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Mark Gilmer, Esq.

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.


Wednesday, May 14, 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 alone is not ground enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact that substance abuse has 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 alone 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.

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.


Friday, May 9, 2014

Grandparent Visitation Rights in Brooklyn Not a Given

The relationships shared with grandparents can have a positive and profound impact on the life of a child. This is something that the courts recognize in cases where grandparents seek visitation rights with the children. However, a court's response may be greatly tempered by the 2000 U.S. Supreme Court ruling in Troxel v. Granville, which essentially asserts that a fit parent will act in the best interests of the child, and therefore his or her wishes must be given special weight.

Still, it is heartbreaking for the grandparent of a beloved child to be told they are no longer welcome to spend time with the child. This is particularly true if you were heavily involved in the child's life prior to that point. If it's at all possible to resolve the case out-of-court, that's the most desirable option. Still, Brooklyn family law attorneys know in some cases, grandparents - and other relatives - can successfully seek court-ordered visitation rights, where the court deems it in the best interest of the child.

A number of recent cases illustrate this, including Eaton v. Paradis, reviewed by the Maine Supreme Judicial Court, In re S.B., reviewed by the North Dakota Supreme Court and Kulbacki v. Michael, also reviewed by the North Dakota Supreme Court.

In the Eaton case, the parental grandmother sought de facto parental rights to her son's children, who had lived with her for a time, after the mother regained custody. The children initially lived with their mother, but she asked the children's paternal grandmother if she could take them for a while, as she was being abused by her boyfriend. The children's father was also living at the residence, and three months later, sought to obtain sole custody of the children due to ongoing domestic violence issues. The court granted the motion, allowing the mother supervised visits.

Three years later, the mother sought primary custody of the children, alleging that the children were living solely with their grandmother, not their father, and that she was being denied visitation with the children. The grandmother responded with a petition for de facto parental rights of the children, which her son supported.

The grandmother presented evidence that they had lived with her most of their lives. She took them to counseling, medical and dental appointments. Their mother rarely visited, but they sometimes stayed with their father. The mother presented evidence that she had married (to a non-abuser), and she and her husband were both employed. She conceded that for a time, she suffered abuse and drug addiction, and she sought the grandmother's help for the safety of the children. However, she said she never relinquished her parenting role, and the children call her "Mommy."

The trial court denied the grandmother's request, finding that while she had a "parent-like" relationship with the kids, neither the children nor parents had acknowledged her as a parent, which is a criteria Maine courts require in these cases.

The grandmother appealed. The state supreme court vacated the earlier ruling, pointing to new state case law that further outlined de facto parenthood. The court ordered the case remanded and reviewed in light of the new standard.

In re S.B., an unmarried couple with three children appealed an order granting grandparent visitation of their children with their paternal grandparents. The grandparents asserted that it was in the best interests of the children and would not interfere with their parental relationship. The grandmother testified that she was extremely close to the oldest child and had a strong relationship to the second. The third child the grandparents did not know as well because she was born at a time when the grandparents had a falling out with the parents.

The parents testified that the children were not suffering from lack of visiting their grandparents, and that the relationship is filled with tension, which creates a negative environment for the kids.

The court responded by granting extensive grandparent visitation. Later, the grandparents filed an order of contempt against the parents for failure to comply. The court found the parents in contempt, but instead of sanctioning them, modified the order to allow for less visitation.

Upon appeal, the court ruled the visitation order to be reversed and reconsidered in light of the standard that gives special weight to the wishes of the parents.

In Kulbacki, a mother appealed a final divorce decree that included a provision to grant her abusive ex-husband's mother with regular visitation of the children. The state supreme court did end up reversing that decision on the basis that the trial court had unduly placed the burden on the mother to prove that the grandparent visitation order was not in the best interest of the child, as opposed to placing the burden on the grandparent to prove why it was.

These cases are some of the most complex in family court, and the laws that govern the courts on these matters are relatively new. Grandparents pursuing visitation rights - or parents trying to block them - need to consult with an experienced law firm.

If you are seeking grandparent visitation rights in Brooklyn, call our offices at (718) 864-2011.


Monday, May 5, 2014

Negotiating a Fair New York City Divorce Settlement

Whether your split is amicable or acrimonious, consulting with an experienced New York City divorce attorney to negotiate a fair settlement agreement can be in everyone's best interest. Even in a bitter separation, a fair agreement can help to neutralize the tension, which is especially important in cases where children are involved.

