would support the Supreme Court’s finding of cruel and inhuman treatment (see Hessen v Hessen, 33 NY2d 406, 411; Meltzer v Meltzer, 255 AD2d 497, 497-498). Nevertheless, under the unusual circumstances presented, a new trial is required because

April 3, 2007 Page 2.

SHAGOURY v SHAGOURY

the trial court impermissibly and repeatedly precluded the husband from eliciting relevant testimony in his defense, as well as in support of the factual allegations contained in his counterclaim, and thereby deprived him of a fair trial (see Arbital v Allstate Ins. Co., 282 AD2d 560, 561; cf. Habib vHabib, 278 AD2d 277, 278). In light of our determination, we do not reach the defendant’s remaining contentions.

CRANE, J.P., GOLDSTEIN, FISHER and LIFSON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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June 30, 2007

How to Make a Pre Nup Valid

Posted By Brian Perskin

I ran across this article

The Validity of Prenuptial Agreements

Joel R. Brandes

New York Law Journal
December 22, 1998

PROPERTY SETTLEMENTS are encouraged as consistent with the public policy of New York. Such settlements in prenuptial agreements must be fair and reasonable and not tainted with fraud, misrepresentation, coercion or imposition. In the absence of such taints, these agreements have been presumed to be valid, and the party alleging taints or defects has had the burden of proof to establish their invalidity.1

Domestic Relations Law (DRL) §236,[B](3), enacted in 1980, attempted to modernize the New York law dealing with prenuptial agreements and with agreements made between spouses during their marriage. Such agreements are commonly referred to as a "stipulation of settlement," "property settlement," "settlement agreement" or "opting out agreement" (referred to as "settlement agreements" in this article).

The subject matter of such agreements includes:

1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of §5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for custody, care, education and maintenance of any child of the parties.

Where a settlement agreement has been incorporated into a judgment that is valid on its face,2 collateral attack is inhibited. Representation by experienced counsel3 and ratification4 of the agreement, or laches,5 also inhibit or bar subsequent challenges to the validity of the agreement.

The Issue of Disclosure

Perhaps the most intriguing issue relates to nondisclosure. During marriage spouses are subject to the special duties imposed by their confidential relationship. As noted in Christian v. Christian,6 those fiduciary duties are imposed independently of any statute. In addition, the spirit and the letter of the Equitable Distribution Law (EDL) requires full disclosure between spouses, and to "opt out" of the statutory system there must be a full and complete disclosure of all financial data unless, perhaps, there is an intelligent waiver. Nevertheless, it is a perilous undertaking and it invites trouble. Courts ordinarily are wary of waivers of full disclosure. Matrimonial attorneys often insert clauses in settlement agreements that contain self-serving declarations that each party has made full financial disclosure to the other; that their respective counsel has fully explained to each of them the legal and practical effect of the terms of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair, and not the result of fraud, duress or undue influence.7 If "unconscionability" is established, such clauses certainly have limited, if any, effect. But if the settlement agreement is fair on its face, and especially if the complaining party was represented by independent counsel, such clauses are effective and, at a minimum, place a heavy burden on the party who asserts invalidity.8 Statements of net worth are mandatory and liberal discovery procedures on financial matters are available. This obligation regarding disclosure also applies to the bargaining stage prior to reaching an agreement. Since the settlement agreement may serve in lieu of valuation and distribution by the court, it is imperative that the parties know what they are doing and what is at stake. In the past, prenuptial agreements were treated differently from settlement agreements. Courts sustained the validity of a prenuptial agreement where there was an intelligent waiver and full disclosure was not made. In Hoffman v. Hoffman,9 the court held that a failure to disclose the full extent of a party's assets does not in itself constitute such fraud or overreaching that would invalidate a prenuptial agreement, where no representations were made and thus none were relied upon. In Matter of Greiff 10 the Court of Appeals extended the concept of "fiduciary relationships" to engaged parties when they execute a prenuptial agreement, and it held that the existence of certain "exceptional circumstances" can warrant a shift of the burden of proof bearing on its legality and enforceability. Appellant Helen Greiff married Herman Greiff in 1988 when they were 65 and 77 years of age, respectively. They entered into reciprocal prenuptial agreements in which each expressed the usual waiver of the statutory right of election as against the estate of the other. The husband died three months after the marriage, leaving a will that made no provision for his surviving spouse. The will left the entire estate to his children from a prior marriage. When Mrs. Greiff filed a petition seeking a statutory elective share of the estate, Mr. Greiff's children countered with the two prenuptial agreements, which they claimed precluded Mrs. Greiff from exercising a right of election against her husband's estate.

'Influence and Advantage'

The Surrogate found, after a trial, that the husband "was in a position of great influence and advantage" in his relationship with his wife to be, and that he was able to subordinate her interests, to her prejudice and detriment. It further determined that the husband "exercised bad faith, unfair and inequitable dealings, undue influence and overreaching when he induced the petitioner to sign the proffered antenuptial agreements," particularly noting that the husband "selected and paid for" the wife's attorney. The Surrogate's Court invalidated the prenuptial agreements and granted a statutory elective share of decedent's estate to the surviving spouse. The Appellate Division reversed on the law, declaring that Mrs. Greiff had failed to establish that her execution of the prenuptial agreements was procured through her then-fiance's fraud or overreaching. The Court of Appeals granted the widow leave to appeal, and it reversed. It stated the general rule that a party seeking to vitiate a contract on the ground of fraud bears the burden of proving the impediment attributable to the proponent seeking enforcement.11 It said that this rule also applies generally to controversies involving prenuptial agreements.12 However, it noted that it has held that where parties to an agreement find or place themselves in a relationship of trust and confidence at the time of execution, a special burden may be shifted to the party in whom the trust is reposed to disprove fraud or overreaching, citing, among other things, Christian v. Christian.13 As an illustration, the Court referred to Matter of Gordon,14 where the administrator of the decedent's estate challenged the transfer of funds by the decedent, one month before her death, to the nursing home in which she was a patient. It pointed out that when it invalidated the transfer it stated:

Whenever * * * the relations between the contracting parties appear to be of such a character as to render it certain that * * * either on the one side from superior knowledge of the matter derived from a fiduciary relation, or from an overmastering influence, or on the other from weakness, dependence, or trust justifiably reposed, unfair advantage in a transaction is rendered probable, * * * it is incumbent upon the stronger party to show affirmatively that no deception was practiced, no undue influence was used, and that all was fair, open, voluntary and well understood" * * * .

The court held that this rule can be applied to the execution of prenuptial agreements. It emphasized, however, that the shift of the burden of proof is neither presumptively applicable nor precluded. The court noted that its 1894 decision in Graham v. Graham 15 has been read to hold that prenuptial agreements were presumptively fraudulent because of the nature of the relationship between prospective spouses. Its more recent decision in Matter of Phillips,16 on the other hand, was urged to suggest that prenuptial agreements may never be subject to burden-shifting, regardless of the relationship of the parties at the time of execution and the evidence of their respective conduct.

Equal Footing

The Court pointed out that Graham was decided more than 100 years ago, and it indicated that prospective spouses stand in a relationship of confidence that necessarily casts doubt on or requires strict scrutiny concerning the validity of a prenuptial agreement. Graham was based on the outdated premise that the man "naturally" had disproportionate influence over the woman he was to marry. In 1998, society and the law reflect a more progressive view. They now reject the assumption of inherent inequality between men and women, in favor of a fairer, realistic appreciation of cultural and economic realities. The law now starts marital partners off on an equal plane. Noting that Phillips "tugs in the opposite direction" from Graham, the court found that it did not upset the principles enunciated in Graham, because while holding that prenuptial agreements are not enveloped by a presumption of fraud, the Court in Phillips indicated that some extra leverage could arise from the "circumstances in which the agreement was proposed." It distinguished this language in Phillips from the holding in Graham, finding it was broad enough to encompass the unique character of the bond between prospective spouses whose relationship, by its nature, is "permeated with trust, confidence, honesty and reliance." The Court of Appeals held that the spouse who contests the validity of a prenuptial agreement bears the burden to establish a "fact based, particularized inequality" before the burden shifts to the party seeking to uphold the validity of the agreement to disprove fraud or overreaching. The court thus eliminated the presumption of fraud enunciated in Graham and adopted a "particularized and exceptional scrutiny" test. As the Appellate Division did not apply these legal principles, the Court remitted the case to it for a new determination. It directed that the question for it to determine is "whether, based on all of the relevant evidence and standards, the nature of the relationship between the couple at the time they executed their prenuptial agreements rose to the level to shift the burden to the proponents of the agreements to prove freedom from fraud, deception or undue influence." Greiff demonstrates that the issue is one of fairness in the negotiations, and that, like beauty, may lie in the eyes of the beholder. Prior to this determination, the intermediate appellate courts upheld antenuptial agreements not tainted by fraud, without an affirmative obligation on the part of both parties to fully disclose their finances and without consideration of whether the terms of the agreement were fair when made. These cases did not reflect the new public policy of New York as enunciated in the Christian case and in the EDL, but adopted the policy that existed prior to July 19, 1980. Greiff apparently changes all of this and elevates the status of being engaged to its rightful place as a fiduciary relationship.

----------------------

Notes

(1) Matter of Phillips, 293 NY 483, 58 NE2d 504, reh den 294 NY 662, 60 NE2d 389. (2) Re Estate of Miller, 97 AD2d 581; Lambert v. Lambert, 530 NYS2d 223. (3) See Stoerchle v. Stoerchle, 101 AD2d 831; Richardson v. Richardson, 142 AD2d 563. (4) See Stoerchle v. Stoerchle, supra, Glaser v. Glaser, 127 AD2d 741; McDougall v. McDougall, 129 AD2d 685. (5) See Rubinstein v. Rubinstein, 130 AD2d 567. (6) 42 NY2d 63. (7) See Wile v. Wile (2d Dept) 100 AD2d 932, which attached significance to such clauses. (8) Wile v. Wile, supra. Levine v. Levine, 56 NY2d 42 (1982). (9) (3d Dept) 100 AD2d 704. (10) __ NY2d __ , 98 N.Y. Int. 0130. Oct. 27, 1998. (11) Matter of Gordon v. Bialystoker Ctr. and Bikur Cholim, 45 NY2d 692. (12) Matter of Phillips, supra. (13) 42 NY2d 63 (1977). (14) Supra, N. 11. (15) 143 NY 573, 579, 580. (16) Supra. *********

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June 28, 2007

It is all in the Answer?

Posted By Brian Perskin

If you are fighting the grounds for a divorce, make sure that your answer to the complaint contains a request for child support and maitenancen. A recent decision by a respected justice in New York explains the logic...

66.11.15 - - - AF v. SF

A.F. v. S.F., (Sup. Ct., New York Co., Beeler, J)(U)(2007 WL 685847)(2007 N.Y. Slip Op. 50426)(Mar. 07, 2007):

NOTE: THIS OPINION WILL NOT BE PUBLISHED IN A PRINTED VOLUME. THE DISPOSITION WILL APPEAR IN A REPORTER TABLE.

Supreme Court, New York County, New York.

A.F., Plaintiff,

S.F., Defendant.

March 7, 2007

HAROLD B. BEELER, J.

Plaintiff-husband moves by Order to Show Cause pursuant to CPLR 3217(b) to discontinue an action for divorce. Defendant-wife does not oppose the discontinuance of plaintiff's cause of action for constructive abandonment, provided that the Court retains jurisdiction over the ancillary relief requested in her answer including spousal maintenance, child support and custody of the children.

BACKGROUND

The parties were married on June 4, 1998 and have three young sons, ages 7, 5, and 3. Plaintiff, in partnership with his father and brother, owns a securities trading firm. His income in 2004 was almost $5 million and his net worth is stated at over $17 million. Defendant is a stay-at-home mother. The parties separated in November 2005. On June 14, 2006, plaintiff commenced this action for divorce by filing a Summons with Notice. On June 21, 2006, defendant's counsel served a Notice of Appearance and Demand for a complaint. A verified complaint was filed on July 11, 2006 alleging as grounds constructive abandonment by the defendant. In her verified answer, dated September 11, 2006, defendant denied the material allegations of the complaint and affirmatively sought the ancillary relief of custody of the children with access by the plaintiff, spousal maintenance and child support. She did not, however, specifically interpose a counterclaim for divorce.

During the pendency of this action, defendant has made no motion for pendente lite financial relief in any form. Plaintiff has voluntarily given defendant $100,000 in legal fees, $20,000 in expert fees and $50,000 monthly in combined spousal and child support, although defendant has recently complained that plaintiff has unilaterally cut back on his support payments and not paid her counsel's and expert's current fees. A preliminary conference was held on July 11, 2006, at which time all issues including fault were marked unresolved by the parties. At this conference and, thereafter, until the filing of the instant motion, the Court's focus in this action has been almost exclusively centered on issues concerning custody and access of the children.

On July 12, 2006, the Court ordered a summer access schedule which differed from the schedule for the non-summer months which the parties had previously voluntarily agreed upon. The summer schedule expanded plaintiff's weekend access to the children after taking into account that plaintiff would lose his weekday time with them because they would be spending their whole summer, as was their custom, in the parties' East Hampton home.

At the September 11, 2006 compliance conference, the parties disagreed over the access schedule for the coming school year. Plaintiff argued for an access schedule that expanded on the schedule that had been in effect during the past school year. His proposed schedule would increase his access to the children from five out of every fourteen days to equal time with them. Defendant objected to any such increase arguing that the constant transitions were not in the best interest of the children. The parties also disagreed over whether the children should continue in the therapy that all three entered to help them adjust to their parents's separation. After extensive consultation with and guidance from the Court, the parties entered into a so-ordered stipulation whereby they agreed that for non-holiday periods the access schedule from the past school year would continue for the coming school year. They also agreed on an access schedule for holidays and vacations through January 15, 2007, the next scheduled appearance date for the case.

The parties also stipulated that their eldest son would continue in therapy, while the younger boys would discontinue the therapy pending further order of the Court or agreement of the parties and that the children's therapist would contact the Court concerning the advisability of continued treatment for the children. The parties further agreed to the appointment of a guardian ad litem for the three children in view of the high level of tension and conflict over the issues of access and therapy for the children.

At the same compliance conference, defendant reiterated her refusal to consent to grounds for the divorce. Her attorney claimed that defendant lacked sufficient discovery with respect to the value of plaintiff's business to determine whether a divorce was in her best interest and, moreover, that plaintiff's cause of action for constructive abandonment was not genuine inasmuch as plaintiff himself had abandoned the family to have an affair with another woman. In light of the absence of agreement over grounds, the Court scheduled a fault trial for January 15, 2007 and stayed further discovery until completion thereof.

Sometime in mid-November 2006, defendant served a fault trial subpoena on K. C., the woman with whom plaintiff was allegedly having an affair, who had been a close friend of defendant's during this marriage and who is going though her own divorce. On November 20, 2006, plaintiff's counsel wrote to defendant's counsel requesting that he stipulate to a discontinuance of plaintiff's action for divorce to avoid "incurring the unnecessary expense and subjecting the parties' children to the inevitable rancor that would be the result of a fault trial." In response, on November 22, 2006, defendant's counsel refused to stipulate to the discontinuance, insisting that plaintiff was "withdrawing the complaint not because of any concern for the children, but because it is a pack of lies that no fact finder would buy."

Thereafter, on December 8, 2006, defendant filed a motion by Order to Show Cause to direct plaintiff to cease having the parties' three children spend time with K.C. and her children while the boys are with the plaintiff pursuant to the access schedule. Six days later, on December 14, 2006, plaintiff filed the instant Order to Show Cause for a discontinuance of the divorce action. Both motions were returnable on January 12, 2007, on which date the Court granted defendant's "anti-blending" motion and reserved judgment on plaintiff's discontinuance application.

DISCONTINUANCE PURSUANT TO CPLR 3217(B)

After issue has been joined and in the absence of an agreed-upon stipulation to discontinue, CPLR 3217(b) requires a plaintiff to obtain the permission of the court to discontinue an action, upon terms and conditions that the court deems proper. While the decision to grant a discontinuance is within the sound discretion of the court, discontinuance is normally allowed unless undue prejudice to the defendant would result therefrom. See Tucker v. Tucker, 55 N.Y.2d 378, 383 (1982). A court should grant a discontinuance unless special circumstances exist which outweigh a party's right to not be compelled to continue a litigation which it had voluntarily commenced. Hockmeyer v. Bloch, 159 A.D.2d 444 (1st Dep't 1990) ("a party cannot be compelled to litigate, absent special circumstances"); Zuckerman v. Zuckerman, 105 A.D.2d 782 (2nd Dep't 1984) ("in the absence of special circumstances, a party should not be compelled to litigate against his or her wishes").

Plaintiff's Position

Not surprisingly, the parties disagree over whether a discontinuance would result in substantial unfairness to the defendant. Plaintiff contends that the action is barely six months old, that no pendente lite financial relief has been requested or ordered and, in any event, in light of plaintiff's decision to withdraw his divorce cause of action and in the absence of a pending counterclaim no legal basis exists for the Court's continuing jurisdiction. If need be, according to plaintiff, defendant can resort to Family Court to obtain the same relief she is seeking here, namely maintenance, custody and child support.

Defendant's Position

In contrast, defendant argues that she would suffer significant financial penalties in the event she had to initiate her own action in Family Court, including the inability to obtain retroactive maintenance and child support and to recover legal and expert fees already expended in this action. More importantly, she points to the instability and disruption in the lives of the children in the event she is relegated to Family Court with its attendant delay and where a new guardian ad litem would have to be appointed. Moreover, she asserts that the absence of a counterclaim for divorce does not bar the Court from addressing her claims for support and custody that she affirmatively sought in her answer because the Court retains independent jurisdiction over these issues regardless of whether a cause of action for divorce is denied after trial or discontinued on application of the plaintiff. Finally, defendant's opposition to the motion is supported by the guardian ad litem who represents that she has already conducted an extensive investigation of the custodial and visitation issues and believes that these matters should remain before and be decided by this Court.

Discussion

At the outset, the Court rejects plaintiff's contention that defendant's failure to assert a counterclaim for divorce in and of itself defeats her opposition to the motion to discontinue. See Schneider v. Schneider, 32 A.D.2d 630 (1st Dep't 1969) (Motion to discontinue denied despite the failure to plead a counterclaim where discontinuance would result in defendant's loss of support previously awarded by the court). In a typical civil action, the right to withdraw a claim is virtually unlimited since only the interests of the plaintiff are ordinarily affected by a discontinuance. However, in a matrimonial case, where a defendant frequently seeks affirmative relief in the answer in the form of support, custody or otherwise, a discontinuance can unduly prejudice these rights, notwithstanding the absence of a counterclaim for divorce. As articulated in Palmer v. Palmer, 62 Misc.2d 73, 77-78 (Fam Ct, Duchess County 1969) in the related context of a child custody litigation:

[T]he right to discontinue ceases to be absolute when certain intervening interests and rights become involved in the action or proceeding. It has long been the rule that when, as here, the party against whom relief is sought himself seeks affirmative relief by way or counterclaim or otherwise, the court should not permit the party who instituted the action in the first instance to unilaterally discontinue the action. (Emphasis added).

Moreover, the importance of resolving ancillary issues in a matrimonial action is recognized by the line of cases which hold that a court retains jurisdiction over such issues even where a cause of action for divorce has not been made out. See e.g. Gunn v. Gunn, 143 A.D.2d 393 (2d Dep't 1988) (Court could properly determine issues of custody, child support, maintenance and attorneys' fees even though no judgment entered dissolving the marriage); Mauletta v. Mauletta, 90 A.D.2d 535 (2d Dep't 1982) (Although grounds for divorce were not established, the court could determine questions of child support, exclusive possession of the marital residence and maintenance); Forbush v. Forbush, 115 A.D.2d 335 (4th Dep't 1985) (Court has authority to order permanent maintenance notwithstanding failure of proof on issue of fault).

