June 20th, 2009
I have previously written about New York’s grounds for divorce, including constructive abandonment. Simply put, constructive abandonment occurs when one spouse refuses to have sexual relations with the other, without excuse or justification, for a period of one year preceding the filing of the action for divorce. Further, case law has established that the abandonment must continue despite repeated requests from the other spouse for resumption of cohabitation. When looking at divorce actions based on constructive abandonment grounds, a lawyer must make an inquiry whether spousal relations were requested, how many times, and over what period of time. Until recently, it was not clear how many times a spouse must make such request. The courts have held previously that “..evidence that the other spouse refused a single request to engage in sexual relations is insufficient to establish a cause of action on the grounds of constructive abandonment.” Archibald v. Archibald, 15 A.D.3d 431 (2nd Dept. 2005).
The answer to this question has been somewhat clarified by a recent decision. In BM v. MM, 2009 N.Y. Slip. Op. 29235 (Sup. Ct Nassau Co. 2009), the court held that a husband’s refusal to have sex with his wife three times within a year was enough to grant the wife divorce on the grounds of constructive abandonment. The wife testified that she could remember three occasions where she made such requests which the defendant denied and the court credited her testimony. The husband argued that since the wife had made no attempt during the last five years to have sex with him, the grounds for constructive abandonment were not established. The court held that it has recognized that there comes a time in such relationships where it would clearly be futile for one spouse to continue to ask the other to engage in sexual relations. It further found that where the defendant, on his own, moved out of the marital bedroom and into a room on a separate floor and refuses a request, after that the plaintiff should be relieved of any requirement to continue to ask for sexual relations.
The above facts demonstrate that a New York divorce lawyer must be prepared to present specific factual testimony in order to obtain a divorce on the grounds of constructive abandonment. Unfortunately, it also demonstrates that in order to establish constructive abandonment grounds in New York, requires intrusions into marital privacy and disclosure of information most parties would rather keep private. The decision discussed above reinforces my opinion that New York needs to abandon its fault grounds for divorce. No-fault divorce, based upon the breakdown of a marriage, would dispense with the need for intrusions into the marital relationship. Forcing parties to accept fault or be found at fault is time consuming and costly, and generates unnecessary bitterness during the divorce process.
Tags: abandonment, attorney, constructive abandonment, county, divorce, Domestic Relations Law, evidence, Family Law, grounds, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, divorce, grounds | No Comments »
June 15th, 2009
I have previously written about issues of equitable estoppel, which may result in non-biological parent being treated as a biological parent of the child. Recently, I came across a case, H.M. v. E.T., 2009 N.Y. Slip Op. 04240 (2nd Dept. 2009) that dealt with applicability of equitable estoppel to child support in a same-sex relationship situation.
In October of 2006, H.M., an Ontario resident, and the birth mother of a 12-year-old child, filed a “Support Application” with a Canadian agency, seeking to have E.T., a Rockland County resident, and H.M.’s former same-sex partner, adjudicated a parent of the child. H.M. also sought an award of child support retroactive to the date of the child’s birth. In support of her application, H.M. alleged that in August 1989, the parties lived in New York, entered into a monogamous relationship, and started cohabitating. H.M. alleged that the parties then agreed that she would attempt to become impregnated via artificial insemination, and that after a child was born, they would parent that child together. H.M. alleged that pursuant to this agreement, and with E.T.’s assistance and encouragement, she became impregnated by sperm from an anonymous sperm donor. In September 1994, H.M. gave birth to the child. H.M. alleged that over the next few months, E.T. acted as a parent to the child by nurturing and caring for him. However, H.M. alleged that in January 1995, E.T. ended the parties’ relationship. H.M., who subsequently relocated with the child to Canada, alleged that after the relationship ended, she made numerous requests of E.T. for child support, all of which were refused.
