Archive for December, 2008

Opt-Out Agreements and the Scope of the Child Support Standards Act

Monday, December 29th, 2008

If parties choose to deviate from the provisions of the Child Support Standards Act with respect to the child support paid, such deviation will be upheld by the court provided the parties complied with such formalities as including calculations of the presumptive child support amount and the reasons for deviating from the CSSA. However, the parties frequently choose not only to deviate from the child support amount calculations, and add-ons such as child care and health care costs, but also to make recalculations of child support an annual or semi-annual event, or to include other items not included within the scope of the CSSA.

In Fasano v. Fasano, 43 A.D.3d 988 (2nd Dept. 2007), the parties included an annual cost-of-living-adjustment (“COLA”), with respect to the child support paid by the non-custodial parent. The Second Department found that the parties to the agreement did not opt out of the CSSA standards with respect to basic child support, but that the COLA provision included in the agreement represented potential future deviations from the CSSA basic child support obligation. The agreement did not state the reasons for including the COLA provisions. The Appellate Division held that the COLA provision represented an opt-out from the CSSA and was directly related to the child support. Since the reasons for including the COLA provision were not included in the agreement, the opt-out was invalid. The court vacated the COLA provision, while the basic child support provision of the agreement was not vacated.

However, not all provisions dealing with financial support of the children are considered to be within the scope of the CSSA. In Cimons v. Cimons, 53 A.D.3d 125 (2nd Dept. 2008), the Second Department held that the obligation to provide for the future college expenses of the children was not part of the parties’ basic child support obligation and therefore was not subject to the CSSA requirement that any deviation from statutorily-mandated child support obligations must be recited and explained in a stipulation of settlement. While the parties’ agreement regarding basic child support violated the CSSA by failing to recite and explain the reasons for the deviation, the provision concerning future college expenses was enforceable. The court held that unlike the basic obligation to provide child support, payment for a child’s college education is not mandatory. Absent a voluntary agreement, a parent might be required to provide support for his or her child’s attendance at college, but the determination of that obligation is dependent upon the exercise of the court’s discretion in accordance with Domestic Relations Law §240(1- b)(c)(7). The court further noted that the determination as to which additional aspects, if any, of the parties’ stipulation must be vacated along with the basic child support provision depends on the circumstances of the particular case and the nature of the obligations addressed in the other provisions of a stipulation. Some provisions may be so directly connected or intertwined with the basic child support obligation that they necessarily must be recalculated along with the basic support obligation. It found that unlike child care expenses and unreimbursed health care expenses, education expenses were not directly connected to the basic child support calculation and did not require the appropriate opt-out language.

The above cases represent the dangers involved any time the parties attempt to either opt-out from the CSSA or attempt to include items outside of the scope of the CSSA in their agreement. Any such agreement must be carefully drafted to make sure that it is not subsequently challenged and invalidated.

Divorce and Other Family Law Proceedings and Attorneys Fees Award

Monday, December 29th, 2008

Attorneys fees awards are often at issue in divorce cases. Such awards are in the court’s discretion. Their primary purpose to allow a non-asset spouse to prosecute on or defend the divorce action, so that the parties are litigating on an equal footing so that one spouse does not have a greater economic leverage than the other spouse.

The Domestic Relations Law (“DRL”) recognizes those economic realities in divorce litigation and allows for award of attorneys fees, either on interim basis while the action is still pending, or after the action has been concluded. Counsel fee awards are not authorized by any provision of the DRL in actions or proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce.

DRL §237(a) provides that

in any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, (2) for a separation, (3) for a divorce, (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York and who did not appear therein where such spouse assert the nullity of such foreign judgment, or (5) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse … to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on and defend the action or proceeding as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

Where an action for annulment is maintained after the death of a spouse, DRL §237 (a) authorizes the court to direct the person or persons maintaining the action to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to defend the action.

“Expenses” is defined in DRL §237(d) and includes, but is not limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses as the court may determine to be necessary to enable a spouse to carry on or defend one of the actions or proceedings designated in §237(a).

