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Mark Gilmer, Esq.

Monday, June 9, 2014

Stanley v. Stanley - Marital Misconduct and Impact on Property Division in New York Divorce

New York was late to the no-fault divorce bandwagon, being the last state in the country to approve the proceedings in 2010.

However, New York City divorce lawyers know this does not mean neither party will be held culpable for misdeeds during the marriage, especially when that misconduct is financial in nature. For example, a husband who spends thousands of dollars buying jewelry and other gifts for a mistress will likely have to account for that money during the divorce settlement. So too will a wife who squanders a fair portion of a joint savings account to feed a gambling addiction.

The courts also have specific means of dealing with individuals who attempt to purposely sell off marital property in an effort to keep it from the spouse. This particular action is referred to concealment of assets by fraudulent conveyance.

This issue was addressed recently in Stanley v. Stanely by the West Virginia Supreme Court, which also has specific laws regarding the conveyance of marital property. There, state statute says that spouses have 30 days to notify one another of real estate conveyance. If they don't and a divorce is filed within five years of that conveyance, the other spouse is entitled to compensation for what would have been his or her share of that property.

Here, the wife entered the marriage with 27 acres of land, on which her home was located. The husband moved in, provided $30,000 for her to pay off the deed trust on the property (so that she could legally own it in full) and additionally made various improvements to the property over the years.

Following a decade of marriage, the pair sought a divorce. The husband initially offered to forfeit his interest in the property - and the marital home on it - if she would simply reimburse him his $30,000. She agreed at first, but then later backed out.

The court would later learn that instead, she legally gifted the property to her five adult children. She reportedly did so without providing notice to her husband of this deal.

The family court agreed that notice was not properly given, and ordered that the value of the property be considered as marital property for purposes of equitable distribution. That ruling was reversed by the circuit court, but then that ruling was reversed by the state supreme court, which backed the family judge's ruling.

As the property already legally belongs to a third party (the children), the court, in seeking equitable distribution, will likely offset that value against whatever the wife would have otherwise been awarded. So for example, her entitlement to her ex-husband's life insurance benefits, retirement accounts, savings, etc. could be significantly curtailed as a result of the decision.

New York spouses who believe they have been similarly taken may wish to take action under the Uniform Fraudulent Conveyance Act, codified in N.Y. Debt. Cred. Law. §§ 270 – 281.

An example of this was the lawsuit of Bloomfield v. Bloomfield, in 2001, wherein the wife accused both her husband and his brother of concealing marital estate assets, with the husband transferring property to his brother prior to the divorce. The court held that she could pursue damages under the UFCA.

Further, the 2006 ruling in Jackson v. Brinkman indicated that a divorcing spouse can forfeit the right to recover a certain marital asset if the claim of wrongful transferee of marital property is not properly joined to a pending divorce case. Knowing whether such action is appropriate requires the review of an experienced New York divorce lawyer.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Stanley v. Stanley, May 27, 2014, West Virginia Supreme Court

More Blog Entries:

Expectancy of Interest Argument Against Property Inclusion in Marital Estate, May 22, 2014, New York City Divorce Lawyer Blog

Saturday, June 7, 2014

Brooklyn Child Support Modification Requests Must be Preceded by Significant Changes

Court-ordered child support payments are set based on a number of factors, including both parties' income, obligations and the needs of the children.

Given that such careful consideration is made to the determination of this figure, Brooklyn child support modification attorneys are well aware that judges aren't inclined to modify the original order unless there has been a material change in circumstance.

The term "material" is one that is widely left open to the interpretation of the court. For example, if you were laid off from your job and are only accruing unemployment benefits, the court may agree to temporarily reduce your payments. Alternatively, if you are fired from your job because you didn't show up or failed a drug test, the court may determine this is a willful violation, and in turn refuse to modify your payments.

It's going to be up to your lawyer to make the best possible argument in your favor.

In the recent case of Garza v. Garza, before the Nebraska Supreme Court, the justices were tasked with determining whether the family court's grant of a father's child support modification request was proper, as the decision was appealed by the mother.

According to court records, the pair were married in the summer of 2005. Not six months later, a son was born to them, and that same month, the mother filed for divorce against the father.

The original divorce decree/parenting plan allocated primary custody to the mother, with weekend visitation given to the father, who was required to pay $500 monthly in child support.

In early 2010, the father was unemployed and subsequently moved out-of-state to obtain work. He later filed a motion for a material change in circumstance, based on his lesser-salaried new job and his out-of-state move.