After the child support proceeding was commenced in Canada, the case was transmitted to the Family Court, Rockland County pursuant to the Uniform Interstate Family Support Act (Family Ct Act art 5-B (hereinafter “UIFSA”). Initially, the Support Magistrate found that under the present law of New York, there was no basis upon which the Family Court could adjudicate E.T. a parent of the subject child and require her to pay child support. In this regard, the Support Magistrate noted that E.T. was not the birth mother of the child or an adoptive parent of the child, never executed an official acknowledgment of parentage of the child, and was not in a legally recognized same-sex marriage or civil union with H.M. when she gave birth to the child. The Support Magistrate, pointing out that the Family Court is a court of law with limited subject matter jurisdiction, found no provision in Family Court Act Article 5, or in any other article of the Family Court Act, applicable to a controversy between a birth mother and another female concerning the other female’s parentage of a child. Finally, the Support Magistrate, deeming all of H.M.’s factual allegations to be true, and observing that equitable considerations might suggest that E.T. be adjudicated a parent of the child and required to pay child support, noted that the Family Court cannot grant equitable relief.
Subsequently, after the objections to the Support Magistrate’s Order were filed, the Family Court overturned the Support Magistrate’s Order citing cases where courts “held individuals responsible for the support of a child even though they were not related to the child by biology or adoption.” The Family Court observed that in those cases, the courts applied the doctrine of equitable estoppel which, the Family Court noted, will be applied in order to protect the best interests of a child born out-of-wedlock. Thus, the Family Court concluded that “a paternity proceeding [can] proceed against a same sex partner if circumstances are established justifying the [doctrine's] application.” Then, the Family Court, noting that the subject child was born as a result of E.T.’s “promises,” concluded that H.M.’s allegations, if true, could support a finding that E.T. “should be estopped [from denying] her role as a person responsible to provide support for [that] child.” Accordingly, the Family Court directed a hearing to determine whether E.T. “should be equitably estopped [from denying] her responsibility to provide support to the subject child.”
E.T. appealed from the order of the Family Court. The Appellate Division, Second Department, reversed the Family Court’s order and reinstated the order of the Support Magistrate dismissing the petition. The Appellate Division stated that the basic premise of the petition was that H.M. who was never married to or in a civil union with E.T., sought to have E.T., a woman having no biological or legal connection to the subject child, adjudicated a parent of that child and required to pay child support. Since the Family Court received H.M.’s support application pursuant to UIFSA, it was authorized to determine “parentage” (Family Ct Act § 580-301[b][6]; § 580-701). UIFSA provides that in deciding such a proceeding, the Family Court is required to apply the procedural and substantive law generally applicable to a “similar” proceeding originating in this State, and may only exercise whatever “powers” and provide whatever “remedies” that are “available” in such a proceeding.
The only proceeding in this State “similar” to a proceeding for a determination of “parentage” is a proceeding pursuant to Family Court Act article 5. Yet, as the Support Magistrate recognized, Family Court Act article 5, entitled “paternity proceedings,” only provides a vehicle for resolving controversies concerning a man’s fatherhood of a child. After analyzing the language of the Family Court Act, the court concluded that a paternity proceeding requires “the male party” to be “the father” of the child.
The court further held that although the doctrine of equitable estoppel can be applied in a proceeding pursuant to Family Court Act Article 5, when the Family Court applies the doctrine, the Family Court is merely precluding a party from “denying a certain fact”. This is not the same thing as the Family Court granting equitable relief, something the Family Court lacks the power to do. Therefore, when the Family Court applies the doctrine, the Family Court is doing so as a means of granting relief specifically authorized by the Constitution or statute. That is, the Family Court is applying the doctrine as a means of adjudicating a “male” “the father” of a child. However, H.M. has demanded certain relief the Family Court is not specifically authorized by the Constitution or statute to grant. Under these circumstances, the Family Court could not apply the doctrine, and could not reach the issues of whether E.T. should be estopped from denying her parentage of the subject child, and whether estopping E.T. from denying her parentage of the child would be in the child’s best interests. If the Family Court applied the doctrine as a means of granting relief not specifically authorized by the Constitution or statute, that would be tantamount to the Family Court granting equitable relief.
The logic of the Appellate Division’s decision, its heavy emphasis on the language of the Family Court Act, and especially the use of the term “male”, raise the question of whether a different result would have been reached on these facts if both parties to this litigation were male. Since recent decisions in this area of family law have been gender neutral, it seems likely that the Court of Appeals, if the case is appealed, will likely focus on on whether any such applications should be considered on a gender neutral basis and also, even more importantly, whether the courts will move away from “paternity by estoppel” toward “parentage by estoppel” as a matter of equity. I believe that we may learn the answer to this question in the foreseeable future.