Recently, the New York City divorce settlement of former Governor Eliot Spitzer resulted in a $7.5 million lump sum award to his ex-wife, Silda, reportedly as part of a postnuptial agreement. She will also be allowed to remain in the family home and her living expenses, which include a housekeeper and healthcare, will be maintained. In addition, she will receive $100,000 annually to mete out to charitable organizations of her choice, and she will be paid $240,000 annually either until she remarries or dies.

The couple, who met at Harvard and married in the late 1980s, have three adult daughters together. She had stood by her husband during his concession that he'd patronized a high-end prostitution ring. They filed for divorce in January.

The fact that these two have a long marital history and were still able to negotiate an agreeable divorce settlement within a matter of months speaks first to the power of postnuptial agreements and secondly to what is possible when two parties are willing to compromise.

While it may seem that the former governor conceded a great deal to his ex, one must consider that he has a substantial amount of wealth. Also, his attorney's fees for a drawn-out battle would have likely been significant and the length of the union would likely have meant that the courts would have favored Silda anyway. Plus, both parties don't want to do anything to further mar their reputation, as both continue to serve public roles.

Divorce negotiations often deal with a host of interrelated issues. It's not just about money. It's not just about property. It's not even just about the kids. So many intense emotions may come into play, and we understand that what matters immensely to one person might not matter to another. It's important to find a middle ground.

We recognize that while that might not be possible with every couple - some may need to take serious matters to court -  there can be a lot of benefits to negotiating. Here are some indications that negotiation (as opposed to litigation) might make the most sense for you:

  • You and your spouse are able to communicate. You may not be best buddies, but you can talk about the kids, finances and other issues.
  • You're both interested in minimizing the overall costs of the divorce process.
  • You still respect one another. You may no longer be in love, but you don't hate one another and may even believe it could one day be possible to be friends.
  • Privacy is important to both of you. Keep in mind that if you take your case to court, whatever paperwork you file will be subject to public record.

It's not a decision you necessarily need to rush. Discussing your options with an experienced divorce attorney can help you be more effective during the settlement negotiation process.

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


Saturday, May 3, 2014

Baby Boomer Divorce Requires Financial Preparation

Just because a couple is planning to file an uncontested divorce in Brooklyn does not mean that financial preparation goes out the window, particularly for those in the baby boomer generation.

These are folks at the peak of their careers, perhaps nearing retirement with children in college or beyond. They may have a fair amount of acquired property, a wealth of savings in stocks or retirement accounts - all of these things need to be considered before coming to the table in an uncontested divorce proceeding. This is true even when the pair hasn't been married for decades.

Consider that just two short decades ago, Fidelity Investments tabulated that one out of every 10 people over the age of 50 was filing for divorce. Today, it's one out of every four.

Women in particular may be the hardest hit if proper planning isn't involved. The fact is that a divorce at any age can be a significant blow to the finances, as well as the heart, those who are nearing retirement or who haven't been in the workforce for many years may find themselves facing financial insecurity. This is especially true if one party was the dominate one in making financial decisions.

One of the first things we often recommend in these cases is obtaining a full, clear picture of the couple's finances. That means looking at not just the bank accounts, but the retirement and brokerage accounts as well. It also means pulling both credit scores. What some fail to consider is if one person was handling the majority of the finances, putting most of the bills in their own name, the other person may have a lower overall credit score, even if they were contributing equally to the payments.

Sometimes, it may also be worthwhile to consider having personal mail forwarded to a separate post office box so they can make sure that the information they are gathering is all received and accurate.

Both parties, regardless of their roles in the relationship, should probably begin to work on compiling an emergency savings. This is often a step that can be taken prior to filing. This will help both parties not only pay for whatever costs they may incur during the divorce, but also cushion the blow for unexpected expenses that may arise afterward.

Another matter that we see creating a lot of tension between long-married spouses is the house. People become very emotionally attached. This is understandable. However, it's important to keep a cool head in such matters. The asset may not be worth it to keep, especially if your income will be essentially halved. Beyond just the mortgage payments, will you be able to keep up with the maintenance? And if you do think you might want to sell it when you enter retirement, is it going to be worth less than what you owe? If so, you may want to consider selling now so that you can both split the deficit.

A spouse who didn't work for most of the marriage is probably going to endure a tougher transition, but there are ways to bridge income gaps if you are smart about it. Your divorce lawyer can help you to negotiate a health insurance benefit plan that your ex-spouse pays as part of the divorce agreement. There may also be ways to divvy up the debt so that you aren't burdened with more than you can handle.

Just because a divorce isn't contentious doesn't mean there aren't a lot of details to sort out. We can help.

