Grounds for Divorce Revisited

I have previously discussed New York’s grounds for divorce and lack of no-fault divorce.  While the cases have traditionally stated that the longer is the duration of the marriage, the higher is the burden of plaintiff with respect to the grounds such as cruel and inhuman treatment.  Recently, I came across the case that left me surprised despite handling many divorce cases here in Rochester over the last 14 years.

In S.K. v. I.K., 2010 N.Y. Slip. Op. 50556(U) (Sup. Ct. Nassau Co. 2010), the plaintiff husband was seeking a divorce on the grounds of cruel and inhuman treatment after 29 years of marriage.  One of the grounds alleged was cruel and inhuman treatment.  Specifically, the husband testified that wife was extremely physically abusive, and that in August of 2005, she attempted to attack him with a Japanese sword.  Husband testified that wife could have killed him if not for the parties’ daughter’s intervention.  He testified that the sharp edge of the sword came within a few inches of his chest. He testified that wife came to the marital residence around 1:00 p.m., and when husband questioned her as to where she had been, wife refused to answer, and stated that she did not have to tell him. He testified that wife began acting “crazy” and began yelling and screaming at him. She then came after him waving her hands and pounding on his chest, striking him repeatedly.  He testified that at the start of the confrontation, the parties were in the kitchen, but that upon escalation of the incident, he ran to the master bedroom, and fearing for his safety, he locked himself in the bedroom for his protection.  He testified that wife began pounding on the door and kicking it with her feet, while screaming and insisting that he open the door.  Husband testified that he heard the parties’ daughter come out of her bedroom, and that she was pleading for the wife to stop.  Fearing that wife would hurt their daughter, he came out of the bedroom and walked towards the kitchen where the wife was holding the large Japanese sword, while their daughter was trying to block wife and stop her from moving forward. Husband testified that he observed the wife pushing their daughter back in an attempt to reach the bedroom, but when she saw husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter’s body. He testified that the wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest.  He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that the wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by the wife upon him during the course of the incident.

The parties’ children testified and corroborated the husband’s testimony.  The wife denied the allegations of Husband with respect to the incident involving the Japanese sword.

The trial court, after hearing all of the testimony involving the Japanese sword, held that the husband did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor.  The court stated that the husband never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with the wife to return to the marital residence to work on their marriage.

Husband provided no testimony from any physicians nor did he produce any medical records.  Accordingly, the trial court held that the husband failed to establish a prima facie showing of cruel and inhuman treatment by the wife, and dismissed that cause of action.

What is surprising about this case is that there was corroborated testimony that the wife engaged in conduct that would have likely resulted in a serious injury or death of the husband, were it not interrupted by the parties’ daughter.  If attempting to kill or seriously injure your spouse with a sword is not cruel and inhuman treatment, it is hard to conceve of the conduct that would actually amount to cruel and inhuman treatment.

In my view, the cases such as S.K. continue to reiterate the need for New York to pass no-fault divorce legislation.  At the same time, the husband’s divorce lawyer should have presented testimony with respect to how this attack affected the husband.  It should have been possible to have the husband evaluated by a psychologist and have psychologist’s testimony presented to the court.  As a postscript, while the trial court did not grant divorce on the grounds of cruel and inhuman treatment, the divorce was ultimately granted on the grounds of abandonment because the wife moved for a period of time to Virginia and said move was unjustified and without an intention to return.

The irony of all of the above is that this case is not unique.  While the facts in S.K. are shocking, there are many marriages that have ended many years ago but cannot be legally dissolved.  Until New York does something about its grounds requirements, similar cases will continue to take place.

Dividing Photographs and Other Mementos in Divorce

While the parties are married, they tend to accumulate personal mementos such as photographs, videos, recording, pictures, drawing and other items that represent their memories of people and places.  For many people, those photographs and videos of their children are precious and irreplaceable.  For that very reason, the courts are forced to get involved in dividing such items since parties tend to have a difficult time dividing them.