Tags: attorney, child support, county, equitable estoppel, Family Court, jurisdiction, lawyer, Livingston, Monroe, new york, Ontario, order, Orleans, paternity, petition, rochester, same sex, UIFSA, Wayne
Posted in Family Court, Family Law, New York Law, UIFSA, child support, court orders, jurisdiction, paternity | No Comments »
June 7th, 2009
I have previously written that in order to divide retirement assets after the parties’ divorce, the court must enter a qualified domestic relations order (”QDRO”) to divide such assets. However, it is not uncommon that a QDRO is not entered right away. Occasionally, I see cases where there is a need to enter a QDRO many years after the entry of the judgment of divorce. Recently, in Patricia A. M., v. Eugene W. M., 2009 N.Y. Slip. Op. 29232 (Sup. Ct. 2009), the Supreme Court, Erie County, provided an illustration of what pitfalls may be faced by a divorce litigant who waits a significant period of time before obtaining a QDRO.
Eugene M., retired on November 4, 2000, and began receiving pension benefits at that time. A QDRO was signed on March 15, 2006, and an amended QDRO was granted on November 21, 2006, putting into effect the rights of Patricia M., regarding Mr. M.’s pension benefits. Prior to entry of either QDRO, Mr. M. began paying part of his pension benefits to Ms. M., commencing in May, 2002, at the rate of $650.00 per month. Ms. M. brought a motion seeking recovery of amounts she claims she should have been paid as her portion of Mr. M.’s pension prior to the commencement of direct payments pursuant to the QDRO. These amounts covered the period from the date of retirement to April, 2002, a missed payment in November, 2005, and the period from February, 2006 to December, 2006, when no payments were made. In addition, she alleged that she received only a partial payment in December, 2005. The total amount allegedly owed was $19,770.46.
Mr. M. opposed the motion, arguing that this motion, inter alia, was barred by the statute of limitations applicable to contract actions. He asserted that the equitable distribution of his pension benefits was not specifically mentioned in the judgment of divorce and, therefore, Ms. M.’s only remedy is a breach of contract action. The court held that, under Tauber v. Lebow, 65 N.Y.2d 596 (1985), payments awarded in a divorce decree “do not constitute a judgment debt until the arrearages are reduced through further proceedings to a judgment.” Ms. M.’s claim for breach of the agreement accrued at the time of the breach, which was no earlier than the date of Mr. M.’s retirement, in November, 2000. Because Mr. M.’s obligation was to pay on a monthly basis as pension benefits were paid to him, each failure to pay constituted a separate breach. This left Ms. M. unable to recover for those amounts she claimed were not paid from November, 2000, to April, 2002.
The lesson of this case is that this litigation could have been avioided, and Ms. M would not have lost those retirement payments, had the lawyer for Ms. M. entered a QDRO in a timely fashion. Further, the statute of limitations applicable to contract actions may arise in post-dviorce proceedings in other ways as well. For example, if a post-divorce child support arrears cannot be enforced by seeking an enforcement of the judgment of divorce, and instead the party is forced to proceed to enforce a separation agreement as a contract, the same six year statute of limitations may be applicable.
Tags: attorney, county, divorce, Domestic Relations Law, equitable distribution, Family Law, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, Wayne
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, court orders, divorce, equitable distribution, procedure | No Comments »
June 2nd, 2009
I have previously written about recoupment of pendente lite maintenance in a divorce action after the entry of a final maintenance award. The recent decision by the Court of Appeals in Johnson v. Chapin, previously discussed in this post, allowed recoupment of pendente lite maintenance as an adjustment to the equitable distribution award.
But what happens if the permanent maintenance award is overturned on appeal? In Rader v. Rader, 54 A.D.3d 919 (2nd Dept. 2008), the Appellate Division, Second Department, held that public policy prohibits recoupment of both pendente lite and permanent maintenance paid pursuant to court order or judgment which is subsequently set aside on appeal.
In Rader, the plaintiff stopped paying the defendant maintenance in January 2006, contending that the parties’ judgment of divorce entered September 18, 1998 required him to pay maintenance only for a period of 10 years, retroactive to the commencement of the divorce action in January 1996. The defendant claimed that she was entitled to maintenance until July 2007-10 years after the date of the decision awarding her maintenance.