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

Additional Resources:

Divorcing Baby Boomers: How to Get a Financial Grip, April 30, 2014, By Donna Fuscaldo, FOXBusiness

More Blog Entries:

Contested Divorce in Manhattan Results in Reduced Awards, April 23, 2014, Manhattan Divorce Lawyer Blog

 


Friday, May 2, 2014

I am a U.S. Lawful Permanent Resident – Can My Green Card Be Taken Away?

Most of our clients are well aware that the process of obtaining a green card through a U.S. employer or a U.S. relative can take several months to several years. Because of the lengthy processing times, it is typically a cause for much celebration once a foreign national receives the green card and becomes a lawful permanent resident (LPR).

Many lawful permanent residents think that once they receive their green card, their responsibilities are over and they do not need to worry about their immigration status in the United States ever again. Unfortunately, that is not exactly the case. When a foreign national becomes an LPR, the national does enjoy the unrestricted rights to live, work, and travel in and outside of the U.S. without the need for obtaining a visa. However, becoming an LPR also subjects the foreign national to many critical responsibilities. If the LPR fails to fulfill these responsibilities, the U.S. government can take away the LPR’s green card and permanent residence.

Our offices in New York help LPRs fulfill their responsibilities and maintain their permanent residence. We are happy to provide these services to clients all over the country.

What are an LPR’s Responsibilities?

When a foreign national becomes an LPR, the national must make sure to pay taxes on all income earned in the United States. The responsibility to report income and pay taxes rests wholly on the LPR and the U.S. government takes this responsibility very, very seriously. Additionally, it is also the responsibility of the LPR to refrain from voting in U.S. elections. Only U.S. citizens may vote in elections and voting unlawfully is considered a very serious crime in the United States.

Moreover, it is also the LPR’s responsibility to actually live and reside in the United States. The failure to meet this responsibility is one of the most frequently cited reasons why LPRs lose their green cards, because many LPRs will spend several months to several years outside of the country and will not maintain ties to the U.S. or apply for a re-entry permit. Upon trying to re-enter the country after such a long absence, the immigration officers feel that these LPRs have abandoned their permanent residency and do not allow the LPRs to enter.

If you are an LPR and you need to travel outside of the U.S. for a period of six months or longer, contact our Brooklyn or New York office and speak to one of our skilled attorneys who can explain how you can apply for a re-entry permit and how you can maintain your permanent residency.

 

 

 


Thursday, May 1, 2014

Failure to Follow Brooklyn Child Custody Orders Can Result in Court Sanctions

Parents who are separating or divorcing often turn to the courts to help them establish a parenting time plan that is both fair to the parents and beneficial for the children.

Unfortunately, our Brooklyn child custody attorneys have seen cases where some parents have used children as a weapon against the other parent. This can backfire, though, because family law judges tend to treat these sort of actions with disdain.

This is what happened recently in the case of Shindell v. Shindell, reviewed by the Wyoming Supreme Court. Although this was an out-of-state case, it's a good example of the sanctions judges may place on parents who fail to comply with child custody orders.

According to court records, the parents divorced in 2004, and the mother was given primary residential custody of their two daughters. Over the years, the father filed numerous complaints against the mother for failure to comply with custody orders. The district court responded by issuing specific orders to the mother and demanding her compliance.

Then in 2012, the father moved to Indiana and remarried. He attempted to arrange for his daughters to fly to his home to spend spring break. However, the mother learned that the father had pets in the home, and was concerned for the health of their oldest daughter, who suffered from severe asthma. She consulted with a doctor, who reportedly advised that the girl not be exposed to those conditions. Thus, she did not put either girl on a plane to visit their father. The two also didn't visit their dad during the summer, although he was entitled to summer visitation via the court order.

In August, the father filed a motion for order to show cause why the mother should not be held in contempt of court for refusing to comply with the communication and visitation decree. A hearing was held, and the mother presented evidence of the daughter's health risk in visiting their father. However, there was also evidence she had violated court orders by refusing to facilitate communication between the girls and their father and also failing to notify and include the father in decisions regarding the girl's education, medical care and other matters.

For example, she enrolled the girls in a new school without consulting the father.

As a result, the district court found the mother in contempt of court. For this, the court ordered that the mother:

  • Pay for plane tickets for the girls to see their father during the following winter break and spring break;
  • Ensure there was unfettered communication between the girls and their dad;
  • Pay the father's attorney's fees and court costs, as well as pay the costs for the guardian ad litem.