CONCLUSIONS OF LAW

The Court finds that plaintiff has seriously underestimated the consequences which would arise in the event of a discontinuance. While defendant's claim of financial prejudice can largely be resolved by conditioning any order for discontinuance on payment by plaintiff of any unpaid attorney or expert fees (see e.g. Mancinelli v. Mancinelli, 228 A.D.2d 747 (3d Dep't 1996) (Abuse of discretion to allow discontinuance without awarding defendant counsel fees)), the impact on the parties' children of a withdrawal of the entire action is not so easily remedied. In this regard, courts have been especially vigilant in ensuring that the best interest of the children are not undermined by the granting of a discontinuance. See e.g. People ex rel. Weissman v. Weissman, 50 A.D.2d 989, 990 (3d Dep't 1975) ("This [habeas corpus] proceeding involves more than the personal rights of the parties. It involves the custody of the child. The welfare of the child is the prime concern of the court and justified the court in denying appellant's application to discontinue"); Julie J. v. Edwin A., 86 Misc.2d 882, 883 (Fam Ct, New York County 1976) ("The welfare of the infant child [which] is of paramount concern" warranted denial of motion to withdraw paternity proceeding); Stien v. Stien, 130 Misc.2d 609 (Fam Ct, Westchester County 1985) (Discontinuance of custody petition in Family Court in favor of a new matrimonial action in Supreme Court denied as it would result in the loss of the child's law guardian and prejudice the early disposition of the custody question).

The welfare of the three boys would likewise be compromised by a discontinuance of the instant action. Within the space of only six months, this Court has been called upon on three separate occasions to address matters concerning the welfare of these children. The current summer, school year and holiday access schedules were agreed to by the parties only after this Court expended considerable time and effort mediating their conflicting concerns. It is not overly pessimistic to predict that these temporary schedules will likely be subject to attack by one party or the other in light of their basic disagreements over the amount of access time and the impact of transitions on the children.

The advisability of the children continuing in therapy also remains an open issue as does the "blending" of the parties' children and the children of K.C. if, as is not unlikely, plaintiff and K.C. continue their relationship. Most importantly, a discontinuance of the entire action will result in the loss of Wendy Luger, the guardian ad litem, who has earned the respect of both parties by her commitment to the welfare of their children and by her diligence in representing their interests before this Court.

While the Court recognizes it cannot compel plaintiff to go forward with his cause of action for divorce, CPLR 3217(b) authorizes a court to order a discontinuance "upon terms and conditions, as the court deems proper." Accordingly, the Court is conditioning discontinuance of plaintiff's cause of action upon the Court's retention of jurisdiction over the issue of custody, and in the interest of judicial economy, all other requests for relief asserted in defendant's answer.

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June 28, 2007

What happens if Somebody Files for Divorce?

Posted By Brian Perskin

Pre nupts are valid, and it is difficult to get them thrown out in Courts in New York, read the following case from the third department.....

- - - 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,

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.

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June 03, 2007

Shoud I Move out?

Posted By Brian Perskin

Divorce Preparation: Step 10 - Stay Put (until further notice)

We are nearing the end of our series on practical steps to take when you are facing an imminent divorce. We have reached Step 10 - Stay Put (until further notice).

One of the most common questions I am asked by my clients is whether they can move out of the house. In most cases my answer to them is to stay put. It is not the answer most of my clients want.

I know that things are stressful. I know that they will likely get worse before they get better. Unfortunately, there are several reasons to avoid leaving. The most important ones are the following:

1. It could jeopardize your custody claim. If you end up in a custody dispute, then if you leave the house and the children remain there with your spouse you will almost guarantee that you will not receive primary custody. If the case becomes contested, it could drag out for many months (even a year or two). If your spouse has had primary physical custody that entire time and you’ve had alternate weekend visitation, then unless your spouse has made major mistakes in the interim, they will likely maintain primary custody.

2. It could affect your property interests. You’ve moved out. Your spouse pays the mortgage the entire time the case is pending. Some judges may factor that in when making the property division.

3. You will lose leverage in the negotiations. This is big. You want the divorce. Your spouse doesn’t. You decide you have to get out of the house. You move to an apartment and are paying your rent and the home mortgage. Now under the Pre-trial Status Quo Order you may be required to keep paying it as long as the case is pending. You have just given your spouse a major incentive to drag out the litigation. I see it happen all the time. Eventually you decide to settle for much worse terms because you can’t keep paying for two households. Do not make this mistake.

Moving out of the house can have dramatic effects on the case. Do not do it without discussing it with your lawyer and giving it a great deal of thought. You should know, also, that some judges will consider a motion for temporary possession of the residence pending the trial. This varies dramatically from county to county (and sometimes even from judge to judge) so you will want to discuss it with your lawyer.

It goes without saying that if domestic violence is an issue, then all of this is moot. You will need to take whatever steps you must to protect yourself. Just make sure you let your lawyer know what is going on. In the case of domestic violence, your lawyer may actually be able to have your spouse removed from the house.

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June 03, 2007

What is the First thing I should Do ?

Posted By Brian Perskin

Divorce Preparation: Step 11 - Keep a diary

This post continues are series on practical steps to take when a divorce is imminent. We are now on Step 11: Keep a diary/calendar

It is important to documents all of the major events that occur until the divorce is final. Your lawyer will likely want your help in reconstructing a chronology (a list in order by date) of the major events that led to the filing of the divorce. Additionally, you should begin keeping careful records of new events and incidents as they occur. Simply note the date, what happened and any witnesses that may have observed it. In the unfortunate event that your case drags on, events will begin running together and your memory may fail you. Don't rely on it.

Instead, keep an ongoing diary. Then provide this to your lawyer periodically so he is aware of any significant facts in your case.

I should note that you really should discuss this recommendation with your lawyer before implementing it. Some lawyers may not want you to have an ongoing record like this because it could be obtained by the other lawyer during the discovery phase of the trial (something that could have a negative effect on your case). Or, they may want you to take certain steps to attempt to protect it from begin discoverable by the opposing lawyer. These are technical legal issues beyond the scope of this blog. Suffice it to say that you need to talk this over with your lawyer first.

Posted In Divorce Preparation

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June 03, 2007

Equitable Distribution

Posted By Brian Perskin

66.2.20 - - - Pulver

Pulver v. Pulver, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1499069)(2007 N.Y. Slip Op. 04375)(May 24, 2007):

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

James H. PULVER, Appellant,

Suzanne M. PULVER, Respondent.

May 24, 2007

O'Brien & Asssociates, Albany (Stephen W. Rossi of counsel), for appellant.

Law Offices of David J. Clegg, Kingston (David J. Clegg of counsel), for respondent.

Before: CARDONA, P.J., SPAIN, MUGGLIN and ROSE, JJ.

SPAIN, J.

Appeals from two orders of the Supreme Court (Doyle, J.), entered April 15, 2005 in Ulster County, ordering, inter alia, equitable distribution of the parties' marital property, upon decisions of the court.

Plaintiff and defendant were married in July 1992 and have three children (born in 1993, 1995 and 1997). Prior to their marriage, defendant and her siblings were given an interest in New York businesses owned by her father. In 1990, defendant moved to New York to be closer to her family and began working in the family businesses and plaintiff moved to New York to join her soon thereafter. On the day before their wedding, the parties-under the supervision of their respective attorneys-duly executed and acknowledged separate but identical prenuptial agreements at two separate locations.

Just prior to their marriage, defendant used separate funds toward the purchase-in her own name-of what became the marital residence in the Town of Saugerties, Ulster County. Defendant's parents loaned her $30,000 toward the down payment and closing costs on the home. Although the mortgage remained in defendant's name, she subsequently deeded the residence to plaintiff, who transferred the property to the parties jointly. During the marriage, defendant spent $150,000 of her separate funds for improvements to the residence, and plaintiff made the mortgage payments until the commencement of this action.

In August 1995, defendant's family's businesses, where she was employed, were sold for $12.5 million and she placed her share of those funds, approximately $2.5 million, in a separate account. Meanwhile, plaintiff began to manage most of the investments in defendant's family's sizable portfolio and used $40,000 of marital assets to form his own company, Lockwood Financial Services.

Plaintiff commenced this divorce action in July 2002 and the parties ultimately agreed to dissolve the marriage on the ground of defendant's constructive abandonment; a trial was subsequently held to determine how their assets would be distributed.FN1 After hearing proof with respect to the parties' prenuptial agreement, Supreme Court, by decision and order, determined that it was valid and enforceable. Upon the completion of the trial, the court issued a second decision and order which, among other things, ordered plaintiff to pay monthly child support of $2,175 and child support arrears, directed the parties to each pay half of the cost of the children's unreimbursed health care expenses and private schooling, determined that neither party was entitled to spousal maintenance, awarded defendant 70% of the marital residence after finding it to be marital property, and required plaintiff to pay defendant 50% of the value of his business. Plaintiff now appeals.

FN1. In January 2003, by temporary order, Family Court, Ulster County, ordered plaintiff to pay $1,700 in monthly child support. However, by the time of the November 2004 trial, plaintiff was $18,900 in arrears. In June 2003, Family Court granted sole custody of the parties' children to defendant.

Initially, there is ample support in the record for Supreme Court's determination that the parties' prenuptial agreement was properly executed and enforceable. A duly executed prenuptial agreement will be considered valid and binding unless the contesting party can establish that he or she was induced by fraud, overreaching or duress attributable to the party seeking enforcement (see Matter of Greiff, 92 N.Y.2d 341, 344 [1998]; Costanza v. Costanza, 199 A.D.2d 988, 990 [1993] ). Evidence demonstrating "concealment of facts, misrepresentation or some form of deception" is necessary to establish fraud (Matter of Phillips, 293 N.Y. 483, 491 [1944] ); however, "a failure to disclose does not, standing alone, constitute fraud or overreaching sufficient to vitiate" a prenuptial agreement (Panossian v. Panossian, 172 A.D.2d 811, 813 [1991] ).

Here, plaintiff first asserts that although both parties signed the agreement on the same day, they signed and acknowledged-before notaries-two separate documents, at different locations, and when they each signed their respective copy, the line for the other party's signature was blank. Indeed, the fact that the agreement was signed by the parties at separate locations does not render it invalid; "a binding agreement may be assembled from more than one writing, even if all are not signed by the party against whom enforcement is sought" (Nolfi Masonry Corp. v. Lasker-Goldman Corp., 160 A.D.2d 186, 187 [1990], citing Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54-55 [1953]; see Raj Jewelers v. Dialuck Corp., 300 A.D.2d 124, 126 [2002] ). Here, although the agreements were signed at separate locations, they are identical and plaintiff conceded that he understood beforehand that even though neither of the documents would be signed by both parties, their terms were binding on both parties.

Similarly unpersuasive is plaintiff's claim that the prenuptial agreement was unenforceable as defendant inadequately disclosed her financial standing prior to its execution. Notably, in the signed agreement, the spaces provided for the amount of stock that defendant held in each of the family businesses were left blank. However, plaintiff testified that he was aware when signing the agreement that it did not set forth the number of defendant's shares in the family businesses but was not concerned by that omission, and that defendant's financial status had made no difference to him before the marriage and that, even if she had disclosed her financial status, it would not have changed his decision to sign the agreement. Further, the record indicates that plaintiff-an experienced stockbroker who had attended meetings of the companies' executive committee during the period leading up to the agreement-had a thorough knowledge of defendant's finances before signing the agreement. Finally, since he entered into the agreement with the assistance and advice of his own attorney, plaintiff may not now "complain that his ... interests were not adequately safeguarded" (Price v. Price, 289 A.D.2d 11, 13 [2001] ). Indeed, ample evidence supports the conclusion that the prenuptial agreement is valid and enforceable.

We also find support in the record for Supreme Court's calculation of plaintiff's child support obligation. The court determined plaintiff's income for child support purposes to be $90,000, applied the statutory percentage to this income and found plaintiff's monthly child support obligation to be $2,175. Plaintiff initially argues that Supreme Court did not follow the statutory requirement as it did not exclusively rely on his most recent tax return when calculating his parental income (see Domestic Relations Law ? ? 240[1-b][b][5][i] ). Plaintiff claims that this mistake was egregious as his recent tax returns consistently indicated his income to be much lower than $90,000. However, the court may impute income from any source that is not reported on an income tax return (see Domestic Relations Law ? ? 240[1-b][b] [5][iv] ), and such imputed income may be attributed to a party so long as the court articulates the bases for the imputation and its calculations are supported in the record (see Matter of Calabrese v. Johnston, 274 A.D.2d 971, 971 [2000] ). Here, the court noted that plaintiff's 2003 income tax return listed his income as $77,278,FN2 but additionally observed that the 2004 business ledger of plaintiff's company showed his income for the first 10 months of 2004 to be $94,087.16. The court also found that plaintiff took upwards of $42,700 from his business in 2004 to pay a number of personal expenses. Consequently, there was sufficient record support and explanation for imputing additional income to plaintiff and setting his income for child support purposes at $90,000.

FN2. Notably, plaintiff's 2002 tax return indicates his income to be only $55,756.

Plaintiff next claims that Supreme Court failed to sufficiently articulate why it would not depart from the given statutory percentages when evaluating his income over $80,000 for child support purposes (see Domestic Relations Law ? ? 240[1-b][c][3]; [f] ). However, the court adequately stated its rationale, indicating that it took into account, among other things, the children's standard of living and their level of activities. Similarly unpersuasive is plaintiff's claim that the court erred in requiring him to pay 50% of the cost of the children's private schooling, asserting that such a mandate was improper as he never agreed to send his children to St. Mary's of the Snow, a private parochial school. The court's finding, however, that this choice of schooling was jointly decided by both parties is also supported in the record.

Plaintiff next argues that Supreme Court failed to determine the combined parental income before applying the child support percentage contrary to Domestic Relations Law ? ? 240(1-b)(c)(1), (2). Indeed, the court did not state defendant's parental income and appears to have merely applied the correct child support percentage of 29% to plaintiff's assessed income of $90,000. Since the statutory percentages should be applied only to the combined parental income (see Domestic Relations Law ? ? 240[1-b][b][3], [4] ), the court should have added defendant's income to the $90,000 attributable to plaintiff before calculating his prorated child support obligation. However, implicit in the court's decision is that defendant's income for child support purposes was also $90,000; and the record amply supports this determination. FN3 Accordingly, based upon a combined parental income of $180,000, the court properly calculated plaintiff's monthly child support obligation to be $2,175 after applying the child support percentage and prorating the results (see Domestic Relations Law ? ? 240[1-b][b], [c] ).

FN3. For example, Supreme Court determined that the parties should equally split the child support add ons.

We next reject plaintiff's assertion that Supreme Court should have considered, prior to assessing his income over $80,000, that he was left impoverished when defendant's family withdrew its investments from his control (see Domestic Relations Law ? ? 240[1-b][f][10]; [g] ). Given the evidence, however, that plaintiff's business was still lucrative and that he continued to lead an expensive lifestyle following the parties' separation, his argument is unpersuasive.

We also reject plaintiff's assertion that Supreme Court erred in valuing his individual retirement accounts as of the date of trial. So as to avoid a windfall to the titled spouse and an injustice to the other, "where increases to a marital asset are passive, that is, affected by outside market influences rather than the actions of the titled spouse, the asset should be valued as closely as possible to the date of trial" (Harrington v. Harrington, 300 A.D.2d 861, 864 [2002]; see Soule v. Soule, 252 A.D.2d 768, 771 [1998]; Heine v. Heine, 176 A.D.2d 77, 87 [1992], lv denied 80 N.Y.2d 753 [1992] ). Here, plaintiff, on direct examination, testified that the market was a factor in the increase and conceded on cross-examination that the increase was "strictly a result of market forces." In all, plaintiff failed-despite his expertise in that field-to demonstrate that he actively managed the individual retirement accounts during the pendency of the action. Accordingly, no error occurred.

As to the distribution of the marital residence as marital property, we find ample support in the record for Supreme Court's choice of expert opinions in setting the value of the marital residence at $350,000, the issues of the quality of the proof and credibility having been resolved in defendant's favor by the trier of fact (see Walasek v. Walasek, 243 A.D.2d 851, 853 [1997]; Holihan v. Holihan, 159 A.D.2d 685, 686 [1990] ). We also reject plaintiff's argument that the court unfairly distributed the marital residence. It is well settled that a party is entitled to a credit for any contribution of separate property used in the purchase or improvement of the marital dwelling (see Stots v. Daniels, 22 AD3d 413, 413-414 [2005]; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374 [2002]; Strang v. Strang, 222 A.D.2d 975, 977 [1995]; Mink v.. Mink, 163 A.D.2d 748, 749 [1990]; Lord v. Lord, 124 A.D.2d 930, 931 [1986]; Cunningham v. Cunningham, 105 A.D.2d 997, 998-999 [1984] ). Here, defendant purchased the residence in her own name with her separate funds for the down payment and closing costs totaling $47,301, a sum which included a $30,000 loan to her from her parents which they later forgave as a gift. Notably, despite the conflicting testimony regarding that gift, the loan clearly was made to defendant only and our review of the testimony supports the court's determination that it was subsequently gifted to her alone and not to both parties.

Moreover, we cannot say that Supreme Court abused its discretion in awarding plaintiff only 30% of the balance of the value of the residence, a decision based on defendant's expenditure of upwards of $150,000 of her separate funds to renovate and improve the marital residence. While defendant may have been entitled to a full credit for these improvements (see Strang v. Strang, supra at 977; Lord v. Lord, supra at 931; Cunningham v. Cunningham, supra at 998-999), the court, within its broad discretion, reasonably awarded defendant 70% (20% more than a 50/50 split) of the balance of the value of the residence.

There is also support in the record for awarding a credit to defendant for a portion of the $74,546 that she paid from her own funds for the carrying charges-mortgage, taxes, maintenance-on the residence from July 2002, when plaintiff ceased making payments on the mortgage (see Cunningham v. Cunningham, supra at 998-999). In light of the 70/30 split in distributing the marital residence, however, defendant's credit for the carrying charges should be limited to 30% instead of the 50/50 split awarded by Supreme Court.

We also find merit in plaintiff's contention that Supreme Court improperly directed him to pay defendant 50% of the $40,000 in marital property used to start his business, Lockwood Financial Services. In order to avoid "double counting," seed money voluntarily contributed from marital funds to help one of the parties create a new business should not be reimbursed during distribution if the value of that business is equitably distributed (see Garvey v. Garvey, 223 A.D.2d 968, 971 [1996] ). Thus, as defendant received a 50% share of plaintiff's business in equitable distribution, the court erred in directing plaintiff to repay defendant $20,000, i.e., half of the $40,000 of marital property used to start his business.

We have considered plaintiff's remaining contentions, including Supreme Court's denial of maintenance, and find them to be without merit.

ORDERED that the orders are modified, on the law and the facts, without costs, by reversing so much thereof as (1) credited defendant with 50% of the $74,564.56 she expended with respect to the marital residence during the pendency of the action, and (2) directed plaintiff to pay defendant $20,000 in marital assets used to start plaintiff's business; defendant is entitled to only a 30% credit for the moneys she expended with respect to the marital residence; and, as so modified, affirmed.

CARDONA, P.J., MUGGLIN and ROSE, JJ., concur.

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June 03, 2007

Safe Guard you Documents

Posted By Brian Perskin

Divorce Preparation: Step 5 - Document & Safeguard Personal Property

The fifth step in our series on preparing for divorce: Document and Safeguard Personal Property.

Inventory and photograph your household furniture, art, jewelry and other items of value. Inventory and photograph the contents of any safe deposit box or family safe your family may own. Also, photocopy any important documents in the safe or safe deposit box (if you did not already do so when collecting the financial records).

It is unfortunate, but often these documents and property will “disappear” once the divorce process starts so get your proof in place now.

Additionally, you may want to consider safeguarding any items of particular value (either monetary or sentimental) which are small in size. I am referring primarily to things like the jewelry your mother passed down to you, your father’s fountain pen, your high school year book, your childhood photo albums, etc. Your spouse may not share your desire to divorce with dignity. Better to safeguard those items that are particularly difficult to replace.