The mother subsequently filed an order to show cause why the father shouldn't be held in contempt for willfully and contemptuously violating the earlier court ruling. He was indeed found in contempt, based on his being nearly $8,000 in arrears in child support, plus another $10,600 he owed her for child care expenses and $31,000 he had yet to pay her per the divorce property settlement.

The court agreed to purge his contempt if he paid $3,000 in child support upfront and kept current on his subsequent payments. He did so, and the contempt was purged.

However, soon after, he was laid off. He filed an amended application for modification, citing not only his new unemployment, but also the fact that the child had since become school-age, meaning day care expenses were significantly reduced.

The court did ultimately reduce his payments from $500 monthly to $305 (rejecting his request to make them $50 monthly). It also determined the mother was not required to meet the father half-way to aid in his visitation so long as he remained unemployed, and that once he had again found work, he was to pay her $2,500 in attorneys' fees.

He appealed on the grounds the court erred in reaching the transportation arrangement it did and insisted his payments should have been further reduced and that he should not have to pay his ex's attorney. The mother cross-appealed on the grounds that the court erred in slashing the child support award.

The state supreme court upheld the modification, finding no reversible error.

The court could find no indication that the father's two bouts of unemployment were the result of bad-faith, and they did constitute a material change in circumstance that warranted a reduction of child support. Still, the court weighed his earning capacity, as opposed to his actual income, in determining what the set rate should be. This, the high court ruled, was appropriate.

For the most part, judges aren't interested in creating a windfall for one parent or leaving the other destitute. They do generally strive to reach a fair conclusion that is ultimately in the best interests of the children involved.

Still, having an experienced legal advocate to sympathetically explain to the court your circumstances will help allow you to provide for your children in a way that is  adequate, fair and manageable.

Those with questions about Brooklyn child support modification petitions should call our offices at (718) 864-2011.

Additional Resources:

Garza v. Garza, May 23, 2014, Nebraska Supreme Court

More Blog Entries:

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences, May 28, 2014, Brooklyn Child Support Modification Lawyer Blog

Tuesday, June 3, 2014

Domestic Violence in Brooklyn Divorce Cases Must be Handled Carefully

Domestic violence can be the catalyst for a Brooklyn divorce filing. Unfortunately, a divorce filing can also result in the escalation of abuse.

In fact, the most dangerous time for a victim is when she finally makes known her plan to leave. Domestic abuse is all about control. Once an abuser fears a loss of control, he or she may become a serious threat.

Our Brooklyn divorce attorneys are well-versed in handling sensitive cases such as these. We not only help victims coordinate with local social service agencies to formulate a safe exit strategy, we can help file orders of protection on behalf of yourself and your children. We can also work to help you extricate yourself from the legal trappings of the relationship in a way that requires you to have little to no contact with your ex. This includes addressing your child custody and visitation concerns. If you can show the court that your children have witnessed abuse by your partner or suffered it themselves, the court may choose not to award visitation at all.

But again, these cases have to be handled with great care, not only for the safety of the victim, but also for the success of your divorce. The allocation of assets and property as well as potential child custody and maintenance determinations will have a significant bearing on your ability to move forward. If handled incorrectly, you may find yourself in an unfavorable situation. 

Such was the case for an alleged victim recently in Yelena R v. George R., a matter weighed by the Alaska Supreme Court.

According to court records, the pair in this case were involved in an on-again off-again relationship for more than 10 years. They shared two children together.

The mother accused the father of sexually assaulting her in 2011, while the pair was still living together. She contends that this was the culmination of long-standing abuse he inflicted upon her, beginning some five months after they were married. She said in some cases, the violence was reciprocal, and they were both at various points arrested for inflicting violence on each other.

Her husband filed for divorce in 2004 in California. A court granted primary physical custody to the father, with regular visitation awarded to the mother. Despite their divorce, the pair continued to live together intermittently over the next several years. Their daughter was born in 2006. The mother would later say the father pushed her down a flight of stairs when she was six-months pregnant because he did not want her to have the child.

She claimed that after the family moved to Massachusetts, she found earrings in their bed that weren't hers. When she questioned her spouse, he reportedly assaulted her while their daughter lay next to them. She suffered a punctured kidney, and he was later arrested.

The pair separated, but again moved back in together about five months later, against the advice of the husband's commanding officer in the U.S. Coast Guard. This pattern continued for years. When the father relocated to Alaska for work, the mother soon followed. In the short lapse, the son developed a severe dental issue, which the father would later blame on the mother's alleged neglect.