The mother subsequently appealed that ruling, but it was upheld by the state supreme court. The court determined that the mother was thoroughly aware of her responsibilities, and chose to ignore them. Regarding the issue of her daughter's health, the court deemed that it was a legitimate concern, but rather than simply ignore the order, she had a responsibility to seek a modification from the court.

The mother had attempted to argue that the court failed to consider the girls' preferences, as she indicated they did not want to visit their father. However, she did not make them available for testimony, saying she did not want to have them involved. For this reason, the high court ruled that the lower court didn't abuse its discretion in failing to consider it. 

The bottom line is that not complying with orders of the court can result in serious consequences. If you believe a modification is in order or want help in enforcing the order that currently is in place, it's best to consult with an experienced lawyer. 

Those looking for help with New York City child custody disputes, should call our offices at (718) 864-2011.


Wednesday, April 23, 2014

Contested Divorce in Manhattan Results in Reduced Divorce Awards

Our New York City uncontested divorce lawyers know that while it can sometimes be difficult to get on the same page with your soon-to-be-ex, there is sometimes much to be said for the benefits of compromise.

This was illustrated recently by a long-running, high-profile, bitterly contentious Manhattan divorce involving an attorney at a well-known law firm and his wife.

The New York Daily News reports that a judge overseeing the divorce proceedings scolded the wife, saying she had "bit the hand that fed her" by initiating public attacks against her husband during the case. In doing so, the judge found, she had tangibly decreased the value of his partnership with his employer, and therefore was stripped of the majority of her $2.5 million divorce settlement.

The two parties had aggressively fought one another for years, and, according to the judge, had both demonstrated behavior that was both uncooperative, troubling and offensive. While in court, they shouted at one another, made inappropriate comments and gestures to each other and sometimes each ran out into the hallway to scream it out in the middle of the proceedings.

The pair married in January 1988. They share two children together, ages 19 and 15.

They would later say they were "never happy" together, but they didn't formally split up until 2007, when they were both placed under arrest for domestic violence of each other. The wife, a stay-at-home mother, later successfully obtained an order of protection barring the husband for their home on E. 78th Street.

The allegations of abuse were detailed in several media reports, but the criminal charges were later dropped.

However, the couple was in the news again in 2011 when, still enduring the divorce, the wife complained that her husband had refused to pay $12,000 for a hearing aid for their daughter, and yet had just purchased an engagement ring worth well over $200,000 for his Playboy playmate fiancee. The fiancee later broke off the relationship.

The judge clarified that those earlier reports were misleading; the daughter had already received hearing aids, but the argument was over who should be responsible for paying them. But the damage was already done at that point, as the initial report resulted in the attorney being placed on a sarcastic "Lawyer of the Month" list on a popular legal website.

The husband then asserted to the court that all the bad publicity had harmed his practice, causing him to suffer financially and reduce the overall value of his partnership. Once valued at roughly $5 million, he said his stake had been reduced to approximately $630,000.

The wife countered that the reduction was due to the economy and her husband's own failure to work hard.

However, the judge sided with the husband. Where the wife had initially stood to earn half of the original $5 million value of the firm, the judge determined that her public tongue-lashing of her husband would result in her share being reduced to just 17 percent.

An uncontested divorce is certainly not for everyone, but there are a fair number of instances in which this kind of proceeding can preserve not only the value of assets, but the value of each party's dignity.

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


Monday, April 21, 2014

Adoption of Partner's Children in New York

Issues of child custody have never been easy, but over the years, they have become increasingly complex as the make-up of the American family has evolved.

It's not uncommon for partners to cohabitate unmarried for years, even as they raise children, acquire property and take on joint debts. There is nothing inherently wrong with this. Indeed, many couples report that such arrangements have led to long-term, stable partnerships. However, where children are involved, both parties should recognize that when one individual has no biological tie to the child and there has been no adoption, that party has no legal rights or responsibilities for that child.

Our Brooklyn family court attorneys know this is true regardless of how long the couple has been together or what role the partner has taken on during the course of the child's life. There may occasionally be a few exceptions made in extreme circumstances, but those are very rare. Unless the individual has legally adopted the child, it is very difficult to assert any sort of legal parental authority.

This was recently illustrated in the case of Moreau v. Sylvester, heard recently by the Vermont Supreme Court.

Here, the plaintiff appealed a decision by a family court dismissing his emergency petition for child custody and parentage of children to whom he had no biological tie or established legal connection. He also appealed an order denying him visitation on the grounds that he is the children's de factor parent - the only father they've ever known.

The Vermont Supreme Court rejected his argument and affirmed the ruling of the other court.