Note that I am not suggesting you empty the house of its contents. That is a sure way to escalate the divorce and guarantee that you will not have a civilized divorce. Things like dvd players, camcorders and laptops can be replaced. Just document those on your inventory and photograph them for proof in the event it is ever needed.

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June 03, 2007

Cancel Credit Cards?

Posted By Brian Perskin

Divorce Preparation: Step 8 - Address the Credit Accounts

We pick up with Step 8 in our series on practical steps to take when a divorce is imminent. Step 8 is Assess how to handle the credit accounts.

If a divorce is imminent you do not want to be liable on any accounts on which your spouse has charging privileges. It is not unheard of for an angry spouse, upon learning of a divorce, to go on a shopping spree. Likewise, some lawyers may advise their clients to take out cash advances on joint cards to provide a cushion while the divorce is pending or to charge a large amount in lawyer’s fees on to joint cards.

You will want to consider canceling such joint accounts or at least reducing the spending limits. If they are an authorized user on charge cards in your name, see what steps the credit card companies require to remove them as an authorized user.

Also consider home equity lines of credit. You may need to consider whether you should close it or restrict access pending the resolution of the divorce.

Whatever you do, do not neglect thinking seriously about how to handle this issue, and discuss it with your lawyer before making a final decision

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June 03, 2007

What should I do next?

Posted By Brian Perskin

Divorce Preparation: Step 7 - Assess the Financial Accounts

We continue with our series on steps to take when divorce is imminent. We are on to Step 7 which is Assess the Financial Accounts.

If you’ve completed the prior steps in this series, then you already know what accounts exist and what the balances are. You need to make a decision about what to do with them.

It is an unfortunate reality that one of the first things that some spouses do when they learn/decide a divorce is imminent is to raid the accounts. This is typically done after receiving particularly bad advice from an adversarial lawyer or a well meaning, but poorly informed friend.

In a perfect world neither party would touch the financial accounts except to pay normal household bills until after the divorce is over. However, if this was a perfect world, you would not be reading this blog, and I would be in another line of work because divorce lawyers would be unnecessary.

That being said I do not recommend that you clean out the accounts. Doing so immediately escalates the conflict and stress of divorce. It also will not be well received by the divorce judge.

So, you don’t want to clean out the accounts, but you want to be protected from your spouse cleaning them out. If you have a reasonable fear that your spouse will raid the accounts, the only reasonable solution that I know is to remove one half of the funds from the accounts and put them in a new account in your own name. Do not hide, dispose, or waste the money. Document carefully where every penny is spent because you will likely need to make an accounting of it later in negotiations or at trial. Additionally, you should not do this for the regular checking account out of which the household expenses are paid unless there is a substantial balance in the account over and above the amount needed for paying the current month’s bills. You do not want to take action that would cause checks to bounce.

I don’t make this as a blanket suggestion. If the money can be kept there and neither party remove it, that is preferred. Another option for certain types of accounts is to put a freeze on the account. Obviously that is only practical for accounts that are not regularly needed to pay bills and regular expenses.

Before you decide how to handle your financial accounts, consult with your lawyer. If they are suggesting you go take all of the money out without a good reason, I would seriously reevaluate the whether that lawyer shares your desire for a civilized divorce.

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April 15, 2007

Qualified Domestice Relations Orders...Are they all the same?

Posted By Brian Perskin

Many lawyers settle cases and draft agreementts that are vague. When you sign a divorce agreement make sure the language in the agreement spells out exactly what pension options you or your former spose will choose. Pension options vary. Every pension is different. Under New York Divorce laws, a former spouse is entitled to a qualified domestic relations order........

The

66.2.8 - - - LemesisLemesis v. Lemesis, --- A.D.3d ---, --- N.Y.S.2d --- (Fourth Dept. 2007)(2007 WL 779760)(2007 N.Y. Slip Op. 02339)(Mar. 16, 2007):

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

Bridget Fitzgerald LEMESIS, Now known as Bridget Fitzgerald Scott, Plaintiff-Respondent,
v.
Aldis A. LEMESIS, Defendant-Appellant.

Mar. 16, 2007

In this divorce action, defendant contends that Supreme Court erred in granting that part of plaintiff's postjudgment cross motion seeking a qualified domestic relations order directing that plaintiff's share in defendant's federal employment retirement system (FERS) benefits is to be calculated as if defendant had opted for the highest benefit option available. We agree. According to the terms of the parties' separation agreement, which was incorporated but not merged in the judgment of divorce, defendant's FERS pension was to be divided in accordance with Majauskas v. Majauskas (61 N.Y.2d 481). Defendant remarried following the divorce and, upon his retirement, he opted for a distribution plan that created a survivor benefit for his second wife and reduced the benefits that he would have received if he had opted for the self-only distribution plan. We agree with defendant that the court erred in directing that plaintiff's share of the FERS pension benefits be calculated as if defendant had opted for the highest benefit option, i.e., the self-only distribution plan, inasmuch as there was no express provision in the separation agreement requiring him to do so (see Von Buren v. Von Buren, 252 A.D.2d 950), and we therefore modify the order accordingly.

Contrary to defendant's further contention, the court properly determined that plaintiff was entitled to an equitable share of the monthly retirement supplement benefits and any cost of living adjustments as part of the pension benefits despite the absence of an express provision to that effect in the separation agreement (see Pagliaro v. Pagliaro, 31 AD3d 728, 730).

We have reviewed defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying that part of the cross motion with respect to calculation of plaintiff's share of defendant's federal employment retirement system benefits and as modified the order is affirmed without costs.

following case details how a former spouse can lose out on alot of money.

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February 15, 2007

Generally, You should get half the Pension

Posted By Brian Perskin

Trial Judges in New York constantly make mistakes. Basic principles of equitable distribution are not followed. I have found that at least the appellate division gets it right. You should always consult a qualified New York Divorce Attorney. Read the following..... and you may begin to understand the process.

Decided and Entered: January 25, 2007
500567

[*1]GREGORY ARNONE, Respondent,

v

MICHELE ARNONE, Appellant.

MEMORANDUM AND ORDER

Lahtinen, J.

Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered September 8, 2005 in Columbia County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court.

The parties married in 1980 and they have two children, born in 1982 and 1985. This divorce action was commenced in 1997, but was not actively pursued until 2000 when an attempted reconciliation disintegrated. For several years prior to the 2003 trial, the children resided with plaintiff, who provided their financial support. At the commencement of the trial, defendant withdrew her answer allowing plaintiff a divorce on the ground of abandonment and the proof proceeded regarding equitable distribution.

Following several days of testimony stretching over 14 months and much conflicting evidence, Supreme Court determined, among other things, that the marital property consisted of the parties' residence, the various personal property located there, a 1982 Camaro, and a portion of plaintiff's state retirement benefit. The court distributed to defendant the residence (valued at $172,000), all personal property at the residence (except a few specifically named items), and the Camaro. Plaintiff was permitted to keep his state pension of about $13,000 per year. Supreme Court directed that defendant would keep her pension; however, she had none. Various bank accounts were determined to be separate property and thus not subject to equitable distribution. The court terminated temporary maintenance as of the date of the judgment of divorce, to wit, August 30, 2005, and awarded no further maintenance. Defendant's request for counsel fees was denied. Plaintiff remained solely financially responsible for the one child who was not yet [*2]emancipated. Defendant appeals.

Defendant argues that Supreme Court erred in its distribution of the assets of the marriage. As a general principle, "'[c]ourts are not mandated to distribute marital property on an equal basis; rather, marital property is distributed in light of the needs and circumstances of the parties'" (Brzuskiewicz v Brzuskiewicz, 28 AD3d 860, 861 [2006], quoting Strang v Strang, 222 AD2d 975, 977 [1995]). "Equitable distribution issues are resolved by the exercise of the court's sound discretion, guided by consideration of the statutory factors . . ." (Lincourt v Lincourt, 4 AD3d 666, 666 [2004] [citations omitted]; see Ruzicka v Ruzicka, 31 AD3d 862, 863 [2006]).

Defendant's initial contention regarding Supreme Court's disposition of property focuses upon certain bank accounts, a promissory note from 1976 and various items of personal property at the residence. Supreme Court found the disputed bank accounts to be separate property. While conflicting and sometimes confusing evidence was presented regarding the bank accounts, we find sufficient evidence in the record to uphold the determination that these funds represented separate property from sources such as inherited property, gifts and disability payments. It is unfortunate to note that, in any event, these funds have been significantly depleted for counsel fees during the course of this contentious and protracted divorce.
Although in 1976 plaintiff signed a promissory note payable to defendant for $7,500 (representing one-half the down payment on the home that they purchased together four years before the marriage), there was ample proof that any obligation thereunder was fully extinguished long before this divorce action was commenced. As to defendant's assertion that Supreme Court failed to address many items of personal property at the residence (such as farm equipment), we read the court's decision as awarding all such items to defendant. Plaintiff was to receive only items specifically named as exempted from defendant's award of the residence, and none of these items was specifically exempted. Indeed, in an affidavit responding to defendant's statement of proposed disposition of the property, plaintiff indicated that he was relinquishing any claim to such property.

Next, we address Supreme Court's decision not to award defendant any portion of plaintiff's state pension notwithstanding plaintiff's request in his statement of proposed disposition following trial that "the Court direct that plaintiff's interest in [his retirement] be divided pursuant to . . . Majauskas v Majauskas, implemented by a Qualified Domestic Relations Order." "Although pension rights earned during a marriage and prior to the commencement of a matrimonial action are marital property subject to equitable distribution, the distribution of the asset is based upon considerations of fairness and the respective situations of the parties" (Redgrave v Redgrave, 13 AD3d 1015, 1016 [2004] [internal quotation marks and citations omitted]). The parties were married the entire time that plaintiff was employed full time with the state. He was injured on that job and later received a state retirement benefit. This injury, and injuries he received while serving with the United States Marines in Vietnam, left him totally disabled. He received about $58,000 per year from the combination of Veteran's disability, Social Security disability and workers' compensation. Defendant made no claim as to these payments, which compensated plaintiff for his personal injuries. During the marriage, defendant held only part-time jobs, her annual earnings did not exceed $12,000, she was not working at the time of the trial, and her medical coverage ceased with the divorce. Defendant was the primary caretaker of the children when they were young, and plaintiff assumed those obligations in their late teenage years, including all support and college expenses. Defendant suffered some infirmities and had unsuccessfully attempted to obtain Social Security disability benefits, but Supreme Court was not convinced that her condition prevented her from working. [*3]The court held that her probable financial condition would improve following the divorce and plaintiff's financial condition would remain unchanged. At the time of trial, plaintiff was 56 years old and defendant was 53. Under the circumstances presented, we find that defendant should receive a portion of plaintiff's modest state pension. Plaintiff's state pension as reflected in the documents received in evidence was $13,326 per year in 2002. In light of all of the facts of this case, we find that defendant is entitled to a 50% share of plaintiff's state pension.

We find unpersuasive the argument that Supreme Court erred in not awarding maintenance, a determination that "rests soundly within the court's discretion" (Holmes v Holmes, 25 AD3d 931, 932 [2006]). Although defendant had a limited work history, she obtained a college degree while married. Significantly, during the several years prior to the divorce when the marriage was deteriorating (and when she assumed no obligation to provide housing or support to the children and was receiving temporary maintenance in the amount of $1,000 per month from August 8, 2001 until that order was terminated on August 30, 2005), she made no apparent effort to transition back into the work force. Defendant relies on her alleged infirmities as a reason for her lack of initiative in seeking employment. Supreme Court, however, rejected this excuse and we discern no reason to disregard the court's credibility determination. Contrary to defendant's contention, the statutory factors were sufficiently addressed by Supreme Court.

Finally, we find no abuse of discretion in Supreme Court's decision not to award defendant counsel fees (see generally Epps v Epps, 5 AD3d 903, 905 [2004]; Matter of Mitchell v Mitchell, 264 AD2d 535, 540 [1999], lv denied 94 NY2d 754 [1999]; Pejo v Pejo, 213 AD2d 918, 919 [1995], lv denied 85 NY2d 811 [1995]). The remaining arguments have been considered and found unavailing.

Cardona, P.J., Mercure, Spain and Mugglin, JJ., concur.

ORDERED that the judgment is modified, on the law and the facts, without costs, by awarding defendant a 50% share of plaintiff's state pension; matter remitted to the Supreme Court for submission of a qualified domestic relations order; and, as so modified, affirmed.

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February 14, 2007

Everything is in Play. Maybe you should settle?

Posted By Brian Perskin

Remember, when you are going through a divorce, you are entitled to full discovery of all businesses and assets. A recent decision by Judge Drager was upheld by the appellate division. Discovery is very powerful. Many litigants settle in order to avoid this burdensome process. It is not only time consuming, your legal fees will increase significantly.

Order, Supreme Court, New York County (Laura E. Drager, J.), entered August 10, 2006, which denied the motion of nonparties Hercules Corp., Andrew May and Alfred May to quash subpoenas and notices of deposition served upon them by defendant, unanimously modified, on the law, the facts and in the exercise of discretion, to quash the notice of deposition directed to Alfred May, and otherwise affirmed, without costs.

The documents and records sought by defendant wife from Hercules Corp. were appropriate to a characterization and valuation of Hercules, a closely held corporation in which plaintiff husband is a 2.5% shareholder. Under the Equitable Distribution Law, "[b]road pretrial disclosure which enables both spouses to obtain necessary information regarding the value and nature of the marital assets is critical if the trial court is to properly distribute the marital assets" (Kaye v Kaye, 102 AD2d 682, 686 [1984]; see also Gellman v Gellman, 160 AD2d 265 [1990]). "This searching exploration is more than justified in the case of close corporations, the ownership of which is in the hands of a small number of stockholders and for which there is little objective evidence of fair market value" (Briger v Briger, 110 AD2d 526, 527 [1985]). To the extent that the material has already been produced pursuant to the February 10, 2005 so-ordered stipulation, Hercules should simply so state. As to the other items, defendant wife will have to bear the costs of any document production.

We modify only to quash the notice of deposition served upon Alfred May. Defendant has not shown that the information sought from Alfred May is not obtainable from other sources (see Diogruardi v St. John's Riverside Hosp., 144 AD2d 333 [1988]), particularly since appellants have evidently agreed that they will make Andrew May available for deposition, and represent that, during the period in question, Andrew May was president of Hercules and responsible for its day-to-day operations.

We have considered appellants' other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER [*2]
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 18, 2007

CLERK

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February 14, 2007

How do I discuss a Pre Nup

Posted By Brian Perskin

Most people have heard about prenuptial agreements, but far fewer are familiar with postnuptial agreements. Even if you have been married for many years, it's never too late to enter into an agreement that promotes domestic harmony and protects your union. In fact, veteran lawyers say the number of mid-marriage agreements has exploded in the past five years, perhaps as much as tenfold. There are many negative connotations attached to the world "postnup," as if it is admitting your relationship's defeat. It is less intimidating to look at the process as a communication tool and a "seatbelt" for your relationship in the case of death or divorce.

Why?

Bringing up the subject of a postnuptial agreement can be a great way to resolve underlying financial and communication issues that could be causing undue stress in your marriage. By opening up this line of discussion, you are well on your way to solving festering problems, which could strengthen your marriage. Here are a few reasons why a postnup (also referred to as post marriage agreements or simply marriage contracts) may be beneficial for your partnership:

You may have overlooked a prenuptial agreement and want to legally define your relationship in an agreement. Many couples got married in a time and place where discussion of marriage contracts was discouraged. Today this process is more common.
Most state's laws applying to property distribution in the case of death and divorce are vague. The most responsible way to manage your partnership is to take control and make your own decisions.
You may want to amend a prenuptial agreement you signed before marriage.
Your financial circumstances change through inheritance, receipt stock options, sale of a business, etc.
Perhaps one, or both of you, began your own business.
One of you has children from a previous marriage that you want to allocate funds or property to.
You or your spouse has an emotional need for security.
Creating a postnuptial agreement can be used for reconciliation purposes (if you have had marital difficulties and decide to "give it another shot," a postnup can be used as a security blanket).

When?

Every couple should at least discuss the concept of a postnup. This process isn't limited to times of transition in your relationship. Create a deadline for yourself and commit to initiating a conversation about marriage contracts by that date. Make sure you set aside time for this discussion when you can both focus and there aren't other forms of tension or distraction lingering.

Where?

Where do you normally discuss topics important to your partnership, such as life goals, finances or family? Find or create a calm, neutral spot where you both will feel open, at ease and unpressured. Whether you're sitting on your living room sofa, taking an afternoon walk or having a quiet dinner, you'll want to create an environment where both of you are most comfortable - mentally and physically.

How?

Bringing up the topic of a postnuptial agreement can be a very sensitive subject, especially if the other person's automatic reaction is to think "divorce." It is obviously easier to bring up the topic if you already have a prenup in place, since the postnup is just a natural extension of that document. If you haven't discussed marriage contracts before, proceed as delicately as possible. Here are a few suggestions to get you started:

Approach the topic from a collaborative viewpoint. For example, if you or your spouse are a stay at home parent, focus on the need to address your respective contributions to the relationship.
State your concerns in a straightforward fashion. Be sure to solicit your spouse's input and feedback.
You should remain open-minded and be prepared to make compromises in the negotiation.
A change of circumstances (financial or lifestyle) can present a good opportunity to bring up a postnup.
Your attorney or financial planner could raise the issue in conjunction with your overall financial planning.

Conversation Starters:

"I believe that ours is an equal partnership and recently discovered the laws in our state don't reflect this philosophy. Maybe we should talk about creating a more personalized agreement about our marriage."

"Now that I've quit my job to be a stay at home spouse, I feel that we need to discuss my value or worth in the relationship."

"Now that I've inherited the family business, I'm concerned about what would happen in the case of death or even divorce. I need to be confident that the business stays in the family."

"It's been awhile since we have discussed the financial status of our relationship. Can we set aside some time to really talk about money matters and discuss the option of creating a marriage agreement?"

The Commitment Conversation: A useful guide to help you create your agreement.

In an effort to help individuals and couples feel more comfortable in discussing the issues surrounding a postnup, we've created a guidebook called "The Commitment Conversation". Perhaps you or someone you know could use this incredibly supportive tool.

Important Note:

Even though postnups often serve the same purpose as prenups, some courts scrutinize postnups more carefully than prenups, sometimes holding them to a higher standard of fairness on the theory that the parties have less leverage in postnups than in prenups. Unlike prenups, there is no uniform act that applies to postnups. The general rule in this quickly emerging area, however, is to apply the same rules for all marriage contracts. Both you and your spouse should be represented by separate, independent counsel, who will advise you of any distinctions particular to your situation or where you live. In addition, you must provide full financial disclosure to each other.

REMEMBER: Don't let a postnup fall to the bottom of your "to do" list. The discussions ignited through the process generally come up eventually. Getting to know your partner's position now on important issues can help head-off more difficult discussions during the marriage. If you can't talk about touchy matters, this is a warning sign that your marriage is in need of help.

The foregoing is a brief outline of the chapter on "Internups: Just Between Us Married Folk" in PRENUPS FOR LOVERS by Arlene G. Dubin (Villard Books, a division of Random House, Inc., 2001). The chapter deals with why a postnup agreement may be good for you, and provides numerous examples of couples who have benefited, the legal implications of entering into a contract and how to bring up the topic.

Click Here to Order Prenups for Lovers

Actions During Marriage

How To Build an Equal Marriage

Organize Information About Your Partnership

How (and why) to Bring Up a Postnup

Creating A Postnuptial Agreement

Money and Marriage

Common Law Marriage Myths

Partnership Tips From The Pros

Tips for Talking

Mastering Communication

Revitalize Your Marriage

Celebrating Special Moments

Renewing Your Vows

Avoid the Marriage Pitfalls

Preventing Marriage Problems

Beware Of These Warning Signs

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December 22, 2006

Marrying For a Green Card

Posted By Brian Perskin

It is important to tell the truth when you apply for a green card. Many times people get married and have not seen their husband or wife for years. However, there comes a time that they need a divorce for immigration purposes and they do not know what to do..