In an order dated July 7, 2006 the Supreme Court granted the defendant’s motion, directed the plaintiff to pay the defendant maintenance for a period of 10 years, retroactive to July 1997, when the decision awarding her maintenance was made, and granted the defendant leave to enter a money judgment for maintenance arrears, plus the sum of $1,500 as an attorney’s fee. A money judgment was subsequently entered on July 26, 2006. The plaintiff appealed, and after some additional litigation between the parties, ultimately paid the sum of $54,000 in maintenance for the period from July 2006 until April 2007, plus the sum of $2,000 as an attorney’s fee, for a total sum of $56,000, while the appeal was pending.
In a decision dated April 17, 2007, the Appellate Division reversed the money judgment, and modified the order dated July 7, 2006 upon finding that the plaintiff’s obligation to pay maintenance terminated on January 9, 2006, or 10 years after the divorce action was commenced. Subsequently, the plaintiff moved for reimbursement of the sums of $54,000 in maintenance and $2,000 in attorneys’ fees he paid. In opposition, the defendant noted, inter alia, that she already spent the disputed $56,000 on her living expenses and attorneys’ fees. The Supreme Court denied the plaintiff’s motion.
The Second Department held that there is a strong public policy against recoupment of both pendente lite and permanent maintenance paid pursuant to a court order or judgment which is subsequently set aside on appeal. The reason for this policy is that maintenance and child support payments are “deemed to have been devoted to that purpose, and no funds exist from which one may recoup moneys so expended” if the award is thereafter reversed or modified. The Court further noted that if there were unpaid arrears of other obligations, such as carrying charges for the marital residence, the payor spouse may be granted a credit against those arrears for maintenance paid pursuant to an order which was reversed on appeal.
Is Rader still good law after the Court of Appeals’ decision in Johnson v. Chapin?. I believe that it is, especially with respect to the final maintenance awards. However, it is likely that we will see divorce lawyers making arguments for recoupment even with respect to the final maintenance awards overturned on appeal. I am familiar with a divorce case that is currently pending here in Rochester that may raise issues identical to those in Rader after the Court of Appeals’ decision in Johnson v. Chapin. I will post on that case once it has been resolved.
Tags: appeal, attorney, award, county, divorce, Family Law, final, lawyer, Livingston, maintenance, Monroe, new york, Ontario, Orleans, public policy, recoupment, rochester, Supreme Court, Wayne
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, divorce, maintenance, modification, procedure | No Comments »
May 31st, 2009
I have previously written how the bankruptcy courts deal with attempted discharge of the so-called domestic support obligations. However, that post focused primarily on discharge of obligation that arose as a result of divorce proceedings and child support. Occasionally, I see an attempt to discharge an obligation arising out of Family Court proceedings, specifically, attorneys fees.
While it is clear that the child support or spousal support obligations are not dischargeable in bankruptcy as domestic support obligations, the question of attorneys fees granted in a child support or other proceeding in Family Court was less clear cut until Ross v. Sperow, 57 A.D.3d 1255 (3rd Dept. 2008), where the Appellate Division, Third Department, held that the award of counsel fees by the Family Court was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.
In Ross, the mother filed a petition for violation of a prior order of custody and visitation in 2005. In response, multiple cross petitions were filed by the father alleging violations by the mother and seeking modification of custody. In an August 2006 order resolving the parties’ petitions, Family Court sustained the mother’s motion for counsel fees and ordered that the father pay $ 5,000 of her counsel fees. The father subsequently filed for bankruptcy under chapter 7 of the Bankruptcy Code and, in Schedule F of his petition, he listed the award of counsel fees as an unsecured debt. The father was discharged by order of the Bankruptcy Court in January 2007 and, shortly thereafter, the mother commenced the present proceeding in Family Court for the violation of a court order based upon the father’s failure to pay the counsel fees. Contending that the debt had been discharged in bankruptcy, the father moved to dismiss the petition. Family Court, among other things, concluded that the counsel fees awarded in its prior order were a nondischargeable domestic support obligation, denied the father’s motion and granted the mother’s petition in part, finding the father to be in violation of a prior order.