DRL §237(b) provides that,

upon any application to annul or modify an order or judgment for alimony or for custody, visitation or maintenance of a child, made (as prescribed in §§236 or 240) or upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay such sum or sums of money for the prosecution or the defense of the application or proceeding for the other spouse or parent as, in the court’s discretion, justice requires, in light of the circumstances of the case and of the respective parties.

DRL §238 states:

In any action or proceeding to compel the payment of any sum of money required to be paid by a judgment or order entered in an action for divorce, separation, annulment or declaration of nullity of a void marriage, or in any proceeding pursuant to (§§243, 244, 245 or 246), the court may, in its discretion, require either party to pay the expenses of the other in bringing, carrying on or defending such action or proceeding.

The Domestic Relations Law also provides that, in a proceeding to obtain an order of protection or to enforce such an order, the Court may require any party to pay the reasonable counsel fees and disbursements involved in obtaining or enforcing that order. Such fees may be awarded only in favor of the person obtaining the order or seeking to enforce it.

Counsel fees and expenses may also be obtained by a person seeking to enforce a custody decree of another state under several sections of the Uniform Child Custody Jurisdiction Act and in proceedings to hold a person in contempt of court for failure to obey a non-monetary order, under certain circumstances.

Domestic Relations Law §237(c) provides for a mandatory award of counsel fees in certain enforcement proceedings. The statute provides that in any action or proceeding for failure to obey any lawful order compelling payment of support, maintenance, or distributive award, the court shall, upon a finding that such failure was willful, order respondent to pay counsel fees to the petitioner’s attorney.

The Court of Appeals in DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879 (1987) noted that DRL §237 allows for flexibility. Lack of funds is not a prerequisite to an award of counsel fees. Rather, in exercising its discretionary power to award counsel fees, a court must review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions.

The court determined that an award of fees for the time spent by counsel in making the counsel fee application, and in related proceedings, comports with the purpose of the statute and should therefore be encompassed within its scope. It stated that if the time spent in applying for fees was not included in the award, the purpose of the statute could be frustrated by the more economically advantaged spouse engaging in protracted proceedings on the fee application and thereby increasing the cost of obtaining counsel fees for the less affluent spouse.

In O’Shea v. O’Shea, 93 N.Y.2d 187 (1999) the Court of Appeals clarified issues related to award of attorneys fees. It concluded that courts have the discretion, in appropriate cases, to grant such awards, based upon criteria that include the circumstances of the parties and the reasonableness of their positions. The Court of Appeals also held that courts have the discretion to grant counsel fees to the wife for legal services rendered in connection with the hearing to determine the fee award.

Subsequently, in Frankel v. Frankel, 2 N.Y.3d 601 (2004), the Court of Appeals recognized that “the realities of contentious matrimonial litigation require a regular infusion of funds,” and that “more frequent interim counsel fee awards would prevent accumulation of bills”. Quoting from the 1993 report of the Committee to Examine Lawyer Conduct in Matrimonial Actions, the Court noted that “[t]he practice of many judges to defer [pendente lite counsel fee applications] to the trial court essentially delays the awarding of fees until the final settlement or judgment, and often compromises the non-monied spouse’s ability to adequately litigate the case’”.

In Prichep v. Prichep, 52 A.D.3d 61 (2nd Dept. 2008), the Second Department held that because such awards relate directly to the fundamental fairness of the proceedings, an award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties and should not be denied, or deferred until after the trial, which functions as a denial, without good cause, articulated by the court in a written decision. It cited as examples of good cause, where the requested fees are unsubstantiated or clearly disproportionate to the amount of legal work required in the case. Its conclusion relied on the fact that when an action for a divorce is commenced, it is often the case that most of the marital assets available for the payment of legal fees are possessed or controlled by one of the spouses, usually the husband. In order to ensure that the parties will have equal access to skilled legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the nonmonied spouse during the course of the litigation. The court pointed out that when a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, a detailed inquiry is not warranted.