Valid Marriage and Divorce Rules for Green Cards

Valid Marriage and Divorce Rules for Green Cards
Atty. David Zuckerman , Asian Journal

Q: I'M PLANNING to get married to an American citizen. However, I got married a long time ago in the Philippines, and the marriage was never annulled. I haven't seen my husband for many years, and I don't think there is any record of my first marriage. Will this cause a problem with getting my green card?

A: It is very likely that your earlier marriage will prevent you from qualifying for a green card. All previous marriages must be terminated in order for your new marriage to be valid for immigration purposes.

In order to qualify for a green card through marriage, both you and your spouse must demonstrate that all previous marriages have legally ended. This means that you need to submit proof that the marriage ended in divorce or annulment as declared by a court of law. The marriage can also legally end if your former spouse passed away, and you will need to submit a copy of the former spouse’s death certificate.

If you and your spouse merely separated, and there has been no divorce or annulment proceeding, then you are still married under the law. A common misconception among Filipinos is that if you have been physically separated from your spouse for four years, then you are no longer married. This is not true. The Family Code of the Philippines requires a court hearing to declare that the spouse is presumptively dead in order for the four-year rule to apply. Without that court hearing, the marriage is still considered valid.

As you are aware, divorce is not allowed in the Philippines, and an annulment can be granted only in very limited circumstances. Fortunately, there are options for Filipinos who want to remarry.

The answer is to begin a divorce proceeding here in the United States. You can file for divorce here even if your spouse is still in the Philippines. The U.S. Citizenship and Immigration Service will consider the U.S. divorce as a legal termination of your marriage, and you will be free to remarry once the divorce order is final.

However, even this step can be problematic. Most states have a residency requirement, meaning that you or your spouse must live in the state for a certain period of time before filing. In California, you must be a resident for six months before filing, and you must live in the county where you will file for three months. In Nevada, you must live in the state for six weeks before filing for divorce.

Why is this so important? Some paralegals promise a “quick divorce” in a matter of days or weeks, especially in Nevada. In the divorce petition, they falsely claim that you have been a resident of the state for the required amount of time. In reality, the paralegal uses their office or another address as your “home address.” USCIS is aware that many divorces are filed using these paralegals, and they will want to see proof, for example, that you lived in Nevada for six weeks. If you are unable to show that you met the residency requirement, USCIS will deny the petition by claiming that your divorce was not valid, and that you are now in a bigamous marriage that is not valid either. So make sure that you meet the residency requirement, and don’t sign a court petition that doesn’t truthfully describe your residence.

Even if you had a “secret marriage” in the Philippines, make sure you terminate the marriage legally. USCIS will check for previous marriages with agencies like the National Statistics Office in the Philippines. If the marriage appears in any official record, chances are that either USCIS or the U.S. Embassy in Manila will find it.

If you fill out an immigration form with false information, you will jeopardize your status, and you might be placed in deportation proceedings. Always consult with an experienced immigration attorney to ensure the success of your application or petition.

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December 12, 2006

Am I Entitled to Interest?

Posted By Brian Perskin

Many times people come to me and show me their judgement of divorce. In a judgement there are generally provisions for certain payments to be made, like child support, maintenance or distributive awards. In many cases litigants would be entitled to interest on their awards....

The second department just answered this question in a recent case. Read the following and you will be enlightened.

Rivers v Rivers

2006 NY Slip Op 09211

Decided on December 5, 2006

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on December 5, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT

HOWARD MILLER, J.P.
DAVID S. RITTER
ROBERT A. SPOLZINO
MARK C. DILLON, JJ.

2005-09435
2006-01934
(Index No. 4434/88)

[*1]Nancy Rivers, respondent-appellant,

v

Ronald Rivers, appellant-respondent.

Mickey A. Steiman, Hyde Park, N.Y., for appellant-respondent.
Vincent J. Catalano, Jr., Poughkeepsie, N.Y., for respondent-
appellant.

DECISION & ORDER

In a matrimonial action in which the parties were divorced by judgment dated December 14, 1990, the defendant appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Dutchess County (Brands, J.), dated December 5, 2005, as, upon an order of the same court dated September 2, 2005, granting, after a hearing, that branch of the plaintiff's motion which was for a money judgment for maintenance arrears due pursuant to the parties' judgment of divorce and the parties' stipulation of settlement dated July 10, 1990, which was incorporated but not merged into the judgment of divorce, is in favor of the plaintiff and against him in the principal sum of $17,225, and the plaintiff cross-appeals, as limited by her brief, from so much of the same judgment, as, upon so much of the order dated September 2, 2005, as denied that branch of her motion which was, in effect, for an award of interest pursuant to Domestic Relations Law § 244, computed from the date on which each maintenance payment was due, together with interest from September 2, 2005, to the date of judgment.

ORDERED that the judgment is affirmed insofar as appealed from; and it is further,

ORDERED that the judgment is reversed insofar as cross-appealed from, on the law and the facts, the matter is remitted to the Supreme Court, Dutchess County, for an award of interest pursuant to Domestic Relations Law § 244, computed from the date on which each maintenance payment was due, and for the entry of an amended judgment thereafter, and the order dated September 2, 2005, is modified accordingly; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff. [*2]

The parties' stipulation of settlement was incorporated but not merged into their December 14, 1990, judgment of divorce. The stipulation provided that the defendant was to pay maintenance to the plaintiff in the sum of $75 per week during the time he was obligated to pay child support, and in the sum of $125 per week thereafter, until July 10, 1997. The plaintiff took up residence with another man in 1991 and in 1994 the defendant, on the basis of that cohabitation, discontinued his maintenance payments. It is undisputed that had the defendant's maintenance payments been continued from that time until the scheduled termination of his maintenance obligation in 1997, the plaintiff would have received an additional $17,225.

By notice of motion dated November 5, 2004, the plaintiff moved to recover the $17,225 in arrears, plus interest and an award of an attorney's fee. In an order dated September 2, 2005, the Supreme Court granted the motion to the extent of awarding judgment to the plaintiff in the principal sum of $17,225, but denied, inter alia, that branch of the plaintiff's motion which was, in effect, for an award of interest pursuant to Domestic Relations Law § 244, computed from the date on which each maintenance payment was due.

A stipulation of settlement that has been incorporated, without being merged, into a judgment of divorce is a contract, subject to the principles of contract construction and interpretation (see Lang v Lang, 20 AD3d 396; Malleolo v Malleolo, 287 AD2d 603, 603-604; see generally Matter of Meccico v Meccico, 76 NY2d 822, 823-824). Here, the contract provided that the defendant's maintenance payments "shall continue until the death or remarriage of the plaintiff, but in no event shall they continue beyond July 10, 1997." The plaintiff's cohabitation with another man was not a basis for the premature termination of the defendant's obligation. Thus, the Supreme Court properly found that the defendant had breached the contract by failing to pay maintenance as the contract required, and that the plaintiff was thereby damaged in the principal sum of $17,225.

Contrary to the defendant's argument, in the absence of an injury to him, a change in position to his detriment, or other disadvantage to him arising from the plaintiff's delay in seeking to enforce his maintenance obligation, the Supreme Court properly rejected his laches defense (see Koplow v Koplow, 260 AD2d 353, 354; Haberman v Haberman, 216 AD2d 525, 527; Labita v Labita, 147 AD2d 535, 536). Moreover, the defendant failed to demonstrate that the plaintiff had voluntarily relinquished her right to recover maintenance arrears, as he was required to do in order to establish his defense of waiver (see Coppola v Coppola, 291 AD2d 477; see also Matter of Dox v Tynon, 90 NY2d 166, 174-175). "[T]he mere fact that the plaintiff delayed in commencing legal proceedings to enforce the support obligation does not itself establish that a waiver occurred" (Messina v Messina, 143 AD2d 735, 737).

However, the Supreme Court erred in denying that branch of the plaintiff's motion which was, in effect, for an award of interest pursuant to Domestic Relations Law § 244, computed from the date on which each maintenance payment was due. A judgment on an unpaid support obligation "shall provide for the payment of interest on the amount of any arrears if the default was willful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order" (Domestic Relations Law § 244). The defendant testified that he was aware when he discontinued his maintenance payments that the stipulation permitted him to do so if the plaintiff remarried, but not merely because she cohabited with another man, and that he nevertheless discontinued the maintenance payments without seeking modification of the stipulation because he would prefer not to spend money litigating this if the plaintiff did not object to his action. Accordingly, the defendant's default was willful within the meaning of the statute and the wife was [*3]entitled to interest on the maintenance arrears he owed pursuant to Domestic Law § 244 (see Domestic Relations Law § 244; Manno v Manno, 224 AD2d 395, 400; Friedman v Exel, 116 AD2d 433, 437).
MILLER, J.P., RITTER, SPOLZINO and DILLON, JJ., concur.

2005-09435 DECISION & ORDER ON MOTION
2006-01934
Nancy Rivers, respondent-appellant, v Ronald
Rivers, appellant-respondent.
(Index No. 4434/88)

2005-09435 DECISION & ORDER ON MOTION 2006-01934 Nancy Rivers, respondent-appellant, v Ronald Rivers, appellant-respondent. (Index No. 4434/88)

Motion by the appellant-respondent to deem his notice of appeal from an order of the Supreme Court, Dutchess County, dated September 2, 2005, to be a premature notice of appeal from a judgment of the same court dated December 5, 2005. By decision and order on motion of their court dated May 12, 2006, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in response thereto, and the argument of the appeal, it is

ORDERED that the motion is granted, and the appellant-respondent's notice of appeal from the order dated September 2, 2005, is deemed to be a premature notice of appeal from the judgment dated December 5, 2005 (see CPLR 5520[c]).
MILLER, J.P., RITTER, SPOLZINO and DILLON, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court

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November 11, 2006

The Basics of Any Agreement

Posted By Brian Perskin

Separation agreements, or stipulations of settlement and property settlement agreements in the context of Matrimonial Law in New York, generally referr to agreements made before parties decide to separate or during an actual divorce case. In these Separation Agreement of Settlements, it is critical that your divorce lawyer in New York include all of the following language to protect your rights. Below is a very interesting primer that anybody contenplating a divorce or separation should read....

The author of this article refers to any separation or settlement agreement as "marital agreements."

Separation agreements differ from the other kinds of agreements because they are contracts between a husband and wife contemplating their living separate and apart. Two competent adults who have actually separated may enter into a valid separation agreement, placing financial responsibility according to their desires and means and a similar arrangement may be made between the parties where they have not yet actually separated, but in contemplation of the separation. The only effect of a separation or marital agreement is to modify the customary rights and duties of the spouses in the manner and extent provided in the agreement. A matrimonial agreement is to be interpreted just like any other agreement. The interpretation is measured by the understanding of the parties as expressed in the agreement. The rules applicable to separation agreements in general apply in construing and enforcing all matrimonial agreements. Where the terms of a marital agreement are clear, and only one reasonable interpretation can be given, that construction will be adopted.

The public policy of the state, as in most states, encourages those persons who are married or about to be married to "opt out" of the statutory system and to create their own provisions for support and property division upon the dissolution of a marriage. An agreement made before or during the marriage is valid and enforceable in a matrimonial action if the agreement is in writing, voluntarily signed by the parties, and acknowledged. New York requires such agreements to be acknowledged or witnessed in the same form as necessary to entitle a deed to be recorded. These agreements may include a provision to make a testamentary provision or a waiver of any right to elect against the provisions of a will; provisions for the ownership, division or distribution of separate, or marital property; provisions for the amount and duration of maintenance or child support, and other terms and conditions related to the marriage relationship; and provisions for the custody, care, education and maintenance of any child of the parties. New York state's public policy limits what may and may not be covered in these agreements, and should be given careful scrutiny before the drafting of any documents. In New York marriage is considered a relationship of the highest trust and confidence and agreements between spouses are subject to strict standards. Their terms must be fair and reasonable at the time of the making of the agreement. There are limitations upon what they can contain. To be enforceable and to "opt out" of the statutory system, the matrimonial agreement must not violate the declaration of public policy expressed in our statutes. For example, in New York parties are not free to waive their duty to provide support for the other if that party is about to become a public charge. The public policy of New York is to ensure that minor children receive adequate financial support from their parents. The terms of a settlement agreement must provide for the welfare of the children. An inadequate child support provision is usually voidable and cannot bind an appropriate court from remedying the inadequacy, nor can it bind a parent from seeking to remedy the inadequacy. New York prohibits parents from waiving child support or providing for arbitration of custody disputes. At most, parents may allocate custody rights and child support duties, so long as their terms are not detrimental to the welfare of the children.

Caution: New York law requires that child support agreements comply with the provisions of the Child Support Standards Act. While there is restricted freedom of the parties to contract regarding custody and child support, they have relative freedom to waive inheritance rights, to fix the amount and duration of maintenance, and to distribute property as they see fit, by an agreement.

Since well over 90 percent of matrimonial actions are settled before or during trial, the negotiation process is of critical importance. The process in and of itself pits the "haves" against the "have nots". The party who has the stronger bargaining leverage has a distinct advantage. The party who most wants a divorce starts negotiations with a distinct disadvantage. The party who has the ability to obtain a divorce has an advantage. The party who has the financial wherewithal to support litigation and to support him or herself has a distinct leg up. Statutes and court decisions during this critical period are significant insofar as they affect the probable outcome of the case by setting the boundaries for the bargaining. The matrimonial lawyer's estimate of what a court is likely to do under the facts of his or her case will go a long way in shaping the negotiations.

The coercive use of financial power as bargaining leverage, ordinarily by the husband, is matched to some extent by the wife-mother's dominion, generally speaking, over the children. During and after negotiations the custodial parent has the most to say about the quality and quantity of parent-child contacts with the other parent. The parent may sabotage that relationship. Oratory aside, the campaign to make joint or shared custody the norm, on the personal level, involves a struggle over bargaining leverage. For the past one hundred and fifty years in this country, a fit mother was awarded custody in nine out of ten cases and the father was relegated to "reasonable visitation." Today, we have the doctrine of the "more fit" parent. But times have changed and roles no longer are fixed and immutable. Over half of American wife-mothers are employed in the market place. Many husband-fathers are actively involved in child-rearing.

The wage discrimination against women in the market place still remains and employment opportunities for women are more limited, especially for those who have in the past concentrated on the difficult job of running the household and rearing children, and thus have lost meaningful career opportunities outside the home. Statistics show that following divorce the economic position of the former wife rapidly deteriorates while that of most former husbands substantially improves.

So the breadwinner and holder of the purse has and retains coercive bargaining leverage. That person in large measure, controls the bargaining process since it is that person who has the resources for continuing warfare in and out of court. The enemy may soon be exhausted and give in to despair.

The advantages or unfair bargaining leverage engendered by statutes or court decisions have a far greater impact than one would suppose. For one thing, such natural or unnatural advantages politicize the divorce process and distract us from the merits of the particular case or issue, and the rhetoric is heating up rather than cooling down as competing groups vie for more bargaining leverage and clout.

The protocol for the bargaining process calls for a willingness to be flexible and to make concessions where it matters least in order to obtain concessions that matter more. Parties are encouraged to reach an agreement and to settle between themselves. In this chapter I discuss the essential clauses that should be part of these agreements.

PREAMBLE

The preamble lists the date of the agreement, the names of the parties to the agreement and their addresses. A marital agreement should have a preamble, just like any other contract, reciting the names and addresses of the parties and the phrases used throughout the agreement to refer to them individually and jointly, if necessary.

RECITALS

An agreement should recite the date of the parties marriage, the names and dates of birth of their children, and whether they expect to have any more children. It may also contain a statement of the representations, if any that the parties are making to one another and an expression of the intention of the parties in entering into the agreement. The recitals are at the beginning of the matrimonial agreement before the statement of the consideration and are not part of it, although a court construing the agreement may consider them.

CONSIDERATION

All contracts must have some consideration, that is both parties must have obligations to the other. If there is no consideration for an agreement the agreement will usually not be valid because it will amount to nothing more than a promise to make a gift, which is not enforceable until the gift is given. The consideration for marital agreements are the mutual promises contained in the agreements. These agreements are generally authorized by the Domestic Relations Law of the particular state, as long as they comply with the statutory requirements. To the extent that an antenuptial agreement is executory, it must be supported by sufficient consideration. Generally, the marriage itself constitutes sufficient consideration for the promises of a spouse, although there may be other valuable consideration, such as mutual promises.

PURPOSE OF AGREEMENT

Sometimes the parties want to express in the body of the agreement, rather than in the recital, what their intentions are with regard to its provisions. This is where it should be done as it will become a part of the agreement.

SEPARATE RESIDENCE

In a separation agreement, a provision providing for the parties' separation must be in the agreement, (i.e., "The Parties will live separate and apart as if such parties were single and unmarried.") This is not, however, authorization to engage in adultery.

NON-MOLESTATION CLAUSE:

This clause requires each spouse to leave the other alone during the period of the parties' separation and not to interfere with the other or sue to compel a resumption of cohabitation. A provision against molestation in a separation agreement is an independent condition, and its breach does not terminate the agreement or relieve the other spouse from his or her obligations.

SEPARATE OWNERSHIP

The agreement should specify what property each party is to retain or receive. There should be a provision filling any gaps in case something is forgotten or inadvertently left out of the agreement. This provision covers the gap by making it clear that each party keeps what he has in his name, custody, possession or control at that time unless specifically stated otherwise.

DEBTS

The agreement should specify who is the party responsible for past, present and future debts. This clause specifies the division of obligations. It should also provide the penalty for a breach of its provisions.

MUTUAL RELEASES/GENERAL RELEASE:

The agreement should provide that each party releases and discharges the other, his/her heirs, executors, representatives, etc., from all past claims under law against the other (except, usually, causes of action for divorce, separation or breach of the agreement). A general release clause is the standard format for this provision.

MUTUAL WAIVER AND DISCHARGE OF RIGHTS IN ESTATES

Each party should waive the right to take an elective share against the estate of the other and to act as administrator or executor of the estate of the other, including the right to inherit from the other pursuant to a previously executed will. As the caption indicates, rights to a claim in the estate of the other party are waived. This provision does not in any way eliminate or reduce the rights of children.

CUSTODY

This custody provisions of a marital agreement should cover the type of custody (sole custody to the (Mother)(Father); joint custody; shared custody; physical custody;) as well as the visitation, parenting or access schedule. It should cover who picks up and returns the child, and specify when and where the child is to be picked up and returned . It should state that the child is not to be known by any other name, and cover telephone access; internet or e-mail communication and access; immediate notification to non-custodian of any emergencies or change of location; access to the child when the child is ill. Details as to dates and times of pick-up and return must be spelled out and may cover, for example: weekend parenting to the non-custodian (Friday night through Sunday night); weekday dinner or visit or overnight visit; alternate public and religious holidays, school recesses, summer vacation, father's day, mother's day; the child's birthday, and the parent's birthdays. It should indicate if a parent may relocate and if the custodial parent is to be restricted to a state or mile radius.

It is not considered consulting if the custodial parent makes the ultimate decision when the parties are unable to agree. Joint decision making means the parents must agree or resolve it through court or arbitration proceedings. Areas to consider include: Education, legal, religion, health, confirmation, and Bar/Bat Mitzvah.

SUPPORT AND MAINTENANCE OF THE SPOUSE

A key to this provision is to be explicit concerning the amount and duration of maintenance. This may be or may include a weekly or monthly cash allowance which separates maintenance from child support for tax purposes. Termination events should be clear and specific. Generally, maintenance continues during the payor's lifetime until either the death or remarriage of the recipient, whichever is earlier, or the termination of the obligation period to pay maintenance.