In a recent case, M.R. v. E.R., 2010 N.Y. Slip. Op. 50575(U) (Sup. Ct. Nassau Co. 2010), the court demonstrated how these issues should be approached and resolved.  In M.R., the parties resolved all of the issues in their divorce by stipulation, with the sole issue left unresolved that of the right to numerous photo albums, which contain more than 7000 photos of the parties and their children which were taken during the course of their marriage.  The husband moved for an order directing that he be awarded the photo albums and the wife cross-moved for the same relief.

In a decision and order dated November 13, 2010, the court set the motion and cross motion down for a hearing after noting that the issues raised in the papers concerned equitable distribution which were not resolvable on paper submissions.  At the time that the hearing was conducted on April 6, 2010, neither party was represented by counsel.  After hearing, the court made the following findings of fact and conclusions of law with respect to the limited issues addressed therein. The court noted that the parties rejected all settlement attempts, and at the hearing, maintained their intractable and opposite positions, to wit, to each keep all photo albums.  The court also noted that the parties did previously attempt to settle the issue, and seemingly agreed that the husband would retain all photo albums and share equally in paying the cost of reproducing the photographs contained therein. The wife testified that the agreement was based on the parties’ understanding that the quality of reproduction would be satisfactory.  The parties paid more than $2,100 to scan the photographs onto disc(s), which were admitted into evidence.  As noted, other than what is described above, there was no signed or notarized agreement regarding the distribution of the photo albums.

The court found that the husband was intricately involved with taking, compiling and cataloging the thousands of photos at issue.  In this regard, the husband testified in great detail about his meticulous cataloging of photographs, love of photography; he equated his collecting of photographs of family with the hobby of collecting rare books.  The husband described the Wife’s involvement with this process as limited, and often, antagonistic.  He believed that his wife had manufactured a dispute over the photographs, not out of any real desire to obtain them for sentimental or other qualitative value, but out of some vindictive desire.

The wife gave somewhat conflicting testimony and the court found that the wife had some involvement with the compilation of photos, but that such involvement was far more limited than what she testified to at the hearing.  She testified to her dissatisfaction with the reproductions, and several photographs (printed from disc) containing imperfections/problems were admitted into evidence in support of her contentions.

The court has reviewed the photographs admitted into evidence both on disc and in photo albums.  The disc appears to contain the contents of 75 photo albums, most of which have approximately 100 photographs. The quality of photos contained on the disc is, to the court’s view, satisfactory for the most part, although it does appear that the photographs on disc are not exactly equivalent in quality to the “hard” photographs in the albums admitted into evidence.  The vast majority of photos are of the children alone, or (apparently) with relatives or friends.  Many photographs depict vacation places or sites visited by the parties themselves or with their children. On disc, and in the albums admitted into evidence, the husband is pictured in numerous photos; the wife is pictured in far less photographs. The court accepted as credible the husband’s testimony regarding the wife’s general apathy with respect to the photographic process throughout the marriage and to his greater interest in retaining the photos, and rejected the wife’s contention that the reason she does not appear in many photographs is because she was either holding the camera or did not otherwise wish to be photographed. However, the court did not conclude that the wife desired the albums, which contain many photographs of the parties’ children, for completely vindictive reasons.

Taking into account the previous agreement of the parties, and other facts, which the court considered to fall within the “catch all” factor required to be considered in making an equitable distribution award, the court hereby awards the wife 25% of the original photos; the husband is awarded 75% of the photos.  The percentages are approximate because the court held that the selection of the photos will take place in accordance with the following method, or if parties can agree any other method.  Starting with the first album, the wife shall, counting from the first page thereof, be entitled to receive every fourth original photograph in that album until reaching the end of the album.  Selection shall continue in like manner with respect to each successive album.