The facts in Prichep were as follows. The divorce action was started by the husband in 1998. In June 2005, the wife made a pretrial motion for interim counsel fees of $35,000. Her motion stated that, although the court previously had granted her interim counsel fees of $20,000, she currently owed her attorneys $53,009. The wife pointed out that the husband was earning $420,100 per year, while she worked part-time, earning $4,015 per year. In opposing the motion, the husband argued that the wife had engaged in unnecessary litigation, and incurring excessive counsel fees. Supreme Court denied the wife’s motion without prejudice to a renewal at a later date. Subsequently, the wife moved to renew her prior motion and for an additional award of interim counsel fees of $40,000. Her attorney submitted an affidavit asserting that the wife now owed his firm $159,000 in legal fees, as well as invoices and attorney time records documenting billings in that amount. In the alternative, the motion sought leave to withdraw as her counsel. Supreme Court denied the motion for fees but granted the law firm’s request to the extent of relieving it as counsel for the wife. The wife appealed the denial of interim attorneys fees award. The Appellate Division held that an award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate ‘to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation’ “(citing Gober v. Gober, 282 A.D.2d 392, 393, quoting O’Shea v. O’Shea, 93 N.Y.2d at 193; see Charpie v. Charpie, 271 A.D.2d 169). If the playing field were not leveled by an award of interim counsel fees, “a wealthy husband could obtain the services of highly paid (and presumably seasoned and superior matrimonial counsel, while the indigent wife, essentially, would be relegated to counsel willing to take her case on a poverty basis”. The Appellate Division reversed the lower court’s decision and awarded the fees sought.

As important as the attorneys fees are during the pendency of the divorce action, they are just as important at the end of the action. When the final application for attorney fees is made, the court must consider the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the necessity for the services; (4) the nature of the issues involved; (5) the professional standing of counsel, including background and experience; (6) the results achieved; (7) the financial circumstances of the spouses; and (8) a spouses’ obstructionist tactics. It is also appropriate for the court to consider each spouse’s settlement demands and negotiation position in determining the appropriateness of a counsel fee application. A party can obtain both interim and final attorneys fees awards in a single divorce action.

Grandparents’ Right of Visitation

Sunday, December 21st, 2008

In New York, grandparents have a right to seek assistance of the court to obtain visitation with their grandchildren. That right is included in both the Domestic Relations Law and the Family Court Act. Section 72(1) of the Domestic Relations Law states that

“[w]here either or both of the parents of a minor child, residing within this state, is, or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to [supreme or family court] and . . . the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given in such manner as the court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent or grandparents in respect to such child.”

Section 72(1) “does not create an absolute or automatic right of visitation. Instead, the statute provides a procedural mechanism for grandparents to acquire standing to seek visitation with a minor grandchild”. Wilson v. McGlinchey, 2 N.Y.3d 375, 380 (2004). When grandparents seek visitation under §72(1), the court must undertake a two-part inquiry. “First, [the court] must find standing based on death or equitable circumstances”; and “[i]f [the court] concludes that the grandparents have established the right to be heard, then it must determine if visitation is in the best interest of the grandchild”. Emanuel S. v. Joseph E., 78 N.Y.2d 178, 181 (1991).

Since 1976, visitation may be awarded to grandparents in matrimonial actions. The 1976 amendment added the following to DRL §240: “Such direction [of a court in a matrimonial action] may provide for reasonable visitation rights to the maternal or paternal grandparents of any child of the parties.” In New York, the statute provides that grandparents may obtain visitation rights even though their child is not deceased, and the nuclear family is intact.

Last year, the Court of Appeals in E.S. v. P.D., 8 N.Y.3d 150 (2007), unanimously rejected a constitutional challenge to New York’s grandparent visitation law. In upholding the New York Law which permits grandparents, under certain circumstances, to seek visitation with their grandchildren, the Court distinguished the New York law from the overly broad Washington law struck down by the United States Supreme Court in Troxel v Granville, 530 U.S. 57 (2000).