In general, a provision in a judgment in a matrimonial action for maintenance does not survive the death of the payor, nor of the recipient. The support obligation does not survive the death of the husband in the absence of an agreement by the parties and upon the death of either spouse the obligation of support and maintenance ceases. However, by agreement of the parties, alimony payments may be extended beyond the death of the obligor so as to be enforceable against his or her estate. This can only be done by agreement of the parties and not by direction of the court.

Where a final judgment of divorce or a final judgment of annulment or declaration of nullity has been rendered, which contains an alimony award, the court, upon application of the obligor on notice, and upon proof of the marriage of the recipient after the final judgment, must annul the alimony award. Where a wife's second marriage has been declared a nullity or annulled by a judgment, the obligation of the first husband to pay alimony to his former wife is not revived.

The Court has discretion to terminate a prior maintenance or alimony order "upon proof that the wife [or former wife] is habitually living with another man and holds herself out to be his wife, although not married to such man." In general, the alimony or maintenance provisions of an agreement which are incorporated into a dissolution judgment and not merged into it remain in effect even though relief is obtained pursuant to New York Domestic Relations Law, Section 248.

To assure that maintenance payments are deductible the payments must terminate on the death of the payee. Other elements of support include: automobile expenses, costs of operating the marital home, exclusive occupancy, credit cards, cobra, medical, hospital, psychiatric, orthodontic, pharmacy and dental Expenses and/or Insurance Coverage.

CHILD SUPPORT

Where an agreement makes provision for child support, the paying spouse's obligation ordinarily terminates upon the children becoming emancipated or reaching their majority, which is 21 in New York, unless the contract provides that his or her obligation of support will continue after the age of 21 or the emancipation of the child. The fact that a child has been inducted into the Armed Forces does not release the paying parent from the performance of his or her obligation under the terms of a separation agreement to make specified payments for the support of the child. The fact that children have been emancipated before reaching age 21 does not release the paying parent from his or her obligation to support them under the terms of a marital agreement, unless the agreement provides that emancipation will have such effect.

Parents can not contract away their children's right to receive adequate support. They never could. A separation agreement cannot eliminate or diminish either parents duty to support their child. The initial adequacy of an agreement may be challenged at any time. The terms of an inadequate child support provision in an agreement do not bind the court or the child and cannot support a civil action for breach of contract . An agreement to waive the right to initially seek or obtain a modification of child support violates public policy and is void .

EDUCATION

The parties should provide in the agreement, where appropriate, for private school, university or college, professional or graduate school, if any. Often the terms include the requirement of the payor's consent to the choice of school, which consent will not be unreasonably withheld. Exactly what expenses are included should be detailed in the Agreement.

SUMMER CAMP

This clause usually provides for the payor to pay for a camp, teen tour, or summer activity, provided the payor is consulted in advance and consents to it, which consent will not be unreasonably withheld). The exact expenses included must be detailed in the Agreement.

MEDICAL, HOSPITAL, PSYCHIATRIC, ORTHODONTIC, PHARMACY AND DENTAL EXPENSES AND INSURANCE COVERAGE

This section usually provides that one or both parties payor will pay for medical, hospital or dental insurance for the child (comparable to that which presently exists). In addition, the payor will generally pay all reasonable and necessary medical, dental and hospital expenses for the unemancipated child; this may or may not include cosmetic or elective treatment/surgery, unless the payor is consulted and agrees. The custodial parent must comply with all requests for documentation. Again, the custom is, except
for emergencies, that the custodial parent must obtain the payor's approval before committing the child to a course of care or treatment.

EMANCIPATION

The Agreement should provide the age at which child support payments terminate if sooner than age 21. Where an agreement makes provision for the support of the children of the marriage, the paying spouse's obligation for each child, respectively, terminates upon each child attaining age 21. Child support obligations beyond age 21 cannot be compelled unless the contract provides that a parent's obligation of support will continue to a later date.

CHILD SUPPORT STANDARDS ACT

New York law requires that the parties must be advised of the provisions of the New York Child Support Standards Act ("CSSA") as contained in New York Domestic Relations Law Â§240(1-b) and New York Family Court Act Â§413(1)(b). They must also have been advised that a child support agreement which departs from the child support guidelines must provide that the parties have been made aware of the Child Support Standards Act (CSSA) and that the parties are aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The agreement must also include the dollar amount of the presumptively correct support that would have been calculated pursuant to the CSSA, and must state the parties' reasons for the parties' departure from the guidelines. Even an agreement which does not opt-out of the CSSA guidelines is required to provide that the parties have been made aware of the CSSA and that they were aware that the application of the CSSA guidelines would result in the calculation of the presumptively correct amount of child support. The parties may expressly waive the provisions of the CSSA to the extent permitted by law.

The parties must have also been advised that the "basic child support obligation" provided in New York Domestic Relations Law Â§240(1-b) and New York Family Court Act Â§413(1)(b) would presumptively result in the correct amount of child support to be awarded. In the event that the settlement agreement or stipulation deviates from the "basic child support obligation", the foregoing statutes require this Agreement or Stipulation to specify the amount that such "basic child support obligation" would have been and the reason or reasons that such Agreement or Stipulation does not provide for payment of that amount, in order to assure that the parties are aware of their rights and obligations under the Child Support Standards Act and knowingly waive such rights. Such provision may not be waived by either party or counsel.

The Child Support Standards Act provides that nothing contained in section 240(1-b)(b)(h) and New York Family Court Act Â§413(1)(h) shall be construed to alter the rights of the parties to enter into validly executed Agreements or Stipulations which deviate from the "basic child support obligation" provided such Agreements or Stipulations comply with the provisions of New York Domestic Relations Law Â§240(1-b)(h) and New York Family Court Act Â§413(1)(b)(h).

New York Domestic Relations Law Section 240(1-b) and New York Family Court Act Â§413(1)(b) provide the court shall calculate the "basic child support obligation", and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation. In arriving at the "basic child support obligation" the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage." The "child support percentage" is defined as: 17% of the combined parental income for one child; 25% of the combined parental income for two children; 29% of the combined parental income for three children; 31% of the combined parental income for four children; and no less than 35% of the combined parental income for five or more children. Where there are five or more children, the court must exercise its discretion as to the amount of the child support percentage. Where the combined parental income exceeds $80,000 per year, after the court determines the non-custodial parent's share of the basic child support obligation, it must next determine the amount of child support for the amount of combined parental income in excess of $80,000. It may do so, in the exercise of its discretion, through consideration of ten discretionary factors and/or the child support percentage. There are two additional items of support which are part of and which the court must consider in determining the "basic child support obligation" and two items it may consider in determining the non-custodial parent's share of the "basic child support obligation." When a custodial parent is working or receiving education leading to employment, reasonable child care expenses must be apportioned pro rata, in the same proportion as each parent's income is to the combined parental income. Health care expenses must also be apportioned pro rata in the same proportion as each parent's income is to the combined parental income. If the custodial parent is seeking work, child care expenses as a result thereof may be apportioned. Educational expenses may also be awarded. They need not be apportioned. These expenses are discretionary and not based on a percentage of $80,000. Child care expenses for seeking work and educational expenses need not be awarded in proportion to the combined parental income.

If a party is unrepresented party he/she is required to receive a copy of the Child Support Standards Chart promulgated by Commissioner of Social Services pursuant to New York Social Services Law Section 111-I. The parties may, in their agreement, waive the right to collect the child support payments by an income deduction order, and waive the right to enforce the provisions of the agreement through Child Support Enforcement Services.

LIFE INSURANCE

Generally, a spouse purchases or maintains an existing policy of life insurance for the benefit of the child in an agreed upon amount (usually sufficient to cover the child support obligations for the child unless otherwise provided by will). It is not unusual for life insurance to be purchased or maintained for the payor's maintenance obligations or obligations to pay out a cash sum over a period of time. Provision must be made to verify that the insurance remains in effect and the premiums paid.

PROPERTY DISTRIBUTION - EQUITABLE DISTRIBUTION AND/OR DISTRIBUTIVE AWARD

Equitable distribution is a tax-free distribution not included in the income of the recipient or deductible to the payor. Furthermore, pension and retirement funds can be transferred to the recipient by a Qualified Domestic Relations Order ("QDRO"), leaving its retirement nature intact while avoiding violation of the anti-alienation provisions of ERISA, with its resultant penalties and taxes to the transferor. Likewise, the recipient will take the transferor's basis in any real property, recognizing the gain only at the time of the sale to a third party and only to the extent it has appreciated since the time of purchase (not the date of transfer). The transfer of appreciated property is considered a gift for tax purposes. Other items to consider, for example:

Cash
Consider an installment payment arrangement versus a lump sum. Assuming a lump sum arrangement is preferred, be specific on the date it is to be given and its form (check, wire transfer or change of title on account).

Stocks and Bonds
Be sure the value placed has a date, an approximate value and an understanding that fluctuations in valuation are not a basis for claiming fraud.

Jewelry
Must be itemized. Indicate its description, purchase price, market value, source of funds, separate or personal and total value.

Art
Must be itemized. Indicate its description, purchase price, market value, present location.

Automobiles
Indicate whether the recipient is (or is not) responsible for all expenses attendant to the operation of the automobile, including insurance, upkeep, gasoline.

Real Property
Indicate if title and possession are to be transferred to the husband/wife or sold. Specify who pays the cost of the transfer. If a joint tenancy or tenancy in common and title is transferred to one spouse, provide for relinquishment of all claims and rights to the property and release the transferor from all notes and obligations attributable to the property. A hold harmless clause should be employed as well as an agreement for a
party to use his/her best efforts to have her/him removed as obligor. If the property is to be sold, specify the details of sale, sale price, costs, brokers, expenses, legal fees.

Real Estate Considerations in General:
Properties held jointly reverts to the survivor should one party die before the dissolution of the marriage. To alter this situation you may change the manner in which title is held immediately upon execution of the Agreement, but you must specifically provide for this in the Agreement. It is recommended to have the transfer documents executed simultaneously with the Agreement. All real property transferred, if any, must provide for the tax consequences, costs of sale and carrying costs.

Exclusive Occupancy of the marital residence
Be sure that the occupant is obligated to remove himself/herself by a date certain. If the residence is to be sold, he/she must agree to leave the premises a certain number of days from the execution of a contract for sale of the premises. Specify who is responsible for any expenses attendant to operating the home. Make provisions for penalty upon failure to leave. Consider who will pay the moving costs and arrange the move. Make provisions to access the premises for inspection or otherwise. Photographing or videotaping the premises before leaving the premises is wise.

Personal Property.
Make lists, lists, lists and more lists of who gets what. The knickknacks, bric-a-brac, crystal, china, furniture and the like are nightmarish to divide, so forgotten items may be gone forever.

Pension Plans and Retirement Funds
Generally, transferring a portion of these funds to the spouse as part of the Equitable Distribution is advantageous, as previously noted. The transferee receives the retirement funds on a tax-free basis. They continue to accumulate tax free until distribution to him/her from the plan. The transferor makes the transfer tax-free and has no penalty. It is important to net out the value of this tax free exchange in calculating the Equitable Distribution.

INCOME TAX RETURNS AND REFUNDS

The agreement should provide who is responsible for errors, omissions, penalties, assessments, and interest on previously filed joint income tax returns and the costs associated with opposing or defending an audit or assessment, including accounting fees. So long as the parties remain married, they can and should file joint tax returns. Determine how the refund, if any, is going to be distributed. Make provision as to who claims the child(ren) as an exemption. Unless provided otherwise in writing, the custodial parent is entitled to the exemption. To do otherwise, the custodial parent must sign IRS form 8332 to entitle the non-custodial parent to the exemption.

LEGAL REPRESENTATION AND DISCLOSURE

The agreement should include the name and address of the attorneys who represented each of the parties and a statement that each counsel was chosen freely. It should indicate that each party had an opportunity to obtain independent tax advice. The parties should acknowledge the extent of the financial disclosure provided and /or the opportunities for disclosure of the assets and income of each party. It is suggested, at a minimum, that each party provide a Net Worth Statement.

LEGAL FEES

If one party is to contribute, partially or wholly, to the legal fees of the other, it is generally best for the payor to contribute a lump sum amount on behalf of the recipient's legal fees in payment of the litigation or for the negotiation of the agreement, and any subsequent action for dissolution. The recipient should hold the payor harmless for any other fees and the recipient's lawyer should be required to waive all other claims for the legal fees for the agreement or dissolution proceedings against the payor.

RELIGIOUS DIVORCE:

Both parties should agree (if relevant) to this provision if they were married in a religious ceremony because it is required by law in states such as New York. The agreement should make provision for obtaining the religious divorce by a specific date, for the payment of the costs and fees, and to require that both spouses cooperate with the religious authority.

MUTUAL WAIVERS OF OTHER ASSETS AND MAINTENANCE:

Except as provided in the agreement, each spouse should specifically waive all rights and interests, if any, to the other's businesses, licenses, professional degrees and other assets, real and personal, in that party's possession, custody or control, whether or not mentioned in the agreement. If maintenance is not being paid there should be mutual waivers of maintenance, so that an application may not be made for maintenance after the parties are separated or divorced. The same holds true with regard to retirement benefits, pensions and counsel fees.

RELIANCE UPON FINANCIAL DISCLOSURE

1. The parties have been advised at length by their respective counsel as to their rights and obligations under the "Equitable Distribution Law", New York Domestic Relations Law Section 236[B]. Each of them has been specifically advised as to his or her rights as to full disclosure from the other party concerning the income, prospects, holdings, assets and liabilities of the other under the terms of that statute and of the relevant case law.
2. Each of the parties has provided information to the other to prepare a joint statement of net worth, a copy of which is annexed hereto wherein each one of them has represented to the other, the state of their finances and the status of their assets and debts, and upon which each has relied in the execution of this Agreement. The Wife has relied upon the Husband's representation as to his income and assets, as set forth in such joint net worth statement, in executing this Agreement.

RECONCILIATION

Under certain circumstances, an agreement will be repudiated where the parties reconcile and resume cohabitation. There should be a provision that the agreement shall not be invalidated or otherwise affected by a reconciliation between the parties or by a resumption of the marital relations between them, unless the reconciliation or resumption is documented by a written statement signed and acknowledged by the parties.

VOLUNTARY EXECUTION

The agreement should contain a provision acknowledging that each party had full knowledge and understanding of all of its provisions, and an opportunity to question his/her attorney with regard to the provisions of the agreement. The parties should acknowledge that the terms of the agreement have been explained to them and it is fair and was freely entered into, and is not the result of any fraud, duress or undue influence exercised by either party upon the other.

PENDING ACTIONS

The agreement should provide for the withdrawal an discontinuance of any other pending actions between the parties, with prejudice, and, if the parties intend to obtain a divorce or dissolution, for one of the parties to proceed to obtain a dissolution .

SUBSEQUENT ACTION TO SET ASIDE OR MODIFY

The parties may agree that in the event that either party brings an action or proceeding to cancel or set aside the agreement, or applies to any court for an extension or upward modification of either or both the maintenance and child support provisions of the agreement, whether successful or not, he/she will reconvey all assets he/she received under the agreement. The purpose of this clause is, obviously, to prevent a challenge to the agreement, and it will not be enforced if the court holds that the agreement is void.

BOILERPLATE CLAUSES

The term "boilerplate clauses" refers to the usual, commonly used clauses that are almost always found in matrimonial agreements.

SEVERABILITY

The agreement should contain a provision stating that if any part of the Agreement is held void or unenforceable, the balance of it will remain in full force and effect. Without such a clause, if a material provision or dependent clause of an agreement that does not have a severability clause is held void, the entire agreement may be declared void.

BINDING EFFECT

The agreement should contain a provision stating that, except as otherwise stated in the agreement, all the provisions of the agreement shall be binding upon the respective heirs, next of kin, executors and administrators of the parties.

CHANGE OF ADDRESS

As long as the parties have rights and obligations toward one another, or children who are unemancipated, they must be able to communicate with one another. The agreement should require them to notify each other of their change of address and telephone number so long as they have such obligations.

NOTICES

The agreement should contain a provision indicating the addresses to send any future notices required by the agreement.

MODIFICATION AND WAIVER

The agreement should contain a provision setting forth the formalities with which the parties must comply (such as a written and acknowledged change) to amend or modify the agreement or waive any of its terms. It should specificy that any waiver is not a
continuing waiver and shall not prevent or estop such party from thereafter enforcing such provision, right or option. The failure of either party to insist in any one or more instances upon the strict performance of any of the terms or provisions of this agreement by the other party shall not be construed as a waiver or relinquishment for the future of any such term or provision, but the same shall continue in full force and effect.

INDEPENDENT COVENANTS

The agreement should contain a provision stating that each clause of the agreement is independent of and may be enforced independently of any other clause. This permits enforcement of the balance of the agreement even after the breach of a particular provision, and a party who has breached a portion of the agreement may continue to seek enforcement of the balance of the agreement.

LEGAL INTERPRETATION

The agreement should contain a provision setting forth the law which shall apply
to the interpretation and construction of the agreement.

In the absence of anything evincing a contrary intention of the parties or violating the public policy of the state, the validity, effect, and construction of a separation agreement is governed by the law of the place where the contract was made, particularly where this place and the matrimonial domicil are the same.

The intention of the parties as to the law governing the validity, construction, and effect of a marital agreement will be respected in the absence of anything violating the public policy of the state.

FURTHER INSTRUMENTS

The agreement should contain a provision that each party will execute and deliver all documents and take all further steps as are necessary to effectuate the terms of the agreement, usually at no cost to the other party.

ENTIRE UNDERSTANDING

The agreement should contain a provision that it is the complete agreement between the parties, and that there are no side deals, and there are no representations, other than as set forth in the agreement, that are relied upon by either party.

EFFECT OF INCORPORATION OF AGREEMENT INTO JUDGMENT

Incorporation by Reference: A provision regarding the incorporation of the terms of the agreement in a judgment of dissolution or support order, in the event of a divorce, dissolution or support proceeding. This is extremely important to include.

Survival or Merger: A provision indicating the intent of the parties as to whether the agreement survives or merges into a subsequent judgment of dissolution. If it survives, modification may be limited by state law.

Contractual terms as to property settlements ordinarily are not subject to judicial change. Courts will not "rewrite" the maintenance provisions agreement unless there is a finding of existing hardship under DRL 236(B)(9)(b). When an agreement that has been incorporated into a dissolution judgment, if enforcement or modification is sought does the agreement still exist or was it merged into the judgment? The answer depends upon the intention of the parties as expressed in the agreement. Usually a matrimonial agreement provides that its terms shall be incorporated into the court order or judgment but that the agreement shall survive. However, an agreement may say nothing and may cease to exist after judgment. The traditional advantage to the wife of having the agreement survive was that in the event the husband failed to perform the contract, it gave her a more expeditious remedy of suit on the contract in addition to the special relief provided for the enforcement of judgments in the New York Domestic Relations Law and other statutes.

The advantage to the husband if the agreement survived was that ordinarily it precluded an upward modification of alimony/maintenance (due to a change in circumstances) so that his financial obligation was relatively fixed and certain, unless the former wife became destitute and was a candidate for public assistance.Again, the intention of the parties controls whether the agreement is merged into the judgment or is merely incorporated therein and survives intact.

COUNSEL FEES IN EVENT OF DEFAULT

The agreement should contain a provision that a party who is in default of his/her obligations under the agreement will be liable for the counsel fees and expenses of the other party incurred to enforce the agreement in a plenary action. Without such a provision, counsel fees might not be awarded in any plenary action to enforce the agreement.

posted by Joel R. Brandes @ 1:05 AM 0 comments

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November 01, 2006

Enhanced Earning Degree

Posted By Brian Perskin

In a recent decision, the appellate division in the Fourth Department, reduced an award of equitable distribuition from forty percent to twenty percent of the value of a degree earned during the marriage. It is interesting to read this case for a number of reasons. Foremost, the degree for a physicians assistant was valued at approximately $176,000 dollars and this is a case of a women in her mid to late forties. If she was younger the degree would have been worth more money......

LARRY G. MARTINSON, PLAINTIFF-APPELLANT,

MICHELLE R. MARTINSON, DEFENDANT-RESPONDENT.