Still, the pair continued to live together, and it was during this time that the alleged sexual assault occurred.
The incident was immediately reported to her work supervisors (at a domestic violence shelter). The U.S. Coast Guard also launched an investigation into the alleged incident.  A military protective order was issued and a probable cause hearing on court-marital charges indicated reasonable grounds to believe the assault happened.

A short-term protective order was issued in civilian court, but the magistrate denied a long-term order.

The mother then fled with the children back to Massachusetts, leaving behind only a note to the father. The court-martial charges were dismissed. No civilian criminal charges were ever filed.

A hearing in Massachusetts resulted in the children being sent back to Alaska for custody proceedings. It was there the father was granted full custody.

The mother appealed, but the family court's order was allowed to stand.

As in many domestic violence situations, particularly those involving a couple with extensive history, the facts here were incredibly convoluted. It takes an attorney with extensive experience to highlight to the court the accuser's suffering, even in scenarios where the victim has returned again and again. This is in fact indicative of the classic pattern of domestic violence, which is only recently beginning to gain a greater understanding culturally and within the realm of family law.

The biggest mistake the mother made here was fleeing with her children out-of-state without court approval. She may have felt she had no other choice. We are committed to ensuring that all of our clients have a complete understanding of their options. It's our goal that as you set off on the next chapter of your life, you do so in safety and with every advantage possible.

If you are interested in filing a Brooklyn protection order, call our offices at (718) 864-2011.

Additional Resources:

Yelena R v. George R.,May 23, 2013, Alaska Supreme Court

More Blog Entries:

Davidson v. Carillo - Importance of Attorney Representation in Child Custody Matters, May 30, 2014, Brooklyn Divorce Lawyer Blog

Friday, May 30, 2014

Davidson v. Carrilo - Importance of Attorney Represention in Brooklyn Child Custody Matters

It can be tempting when pursuing action in family court to represent ones' self. After all, it's not required, and why not save the money on attorney's fees, right?

The problem is that this often ends up costing more in the long run, whether directly in cash or assets or, as in cases of child custody, parenting time and other benefits that one may deem important.

Our Brooklyn family law attorneys are dedicated to fighting for our clients, even in complex cases, and we strive to keep our prices reasonable in doing so. That's why we offer $399 uncontested divorce assistance, and $599 uncontested divorce assistance in cases involving children.

These costs should be considered investments in yours and your children's future. The recent case of Davidson v. Carrillo is an illustration of how not hiring an attorney can backfire.

In this case out of Wyoming, the parents had two children together. While both parents were separated, the relationship was cordial and both parents indicated that while they had greatly varying styles of parenting, they each respected the other.

For a time, the older child, who had special needs, was living with the father while the younger child was living with the mother. Both parents worked jobs earning less than minimum wage, though the mother was attending school full-time.

The father filed a petition seeking primary custody of the younger child, indicating it was in the children's best interests to live together, as they shared a close relationship. He also sought child support. He did both things without the aid of an attorney, and both of his requests were granted.

The problem was the terms on which these requests were granted. The parenting time order the court reached essentially gave the mother more daytime hours with the children than the father, despite his position as the parent with primary custody. Additionally, the mother was ordered to pay $280 monthly in child support payments, which the father would later contend were insufficient and improper because no financial affidavit had been requested prior to the order. Also, the court did not order those payments to made retroactively. The father would also later argue that his due process rights were circumvented when the court limited the amount of time during the trial court hearing in which he was allowed to cross-examine his ex-wife.

The Wyoming Supreme Court granted review upon appeal, which was also filed pro se (without a lawyer). The state high court rejected all of the husband's arguments. The court found that most lacked merit, but beyond that, husband had failed to raise objections to these issues during the trial court hearing. Raising objections during hearings - even if they are overruled - preserves the issue for later consideration upon appeal. 

This is something we would not necessarily expect someone who is not an attorney to know. In fact, there are many procedural issues of which the parties involved may not be aware.

By all accounts, this individual fared better than most, having been granted his initial requests. This was likely due to the fact that, by all accounts, he was articulate and respectful and presented a good case. However, the divided outcome shows that this is not always enough.

