New York Family Law and Divorce

Choosing the right lawyer for your divorce is the single most important decision you will make. The initial consultation can be daunting; especially if this is the first time you have spoken to an attorney. Knowing what to look for and expect during a consultation can go a long way in deciding whether or not to retain an attorney.Initially, the lawyer must provide you with a statement of client’s rights and responsibilities. You will probably have to sign a copy to acknowledge that you have received a copy of it. This mandatory statement is a brief outline of the rules which apply to lawyer retainer agreements.

The lawyer should also explain about the attorney-client privilege. Any communication between a client and a potential client is confidential; that means even during an initial consultation, the privilege protects the client’s statements from being disclosed.

The lawyer should let you speak. While there are specific pieces of information that a lawyer must obtain during a consultation, a lawyer who simply jumps to asking questions may be the kind of attorney who doesn’t listen to his or her client. If you can’t express yourself during the consultation, there is a significant change you won’t be able to do so as the divorce progresses. However, a good lawyer should be able to identify key issues, and may very well cut in while you speak to obtain additional details.

At some point, the lawyer should explain the basics of the divorce process. An explanation of how to commence a divorce, the purpose of the complaint and the answer, the discovery process, and a rough timetable of each phase of the divorce. The lawyer should identify the most obvious issues you are facing such as grounds, custody, child support, spousal maintenance and the division of martial property. Discovery issues should also be discussed as well, and should include any potential difficulties you could expect in obtaining the necessary information for your case. Optimally, the lawyer should give a rough estimate as to how the court would decide each issue, ranging from best case, worst case, and most likely case, along with the factors that could influence the ultimate outcome for each issue as the case progresses.

Legal fees should also be discussed up front. The lawyer’s hourly rate should be clearly stated, as well as the amount of the initial retainer, plus any other expected costs necessary for your case.

Unless there is a time sensitive deadline, such as you have already been served with papers, beware of a lawyer who appears to pressure you to retain them right away.

By the end of the consultation, you should have a fairly good idea what the important issues are, what the applicable law is, and what your rights and obligations are. Optimally, you should be presented with various options as to how to approach your case, although this is fact specific. Most ethical lawyers will provide a sample retainer to potential clients for their review prior to being retained.

Finally, whenever possible, speaking to more than one attorney is always a good idea if possible. Many people with attorney problems are those who simply retain the first lawyer they speak to.

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Newsday’s excellent series on New York divorce law continued this past Sunday with this article. Hopefully this series will raise more public awareness of many of the issues facing divorcing couples.My only concern about this series is that implies that grounds are a contested issue in nearly every divorce, as implied by this passage:

In excruciating and embarrassing testimony, she showed why they should be divorced, highlighting her husband’s infidelity and addiction to pornography.

But there was nothing unusual about such an ordeal in New York, the only state without a no-fault divorce law. As a result, thousands of less famous unhappy couples are also forced to run the same harrowing gauntlet to get a divorce.

This is not the situation for most divorces. By and large, the vast majority of cases settle without ever going to court. Even for those cases which do start as contested, the majority of those cases settle as well. And finally, even if two people cannot resolve all issues, grounds are almost never contested.

But what happens when grounds are contested? In a rather perverse twisting of the reasons used by those who oppose no fault, contesting the grounds is almost always used to obtain financial leverage against the person who is bringing the divorce. What usually happens is that grounds are contested by the spouse with greater assets to prevent the court from distributing marital assets.

As I pointed out in my prior post on equitable distribution, the court may only make a property award only if the status of the marriage is changed. Thus there is a great financial incentive to contest grounds when the assets are held by one spouse alone. For all other issues, such as custody, maintenance or child support, the court still retains the authority to make these awards even if the divorce itself is denied.

Over the past five years or so, more and more judges have changed the rules to prevent using a grounds trial solely to prevent equitable distribution late in the case. On the preliminary conference, which is the initial court date, each side must state which issues are resolved or unresolved. If grounds are being contested, the court will often hold a grounds trial early on.