September 29, 2006

PRESENT: SCUDDER, J.P., KEHOE, SMITH, PINE, AND HAYES, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from be and the same hereby is modified on the law by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following Memorandum: On appeal from a judgment in an action for divorce and ancillary relief, plaintiff contends that Supreme Court erred in its distribution of certain marital assets, including the parties' tax refund, a tax relief check, and the money remaining in an account set up for the parties' children. It is well settled that the provision in Domestic Relations Law Â§ 236(B)(5)(c) that marital property be "distributed equitably between the parties" does not require equal distribution (see Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034). "Moreover, the trial court is vested with broad discretion in making an equitable distribution of marital property and, absent an abuse of discretion, its determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971). Here, the parties stipulated to the disposition of certain assets, and the record establishes that the court properly considered the factors set forth in Domestic Relations Law Â§ 236(B)(5)(d), including defendant's waste of marital assets, in distributing the named assets. Plaintiff failed to establish that the court abused its discretion in distributing those assets.

We agree with plaintiff, however, that the court erred in awarding defendant 40% of the value of the marital portion of plaintiff's enhanced earning capacity arising from plaintiff's obtaining, during the marriage, a license to practice as a physician's assistant. In light of defendant's modest contribution to the attainment of plaintiff's license, we conclude that the court should have awarded defendant only 20% of the value of the marital portion of plaintiff's enhanced earning capacity (see Schiffmacher v. Schiffmacher, 21 AD3d 1386, 1387). Consequently, we modify the judgment by vacating the 48 th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff's enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and we remit the matter to Supreme Court to determine the duration and minimum amount to be paid per month on that amount.

All concur except Hayes, J., who is not participating, and Kehoe J., who dissents in part and votes to affirm in the following Memorandum: I respectfully dissent in part. In my view, Supreme Court did not abuse or improvidently exercise its discretion in awarding defendant a 40% share of the marital portion of the enhanced earning capacity attributable to plaintiff's attainment during the marriage of two educational degrees and licensing as a physician's assistant. The Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the case and directs the trial court to consider a number of statutory factors, including the income and property of each party at the time of marriage and at the time of commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including "services as a spouse, parent, wage earner and homemaker" (Domestic Relations Law Â§ 236[B] [5][d]; see Holterman v. Holterman, 3 NY3d 1, 7-8). The enumeration of those factors bespeaks the Legislature's recognition of marriage as an economic partnership with a significant noneconomic component (see generally Price v. Price, 113 A.D.2d 299, 304-306, affd 69 N.Y.2d 8; Capasso v. Capasso, 119 A.D.2d 268, 274, citing O'Brien v. O'Brien, 66 N.Y.2d 576, 585). Those considerations "are particularly relevant when evaluating the parties' respective contributions to" one spouse's "attainment of a professional license," which "is marital property subject to equitable distribution" (Holterman, 3 NY3d at 8). The overriding "principle [is] that both parties in a matrimonial action are entitled to fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account. Trial courts that examine the statutory factors are granted substantial discretion in determining the extent to which the distribution of marital property, including enhanced earnings attributable to a professional license, will be equitable" (id.). Moreover, as the majority notes, "absent an abuse of discretion, [the trial court's] determination will not be disturbed" (Bossard v. Bossard, 199 A.D.2d 971, 971; see Holterman, 3 NY3d at 8).

"Here, [the court] issued a careful, comprehensive decision addressing all relevant factors" (Holterman, 3 NY3d at 8), including the fact that the parties' 19-year marriage had produced five children, three of whom remained unemancipated; that defendant had given up her career as a licensed cosmetologist to stay at home with the children throughout the marriage, in keeping with the parties' Mormon religious beliefs; that the majority of plaintiff's schooling, a total of 91 credit hours leading to plaintiff's attainment of bachelor's and master's degrees as a physician's assistant, was completed during the marriage; and that defendant had waived her right to receive maintenance. In support of its determination, the court also might have cited the fact that plaintiff had joined the U.S. Army as an enlisted man 2 1/2 years after the marriage but by the time of commencement of the divorce action had attained the rank of Captain; that plaintiff's choice of a military career had necessitated 14 moves by the family in 19 years; that plaintiff's military career culminated in a six-month deployment to Iraq just prior to commencement of the divorce action; that plaintiff's education during the marriage was paid for by the Army, a form of intangible compensation that otherwise would constitute marital property; and that defendant, in addition to assuming a disproportionate share of the household and child rearing tasks, typed plaintiff's papers for college and graduate school. It also must be noted that, in awarding defendant only 40% of the marital portion (with a determined value of $107,360) of plaintiff's total enhanced earning capacity (with a stipulated value of $176,000), the court actually awarded defendant only about one quarter of the total enhanced earning capacity. In halving the award to defendant, the majority effectively awards her only a one-eighth interest in the total enhanced earning capacity of $176,000, despite the fact that both educational degrees and the physician's assistant license were earned during the marriage.

In my view, the determination of the court, much more so than the decision of the majority, accomplishes the "core purpose of the O'Brien rule: to assure the nontitled spouse an equitable share of the license to which that spouse's efforts contributed" (McSparron v. McSparron, 87 N.Y.2d 275, 282, rearg dismissed 88 N.Y.2d 916). I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse's enhanced earning capacity]; Lipsky v. Lipsky, 276 A.D.2d 753[50%]; Reczek v. Reczek, 239 A.D.2d 867, 868[35%], abrogated on other grounds by Corasanti v Corasanti, 296 A.D.2d 831; see also Krigsman v. Krigsman, 288 A.D.2d 189, 191[50%]; McNally v. McNally, 251 A.D.2d 302, 303[50%]; Vainchenker v. Vainchenker, 242 A.D.2d 620, 621 [50%] ).

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October 20, 2006

The law

Posted By Brian Perskin

Many people sign pre nups, however, most pre nups prepared by non lawyers or lawyers not familiar with matrimonial law prepare them wrong. Pre Marital or Post Marital Agreements

The following case decided by a Judge in Brooklyn lays out the law.

Supreme Court, Kings County, New York.

Simon KUDROV, Plaintiff,

Lyudmila KUDROV, Defendant.

Feb. 23, 2005.

SARAH L. KRAUSS, J.

The defendant, Lyudmila Kudrov, has moved by order to show cause for an order to enforce certain provisions of a postnuptial agreement, dated Decemebr 21, 1996. The plaintiff opposes the motion and argues that the agreement is unenforceable and void because it was not properly acknowledged. For the reasons that follow, the defendant's motion is denied and the agreement is deemed invalid and unenforceable.

Background

The parties were married on August 26, 1992. On December 21, 1996 the parties entered into a written agreement which provided for the equitable distribution of their marital property. On January 21, 1997 the plaintiff commenced an action for divorce which was uncontested and resulted in a Judgment of Divorce dated July 8, 1997. The agreement was incorporated, but did not merge into the Judgment of Divorce. [FN1] The defendant now moves, by order to show cause, to specifically enforce the provision of the agreement which stipulates that the parties shall be joint owners of two taxi cab corporations with the net profits to be divided equally between the parties. [FN2] The defendant claims that the plaintiff has failed to share any profits from the operation of the two taxi cab corporations and has prevented her from obtaining any information regarding the operation of the businesses. [FN3]

FN1. Although the Judgment of Divorce refers to the Agreement as a Stipulation of Settlement, because the Agreement preceded the matrimonial action, it is technically a marital agreement pursuant to DRL ? 236(B)(3).

FN2. Article IX, paragraph C of the agreement specifically states: "In consideration of the Wife's investment of her money towards the purchase of the ownership of five (5) medallions in two (2) corporations, namely Lou Lou Transit, Inc. (3 cabs) and Tomcat Transit, Inc. (2 cabs), the parties agree that the ownership of the said corporations shall be jointly owned by both of them and that the Husband shall continue to manage the said medallions and the taxis to which they are attached and shall pay all business expenses, including management fee (sic), relating to such taxis from any income generated by them. Any profits resulting from said medallions and taxis or the corporations to which those taxis belong shall be divided between the parties."

FN3. The order to show cause was originally argued before the Honorable Betsy Barros on January 20, 2005. On that date an order was entered directing the plaintiff to provide for the inspection and copying of all the books and records of the two subject taxi cab corporations within 30 days. A compliance conference was scheduled for March 30, 2005.

Although it appears that the parties have complied with all other aspects of the agreement to date, the plaintiff opposes the defendant's request for relief and seeks to deem the agreement unenforceable and invalid as it was not acknowledged or proven in a manner required to entitle a deed to be recorded. See, Domestic Relations Law (DRL) ? 236(B)(3). The agreement itself was subscribed by the parties in the State of Florida. The certificate of acknowledgment, however, reveals that the acknowledgment was made before a New York notary.

Legal Discussion

DRL ? 236(B)(3) provides that: "[a]n agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded."

In Matisoff v. Dobi, 90 N.Y.2d 127 (1997), the Court of Appeals reversed a decision of the Appellate Division, First Department and held that a postnuptial agreement which had been signed, but not acknowledged, was not specifically enforceable in a matrimonial action because it failed to comply with the terms of DRL ? 236(B)(3). In reaching its holding, the Court ultimately rejected the analysis of the Appellate Division which had concluded that, where various equitable factors are present, the failure to comply with the statutory requirement of acknowledgment should not constitute an absolute bar to enforcing a nuptial agreement. [FN4] The Court of Appeals, instead, specifically opted for a "bright-line rule" that would require acknowledgment in every case involving marital agreements, and noted that such a rule would be easy to apply and would place couples and their legal advisors on notice of the prerequisites to a valid nuptial agreement. Matisoff at 135.

FN4. In Matisoff, the Appellate Division had reversed a determination by the trial court which had ruled that the postnuptial agreement was unenforceable despite admissions by the parties, during their divorce trial 13 years later, that the signatures on the agreement were genuine. The Appellate Division opted for a more flexible approach given that there was no evidence of fraud, duress or misunderstanding and that the terms of the postnuptial agreement had been acknowledged and ratified in the daily activities and the property relations of the parties throughout the marriage. However, as already discussed, this flexible approach was rejected by the Court of Appeals for a "bright-line rule".

Since the agreement at issue is a marital agreement pursuant to DRL ? 236(B)(3), the agreement itself must be acknowledged in the manner required to entitle a deed to be recorded. [FN5] Thus, there must be an oral acknowledgment before an authorized officer, and a written certificate of acknowledgment must be attached to the agreement. See, Matisoff at 137; Filkins v. Filkins, 303 A.D.2d 934 (4th Dept., 2003); Real Property Law (RPL) ? ? 291, 298, 299, 306.

FN5. Moreover, the agreement itself provided that it should be construed under the laws of the State of New York.

It is undisputed that the acknowledgment in this case was made in the State of Florida before a New York notary public. Pursuant to RPL ? 299, acknowledgments of the conveyance of real property situated in New York state can be made in another state only by certain officers, which include either a notary qualified in the State of Florida, or a commissioner of deeds appointed pursuant to the laws of New York State to take acknowledgments outside of the state. No evidence has been presented to this court that the New York notary who received and certified the acknowledgment in this case was, at the time, either qualified as a notary public in the State of Florida, or qualified in New York State as a commissioner of deeds entitled to take out of state acknowledgments. Moreover, pursuant to Executive Law ? 135, a notary public qualified in New York State is only empowered to receive and certify acknowledgments within and throughout New York State.

Accordingly, because the marital agreement in question was never properly acknowledged, it is invalid and unenforceable. See, Matisoff, supra.

The defendant essentially makes two arguments in support of upholding and enforcing the marital agreement. The first, is that the agreement has been acknowledged and ratified by the parties throughout the eight years it has been in effect. While this is a very compelling argument, the Court of Appeals in Matisoff, as already discussed, has rejected the consideration of such equitable factors. Nothing other than strict compliance with the acknowledgment rules of DRL ? 236(B)(3) will uphold the validity of a marital agreement. [FN6]

FN6. Although the Matisoff decision precludes consideration of equitable factors in determining the validity of a marital agreement, such factors will nevertheless be relevant should this court need to determine the equitable distribution of the two taxi cab corporations at issue. See, Matisoff at 136.

The defendant further asserts that the agreement in question is a binding stipulation and is entitled to be enforced pursuant to Civil Practice Law and Rules (CPLR) ? 2104. CPLR ? 2104 states as follows:

An agreement between parties and their attorneys relating to any matter in action, other than one made between counsel in open court, is not binding upon a party unless it is in a writing subscribed by him or his attorney or reduced to the form of an order and entered.

While it is true that both the First and Second Departments have held that an agreement which settles a matrimonial action is exempt from the statutory formalities of DRL ? 236(B)(3) and will be upheld as valid and enforceable if it complies with CPLR ? 2104 [FN7], the agreement in question was effectuated prior to commencement of the action and not in settlement of an existing action. The agreement, therefore, does not qualify as a settlement agreement subject to CPLR ? 2104 and is, therefore, not exempt from the requirements of DRL ? 236(B)(3). [FN8]

FN7. Rubenfeld v. Rubenfeld, 279 A.D.2d 153 (1st Dept., 2001); Nordgren v. Nordgren, 264 A.D.2d 828 (2nd Dept., 1999).

FN8. Whether the validity of a stipulation of settlement in a matrimonial action is controlled by CPLR ? 2104 or DRL ? 236(B)(3) is a subject which has divided the Appellate Divisions. The Third and Fourth Departments, unlike the First and Second, have determined that any nuptial agreement, including one which settles a matrimonial action, is subject to the statutory formalities of DRL ? 236(B)(3). The Court of Appeals has not yet settled this issue.

In light of the foregoing, the defendant's motion to enforce the postnuptial agreement dated December 21, 1996 is denied and the agreement is deemed invalid and unenforceable.

This constitutes the decision and order of the court.

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October 18, 2006

Failing to Abide by Orders

Posted By Brian Perskin

People enter agreements all the time in divorce cases in New York. An agreement is what it sounds like. Both sides agree to all the terms. It is amazing when one of the parties refuse to abide by the agreement. What follows is extra legal fees and a dissapation of the asset. Recently, after a husband agreed to sell the marital house in Queens, he refused to sign the contract of sale. What did the wife do?

She applied to the Court to be a reciever of the property and sell the house anyway. All the husband did was prolong the process and cost his money. He then had the nerve to appeal, which he lost.Supreme Court, Appellate Division, Second Department, New York.

Flora TREZZA, respondent,

Richard TREZZA, appellant.

Sept. 26, 2006

HOWARD MILLER, J.P., THOMAS A. ADAMS, PETER B. SKELOS, and JOSEPH COVELLO, JJ.

In a matrimonial action in which the parties were divorced by judgment dated February 6, 1998, the defendant former husband appeals from so much of an order of the Supreme Court, Queens County (Leibowitz, J.), dated March 25, 2005, as, sua sponte, appointed the plaintiff former wife as receiver of the former marital residence, authorized her to enter into a contract of sale and to execute all documents necessary to sell the property and transfer title thereto on his behalf, and directed the plaintiff's attorney to hold the former husband's distributive share of the proceeds of the sale in escrow until released upon application to the court.

ORDERED that on the court's own motion, the notice of appeal is treated as an application for leave to appeal, and leave to appeal is granted (see CPLR 5701[c] ); and it is further,

ORDERED that the order is affirmed insofar as appealed from, with costs.

Pursuant to the parties' stipulation of settlement which was incorporated but not merged into the judgment of divorce dated February 6, 1998, the parties agreed that the former marital residence would be sold. The former husband refused to execute a contract of sale, and the former wife moved to hold him in contempt and to have the court appoint her as the agent of the former husband to facilitate the sale of the former marital residence. Thereafter the parties entered into a stipulation dated October 15, 2004, resolving the motion. In the stipulation, the parties agreed that the former marital residence would be appraised and that the former husband would execute a contract of sale as long as the sale price was within $50,000.00 of the appraised price. The former marital residence was appraised at $600,000 and the former wife entered into a contract of sale with a third party for the sum of $575,000. Upon the former husband's refusal to execute the contract of sale, inter alia, the former wife was appointed receiver for the limited purpose of authorizing her to enter into a contract of sale and to execute all documents necessary to sell the property and transfer title thereto.

The Supreme Court properly appointed the former wife as receiver to effectuate the sale of the former marital residence. Her appointment as receiver was necessary because the former husband's willful failure to cooperate in effectuating the sale of the former marital residence as required by the parties' written stipulation (see Stern v. Stern, 282 A.D.2d 667, 668; Bock v. Bock, 170 A.D.2d 423, 424).

The former husband's remaining contentions are either improperly raised for the first time on appeal or without merit (see Mann v. All Waste Sys., 293 A.D.2d 656; Goldblatt v. LaShellda Maintenance Co., 278 A.D.2d 451).

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October 05, 2006

What Happen's If My Husband Was Granted A Divorce in Another State?

Posted By Brian Perskin

In some cases, people to travel to other states to get a divorce. Sometimes, it is more difficult and expensive to obtain a divorce in New York. Some people do this because all or some of the property acquired during the marriage is only in thier name. They think if they go to Vegas, or head down to Florida they can get a divorce and pay thier spouse nothing. This is not the case. If marital property is located within New York, or there is a current order of spousal support from Family Court, The Courts in New York can still divibed the marital property....

The appellate division recently ruled on this issue.
Supreme Court, Appellate Division, Second Department, New York.

Law Offices of Brian D. Perskin

In the Matter of Thomas SANNUTO, Jr., appellant,

v.

Jeannette PALMA-SANNUTO, respondent.

Aug. 8, 2006

STEPHEN G. CRANE, J.P., ROBERT A. SPOLZINO, STEVEN W. FISHER, and ROBERT J. LUNN, JJ.

In a proceeding pursuant to Family Court Act article 4 to terminate spousal support, the petitioner appeals from an order of the Family Court, Suffolk County (Simeone, J.), dated October 5, 2005, which denied his objections to an order of the same court (Grier, S.M.) dated August 15, 2005, which, without a hearing, granted the motion of the former wife to deny the petition and denied his cross motion to stay the proceeding.

ORDERED that the order is affirmed, with costs.

A divorce judgment of a sister state made in an action in which both parties were subject to the personal jurisdiction of the court is entitled to full faith and credit by the courts of this State (see Somma v. Somma, 19 A.D.3d 477, 477, 797 N.Y.S.2d 523; Green v. Green, 246 A.D.2d 627, 628, 669 N.Y.S.2d 48). However, the procurement of an ex parte judgment of divorce only dissolves the marital status of the parties, and has no effect upon the property held by the parties outside the jurisdiction of the State issuing it (see Somma v. Somma, supra at 478, 797 N.Y.S.2d 523; Young v. Knight, 236 A.D.2d 534, 534-535, 653 N.Y.S.2d 673; Mattwell v. Mattwell, 194 A.D.2d 715, 716, 600 N.Y.S.2d 98).

Contrary to the petitioner's contention, "a New York support order is not terminated by a subsequent out-of-State divorce decree when the foreign State does not acquire in personam jurisdiction of the New York domiciled spouse in the divorce action" (Matter of Rochetti v. Rochetti, 236 A.D.2d 543, 544, 653 N.Y.S.2d 676; see Matter of La Duke v. La Duke, 110 A.D.2d 930, 931-932, 487 N.Y.S.2d 178; Matter of Slemons v. Slemons, 28 A.D.2d 634, 280 N.Y.S.2d 276). The record clearly established that the Florida court which dissolved the parties' marriage by a decree dated December 16, 2005, did not have in personam jurisdiction over the former wife. Thus, the petitioner failed to make a prima facie showing of entitlement to relief and the petition was properly denied without a hearing (see Matter of Fein v. Gilchrist, 23 A.D.3d 558, 559, 807 N.Y.S.2d 600; D'Alesio v. D'Alesio, 300 A.D.2d 340, 341, 751 N.Y.S.2d 774).

The petitioner's remaining contention is without merit.

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September 28, 2006

Can I Move?