The Appellate Division noted that state and federal courts have concurrent jurisdiction over the issue of the dischargeablity of a particular debt following the discharge of the debtor in bankruptcy. It reviewed the father’s contention that the counsel fees, although awarded in the context of a Family Court proceeding regarding custody and visitation, were not “in the nature of support” for the parties’ children. The Court held that since the mother’s initial petition commencing the proceeding clearly raised issues of financial need and hardship and her motion for counsel fees, which was sustained by Family Court in the August 2006 order, proposed consideration of her circumstances as one basis for an award of counsel fees. The Court held that the term “in the nature of support” is to be given a broad interpretation in the context of the discharge of debt obligations in bankruptcy and agreed with Family Court’s determination that the award of counsel fees in its prior order was, in part, “in the nature of support” and, therefore, excepted from discharge in bankruptcy.
The real issue in this case is whether the custody petition really was in the nature of support. The mother’s lawyer was able to persuade the both the Family Court and the Appellate Division that it was. While the Appellate Division relied on the award of attorneys’ fees and the relevant standard under the Family Court Act, an argument can be made that the Court should have looked to the underlying proceeding only and that proceeding dealt exclusively with custody issues. One of the factors in any award of attorneys’ fees is ability to pay, so that can make an award of attorneys fees in any proceeding in Family Court to be in the nature of support.
Tags: attorney, attorneys fees, Bankruptcy, custody, cutody, discharge, domestic support obligation, Family Court Act, Family Law, lawyer, Livingston, Monroe, nature of support, new york, New York family law, Ontario, order, Orleans, rochester, visitation, Wayne
Posted in Bankruptcy, Family Court, Family Law, New York Law, attorneys fees, child support, court orders, custody, federal law, visitation | No Comments »
May 25th, 2009
As the end of the school year approaches, parents usually begin to look at various activities their children may participate in during the summer. One such popular option is a summer camp, which may be a day camp or a sleep-away camp. I am often asked who is obligated to pay for it.
I have previously written that under New York’s Child Support Standards Act, the parent paying child support is typically obligated to pay a portion of child care and other expenses. In Micciche v. Micciche, 2009 NY Slip Op 03702 (2nd Dept. 2009), the Appellate Division affirmed the principle that the cost of the summer camp is considered to be a part of the child care expense, and as such, both parties are required to contribute their pro-rata share in accordance with their income.
If there are no contrary provisions in the parties’ separation agreement or judgment of divorce, and one of the parents refuses to contribute his or her share of summer camp, I recommend that the other party discuss this issue with an experienced family law lawyer. Sometimes, it only takes a letter from an attorney to resolve such disputes.
Tags: attorney, child care, child support guidelines, Child Support Standards Act, county, divorce, Domestic Relations Law, expenses, Family Court, Family Court Act, Family Law, lawyer, Livingston, Monroe, Ontario, Orleans, rochester, summer camp, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, Supreme Court, child support, child support enforcement | No Comments »
May 25th, 2009
Under New York law, child support consists of two elements: “basic” child support and the “add-ons.” Pursuant to Domestic Relations Law §240, New York requires that basic child support be calculated in two parts: (a) the support based on the total combined income of both parents up to $80,000; and (b) the support based on the total combined income of both parents over $80,000. For both parents’ combined adjusted gross income over $80,000, the court has the discretion to apply the same statutory guidelines, and for all practical purposes will do so. See Cassano v. Cassano, 85 N.Y.2d 649 (1995). The result will be the total combined basic child support attributable to both parents for the combined income in excess of $80,000. From the combined basic child support as calculated under the statute, a pro-rata share of each parent’s income is calculated. Each parent’s pro-rata share is a ratio equal to that parent’s adjusted gross income divided by the combined adjusted gross income for both parents. That pro-rata share is used to calculate each parent’s share of child support add-ons.
The parent paying child support is also obligated to pay for his/her pro-rata share of the following add-ons.
Day Care
Domestic Relations Law §240 (1-b)(c)(4) and Domestic Relations Law §240 (1-b)(c)(6) provide that when a custodial parent is working, seeking work, or is in school or training which will lead to employment, reasonable day care expenses will be allocated in a ratio equal to the each parent’s income to the combined income. Reasonable day care expenses vary and each situation should be discussed with an experienced family law lawyer to determine each party’s rights and responsibilities.