The statute invalidated in Troxel permitted “‘[a]ny person’ to petition for visitation rights ‘at any time,’ and authorize[d] that court to grant such visitation rights whenever ‘visitation may serve the best interest of the child’” (Troxel, 530 U.S. at 60 [quoting Wash Rev Code § 26.10.160(3) (1994)]). The Washington statute explicitly applied a presumption in favor of grandparent visitation, placing on the parent “the burden of disproving that visitation would be in the best interest” of her children.

The New York Statute, on the other hand, is based upon the presumption that the parent’s wishes represent the best interests of the children. The Court noted that:

. . . courts should not lightly intrude on the family relationship against a fit parent’s wishes. The presumption that a fit parent’s decisions are in the child’s best interests is a strong one. And while, as we made clear in Wilson, the problems created by parent-grandparent antagonism cannot be ignored, an acrimonious relationship is generally not sufficient cause to deny visitation. “It is almost too obvious to state that, in cases where grandparents must use legal procedures to obtain visitation rights, some degree of animosity exists between them and the party having custody of the child or children. Were it otherwise, visitation could be achieved by agreement” (Lo Presti v. Lo Presti, 40 N.Y.2d 522, 526 (1976)).

While this presumption creates a significant burden for the grandparent, the grandmother in this case was able to overcome it, because from the time the child was almost four until he was seven, grandmother was the primary caretaker. The court then considered all of the many circumstances bearing upon whether it was in the child’s best interest for his relationship with grandmother to continue, such as whether the father’s objections to grandmother’s access to the child were reasonable, her caregiving skills and attitude toward father, the law guardian’s assessment and the child’s desires, before granting visitation.

Tax Issues in Custody and Divorce

Sunday, December 21st, 2008

As we come to the end of the year, I am often asked about different tax issues applicable to my clients’ situations.

If my client’s divorce will not become final before the end of the year, the parties can still file a joint tax return. Once the judgment of divorce has been filed, an ex-spouse can file the return as a head of household, if he or she has paid for over half the maintenance of the household, and has a dependent living at his or her home for over half the year.

When the parties are divorced, only one of them can claim the $3,500 child dependency exemption on their tax returns for 2008. The parent claiming the dependency exemption is also allowed a $1,000-per-child tax credit for children younger than 17, as long as his or her income is not above the following cut-offs. For a married couple filing jointly, it is $110,000, for a married couple filing separately, it is $55,000 per spouse, and for all others, it is $75,000. If the applicable income exceeds the above thresholds, the amount of the child tax credit is reduced proportionately.

Usually, it is the person named as the custodial parent in the child custody portion of the divorce decree that is allowed to claim the child as a dependent. If the divorce decree does not name a custodial parent, then the parent with whom the child has lived with the longest throughout the year is the custodial parent.

A non-custodial parent, however, can claim the child dependency exemption, as long as the custodial parent signs a waiver promising not to claim the exemption. This is typically accomplished by the use of IRS Form 8332. However, the recent amendments of the IRS regulations dealing with this issue have complicated this issue. The final regulations provide that a release not on a Form 8332 must be a document executed for the sole purpose of releasing the claim. A court order or decree or a separation agreement cannot serve as the written declaration. If a release of a claim to a child is for more than one year, the noncustodial parent must attach a copy of the written declaration to the parent’s return for the first tax year for which the release is effective. Copies must also be attached to returns for later years. Under the final regulations, a custodial parent who released the right to claim a child, can revoke the release for future tax years by providing written notice of the revocation to the other parent. The final regulations require that the parent revoking the release notify, or make reasonable attempts to notify, in writing, the other parent of the revocation. What is a reasonable attempt is determined under the facts and circumstances, but mailing a copy of the written revocation to the noncustodial parent at the last known address or at an address reasonably calculated to ensure receipt satisfies this requirement. A revocation can be made on Form 8332, or successor form designated by IRS. A revocation not on the designated form must conform to the substance of the form, and be in a document executed for the sole purpose of revoking a release. A taxpayer revoking a release may attach a copy rather than an original to the taxpayer’s return for the first tax year the revocation is effective, as well as for later years.