While it's impossible to say for sure, there is a likelihood that had he been represented by an attorney, the outcome may have been more to his advantage.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Davidson v. Carrillo, May 22, 2014, Wyoming Supreme Court

More Blog Entries:

Negotiating a Fair New York City Divorce Settlement, May 5, 2014, Brooklyn Child Custody Lawyer Blog

Wednesday, May 28, 2014

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences

The criminal conviction of a deadbeat dad was recently upheld by the U.S. Court of Appeals for the Tenth Circuit, where the defendant in U.S. v. Fuller was ordered to pay $54,000 in restitution to the mother of his three (now-grown) children and serve time on probation.

New York City child support attorneys understand that this was the conclusion of a years-long effort to find this man and collect. We are dedicated to ensuring our clients won't have to endure such an ordeal, and that payments can be secured in a timely manner, while the children are still minors and can benefit from those payments - which is the whole point of child support.

One of the most common actions taken against parents who don't pay child support in New York is a contempt proceeding, initiated by the parent to whom the money is owed. These are among the few instances in civil cases where a person can be ordered to serve time in jail. Incarceration can be ordered for an indefinite period until payment is made. The non-paying parent could also be sentenced to a jail term as punishment for failure to comply with the court's earlier orders.

The key to successfully pursuing this option is to prove the non-paying parent has the ability to pay and has willfully failed to do so. The non-paying parent could have a successful defense if he or she can show that they legitimately did not have the ability to pay.

In some cases, the court may find that a parent's lack of a job isn't an excuse. If the court finds the non-paying parent willfully avoided gainful employment, he or she could still be held in contempt.

In pursuing claims against a non-paying parent who lives out-of-state, it's important to understand that the federal Uniform Interstate Family Support Act gives sole jurisdiction to the court in which the child support order was issued.

Additional federal legislation - including the Child Support Recovery Act and the Deadbeat Parents Punishment Act - allow for additional penalties for parents who refuse to pay.

It was under these acts that the defendant in the Fuller case was prosecuted.

According to court records, the couple met in the late-1970s when they both worked at an aviation parts supplier. The two married, divorced and then married again by 1983. Over the course of the next 10 years, the couple had three children.

During this time, the husband quit his aviation parts job to work full-time as a musician. This became a spot of contention in the marriage, as his earnings were meager and there were difficult financial realities involved in providing for three children. The wife would later say that while she believed her husband was talented, he had chosen his music over his children because he refused to get a "real" job, while she worked full-time and had to place the children in daycare.

Eventually, the pair divorced. The husband did not attend any of the hearings, but was ordered to pay a little less than $400 a month in child support. 

He did not. While the wife worked full time, put herself through college and raised the children on her own, the husband sporadically made payments, but none of any significance and never with regularity.

In 1996, the mother sought help in enforcing the child support order, but was deterred by the fees.

More than a decade later, the federal government pursued criminal action against the father. The court called to testify his ex-wife, as well as several club owners who had paid him to perform and child support personnel who had for years attempted to locate him and make him pay.

During trial, the father argued that the government's evidence had shown, at most, that he had only earned $5,200 over the course of 17 years (when the child support order was in effect), and that he lacked any ability to pay.

The court rejected this theory, convicted him and ordered him to serve five years of probation and pay $54,000 in restitution to his ex-wife.

He appealed, but the federal appellate court affirmed the earlier verdict.

If you are seeking enforcement of a child support order New York City, call our offices at (718) 864-2011.

Additional Resources:

U.S. v. Fuller, May 13, 2014, U.S. Court of Appeals for the Ninth Circuit

More Blog Entries:

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse, May 20, 2014, New York City Child Support Attorneys

Monday, May 26, 2014

White v. Howard - Life Insurance Policy May be Considered a Form of Alimony

Divorcing couples tend to think of "alimony" as monthly payments made in the form of cash to one spouse or the other, usually for a finite period of time that terminates by a certain date or in the event  of remarriage. For the most part, this is exactly true.

However, the Georgia Supreme Court recently handed down a ruling in White v. Howard indicating that other assets (namely, a life insurance policy) could potentially be considered alimony for purposes of divorce. Brooklyn alimony attorneys recognize that this could make certain elements of divorce a bit messier for family courts seeking to ensure both sides are treated fairly.

This case involved a pair married for 35 years at the time of their separation. In the final divorce decree, the court indicated that neither party would be entitled to alimony, but did order the following:

  • That the husband obtain a life insurance policy worth $100,000 that named the wife as the beneficiary and maintain that policy for 12 years.
  • That the wife was to receive half of the husband's pension.
  • That the husband was supposed to make partial payments on the mortgage of the home in the wife's name until such time that the property was sold.