Health Care Expenses
Domestic Relations Law §240 (1)(d) provides that the cost of health care insurance shall be allocated in the same proportion as each parent’s income is to the combined parental income. Domestic Relations Law §240 (1-b)(c)(5) provides that reasonable health care expenses not covered by insurance are allocated in the same proportion as each parent’s income is to the combined parental income. Obviously, the parties can opt-out of the CSSA’s provisions with respect to the add-ons. Any provisions with respect to the cost of health insurance are enforceable just like child support provisions.
In Rochester and Monroe County, as well as in surrounding counties, the Supreme Court and Family Court usually require the non-custodial parent to carry health care insurance for the children. However, similarly to child care, there may be situations where it is more beneficial financially for the custodial parent to pay for the cost of health insurance for the children and for the non-custodial parent to contribute his or her share. The parties should be mindful of the cost of health care coverage and should discuss these issues with a family law attorney before entering into a separation agreement or agreeing to a judgment of divorce.
Educational and Extracurricular Expenses
In addition, the parents may be obligated to pay for the cost of extracurricular expenses and educational expenses, such as a private school or college. I have previously discussed issues related to the college costs, and will address issues related to paying for a private school at a later date.
Tags: attorney, child support add-on, Child Support Standards Act, cost, day care, divorce, Domestic Relations Law, Family Court, Family Law, health care insurance, lawyer, Livingston, Monroe, new york, New York Law, Ontario, Orleans, rochester, Supreme Court, unreimbursed medical expenses, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, child support, child support enforcement | No Comments »
May 16th, 2009
I have previously written that the Supreme Court has wide latitude in fashioning pendente lite (interim) maintenance awards while the divorce action is pending. But what happens if the trial court ultimately decides that the pendente lite maintenance award was excessive? The Court of Appeals recently addressed this issues in Johnson v. Chapin, 2009N.Y. Slip. Op. 03630 (2009).
In Johnson, the Court of Appeals held that when a pendente lite award of maintenance is found at trial to be excessive or inequitable, the court may make an appropriate adjustment in the equitable distribution award. Thus, the Court of Appeals held that the trial court did not abuse its discretion in giving husband a credit representing the amount of the pendente lite maintenance he paid that exceeded what he was required to pay under the final maintenance award. In determining the temporary maintenance award, Supreme Court imputed an average salary in excess of $2 million to husband. However, at trial, it was established that his income was significantly lower. Given the disparity in the maintenance amounts, under the circumstances of this case, it was appropriate for the husband to receive a credit for excessive maintenance paid.
This decision is significant since it reaffirms the principle that pendente lite awards are temporary and are subject to adjustment. An experienced divorce lawyer will not rest after obtaining a favorable pendente lite relief for the client, but will continue to work to make sure that the any pendente lite maintenance, or other interim award, is preserved as a part of a final decision.
Tags: alimony, attorney, county, credit, divorce, Domestic Relations Law, Family Law, Livingston, maintenance, marital property, modification, Monroe, new york, New York Law, Ontario, Orleans, pendente lite, rochester, Supreme Court, Wayne
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, divorce, equitable distribution, maintenance | No Comments »
May 10th, 2009
I have previously written that New York’s equitable distribution law does not require equal distribution of marital assets. This view has been confirmed by recent case, Glassberg v. Glassberg, Index No. 24307/05, __ Misc.3d __ (Sup. Ct. Suffolk Co. 2009). A disbarred attorney who provided “limited, sporadic, unreliable and inconsistent” support to the “economic partnership” of a 17-year marriage should receive only 35 percent of the couple’s property. The court found that during the marriage ” the Wife provided a substantial share of the financial and day-to-day support in maintaining the household … includ[ing] working full-time, being the primary caregiver for their son and … providing for the consistent and reliable income flow the family enjoyed.”
Marc Glassberg, an English teacher who went to law school at night, married Dorene Glassberg, a special education teacher, in 1988, a second marriage for both. The parties have one child, born in 1989. Ms. Glassberg filed for divorce in October 2005. Mr. Glassberg, who was admitted into New York Bar in 1985, testified that he “never netted more than $30,000 annually in earnings as an attorney,” except in one instance. He testified that he ran his practice out of his basement and his car after being unable to afford a storefront office. He resigned from the bar and was disbarred in 2000, as the result of disciplinary proceedings against him for failing to preserve client funds from the sale of a home. Since then, he has worked in a series of jobs, including stints at Godiva Chocolates and a card store. In 1999, he took another job teaching English at a Bronx high school, commuting six hours a day but was fired in 2001 for misconduct. A teacher in Los Angeles since 2008, Mr. Glassberg reported an income of just over $64,000 in 2008.