Yet another related issue is who can claim the child as dependent under the group health plan coverage and health savings account (“HSA”) distributions. Under the final regulations, for purposes of group health plan coverage and health savings account (HSA) distributions, both parents can claim the child as a dependent if: (1) the child qualifies as a dependent of one of the parents; (2) the parents (both parents together) provide more than ½ of the child’s support for the calendar year; (3) the child is in the custody of one or both parents for more than ½ of the calendar year; and
(4) the parents are divorced, legally separated under a decree of separate maintenance, separated under a written separation agreement, or live apart at all times during the last six (6) months of the calendar year.

If a non-custodial parent claims the child exemption first, and without the custodial parent’s permission, he or she is likely to receive the exemption temporarily. However, once the custodial parent files his or her tax return including the exemption, and IRS notices that a child’s social security number has been included on two different tax returns, then both parties would be notified by IRS that only one party is entitled to the exemption, and the tie-breaker rule would be used to resolve this situation. This rule says that if two parents claim that a child as a dependent, the parent with whom that the child lived with the longest during the year, receives the exemption. If the child had spent the same amount of time with both parents, then the parent that had the higher adjusted gross income would get the exemption. The parent who was not entitled to the exemption would have to repay the tax, plus penalties and interest.

Regardless of who the custodial parent is, if the non-custodial parent pays for any of the child’s medical bills, these costs can be a deduction, subject to appropriate income limits. Child-care credit for work-related expenses can be claimed for children younger than 13.

The spouse who pays maintenance or spousal support can also receive a tax deduction for these payments, even if they aren’t itemized—as long as the payment amounts are stated in the divorce agreement or the judgment of divorce, and actually paid. The spouse who receives maintenance must pay taxes on it. For child support, however, there is no deduction for paying it and no taxes are paid by the parent receiving it. Assets transferred from one spouse to another during a divorce are not generally taxed.

Please note that the above discussion is not a tax advice and these issues should be discussed with your tax professional.

Divorce, Immigrant Spouse, Maintenance and Affidavit of Support

Sunday, December 14th, 2008

When either a husband or wife marries someone who is not a legal resident of the United States and brings them to this country, as a part of his/her immigration application, the spouse who is a citizen of the United States certified that he/she would provide support for their spouse once that spouse is in the United States and would not allow her to become a public charge. See 8 U.S.C. §1182(a) (which prohibits immigration when the immigrant has no means of support and is likely to become a public charge). This requirement is satisfied by what is known as an affidavit of support, I-864 form. By signing it, the party certifies that he/she would provide to their spouse with income of 125% of the Federal Poverty Level guidelines. For 2008, the Federal Poverty Level guidelines state that the poverty level income for a household of one is $10,400.00, and the corresponding income level under the affidavit of support is $13,000.00.
According to the Appellate Division, Fourth Department, where a party signs an affidavit of support, from I-864, that affidavit is a legally enforceable contract. Moody v. Sorokina, 40 A.D.3d 14 (4th Dept. 2007). In that case, a Ukrainian national emigrated to the United States to marry her eventual husband in New York. When the husband filed for divorce several years later, the wife sought to enforce the Affidavit of Support for purposes of determining the amount of support payments to be made by the husband. While the trial court rejected the wife’s argument and held that the affidavit could not be enforced in court by private parties, the Appellate Division, Fourth Department reversed the lower court and held that the affidavit of support was enforceable. The Appellate Division held that the execution of a affidavit of support creates a legally enforceable agreement between the parties involved that can be enforced by the sponsored immigrant in any federal or state court. Id. at 401. Moreover, the Fourth Department explained that the terms of the agreement are not affected by a subsequent judgment of divorce. As such, the agreement remains fully binding on all parties until the sponsored immigrant “has worked 40 qualifying quarters of coverage,” as defined by the Social Security laws. The enforcement of the right of support also includes attorneys fees. Id.
Therefore, when the spouses separate and the immigrant spouse is unable or unwilling to work, the spouse who is a citizen of the United States will be responsible for their spouse’s support until such time as that spouse becomes self-sufficient, or perhaps even indefinitely.