Posted By Brian Perskin

This is the first in a series of cases I will post for my readers to get a sense of what they need to prove if they want to relocate or fight a relocation. You should know that when either preparing or defending a relocation case in New York, it is important to present all your proof at trial. This includes, financial, education and medical testimony.

Family Court, Richmond County, New York.

In the Matter of a CUSTODY/Visitation Proceedings

CURTIS L.S., Petitioner

Janice P.W., Respondent.

Aug. 2, 2006.

CATHERINE M. DiDOMENICO, J.

Petitioner Father, Curtis S., filed a Petition seeking permission to relocate from Brooklyn, New York to Chapel Hill, North Carolina with his six year old son, Curtis Allen S. ("Allen") (d.o.b.8/22/99).

On May 17, 2004, the Administration for Children's Services ("ACS") filed a Neglect Petition against the Respondent Mother, Ms. W., alleging, among other things, that she physically assaulted Allen's sibling, Antoinette, in the presence of Allen. Antoinette and Allen were remanded to the care of ACS. On April 26, 2004, Petitioner Father filed a Petition for Custody. On July 8, 2004, after a trial, a finding of neglect was entered against the Respondent Mother and Petitioner Father was granted custody of Allen. Visitation to the Respondent Mother was granted upon mutual agreement by the parties to be supervised by the maternal aunt, Ms. Joyce J.

An Order of Disposition was entered as to Antoinette on August 3, 2004. Antoinette was placed with ACS for a period of up to twelve months. Respondent was to observe the following conditions: cooperate with ACS and Agency services, referrals and supervision; complete alcohol rehabilitation; visit Antoinette regularly; maintain adequate housing; maintain an adequate source of income; plan for the return of the child; complete an anger management program; and comply with a one year Final Order of Protection on behalf of Antoinette. A Petition to Terminate the Parental Rights of Respondent Mother as to Antoinette on the grounds of permanent neglect is currently pending before this Court.

On July 28, 2005, Respondent Mother filed a Petition for Modification of an Order of Custody requesting that Petitioner Father be prevented from relocating with Allen to North Carolina. On August 1, 2005, the Hon. Ralph Porzio ordered that Allen not be relocated without prior court approval. On March 22, 2006, Respondent Mother filed a Petition for Modification of an Order of Visitation alleging that Ms. Joyce J. could no longer supervise visits. Respondent Mother requested that she be granted unsupervised visits, unrestricted daily contact, and visits every Monday and Friday from 3:30 pm until 5:30 pm at the Brooklyn Public Library.

Petitioner Father's relocation petition and Respondent Mother's visitation petition were the subject of a fact finding hearing held on July 10, 11, 19 and 20, 2006. At the fact finding hearing, Petitioner Father testified and also called Dr. Margit W., a licensed Family Court Services psychologist, as an expert witness. Dr. W.'s report was entered into evidence without objection (Petitioner's # 1). Respondent Mother testified on her own behalf. The Law Guardian called no witnesses.

After hearing the testimony of all three witnesses, and assessing their credibility, this Court credits the testimony of Petitioner Father and Dr.W. The Court does not credit at all the testimony of Respondent Mother.

Testimony at Fact Finding

Petitioner Father

Petitioner Father was awarded custody of Allen in July 2004. He testified that he is currently employed as a personal trainer earning approximately $20,000.00 to $30,000.00. Petitioner Father testified that he would like to relocate with Allen to Chapel Hill, North Carolina where he has an opportunity to be a Personal Trainer Director earning between $40,000.00 to $50,000.00. Petitioner Father's mother and aunt, whom he and Allen had lived with in New York and whom they intend to live with in Chapel Hill, have already relocated to Chapel Hill and are residing in a three bedroom apartment in a gated community. Petitioner Father and Allen would each have their own room in paternal grandmother's home. Petitioner Father researched the school system on the internet and communicated with the principal of the school Allen would be attending. He testified that he was impressed with the school's computer program and that the school is a five-minute walk from the home and a three minute walk from the job Petitioner Father hopes to secure. While Petitioner Father acknowledges that Allen is currently doing well in school and has no special needs, Petitioner Father believes he would be able to spend more time with Allen and would be able to offer Allen a better quality of life with the support of his extended family. Petitioner Father's mother and aunt are retired and would provide child care for Allen while Petitioner Father works.

Petitioner Father testified that since his mother and aunt relocated to North Carolina he is currently staying with friends while Allen lives with his maternal aunt, Ms. Joyce J. Petitioner Father sees Allen every day, taking him to and from school and karate.

Petitioner Father testified that the maternal aunt, Ms. Joyce J., supervised visits until October, 2005. From July 2004 to December 2004, Respondent Mother visited with Allen at Ms. J.'s home twice a week for approximately two hours. From January 2005 to August 2005, Respondent Mother visited only once. Respondent Mother sporadically calls to speak with Allen, and has never provided child support.

Dr. W.

Dr. W. testified that she interviewed both Petitioner Father and Respondent Mother and had a play interview with Allen. Dr. W. recommended that Petitioner Father be allowed to relocate with monthly visits with the Respondent Mother. Dr. W. did not recommend unsupervised visits with the Respondent Mother because of Respondent Mother's violent episodes with Antoinette. On this subject, Dr. W. noted that Respondent Mother seemed to feel that the physical force she used on Antoinette was in some way "justified." Tr. 7/1//06, p. 18, l. 21.

Dr. W.'s report concludes: "Mr. W. is a bright, articulate woman who may or may not have a substance abuse problem. What does seem clear, however, is that she has an impulse-control problem, particularly around managing her angry and needy feelings. While she has intellectual perspective on a number of issues, she seems to lack the necessary emotional perspective. Emotionally, she seemed to feel it reasonable that she strike her child back. Additionally, she has the stressors of multiple physical problems. She does appear to care about her children, at least at some level, but doesn't seem capable of handling the many vicissitudes of life, children and her feelings on a full-time basis. Sadly, she does not seem to think that psychotherapy is a useful option for her." Petitioner's # 1, page 7.

Respondent Mother

Respondent Mother testified that, in May of 2004, her children, Antoinette and Allen, were removed from her care after what she referred to as a "domestic dispute" with Antoinette. Antoinette was twelve years old at the time and the altercation left bruises on Antoinette's body. Respondent Mother was arrested and the children were removed. At that time Allen went to live with Petitioner Father. Visits between Respondent Mother and Allen were to be supervised by her aunt, Ms. J.

From May 2004 to September 2004, she visited with Allen twice a week at her aunt's home. Respondent Mother further had hip surgery on September 28, 2004 and was hospitalized for three and a half weeks. During that time, her uncle brought Allen to visit. She did not visit with Allen from October 2004 to January 2005. Her uncle brought Allen to visit in January 2005. She completed her physical recuperation in April 2005 and had a visit with Allen at that time. From January to April 2005, Respondent Mother testified that she attempted to call Petitioner Father everyday but only spoke with Allen sporadically. A visit occurred in June 2005, and then at the end of August 2005. Respondent Mother learned that Allen was relocating to North Carolina from Allen at the end of July 2005.

During cross-examination by the Law Guardian, Respondent Mother testified that she did not visit with Allen because of actions of Petitioner Father, the agency, and because she was not given adequate assistance after her hip surgery. Respondent Mother admits she did not file any petitions to enforce her right to see Allen until July 28, 2005, when she learned of Petitioner Father's intention to relocate Allen. Respondent Mother claimed that she did not realize she could enforce her rights in Court, however, this statement is belied by her frequent court appearances in connection with the Neglect and Termination of Parental Rights cases for Antoinette and the instant pro se Petitions actually filed by Respondent Mother.

Respondent Mother testified that she was granted unsupervised visits, however, they were suspended in October 2005 when she was arrested after another physical altercation between her and Antoinette during which she struck Antoinette with a metal stove grate. This incident, during which Antoinette sustained physical injuries, occurred after Respondent Mother completed mandated parenting and anger management courses and while Respondent Mother was enjoying one of only four unsupervised visits that had been permitted.

The Applicable Law

Where a custodial parent seeks permission to relocate a child, the request "must be considered on its own merits with due consideration of all the relevant facts and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child." Tropea v. Tropea, 87 N.Y.2d 727 at 739 (1996). The issue is whether the parent requesting the relocation has established by a preponderance of the evidence that relocation would be in the child's best interest. Id. Factors to be considered in determining the appropriateness of relocation include, but are not limited to, "each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and the child through suitable visitation arrangements." Id. Where there are educational, emotional and economic benefits for the child, relocation should be granted. Aziz v. Aziz, 779 N.Y.2d 539 (2nd Dept.2004). Applying the established principles to this case, this Court does find that Petitioner Father has established, by a preponderance of the evidence, that relocation would be in Allen's best interests.

Findings of Fact & Conclusion of Law

This Court credits the testimony of Petitioner Father and Dr. W. Petitioner Father submits that the move to North Carolina will improve the quality of life for both himself and the child. Petitioner Father offers that he has greater opportunity for employment and extended family in North Carolina. Petitioner Father would be able to spend more time with the child and has a large support system there which is no longer present in New York. This Court credits Petitioner Father and finds that he has a good faith basis for relocating, namely to offer his son a better life surrounded by his aunt, grandmother and other relatives.

Petitioner Father clearly recognizes the importance of maintaining a relationship between Allen and Respondent Mother and his sister. See Miller v. Pipia, 297 A.D.2d 362 (2nd Dept.2002); Boyer v. Boyer, 281 A.D.2d 953 (4th Dept.2001). Petitioner Father offers a realistic and feasible alternative visitation schedule, specifically, he will bring Allen one weekend a month for visits with the Respondent Mother and separately, with Antoinette. This Court credits Petitioner Father's testimony in that he will continue to foster a relationship between Allen, his sister and Respondent Mother.

This Court further finds that Respondent Mother's visitation has been so inconsistent and sporadic that it is not clear that relocation would substantially interfere with her rights as a practical matter. See Ira S. v. Lauren S., 21 AD3d 288 (1st Dept.2005) (Family Court did not err in refusing to conduct hearing on issue of relocation where non-custodial parent had not made use of existing visitation rights). Respondent Mother refuses to assume any responsibility for allowing months to pass without seeing Allen or to even telephone to inquire how he was doing. Indeed, it was not until Respondent Mother discovered (through Allen) that Petitioner Father wanted to relocate that she took concrete steps to assert her rights. Further, this Court notes that Respondent Mother assumed no responsibility for the fact that custody of Allen was granted to Petitioner Father as the final disposition of a neglect case filed against her in which Allen was one of the subject children, nor that unsupervised visits were suspended when, during one of only four unsupervised visits, she physically assaulted the child Antoinette. This Court does not credit at all Respondent Mother's testimony that her acts of physical violence against Antoinette occurred as part of a "domestic dispute" in which she was compelled to "defend" herself against this then 12 year old child.

Finally, although the Respondent Mother is said to have completed court mandated anger management programs, to this day, she evidences little ability to control her frustration or her temper. During the fact-finding hearing, she became increasingly angry and hostile in response to questioning by counsel other than her own attorney to the degree that this Court offered to take a recess so that she might compose herself.

Accordingly, Petitioner Father's Petition to relocate to North Carolina is granted. Respondent Mother's Petitions to prevent the relocation, for unsupervised visits, and for violation of her visitation rights, are denied.

Disposition

As this Court does not believe sufficient information exists upon which an informed decision can be made with respect to what visitation is appropriate between Respondent Mother and Allen, this matter is adjourned for disposition. Respondent Mother is to undergo a psychiatric evaluation through ACS. The evaluation shall include a full psychiatric assessment of Respondent Mother and specifically identify what, if any, risk factors would exist should unsupervised visits with Allen be permitted.

Respondent Father is allowed to relocate with Allen to Chapel Hill, North Carolina and to register him in school in Chapel Hill forthwith. Pending disposition, Respondent Father shall produce Allen one weekend a month for a supervised visit with Respondent Mother for approximately four hours. Until such time as a mutually agreeable third party is available to supervise the visits, Petitioner Father shall supervise the visits in such public or other place as these parties may agree.

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September 26, 2006

How Do I Go About Discovery ?

Posted By Brian Perskin

If you are involved in Divorce in New York and your future ex spouse is attempting to hide assets, the discovery process is the way for you and your lawyer to find out what he is actually hiding. There are a number of methods to effectively discover your spouses assets..... There is also an appropriate way for you to act towards the discovery process.

WHAT IS DISCOVERY?
By Ruth Miller

"Discovery" is what makes real-life practice of law different from television dramas. Nothing in the law happens suddenly, and very little happens by surprise. Your lawyer has the right to ask your spouse about everything related to the case. That means just about everything in the area of finances and issues related to custody of your children. Included in discovery are subpoenas, interrogatories, requests for production of documents, and depositions.

There are ways to keep costs down during discovery. Sometimes one of the spouses will monopolize the financial information of the parties and the other spouse will know little or nothing about their assets and liabilities. However, it is far more common that each spouse has substantial knowledge. Since a major portion of the lawyer's job is to collect and marshall information, your lawyer's time is best (and most economically) spent when you provide your lawyer with every bit of relevant information you can.

Informal discovery involves counsel exchanging information voluntarily or upon request. This method is far less expensive than formal discovery. Your lawyer will simply prepare a list of documents that are important, and ask the other lawyer for them. Be prepared to have your spouse's lawyer ask you for a multitude of documents also. Be sure to cooperate in this request. It will save you money.

Formal discovery involves interrogatories and requests for production of documents. Interrogatories are an inexpensive method of gaining information and narrowing issues. Either of you may send the other formal written questions which must be answered under oath within 30 days of their service. If interrogatories are served upon you and you don't respond, your spouse can obtain a court order to force you to respond. This is expensive and a foolish waste of money, so make sure you and your lawyer answer the questions completely.

Another method in the formal process of discovery involves requests for production of documents. Either of you can ask the other to produce any and all documents having anything to do with the dissolution (or divorce) and its related matters. That is, anything to do with support, community (or marital) property, separate property, the children, or any other matter that can be decided by the Court. This is not a great deal different from the informal method, but like interrogatories, if there is no response, it can lead to court orders, sanctions, possible jail time and a big waste of money.

The most common type of discovery is called a "deposition" whereby your lawyer talks to your spouse. A deposition is a duplication of a court proceeding without a judge. Your lawyer may ask questions of your spouse (and your spouse's lawyer can ask you questions) in a setting in which the questions and answers are recorded by a certified shorthand reporter and later bound into a permanent volume.

Depositions have several functions. First, they narrow the issues so that your lawyer can find out exactly your spouse's position on various matters. For example, if you and your spouse agree that your grandmother's furniture is your separate property, that issue can be eliminated. If not, and you are trying to preserve that furniture as your separate property, your lawyer must ask your spouse the basis of his/her opinion: If there are any receipts to prove the furniture is community (or marital), when he/she first saw the furniture, if the two of you ever had any conversations concerning the status of the furniture, and many other questions. By eliminating issues in this way you are "narrowing the issues" which saves money!

Second, depositions tend to "freeze" testimony from deposition to trial. That is - if a party testifies one way at a deposition, and another way at a trial, it is unlikely that the judge will believe anything the person says. So each spouse is "stuck" with his/her deposition testimony.

Third, a deposition is very useful in helping the lawyer determine how effective your spouse is likely to be in court. And, finally, if the assets, liabilities and income are very complex, a deposition is essential to educate the lawyers.

You have the right to be present at your spouse's deposition and should plan to do so, unless your lawyer advises you that it would be counterproductive. If your spouse won't answer the question, your lawyer will ask the court reporter to "certify" the question, and then ask the judge to order him/her to answer. If the judge makes that order and if he/she still refuses to answer, there are many remedies. A fine or jail sentence is possible, but what is most effective is to "strike the pleadings" of the other spouse. Then he/she has no rights before the court.

If your spouse is lying, it is clearly to your advantage if you can prove it. In fact, if you can prove that only part of his/her testimony is not truthful, you are probably going to be the prevailing party on contested issues/ Many people lie and cheat in the world, but they are generally unsuccessful in getting the court system to help them. Judges are quite experienced in judging a person's credibility and know when witnesses are lying. The foundation of our legal system assumes that people tell the truth when they come to court, so judges react very negatively to witnesses who lie.

The deposition process is an ordeal, but the following instructions, commonly provided by attorneys to their clients, can lessen the stress:

1. Tell the truth. You must, you are under oath. However, do not depreciate yourself. For example, if you genuinely believe you are unable to work long hours of overtime, then the answer "Yes" to the question, "You really are able to work overtime, aren't you?" would not be the truth.

2. Don't guess. If you don't know the answer or if you can't remember. Say so! Nobody is going to think you are stupid if you can't remember something. Most of us can remember only life milestones, not day-to-day trivia. The deposition "freezes" your testimony, so a wrong guess can be disastrous.

3. Answer only the question: don't run on at the mouth. A deposition is very expensive! Extra words create extra expense. If you can answer a question with ten words, do not use one hundred. However, you are not limited to a "yes" or "no" answer.

4. Don't volunteer information. You are not obligated to do so, and if you do, it could be damaging to your case. Just wait for the question, answer the question, and then wait for another question.

5. Don't try to convince the other side of the merits of your case. You won't be able to do it, and you will find yourself caught in a web. Besides, it really doesn't matter whether the other side likes you or not. You can never help yourself at a deposition, only hurt yourself. So just answer the questions.

6. Can my mother/friend/therapist be present? The law in this area is not clear. However, most lawyers will allow other persons to be present if the request is reasonable and if there is enough space in the room. This is especially true with your own deposition as opposed to your spouse's deposition.

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September 26, 2006

What is Separate Property?

Posted By Brian Perskin

Many times individuals enter marriage with their own separate property. The Divorce laws in New York allow for indivuals getting divorced to keep their separate property. However, it is difficult in long term marriages to determine it certain property is truly separate. Divorce litigants are required to trace their assets. A recent case in the third department is very informative. I suggest you read it.....

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

Gwen CHERNOFF, Respondent,

v.

Michael S. CHERNOFF, Appellant.

July 13, 2006

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

MUGGLIN, J.

Appeal from a judgment of the Supreme Court (Peckham, J.), entered November 30, 2005 in Delaware County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court.

In this action for divorce, issues of counsel fees, fault and custody of the child were settled by stipulation. As to the remaining issues, Supreme Court denied spousal maintenance to plaintiff, awarded child support to plaintiff and decided issues of equitable distribution. Defendant appeals, claiming that Supreme Court miscalculated his child support obligation and that, with respect to equitable distribution, Supreme Court erred both by classifying and distributing some of his separate property as marital property and by refusing to properly credit him for his separate property contributions to the acquisition of marital assets.

First, as to the issue of child support, we agree that Supreme Court miscalculated it, but not because, as defendant asserts, his income was miscalculated. Supreme Court determined defendant's income for child support purposes to be $86,304, but in consideration of the standard of living of the child during the marriage and because defendant's income will "be considerably reduced by the equitable distribution award," it limited child support to 17% of the first $80,000 of defendant's income. By doing so, Supreme Court ignored the statutory three-step process of (1) determining combined parental income, (2) multiplying the first $80,000 by 17% and allocating the result between the parents according to their respective shares of the total income, and (3) determining the amount of child support payable on the combined parental income above $80,000 by applying the statutory factors (see Matter of Cassano v. Cassano, 85 N.Y.2d 649, 653 [1995]; see also Domestic Relations Law Â§ 240[1-b] ).

Here, the parties were both self-employed as real estate salespeople and, without regard to whether any portion of their self-employment deductions should be added back to income (see Domestic Relations Law Â§ 240[1-b][b][5] [vi][B] ), their tax return otherwise reveals that they had combined parental income for child support purposes of at least $118,508. The statute requires the trial court to determine the amount of support on the combined income above $80,000 (see Domestic Relations Law Â§ 240[1-b][c][3] ) by application of the subparagraph (f) factors "and/or the child support percentage." As the record is incomplete as to these factors and Supreme Court erroneously limited the child support calculation to the first $80,000 of defendant's income, intelligent appellate review of this issue is not possible and we must remit for recalculation of child support. Remittal is further required because we find it necessary to reverse some of Supreme Court's equitable distribution determinations which it found would reduce defendant's future income.