According to court records, the plaintiff and the children's mother were in an on-again-off-again relationship over the course of 10 years. they never married. The defendant gave birth to two children during this period, but the plaintiff was the biological father of neither. However, it was undisputed that during this time, he played a significant father-figure role in their lives.

Even when the couple separated for good in 2009, the plaintiff continue to maintain a relationship with the children and shared responsibility for them. The children even lived with him for a period of time when the mother's home became flooded and uninhabitable.

On a few occasions, the defendant refused to return the children to their mother on the grounds that he believed they were being mistreated. When the mother moved in with another man, the visitations became less and less frequent and the rapport of the former couple quickly deteriorated.

There were a couple of instances in which the plaintiff went to the defendant's home and banged on the door for long periods of time, despite being told to go away. He would later say he was concerned for the girls' safety or that he was trying to return items they needed for school. The mother successfully obtained a temporary restraining order against him, though this was later dismissed.

Then, without the mother's knowledge, her former boyfriend filed an emergency petition for sole custody of the children on the grounds that they were in danger. The court dismissed his requests because he was not related to the children biologically in any way.

He appealed.

The Vermont Supreme Court affirmed the denial of his request. The justices noted that case law had allowed in some instances for still-married stepparents to assert rights to the children or to be charged with certain responsibilities for them. However, custody is usually only ever awarded to a stepparent in those instances when there is clear and convincing evidence that the biological parent is unfit or there are other exigent circumstances.

The court underscored the fact that by welcoming nonbiological children into his life, he was accepting that he had no legal remedy to assert custodial rights.

This case shows why long-term cohabitating partners may consider at least formalizing their relationship with regard to child adoption. Options should be explored with an experienced Brooklyn family law attorney.

The Law Office of George M. Gilmer handles Brooklyn adoption proceedings and child custody disputes. Call us at (718) 864-2011.


Friday, April 18, 2014

Brooklyn Divorce Lawyers Help You Make a Clean Break

In filing for a divorce in Brooklyn, many couples weigh important issues such as child custody, division of property and how to divvy up debts.

However, it's also important to have a divorce attorney review your insurance situation to see whether policy updates are appropriate. This goes for health insurance, but also life insurance, property insurance and auto insurance. It's also important to review all property that is legally in each party's name, as it could impact future liability for that property. A case recently before the Florida Supreme Court reveals what can happen when these important steps aren't taken.

In Christensen v. Bowen, the court ruled that an ex-husband could he held vicariously liable for the negligence of his ex-wife, who had caused a fatal crash, simply by virtue of the fact that his name remained on the title of the vehicle. The court found that this was true even though he'd had no control over the vehicle since he had first purchased it for his then-wife as a gift several years earlier. He never drove it, didn't have a key, didn't have access to the garage where it was kept and didn't live with his ex.

While statutes regarding vicarious liability vary from state-to-state, the general principle of respondeat superior is that a third party can be held liable for the actions of another when he or she had the right, ability or duty to control the activities of the violator.

In this case, the ex-wife was involved in a deadly crash while driving a vehicle that, according to the title, was co-owned by her ex-husband.

The widow of the driver who was killed filed a personal injury lawsuit against not only the driver, but also her ex-husband on the grounds of vicarious liability. The case went to trial and the jury determined that while the former husband's name was on the title, he had no beneficial control over the car, and therefore wasn't liable.

However, the widow appealed, and the appellate court reversed the findings of the lower court on the grounds that the ex-husband did have beneficial ownership of the car in terms of property rights.

The general theory is that as a joint owner of that vehicle, he had the legal right to take possession of the car and could have potentially prevented his ex-wife from using the car, if he so chose, and therefore shielded himself from liability. However, neither the district court nor the state supreme court, which affirmed that ruling, addressed the fact that the wife too had an equal right to possess the vehicle. So it's unclear how the ex-husband could have asserted a superior legal right.

The far easier option would have been to have his name removed from the title as co-owner before the pair finalized the divorce. The fact that he did not is likely going to place him in a great deal of financial trouble, particularly because the vicarious liability claim isn't likely to be covered under any existing insurance policy.

That is, he probably didn't pay for an insurance policy on a car that he owned, but for all intents and purposes belonged to his ex. Further, her insurance firm probably wouldn't cover him as an insured because the two are no longer legally related or household residents. That means he could be paying for the judgment out-of-pocket - and personal injury verdicts are generally not dischargable even in a bankruptcy.

Having such matters handled at the time a divorce is finalized can save those dissolving their marriage a great deal of heartache in the future.

Contact our Brooklyn divorce attorneys at (718) 864-2011.


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