I am personally in favor of true no fault. I’ve yet to see anyone tell me their marriage was preserved by a grounds jury trial. Indeed, I’ve never had a client ask me to save their marriage by contesting grounds. New York’s current fault based system does nothing to preserve marriages, cannot prevent couples from litigating support or custody, and can result in needless expenses for a second divorce action, which would be necessary if an initial divorce action is denied.

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The authority of Family Court to hear orders of protection has been expanded by an amendment to Family Court Act Section 812. A new subdivision was added to FCA 812, which expands the definition of “members of the same family or household.” Subdivision (e) adds the following individuals to the court’s jurisdiction:

(e) persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”.

While no known cases have been published yet interpreting this amendment, it certainly appears to cover both hetero and homosexual relationships.

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The effect of a divorce or annulment has been greatly expanded under an amendment to EPTL 5-1.4.Prior to the amendment, the dissolution of a marriage would only affect a disposition left in a will. Assets left in trust for the former spouse (”Totten Trusts”), life insurance where the spouse was a beneficiary, or even a power of attorney were not affected by a divorce. It was necessary for a former spouse to amend each of these instruments individually. The failure to do so would leave the former spouse as the beneficiary.

Under the new EPTL 5-1.4, a divorce or annulment automatically revokes these dispositions. Thus, if a spouse who forgets to amend his or her will following a divorce, the former spouse will no longer benefit from this oversight. Of course, it is still recommended to update a will after a divorce and to remove a spouses name off of any jointly held asset. But the new EPTL 5-1.4 will help protect individuals who forget to take these steps.

Tags: Annulments, Beneficiary Designation, Divorce, Trusts and Estates // Add Comment »

In Groesbeck v. Groesbeck, the Appellate Division, 2nd Dept., held that the purpose of maintenance is to give a spouse economic independence, and the duration of any award should be long enough to allow the spouse to become self sufficient.The Court also restated the exiting rule that any award of maintenance or child support is retroactive to the date of filing under DRL 236 B(6)(a).

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The New York Times has reported that Gov. Paterson will be signing a bill to amend Family Court Act Article 8 to expand Family Court’s jurisdiction to include dating partners.

As of the date of this blog post, Family Court is authorized to hear family offense petitions only if the parties fall into one of the following four categories:

• They must be related by blood (consanguinity) or by marriage (affinity)
• They are currently married
• They are formerly married
• They have a child in common

I have not read the proposed amendment, but it appears to add a fifth category; dating partners, both straight and gay. Absent such an amendment, the only way one member of a dating couple could seek an order of protection was through criminal court.

While I believe this amendment is long overdue, there is one issue I see initially. Under the current law, determining whether two people fall into one of the four existing categories is straightforward. Being related by blood, a marriage or divorce, or having a child in common is rarely disputed. What needs to be seen is how the legislature will define “dating relationship,” and even then it will be easier to dispute the existence of a dating relationship than it is to dispute the current four categories.

Link to the New York Times Article: Albany to Expand Domestic Violence Law to Include Dating Relationships

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A friend sent me this link to an article in the Orlando Sentinel. A judge in Florida took a very creative approach to a divorcing couple who apparently were bickered over everything.

A feuding couple couldn’t agree how to divide their belongings. So Evans gave the wife the rifles, hunting dog, boat and truck. He gave the husband the armoire, china, quilt collection and silverware.

The rest of the article contains some very practical anecdotes, it’s a good read.

The dos & don’ts of divorce

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Disclosure and Identification of All Property

Continued from Part 1

The next step in distributing marital property under DRL 236 B(5) is to identify all property held by both spouses, both marital and separate. Parties are required to complete a sworn statement of net worth. The statement of net worth has a duel purpose; it allows honest parties to fully disclose all assets held. It also locks each party into what they claim is owned. Should undisclosed assets later be discovered, penalties can range from slight to severe, depending on the nature of the asset and why it was not disclosed.