The court specifically stated in its order that these items were to be considered matters of equitable distribution of property - and not alimony. That order was issued in 2007.

Four years later, the wife remarried. Shortly thereafter, the husband filed a pro se motion (meaning without an attorney) seeking to terminate all three of these benefits, arguing they were a form of alimony that should be terminated when she remarried.

The wife responded with a motion to dismiss and a request for attorney's fees. The husband retained an attorney and subsequently filed a motion to modify alimony. A trial court held a hearing and issued a ruling in favor of the wife, dismissing all claims and granting attorneys fees. The court cited the earlier specification that these elements were not alimony, but part of equitable distribution of marital property. 

The husband did not fight back on the issue of the ongoing mortgage payments or pension, but he did appeal the decision as it related to the life insurance policy. He insisted this was a form of alimony. 

The state supreme court ultimately agreed with him. 

The court first explored the definition of periodic alimony, which is when maintenance payments are slated for an indefinite period of time, making the total amount indefinite as well. The court indicated that such orders could be modified if the financial circumstances of either party changed substantially. By contrast, with equitable distribution of assets, the assets in question are fixed, and the trial court doesn't have the authority to modify a final order on these matters, regardless of a change in circumstance. Also, lump sum alimony payments (those wherein the spouse receives a set amount of maintenance to be paid at one time) cannot be modified.

The wife argued in this case that the life insurance policy was a form of either lump sum alimony or equitable distribution, therefore not subject to modification.

The court disagreed with this because of the uncertainty that comes with a life insurance policy - specifically, the unknowable fact of how long the husband is going to live. That means it could be worth the 12 annual premiums he paid, or it could be worth $100,000, plus whatever premiums he paid up until the point he died. Because the value could not be determined, it was subject to modification.

Further, the court cited a previous case (Hawkins v. Hawkins) wherein the court had already established that the obligation to carry life insurance for the benefit of the other spouse is in fact a form of periodic alimony.

On these grounds, the supreme court reversed the trial court's ruling on this matter and remanded for reconsideration, based on the wife's remarriage.

If you are interested in alimony modification in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

White v. Howard, May 19, 2014, Georgia Supreme Court

More Blog Entries:

Court: Phone Sex Not Grounds for Resetting the Divorce Clock, May 18, 2014, Brooklyn Divorce Lawyer Blog


Thursday, May 22, 2014

Expectancy of Interest Argument Against Property Inclusion in Marital Estate

In filing for a Brooklyn divorce, one of the first things both sides will seek to establish is a full accounting of a couple's assets, income, and interests. It is then up to the court to determine whether such property is divisible as part of marital property, or whether it should be retained solely by one spouse as separate property.

What is considered marital property and what is considered separate is a determination that varies from state-to-state. Generally, though, assets acquired during the marriage are marital. Those acquired before or received under special circumstances may be held separate.

As the recent case of Coburn v. Cook shows, this determination can impact not only whether a party gets to keep the property in question, but may also impact how other property is divided.

This is a case out of Vermont, which, like New York, is an equitable distribution state.  This means the court is going to seek to divide marital assets equitably (which does not necessarily mean "evenly").

The dispute upon appeal to the Vermont Supreme Court was whether a husband's "expectancy interest" in a property should have been lumped in with the other marital assets.

Here, the parties married in 1997. They had a daughter in 1999 and separated in 2010. The court issued a final divorce order in 2013, when the wife was 48 and husband 55.

Prior to the marriage, the wife had her own horse stabling and training business, with property valued at $260,000. The husband assisted, and as a labor intensive operation, it was worth more when they worked together than when she worked alone. The husband also worked various other jobs. In 2010, prior to the couple's separation, the husband's mother deeded a 160-acre family farm to her son, though she retained a life estate and the power to sell or mortgage the property during her life. That property was appraised at $425,000, plus there was an adjacent empty lot he owned valued at $15,000. The parties also owned a small joint business together valued at $40,000.

The court analyzed both parties' employment and living situations, with the husband living with his mother and working part-time as a bus driver and the wife continuing to work in her stabling business and also running the business she started with her husband.

The court awarded the wife the horse stabling property, an adjacent lot, the couple's joint business and other personal property. The husband was awarded his mother's farm, the adjacent lot and other items of personal property. The court determined the value of the wife's award was around $436,000 while the husband's was around $453,000. No spousal support was awarded.