Ms. Glassberg, on the other hand, earned more than $118,000, according to her 2007 tax return, as a long-term teacher. Mr. Glassberg argued that he had been involved with his family and that despite his “hard luck, misfortune and indeed a ‘reversal of fortune,’” had striven to be a parent and provider. Ms. Glassberg countered that despite working full-time, she “engaged in virtually all of the household duties with no assistance” from Mr. Glassberg, including cooking, cleaning, yard work, laundry and “always” doing homework with their son. She conceded that Mr. Glassberg coached the son’s soccer team for two years and took out the garbage.
While Mr. Glassberg “surely exercised extremely poor judgment” in getting disbarred, he “nonetheless generally (although at times inconsistently) acted to earn income during the marriage”. However, his role in running the day-to-day household and contributing to the economic partnership was “limited, sporadic, unreliable and inconsistent,” the judge concluded. He awarded Ms. Glassberg 65 percent of the marital estate in equitable distribution.
The wife’s attorney argued that Mr. Glassberg’s conduct in losing his law license and getting fired from his New York teaching job should be considered wasteful dissipation of marital assets, reducing his share of the couple’s property. However, the court did not address these issues and instead held that Mr. Glassberg had not contributed equally to the economic partnership of the marriage.
This case demonstrates what I have previously written. If one spouse’s economic contribution to the marriage was significantly less than that of the other spouse, the court has discretion to distribute marital property in accordance with each spouse’s economic contribution to the marriage. An experienced divorce lawyer should be able to evaluate each situation and determine if such argument as advanced in Glassberg is warranted.
Tags: attorney, contribution, divorce, Domestic Relations Law, economic, equitable distribution, Family Law, lawyer, Livingston, Monroe, new york, Ontario, rochester, Supreme Court, Wayne
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, divorce, equitable distribution | No Comments »
May 10th, 2009
I have previously written about the case of Mahoney-Buntzman v. Mahoney, 51 A.D.3d 732 (2nd Dept. 2008), which stood for the proposition that that marital property used to pay one spouse’s obligations incurred either prior to the marriage, or benefitting only one spouse, could be recouped. In Mahoney-Buntzman, the Appellate Division held that the husband’s maintenance obligation to his first wife and the boat loan constituted debts incurred by him prior to the parties’ marriage and were solely his responsibility. Accordingly, the court granted to the wife a credit for one half of the payments made.
Last week, the Court of Appeals issued its decision in Mahoney-Buntzman v. Mahoney, __ N.Y.2d __, 2009 N.Y. Slip. Op. 03629 (2009), and reversed the Appellate Division holding that that marital property used to pay maintenance and child support to the husband’s wife from a previous marriage should not be recouped to the marital estate. The opinion used very broad language which is likely to eliminate any kind of recoupment of marital money expended for separate property purposes. Specifically, the Court of Appeals held that:
[D]uring the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the non-titled spouse exclusively. The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.
Expenditures made during the life of the marriage towards maintenance to a former spouse, as well as payments made pursuant to a child support order, are obligations that do not enure solely to the benefit of one spouse. Payments made to a former spouse and/or children of an earlier marriage, even if made pursuant to court order, are not the type of liabilities entitled to recoupment.
This is not to say that every expenditure of marital funds during the course of the marriage may not be considered in an equitable distribution calculation. Domestic Relations Law § 236(B)(5)(d)(13) expressly and broadly authorizes the trial court to take into account “any other factor which the court shall expressly find to be just and proper” in determining an equitable distribution of marital property. There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse’s separate property (see e.g. Micha v Micha, 213 AD2d 956, 957-958 [3d Dept 1995]; Carney v Carney, 202 AD2d 907[3d Dept 1994]). Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a “wasteful dissipation of assets” (DRL 236 [B][5][d][11]) by his or her expenditures provides protection. The payment of maintenance to a former spouse, however, does not fall under either of these categories.
Thus, it is unlikely that any recoupment will be allowed by the courts in the future. This decision makes it even more important that each marital estate is carefully scrutinized by an experienced divorce lawyer to establish the respective rights and obligations of the parties.
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