Insofar as defendant's separate property claims are concerned, the following facts are not disputed: defendant entered this 19-year marriage owning, among other things, his residence on Long Island, three rental properties (Lazy Cow, Long Beach and a parking lot) and stocks inherited from his mother; the stocks and the Lazy Cow property are still titled in defendant's name (Supreme Court awarded them to defendant as his separate property); defendant sold the parking lot approximately six to eight years prior to the divorce action and received $150,000, which he invested in four mortgages in his own name (Wegman-$18,000; Cheryl-$30,000; McCarthy-$95,000, and Chaplick-$80,000); the Long Beach building was sold shortly after the divorce action was commenced and defendant received $200,000 which netted him a $160,000 increase over his 1979 $40,000 investment in this property; and, finally, defendant has deposited income received from these assets in four bank accounts, in his name alone, from which accounts he has frequently withdrawn funds that were then commingled with plaintiff's funds in a bank account from which the parties paid their expenses. Supreme Court held that because the income from these assets had been commingled and because plaintiff had contributed services as a wife and homemaker and defendant produced no paper trail for the $73,000 sum by which the mortgages exceeded the $150,000 sale price of the parking lot, these increases in value ($73,000 and $160,000) represented marital property and awarded plaintiff 50% of the four mortgages and 50% of the four bank accounts (total to plaintiff-$119,025.34). We find this award to be erroneous for three reasons.

First, property acquired before marriage remains separate (see Domestic Relations Law Â§ 236[B][1][d][1] ) and property acquired in exchange for said property, even if the exchange occurs during marriage, is separate property (see Domestic Relations Law Â§ 236[B][1][d][3] ). To be sure, commingling the corpus with marital funds transmutes the separate property into marital property for purposes of equitable distribution (see Judson v. Judson, 255 A.D.2d 656, 657 [1998] ), but commingling only a portion of the income produced by the corpus does not transmute the corpus which has never been commingled.

Second, the lack of a paper trail concerning the source of the funds invested in the four mortgages is not, alone, fatal to defendant's claim (see Zanger v. Zanger, 1 AD3d 865, 867 [2003] ). Moreover, unlike the plaintiff in Cassara v. Cassara (1 AD3d 817, 819 [2003] ), defendant, here, documented his claim that the proceeds from the sale of the parking lot were invested in the mortgages in his own name alone. Moreover, it is telling that the evidence shows no source other than defendant's separate property for these investments and plaintiff acknowledged this property to be defendant's separate property.

Third, "[w]hen a nontitled spouse's claim to appreciation in the other spouse's separate property is predicated solely on the nontitled spouse's indirect contributions, some nexus between the titled spouse's active efforts and the appreciation in the separate asset is required" (Hartog v. Hartog, 85 N.Y.2d 36, 46 [1995] ). Here, there is not a scintilla of evidence that the increase in value of defendant's property was due to any effort on his part or to anything other than passive market forces. Plaintiff, as the nontitled spouse, bore the burden of proof on this issue (see Golub v. Ganz, 22 AD3d 919, 922-923 [2005] ).

Lastly, there are two main items of marital property, the marital residence and an apartment house that the parties owned through their corporation (Wachern Corporation). The marital residence was acquired by the parties, as tenants in common, prior to the marriage. Each contributed separate funds to the purchase and defendant contributed additional separate funds to pay off the purchase money mortgage (a total of $46,000). In addition, defendant contributed $25,000 of separate funds to the purchase of the apartment house. Supreme Court found that defendant made a gift of these funds to plaintiff and denied him a separate property credit. We disagree and find that the record supports defendant receiving a credit in those amounts in the equitable distribution of these assets (see Judson v. Judson, supra at 657).

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as (1) awarded child support, (2) denied separate property credits to defendant of $46,000 against the marital residence and $25,000 against the apartment house, and (3) awarded plaintiff a $119,025.34 share in defendant's mortgages and the related bank accounts; matter remitted to the Supreme Court for recomputation of child support and equitable distribution not inconsistent with this Court's decision; and, as so modified, affirmed.

MERCURE, J.P., CARPINELLO, ROSE and KANE, JJ., concur.

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September 22, 2006

Be Careful Before You Sign...

Posted By Brian Preskin

All too often, women come into my office and tell me their wonderful future husband is requesting a pre nuptial agreement be signed before the marriage. Many pre nuptial agreements are fair and strait forward. However, some try to completely have the future couple from have completely separate financial lives. It is my opinion that a couple preparing a pre nuptial agreement in New York should.....

not focus so much on the short run. A woman should be worried about what will happen if the marriage falls apart after fifteen or twenty years. In the short run, if you marry a rich guy and it does not work out, you may not be entitled to much money. A pre nup would not hurt you. However, if you are married for a long time, did not save any money and a divorce occured after fifteen years your life could be devastated. You just have to sit in the matrimonial parts in New York and see woman in tears. Never waiver pension rights or income generated during the marriage unless their is a provision for you to recieve a substantial maintenance payment if the marriage falls apart. It is my belief that pre nupts are important in certain circumstances, but not all. You should always consult a qualified divorce lawyer in New York before you sign anything.

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September 02, 2006

Tax Deductions

Posted By Brian Perskin

When negotiating a child support agreement, it is important for you to take into consideration the applicable tax laws. The IRS only allows the custodial parent to take the deduction unless the custodial parent waives the right to take the deduction in writing. The tax laws have changed recently.

Tax Years 2006 and Later

Earneded Income Credit Amounts Increase
Earned income amount.
The maximum amount of income you can earn and still get the credit is higher for 2006 than it is for 2005. You may be able to take the credit for 2006 if:

You have more than one qualifying child and you earn less than $36,348 ($38,348 if married filing jointly),
You have one qualifying child and you earn less than $32,001 ($34,001 if married filing jointly), or
You do not have a qualifying child and you earn less than $12,120 ($14,120 if married filing jointly).
The maximum amount of adjusted gross income (AGI) you can have and still get the credit has also increased. You may be able to take the credit if your AGI is less than the amount in the above list that applies to you.

Investment income amount.
The maximum amount of investment income you can have in 2006 and still get the credit increases to $2,800.

--------------------------------------------------------------------------------

Exemption Amount Increased
The amount you can deduct for each exemption has increased from $3,200 in 2005 to $3,300 in 2006.

You lose all or part of the benefit of your exemptions if your adjusted gross income is above a certain amount. The amount at which the phaseout begins depends on your filing status. For 2006, the phaseout begins at:

$112,875 for married persons filing separately,
$150,500 for single individuals,
$188,150 for heads of household, and
$225,750 for married persons filing jointly or qualifying widow(er)s.
If your adjusted gross income is above the amount for your filing status, use the Deduction for Exemptions Worksheet in the Form 1040 instructions to figure the amount you can deduct for exemptions.

Social Security and Medicare Taxes
For 2006, the employer and employee will continue to pay:

6.2% each for social security tax (old-age, survivors, and disability insurance), and
1.45% each for Medicare tax (hospital insurance).
Wage limits. For social security tax, the maximum amount of 2006 wages subject to the tax has increased from $90,000 to $94,200. For Medicare tax, all covered 2006 wages are subject to the tax.

Standard Deduction Amount Increased
The standard deduction for taxpayers who do not itemize deductions on Schedule A of Form 1040 is, in most cases, higher for 2006 than it was for 2005. The amount depends on your filing status, whether you are 65 or older or blind, and whether an exemption can be claimed for you by another taxpayer.

The basic standard deduction amounts for 2006 are:

Head of household -- $7,550
Married taxpayers filing jointly and qualifying widow(er)s -- $10,300
Married taxpayers filing separately -- $5,150
Single -- $5,150
The standard deduction amount for an individual who may be claimed as a dependent by another taxpayer may not exceed the greater of $850 or the sum of $300 and the individual's earned income.

Standard Mileage Rates
For tax years beginning in 2006, the allowable deductions for the standard mileage rate are as follows:

Business miles. The standard mileage rate for the cost of operating your car increases to 44.5 cents a mile for all business miles driven.
Charitable services. The standard mileage rate allowed for use of your car when you use your car to provide charitable services to a charitable organization is 14 cents a mile.
Charitable services -- Hurricane Katrina relief services. If you used your vehicle in giving services to a charitable organization to provide relief related to Hurricane Katrina, the standard mileage rate allowed for use of your car is 32 cents a mile.
Medical reasons. The standard mileage rate allowed for use of your car for medical reasons is 18 cents a mile.
Moving. The standard mileage rate for determining moving expenses is 18 cents a mile.

2006 Federal Income Tax Rate Schedules
The 2006 tax rate schedules are provided so that you can compute your estimated tax for 2006.

Uniform Definition of a Qualifying Child
Beginning in 2005, one definition of a qualifying child will apply for each of the following tax benefits.

Dependency exemption.
Head of household filing status.
Earned income credit (EIC).
Child tax credit.
Credit for child and dependent care expenses.
Tests To Meet
In general, all four of the following tests must be met to claim someone as a qualifying child.

Relationship test.
The child must be your child (including an adopted child, stepchild, or eligible foster child), brother, sister, stepbrother, stepsister, or a descendent of one of these relatives.

An adopted child includes a child lawfully placed with you for legal adoption even if the adoption is not final.

An eligible foster child is any child who is placed with you by an authorized placement agency or by judgement, decree, or other order of any court of competent jurisdiction.

Residency test.
A child must live with you for more than half of the year. Temporary absences for special circumstances, such as for school, vacation, medical care, military service, or detention in a juvenile facility count as time lived at home. A child who was born or died during the year is considered to have lived with you for the entire year if your home was the child's home for the entire time he or she was alive during the year. Also, exceptions apply, in certain cases, for children of divorced or separated parents and parents of kidnapped children.

Age test.
A child must be under a certain age (depending on the tax benefit) to be your qualifying child.

Dependency exemption, head of household filing status, and EIC.
For purposes of these tax benefits, a child must be under the age of 19 at the end of the year, or under age 24 at the end of 2005 if a student, or any age if permanently and totally disabled.

A student is any child who, during any 5 months of the year:

Was enrolled as a full-time student at a school, or
Took a full-time, on-farm training course given by a school or a state, county, or local government agency.
A school includes a technical, trade, or mechanical school. It does not include an on-the-job training course, correspondence school, or night school.

Child tax credit.
For purposes of the child tax credit, a child must be under the age of 17.

Credit for child and dependent care expenses.
For purposes of the credit for child and dependent care expenses, a child must be under the age of 13 or any age if permanently and totally disabled.

Support test.
A child cannot have provided over half of his or her own support during the year.

Exception.
For purposes of the EIC only, the Support test does not apply.

Qualifying Child of More Than One Person
Sometimes a child meets the tests to be a qualifying child of more than one person. However, only one person can treat that child as a qualifying child. If you and someone else (other than your spouse if filing jointly) have the same qualifying child, you and the other person(s) can decide who will claim the child. If you cannot agree on who will claim the child and more than one person files a return using the same child, the IRS may disallow one or more of the claims using the tie-breaker rule explained in Table 1, next.

Table 1. When More Than One Person Files a Return Claiming the Same Qualifying Child (Tie-Breaker Rule).
IF . . . THEN the child will be treated as the qualifying child of the. . .
only one of the persons is the child's parent, parent.
both persons are the child's parent, parent with whom the child lived for the longer period of time. If the child lived with each parent for the same amount of time, then the child will be treated as the qualifying child of the parent with the highest adjusted gross income (AGI).
none of the persons are the child's parent, person with the highest adjusted gross income.

Dependency Exemption
To claim the dependency exemption for a qualifying child, all four tests listed earlier under Tests To Meet must be met. The child generally must also be a U.S. citizen, U.S. national, or a resident of the United States, Canada, or Mexico. An exception applies for certain adopted children. If married, he or she cannot file a joint return unless the return is filed only as a claim for refund and no tax liability would exist for either spouse if they had filed separate returns.

A person who used to qualify as your dependent but who is not your "qualifying child" may still qualify as your dependent as a "qualifying relative." To claim the dependency exemption for a qualifying relative, the child cannot be the qualifying child of any other person and all five dependency tests discussed under Dependency Tests in Publication 501 must be met.

Note: If you are a dependent of another person, you cannot claim any dependents on your return.

Head of Household Filing Status
In general, you can use head of household filing status only if, as of the end of the year, you were unmarried or " considered unmarried" and you paid over half the cost of keeping up a home:

That was the main home for all the entire year of your parent whom you can claim as a dependent (your parent did not have to live with you), or
In which you lived for more than half of the year with either of the following:
Your qualifying child (defined earlier, but without regard to the exception for children of divorced or separated parents). But, if your qualifying child is married at the end of the year, see Married child below.
Any other person whom you can claim as a dependent.
But you cannot use head of household filing status for a person who is your dependent only because:

He or she lived with you for the entire year, or
You are entitled to claim him or her as a dependent under a multiple support agreement.
Married child.
If your qualifying child is married at the end of the year, both of the following must apply for the child to be your qualifying child for purposes of head of household filing status.

The child cannot file a joint return unless the return is filed only as a claim for refund and no tax liability would exist for either spouse if they had filed separate returns.
The child must be a U.S. citizen, U.S. national, or a resident of the United States, Canada, or Mexico. An exception applies for certain adopted children.
Earned Income Credit (EIC)
You may be able to claim the earned income credit (EIC) in 2005 if you have:

2 or more qualifying children and your earned income is less than $35,263 ($37,263 if married filing jointly for 2005),
1 qualifying child and your earned income is less than $31,030 ($33,030 if married filing jointly for 2005), or
No qualifying children and your earned income is less than $11,750 ($13,750 if married filing jointly for 2005). For purposes of the EIC, a qualifying child must meet the Relationship test, Residency test (without regard to the exception for children of divorced or separated parents), and Age test, earlier. A qualifying child does not have to meet the Support test for purposes of the EIC. But, if your qualifying child is married at the end of the year, see Married child next.
Married child.
A child who is married at the end of the year is a qualifying child for purposes of the EIC only if you can claim him or her as your dependent (see Dependency Exemption, earlier) or this child's other parent claims him or her as a dependent under the rules for children of divorced or separated parents in Publication 501, Exemptions, Standard Deduction, and Filing Information.

Child Tax Credit
You may be able to take the child tax credit if you have a qualifying child that meets all four of the tests listed earlier under Tests To Meet. For additional rules that you must meet, see Publication 972, Child Tax Credit.

Credit for Child and Dependent Care Expenses
Generally, a qualifying person for purposes of the credit for child and dependent care expenses is:

Your qualifying child (defined earlier, but without regard to the exception for parents of kidnapped children), or
Your dependent or spouse who is physically or mentally incapable of caring for himself or herself and who lived with you for more than half of the year.
For purposes of the credit for child and dependent care expenses, a qualifying child and dependent are determined without regard to the exception for children of divorced or separated parents and the child is treated as a qualifying person only for the custodial parent.

For additional rules that you must meet, see Publication 503, Child and Dependent Care Expenses. However, you no longer need to meet the Keeping Up a Home test discussed in Publication 503.

Continue reading "Tax Deductions" »

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September 01, 2006

Never Lie to a Judge

Posted By Brian Perskin

You would be surprised how many people actually either out right lie to the Court or misrepresent the truth. For the most part Judges know when a person is lying and when they find out, it will feel like every ruling is going agaist that person.

An experienced divorce attorney in New York, will not stand for a client who is a liar or who misrepresents the truth to the court. Judges have a short memory and if a lawyer gets a bad reputation in the Courthouse, he or she will not go very far.

Continue reading "Never Lie to a Judge" »

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August 28, 2006

Do I need a pre nup?

Posted By Brian Perskin

If you have an asset or a degree that you want to protect then you need a pre nup...

In New York it is advisable to get a pre nup if you are entering the marriage with any property of value, including real estate, a business or a licence or a degree. It is even more important if you are attending law school or medical school. A pre nup will protect you against your degree or business becomming marital property.

A pre nup will protect everybody in the marriage. It sets forth each parties rights in the event of a divorce or separation.

In a pre nup the parties can agree before marriage if mainenance (allimony) is appropriate and if it is, what amount should be payed. It seems better to have these numbers set and not leave it up to a Judge at some time in the future. Generally, high wage earners want to limit the amount of maintenance they would have to pay in the event of a divorce.

Continue reading "Do I need a pre nup?" »

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August 28, 2006

What should I do ?

Posted By Brian Perskin

My ex is making it difficult for me to see my children, What should I do ?

Unfortunately, custody and visitation cases in New York are messy. There reallly are no winners. When one parent will lie, and make false allegations, it is difficult for some Judges to have a clear understanding if one party is actually telling the truth.

No matter how angry you are at the other parent, always decided your strategy on what would be best for the child and or children. Is it really worth it to have a custody or visitatation fight for an extra day per week? Some people would say yes. Others would say it was not worth dragging the kids through the process. In the end, nobody wins. Judges do not want to decide every aspect each case that is before them. When negotiating a visitation or custody case in NY, remain firm in your position, however, try to understand the other sides position and try to develop a settlement that both of you can live with.

Continue reading "What should I do ?" »

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August 26, 2006

Is it difficult to get an Annulment in New York

Posted By Brian Perskin

Recently a distraught women walked into my office and wanted an Annulment.....

In New York State, it is possible to have a marriage annuled. There has to be a really good reason, like fraud or a material lie that induced one of the parties to enter a marriage. Generally, annulments are more difficult and a little more complicated than getting a divorce. I never try to sway a client either way. If the facts present itself, and it is appropriate, my office will proceed with an annulment. Unless a divorce is against your reliegion, it has the same practical effect as an annulment. Many people however, want an annulment for emotional reasons.

Continue reading "Is it difficult to get an Annulment in New York" »

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August 26, 2006

Is it enforceable?

Posted By Brian Perskin

Waiver in a Prenup, What does it mean?

http://www.nycourts.gov/reporter/3dseries/2006/2006_05592.htm

Read the most recent case in New York concerning a prenup agreement. Always consult an attorney before you sign one of these.

Continue reading "Is it enforceable?" »

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August 20, 2006

Discovery and Settlement

Posted By Brian Perskin

Why do litigants have to turn over all of their financial documents to the other side ?

Financial disclosure is mandatory in New York divorce cases. Judges get annoyed at litigants who do not comply with discovery. Many times it is the lawyers fault for not complying. Many lawyers are disorganized and do not advise their clients properly. I have been in Court countless times when Judges yell at the lawyers and their clients for failing to turn over discovery documents. Common sence tells you not to have the Judge who is deciding your future feel you are trying to hide something from the other side.

Continue reading "Discovery and Settlement" »

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August 18, 2006

I need a lawyer

Posted By Brian Perskin

need a lawyer

I do not have enough money to hire a good attorney. What should I do?

.....If you own a home or your spouse has assets in their name, some New York Divorce lawyers will take your case for a reduced initial retainer. In NY either party can apply for legal fees from their husband or wife.

Continue reading "I need a lawyer" »

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The information on this New York Attorney / Law Firm website is for general information purposes only. Nothing on this or associated pages, documents, comments, answers, emails, or other communications should be taken as legal advice for any individual case or situation. This information on this website is not intended to create, and receipt or viewing of this information does not constitute, an attorney-client relationship.

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Recent Posts in Family Law Category

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

What Happens When Parents Behave Like Children

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

It is important to hire a lawyer who stays up to date on the latest developments in the law. For further information about The Law Offices of Brian D. Perskin please click here.

The Validity of Prenuptial Agreements

Divorce Preparation: Step 10 - Stay Put (until further notice)

Divorce Preparation: Step 11 - Keep a diary

Divorce Preparation: Step 5 - Document & Safeguard Personal Property

Divorce Preparation: Step 8 - Address the Credit Accounts

Divorce Preparation: Step 7 - Assess the Financial Accounts

Valid Marriage and Divorce Rules for Green Cards