The husband appealed, arguing that the court wrongly included his mother's farm in the marital estate. He held that the terms of the warranty deed meant that he held an interest that would be considered similar to that of a beneficiary in a will or revocable trust. The court overlooked this fact, he contended. As such, the wife retained a disproportionate share of the marital estate. 

The Vermont Supreme Court agreed with him on the first argument. While noting that the court has a wide range of discretion in determining what is marital property, the court harkened back to earlier case law that held any interest a spouse held as a beneficiary under a revocable trust or will wasn't deemed marital property, ripe for court-ordered distribution, if the settlor was still alive. The reason was that the property was or interest was a mere "expectancy."

The court ruled that in the Coburn case, the husband's interest in the property was inchoate, or not fully developed, and therefore could not be distributed as marital property.

The same kind of outcome could generally be expected in New York, though the major exception with expectancy of interest would be pensions or retirement benefits. The courts have ruled that these are earned by both spouses in a marriage, and may be considered as marital assets available for division.

If you are contemplating a divorce in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Coburn v. Cook, May 2, 2014, Vermont Supreme Court

More Blog Entries:

Baby Boomer Divorce Requires Financial Preparation, May 2, 2014, Brooklyn Divorce Lawyer Blog

Tuesday, May 20, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse is not grounds enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact substance abuse had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year in their previous hometown in Nebraska.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work. She admitted prior methamphetamine use, saying she was clean for seven years, but then relapsed in 2012. She conceded that authorities had removed her children before due to her drug use. She later completed a court-ordered program, and the children were returned. She admitted to another relapse in March 2013, but said the girls were not present.

Later, after a period of time during which social workers could not reach her, she came into the offices at the agency's request. She indicated the girls were with her mother, she had been staying with a boyfriend and had been using. Social workers noted her odd behavior during the interview, which involved wildly swinging emotions, from laughing to crying to anger. A drug test confirmed substances in her system, and staffers who administered the test believed she was under the influence at the time.

Child protection workers arrived at the grandmother's home the next day. They found the residence to be spacious, clean, appropriately furnished and the children appeared well taken care of.

The mother stated she visited the children with the grandmother's supervision, but that she ultimately wanted the girls back in her care. She said she changed her phone number, ended a number of unhealthy relationships and was willing to attend inpatient treatment.

She did later attend outpatient treatment, but then relapsed again and was admitted for residential treatment. At this point, the state filed a petition alleging that the girls should be classified as "children in need of assistance." This essentially would take formal custody away from the mother.

The mother was not represented by an attorney in court. She did not object to any of the state's exhibits and she presented no evidence of her own. The court declined immediate adjudication, instead calling for another hearing. Yet again, the mother had no legal representation, and did not refute any of the items the state entered into evidence. 

Subsequently, the court ordered the girls to be formally placed in the care of their maternal grandmother.

At that point, the mother retained a lawyer and appealed. The appellate court reversed, finding that the state failed to meet its burden of proof to show that the girls needed to be adjudicated as children in need of assistance. The state then sought review from the Iowa Supreme Court.

The high court indicated that simply showing that a parent was a methamphetamine addict - without more - isn't sufficient evidence to establish that there is an immediate risk of physical injury to the child.

In New York, there have been cases where a parent with a history of substance abuse was chosen to be a more fit parent than other relatives. An example is Worowski v. Worowski, a 1983 decision rendered by the Appellate Division of the Supreme Court of New York, First Department. Here, the court ruled that a mother with a history of alcoholism who was improving was a more fit parent than a 74-year-old father who had little to no meaningful interaction with the child.

This is not to say that New York family courts will turn a blind eye to children who suffer as a result of a parent's addiction. However, addiction alone is not necessarily enough to warrant stripping the parent of custody rights. Every case will be different.

Consulting an experienced family law attorney is the best way to determine your options.

If you need assistance in dealing with New York ACS, call our offices at (718) 864-2011.

Additional Resources:

In re: Interest of J.S., April 25, 2014, Iowa Supreme Court

More Blog Entries:

Failure to Follow Brooklyn Child Custody Orders Can Result in Sanctions, May 1, 2014, Brooklyn ACS Attorney Blog

Sunday, May 18, 2014

Court: Phone Sex Not Grounds For Resetting Divorce Clock

A family law judge in Maryland held that a couple's phone sex with one another did not reset the clock on their divorce, which was filed on the grounds of a 12-month separation. The two had not been physically intimate during that time, but the wife contended they had "engaged in marital relations."

The allegation had the potential to derail the divorce proceedings entirely, as filing on the grounds of a separation required that the couple had not "cohabited." But is sex cohabitation? If so, does phone sex count?