Interstate Custody Disputes and Jurisdictional Issues

Sunday, December 14th, 2008

Periodically I am asked about jurisdictional issues that arise when one parent and/or their child relocates to out of state and the other wishes to petition the court for child custody or visitation, a modification or change in custody or enforcement of a custody order. Although there are cases where the noncustodial parent seeks court intervention because of the fact that the custodial relocated without permission, there are in fact times where consent was given initially but subsequent events may raise a need for a modification or enforcement of the current custody order.

New York has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCEJA”). This statute attempts to discourage interstate child abductions and to prevent “forum shopping” by parents trying to remove the child to a state to avoid another state’s jurisdiction. The statute explicitly sets forth the circumstances in which New York courts have jurisdiction, particularly when one parent and/or the child no longer resides in New York. While UCCEJA issues are most commonly seen in family court petitions seeking custody or visitation, modifications and enforcements of custody or visitation orders, it also applies to guardianship, divorce, paternity, child abuse or neglect, termination of parental rights and domestic violence cases. Since jurisdiction is usually not in issue when the child lives in New York or has moved from the state within six months of filing the petition, the UCCJEA helps to iron out jurisdictional issues in other circumstances where the child’s residence is in question based on a move from the state or his or her physical presence in the state. These include cases where the noncustodial parent lives in New York but the child does not; where the child moved from the state more than six months prior to the filing of the petition (but without the noncustodial parent’s consent or to somewhere unknown to that parent); or where the child is in New York and there are concerns of abuse or neglect. These are all scenarios that require the application of the UCCJEA.

The UCCJEA sets forth alternative situations for asserting jurisdiction, which are: 1) where it is in the best interests of the child based on the “significant connections” to the state and there is “substantial evidence” within the court’s jurisdiction concerning the child’s current or future care; 2) where there is an emergency situation ; 3) where no other state has jurisdiction or 4) another state has refused jurisdiction.

Situation 1: This section only applies to cases where there is no home state and there has not been a home state for the past six months. This limitation is imposed by the federal statute, the Parental Kidnapping Prevention Act which trumps the UCCJEA because of the constitutional supremacy clause (Article VI, Clause 2). This act serves to provide more uniformity amongst states, resolve conflicts between various states that may have an interest and to address the inconsistency caused by the application of the prior act, the Uniform Child Custody Jurisdiction Act (“UCCJA”), which was the basis for states applying their own version resulting in inconsistent orders. Its objective is to avoid forum shopping, while encouraging the preference for the issuing state to maintain jurisdiction so long as one of the parents or the child remains a resident of the state. Based on this, as well the two part analysis required to meet the criteria, there are rare cases where this particular section applies. For example, showing that there are “significant contacts with the state” may be attainable, but proving that there is “substantial evidence” concerning the child’s current or future care is much more challenging.

Situation 2: This section applies mainly in child abuse or neglect cases or where the child was abandoned by the parent or legal guardian. However, although the act serves to limit jurisdiction to situations where some immediate attention should be given, the statute is strictly construed. In other words, a mere allegation of abuse or neglect is not enough, the courts must be convinced that abuse or neglect actually exist, placing the child’s physical and/or emotional well-being into question. And even still, the courts may assert only limited or temporary jurisdiction, deferring the case to the home state of the child for further proceedings. Furthermore, the child must physically be present in the state, and cannot be removed from the state for any reason under this provision.

Situation 3: This section typically applies in cases where the child has not had a home state anywhere during the previous six months, (no significant connections or emergency situation exists). This is a safety measure included in the statute to avoid the case going unheard by any court. Cases like this arise when the child moved from New York, then to another state for a short period (less than six months), then back to New York less than six months before the filing of the petition.

Situation 4: This section applies to cases where another state, presumed to have been the child’s home state, has denied jurisdiction based on its own provisions. Typically states will deny jurisdiction for lack of significant ties, there is a case already pending in another state, there is a more convenient forum or merely for parties’ failure to ascertain legitimate residence (as is the case when parents take the child from another state and hide him or her from the noncustodial parent long enough to establish jurisdiction).