The most common assets include the following:

• Cash
• Checking and Savings Accounts
• Brokerage Accounts
• Stocks
• Bonds
• Retirement Accounts
• Pensions (vested and non vested)
• Real Estate
• Contingent Interests
• Loans due to the party
• Automobiles
• Jewelry
• Business interest

In addition to these obvious tangible assets, there is an additional asset which is unique to New York divorces; a professional license is considered an asset in addition to a professional practice. See O’Brien v. O’Brien. This “asset” is arrived at by calculating the estimated future earning capacity of the person with the license and subtracting the earning capacity had they not obtained the license. The difference is then reduced to a present dollar amount. How that is calculated will be discussed in a later part in this series.

Since the 1985 holding of O’Brien, the concept of converting future earning potential into a marital asset has been greatly expanded.

The fairness of O’Brien has been questioned quite extensively, and I am among those who think it is an absurd ruling except in very limited circumstances. Thus far, efforts to have the State Legislature overturn O’Brien have failed.

Tags: Discovery, Equitable Distribution // 1 Comment »

Community Property contrasted with Equitable Distribution

There are two main concepts to marital property, community property and equitable distribution.

Community Property

There are nine community property states - Alaska, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Utah and Wisconsin.

Under the doctrine of community property, each spouse has a vested interest in all marital property regardless of title. Marital property remains jointly held until the marriage is terminated by divorce, or upon death of either party. This interest can be asserted during the marriage, after a marriage, in conjunction with a divorce or annulment, or as a claim against an estate.

Contrary to common belief, community property does not mean that the marital property is divided 50-50. States are free to determine how marital property is disposed of in a divorce. Texas will divide community property on an equitable basis, while California presumes that all community property will be divided equally.

Equitable Distribution

Most states, including as New York, use equitable distribution to divide marital property. Under equitable distribution, there is no enforceable right or vested interest in marital property outside of an action to dissolve the marriage. That means that absent a divorce or an annulment, the court is powerless to distribute any marital asset. If a divorce is denied due to a lack of grounds, there can be no equitable distribution. Likewise, there can be no equitable distribution under an action for a judicial separation (DRL 200) since the status of the marriage is not changed.

New York courts will be constrained by this concept when dealing with equitable distribution. For example, in Meier v. Meier, the trial court granted the divorce and divided the marital property. However, on appeal, the Appellate Division reversed the granting of the divorce. Therefore, the marital property was not subject to equitable distribution. The court held

Equitable distribution of the parties’ marital property, unlike maintenance, custody and child support, is only available in actions where the marital relationship is terminated by divorce, dissolution, annulment or the declaration of the nullity of a void marriage, or in a proceeding to obtain a distribution of marital property following a foreign divorce judgment (Domestic Relations Law § 236 [B] [5] [a]; [6] [a]; § 240 [1].

In Adamo v Adamo, the Appellate Division denied a request to sell marital property in a pendente lite motion, as absent some alteration of the marital relationship, the court lacks the authority to direct the sale of any marital asset.

What does this mean in a New York divorce? New York is the only state which does not have true no fault divorce. Contesting grounds can do more than “preserve a marriage,” it can divest the court of the authority to equitably distribute the marital property. Therefore, in conjunction with equitable distribution, grounds can be a significant tactical consideration in a divorce.

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The difference between a divorce and an annulment seems pretty straightforward; a divorce terminates a marriage as of the date of the judgment of divorce, while an annulment treats the marriage as if it never occurred. However, when an annulment is granted, the court may still distribute the marital property under Domestic Relations Law 236B(5), children born during an annulled marriage are presumed to be legitimate, counsel fees may be awarded under DRL 237, and spousal maintenance under DRL 236(B)(6) may be granted.

The latter is exactly what happened in LeMieux v. LeMieux. In LeMieux, the plaintiff husband commenced an action to annul the marriage based on fraud, and won at trial. The Supreme Court then awarded the defendant wife maintenance at $300 per week until the age of 66, death, remarriage, or cohabitation. The plaintiff husband appealed.

The Appellate Division affirmed the Supreme Court’s award of maintenance, finding the court had the authority to make such an award under DRL 236(B)(2), which provides:

2. Matrimonial actions.
Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section.

The lesson here is that no rights are lost or gained by filing an annulment as opposed to an action for a divorce.

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