New York City no-fault divorce lawyers know that this finding is relevant to New Yorkers because our state has significantly less previous case law on such matters than other states, having only adopted no-fault divorce legislation in 2011.

No-fault divorces in New York may be granted if husband and wife have lived apart pursuant to a written agreement of separation for at least one year or if the relationships has been "irretrievably broken down" for at least six months prior to the filing. Any indication that the couple has been intimate during this time won't necessarily force the couple to restart the proceedings, but it could certainly be used by one of the parties to delay matters.

Like Maryland, New York retained its fault-based divorce grounds, and just added the no-fault divorce ground. Prior to this addition, there were other fault-based grounds for divorce that could have been applicable if one spouse moved out. These included abandonment of 12 months or more, cruel or inhuman treatment that causes a spouse to discontinue cohabitation for 12 months or more or confinement of one spouse in prison for three or more years.

Today, family courts are less concerned with determining who is wrong in the situation and more concerned with whether the union is over, and if so, how to reach equitable solutions on matters of property distribution and child custody.

In the case of Bergeris v. Bergeris, the pair married in 2006. In 2010, the wife retained a restraining order against her husband, and he moved out. The order expired six months later, and the two continued to live separately. They did for a time resume a sexual relationship, but that ended in March 2011, after which they did not share in-person, intimate contact. However, the pair did exchange text messages and phone calls that were of an explicit sexual nature.

By March 2012, the husband had already filed for divorce, but amended his complaint on the grounds of a one-year, uninterrupted separation. The wife refuted this on the basis of their intimate electronic communications.

The questions before the court were whether sex should be considered the same as cohabitation in determining whether a couple is truly separated, and secondly, whether electronic sexual encounters should be considered.

The trial court ruled that "without cohabitation" should be interpreted as "without sexual relations," and that phone sex is considered part of a sexual relationship. That meant separation clock would have to be reset to the time of their last intimate communication.

Upon review, the Maryland Court of Special Appeals agreed with the first part of the trial court's ruling - that sex equals a form of cohabitation - but disagreed that phone sex qualified. The justices pointed to a persuasive argument presented by the husband, which was that there was a legal standard problem in how to define "phone sex," and there was also an evidentiary problem in determining whether it happened in the first place.

Therefore, the court held, instances of electronic or telephonic communication of an intimate nature - absent physical sexual contact - isn't considered cohabitation for the purposes of divorce proceedings.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Bergeris v. Bergeris, April 30, 2014, Maryland Court of Special Appeals

More Blog Entries:

Negotiating a Fair New York City Divorce Settlement, May 5, 2014, New York City Divorce Lawyer Blog

Friday, May 16, 2014

Boulds v. Nielson - Just Because You Weren't Married Doesn't Mean You Won't End Up in Court

Cohabitation has quickly become "the new normal" for couples in the U.S., with women more commonly choosing to live with men first before marriage, and many of those relationships never being legally formalized.

However, Manhattan divorce attorneys know that just because a couple wasn't married doesn't necessarily mean that disputes won't be handled in court, or that former cohabitants won't have to divide property or pay support.

In the recent case of Boulds v. Nielson, the Alaska Supreme Court supported the lower court's findings, which essentially handled the separation of a cohabiting couple much the way it would a divorcing one.

Here, the pair were together 16 years. During that time, they lived together, raised children together and owned property together. He claimed her as a dependent on his taxes. However, they never married.

The court determined that their union had been a legal domestic partnership, and as such, matters of child custody and property and asset division could be appropriately litigated in family court.

The proceedings were largely uncontested, save for the issue of certain insurance and retirement accounts. Namely, these involved an insurance death benefit, a 401(k) retirement account and a union pension. The holder of these counts argued that they belonged to him alone. His former girlfriend argued otherwise.

The court found that the insurance death benefit and the 401(k) account were his alone, but the union pension benefits were not, and could be considered a domestic partnership asset subject to division.

The man appealed that federal law barred division of his union pension with a non-spouse, and that the lower court had erred in considering only his initial intent to share the pension with his then-girlfriend for the benefit of their kids.

However, the state high court rejected the notion that federal law barred distribution of union pension benefits to non-married spouses. Under state law, the court found, she was entitled to half.

This mirrors what we might expect to see at the conclusion of a New York City divorce trial, though each state varies a great degree on what it considers to be a "common-law marriage" or a "domestic partnership," and legal protections vary greatly.