When it comes to modifying a child custody order in New York that was issued by another state, New York will not exercise jurisdiction unless the state that entered it no longer has jurisdiction. So even if it is the non-custodial parent that remains in the issuing state, while the child and the custodial parent relocated to New York, that state still has jurisdiction unless it declines jurisdiction. Conversely, New York will enforce a custody order if the child and one parent lives in the state, if the order is registered in New York.

Divorce and Leaving Marital Residence

Monday, December 8th, 2008

One of the most common questions asked at the beginning of a divorce case is whether my client can move out of the house. Most of the time, my advice is to stay. Often, it is not what my clients want to hear, however, there may be good reasons not to leave.

The most significant ones are as follows:

Initially, any such move will fundamentally change each party’s negotiating position. In a typical divorce case, if one party stays in the marital home, the other party may be directed by the court to contribute to the mortgage. At the same tine, the party who moved out will have other expenses related to their new residence. This clearly places that party in a disadvantageous financial position.

Leaving the home may jeopardize that party’s custody claim. In a custody dispute, if the children remain in the home with the other spouse, this is highly likely to damage the moving party’s custody claim. If the case takes a long time to resolve, the facts on the ground, i.e., the residence of the children will work against that party. The courts tend to perpetuate status quo with respect to custodial arrangements, and that means that the court would not be likely to direct the children to move, and would be likely to continue existing visitation arrangements.

The move may also have effect on equitable distribution, since it is not uncommon for the courts to grant to the party who was paying expenses associated with the home a credit for the payments made. The credit may significantly impact each parties’ financial situation at the end of the divorce. It may have other economic impact on the parties as well.

The same question receives a different answer if there is domestic violence in the home. Above all other considerations, I advise my clients to protect themselves. In situations involving domestic violence, it is possible to have your spouse removed from the home by obtaining an order of protection even prior to commencement of a divorce action.

Divorce, Attorneys Fees and Unequal Economic Positions of the Parties

Monday, December 8th, 2008

I am often asked whether in a situation where one party controls all the money, is the other party entitled to attorneys’ fees? The concept of interim awards of legal fees is often critical. Potential clients meet with me and tell me that they cannot afford to hire me, and other party is going to win the case because he/she can afford an expensive attorney. The courts in New York are mindful of this problem and tend to grant attorney fees to the non-monied spouse.

In order to ensure that the parties will have equal access to competent legal representation, the Domestic Relations Law authorizes awards of interim counsel fees to the non-monied spouse during the course of the litigation. Because of the importance of such awards to the fundamental fairness of the proceedings, an application for interim counsel fees by the non-monied spouse in a divorce action should not be denied — or postponed until after the trial, which functions as a denial of such fees, without good cause.

The Domestic Relations Law provides that, in an action for divorce, “the court may direct either spouse . . . to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties”. See Domestic Relations Law § 237[a]. The court may direct such payments in the final judgment and/or “by one or more orders from time to time before final judgment”. Id. The Court of Appeals has explained that Domestic Relations Law § 237:

“is designed to redress the economic disparity between the monied spouse and the non-monied spouse. Recognizing that the financial strength of matrimonial litigants is often unequal — working most typically against the wife — the Legislature invested Trial Judges with the discretion to make the more affluent spouse pay for legal expenses of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant’s wallet” (O’Shea v. O’Shea, 93 N.Y.2d 187, 190 (1999)).

An award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue “is controlled by the equities and circumstances of each particular case”. Timpone v. Timpone, 28 A.D.3d 646 (2nd Dept. 2006). In determining whether to award fees, the court should “review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions”. DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 881 (1987). The court may also consider whether either party has engaged in conduct that caused a delay of the proceedings or resulted in unnecessary litigation. Ciampa v. Ciampa, 47 A.D.3d 745, 748 (2nd Dept. 2008).

An award of interim counsel fees ensures that the non-monied spouse will be able to litigate the action, and do so on equal footing with the monied spouse. Such an award “is appropriate to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation”. O’Shea v O’Shea, 93 N.Y.2d at 193.

Although interim counsel fees are normally payable directly to the attorney representing the non-monied spouse, there is no prohibition to directing payment of fee awards directly from the monied spouse to the non-monied spouse.