In New York, domestic partnerships can be obtained through the city clerk's office. Though they were more heavily utilized for homosexual couples before gay marriage was green-lighted, they are still available, and aren't limited to gay and lesbian couples. Among the benefits of a domestic partnership:

  • Entitlement to health insurance benefits;
  • Authorization to be awarded monetary compensation for a partner who dies in the line of duty as a firefighter, police officer, school crossing guard, correctional officer or sanitation worker - or any other city worker killed in the course of duty.
  • Be considered in housing subsidy arrangement;
  • Afforded all next-of-kin visitation rights in hospitals, nursing homes and health care facilities;
  • Entitlement to receive workers' compensation benefits from eligible spouses.

Still, equitable division of property in the event of a separation for a couple with a domestic partnership or who are simply cohabiting is not necessarily a given.That's why we usually recommend drafting a cohabitation agreement that spells out all relevant division of property, should you decide to part ways.

These matters can be more complex than they appear on the surface, and the advice of an experienced family law attorneys is typically warranted.

If you are contemplating a divorce in Manhattan, call our offices at (718) 864-2011.

Wednesday, May 14, 2014

New York City Pet Custody Issues Likely to Increase

When people welcome a pet into their home, they commit to loving it forever - and they usually do. The same is often true of couples who commit to love one another forever, though sadly, about half the time, it doesn't work out that way.

Being that New York City is such a dog-centric place, it's a wonder that the first real case of pet custody we saw was last heard in December. The puppy custody battle in Travis v. Murray made it all the way to the New York County Supreme Court. The judge in this case clearly struggled with the decision, noting that while most humans regard their dogs as fellow humans, the law in the state still technically regards them as "chattel," where their fair market value is the greatest consideration.

But before we get to the conclusion of that case, New York City custody lawyers would note that we are far from the only place dealing with this issue - though every state has tended to handle it a bit differently.

Vermont, for example, recently ruled in the case of Hamet v. Baker, where a couple married for nearly a dozen years had agreed on the division of everything else - except the dog. The 11-year-old pointer was undeniable loved greatly by both the husband and wife, who had no children together.

Prior to a hearing to decide the matter, counsel for both parties indicated that the court would consider who was most active and caring toward the dog, and underscored the fact that the court would not enforce a visitation schedule, even if both parties agreed to it.

Both testified at the hearing to strong emotional ties toward the dog. The husband, a veterinarian, took the dog to work with him daily. The wife spent time walking the dog in the woods each day. Each was involved in the dog's daily care.

The court ultimately awarded custody to the husband, finding that though either party could provide the dog a good life, the husband was favored because the dog was used to the routine of going to work with him each day. This was weighed against the dog's familiarity with the marital home, which the wife was keeping in the divorce settlement.

The wife appealed the court's refusal to entertain a joint custody arrangement, but the state's supreme court affirmed, holding that a family court can't enforce visitation or shared custody orders for animals.

Here, the court took an approach that quasi-humanized the animal. It considered the animal's best interests, similar to the way we might consider a child's best interests. However, it declined to allow for joint custody, the way it would normally do in a child custody case.

In New York, Manhattan Justice Matthew Cooper oversaw the Travis case. Prior to the conclusion in that case, Cooper was quoted by the New York Post as saying that he was surprised he hadn't seen more of these cases up until that point, and that he expects more will be heard in the future.

The Travis case involved a 2-year-old miniature dachshund puppy named "Joey." Each of the two divorcing women asserted that she was able to provide the most loving, stable home for the dog.

The judge noted that the only similar prior case to arise before the court involved an older Labrador mix. In that case, the wife agreed to drop the matter due to the dog's old age, and the canine did die just a few months later. Cooper noted that given Joey's age, this case was unlikely to be resolved by death.

The judge went on to say that case law was just beginning to evolve in this arena. 

He declined to use a strict property analysis in the Travis case. The judge then looked to standards adopted by other state courts, as the record in New York for these kinds of cases is limited.

For example, the 1999 case of Raymond v. Lachmannhad established that the concept of a pet as merely household property is "outmoded." There, the judge took into account the well-being of the dog, the well-being of an elderly cat in the home and the relationship he shared with each party. Essentially, certain intangibles transcended ordinary actual ownership or right to possession.

The judge determined that a single hearing - not to last more than a day - should be held to determine who will get full and final custody of the creature. Joint custody or visitation arrangements would not be entertained, and each side would have a chance to present their case.

A date on that hearing is still pending.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

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