In my opinion, it is impressive that the court took the time to address this issue.  In general, courts’ time is limited, and most lawyers do not want to get involved with the issues dividing such personal property. Here in Rochester, a common practice is to refer the parties to the Center for Dispute Settlement to resolve any issues involving personal property and possessions.  The problem with this approach is that the Center does mediation, and, if the parties cannot agree, they are forced to come back to the court.  I generally counsel my clients that they should make every effort to resolve those disputes since it is expensive to litigate them.

Are Lifetime Medical Insurance Benefits Subject to Equitable Distribution?

Once in a while I see a divorce action where one of the parties to the action is entitled to lifetime medical insurance benefits as a result of his/her employment.  For obvious reasons, such benefits may be of great value to one or both parties.  What happens if one of the parties makes an argument that such benefits are subject to equitable distribution?

In Henig v. Henig, 2010 N.Y. Slip. Op. 50546(U) (Sup. Ct. Nassay Co. 2010), the husband was a former New York City Police Officer who retired in 2007. Since his retirement on December 31, 2007, he has been entitled to and does receive lifetime medical, dental and vision benefits for himself, wife, and the parties’ children.  Wife argued that the medical insurance is a marital asset and subject to Equitable Distribution, and/or equals a benefit to be included in determining husband’s income.

Wife argued that the Domestic Relations Law contemplates an expansive view of marital property and analogized the lifetime health benefits to a pension insofar as such benefits are an asset, received only upon retirement.   She claimed that husband’s rights to the coverage matured as of his retirement, and Wife has rights independent of the husband, i.e., if there were no divorce and husband were to die, Wife and children would still receive benefits.

While wife made that argument, however, her lawyer had not submitted any documentary evidence, specific to the plan, to substantiate these claims.   Wife’s attorney also argued that lifetime benefits, like a pension, are contractual rights, which have some value because they are received in lieu of higher compensation, which husband would have earned otherwise, however, wife’s counsel again provided no proof to substantiate this claim.

Husband argued that since enactment of DRL §236 B, neither the Court of Appeals nor the four appellate divisions have held that employee-subsidized health insurance benefits are marital property subject to Equitable Distribution.  In fact, in contemplation of the loss of such health benefits, DRL§255(a) directly addresses the issue stating that ” once a judgment is signed a party there to may or may not be eligible to be covered under the other party’s health insurance plan.” Husband’s lawyer also argued that amendments to DRL§236(B) provide that loss of health insurance benefits upon dissolution of marriage are factors that a court must consider for the purposes of determining maintenance and Equitable Distribution, but that such benefits are not itself an asset, and if the Legislature intended that such benefits be included in the definition of marital asset, it would have done so as it has amended and modified other provisions concerning health insurance.

Husband further argued that wife may elect continuation of coverage under a COBRA option, or she could obtain her own health insurance benefits through full-time employment, the cost of which is a consideration in her support award, if any.  Wife’s available remedy through the election of COBRA coverage would ensure the avoidance of any possible double-dipping by ordering the husband, to pay for her health insurance.  Husband’s counsel, however, has not submitted any proof of the availability of a COBRA option to wife upon dissolution of the marriage, nor was there any proof presented with as to wife’s ability to obtain benefits through employment.

As far as the health insurance benefits themselves, the husband currently pays $15.32 per month for such benefits and an annual deductible $300.00.  The continuation of the benefits is at a continued cost to husband, and his failure to make such payments will result in the cessation of such benefits.  In further support of the proposition that lifetime health benefits are not defined like a pension, husband’s lawyer asserted that wife has already received her marital portion of the insurance having enjoyed its benefits during the marriage, and even the period after husband’s retirement and until such time that the Judgment of Divorce is entered.  Furthermore, he argued that upon divorce Husband will pay the monthly premium from his separate property, and continuation of the health insurance policy is conditioned upon payments made from separate property and therefore any marital right to the insurance terminates upon divorce.

Wife’s divorce attorney cited Walek v. Walek, 193 Misc 2d 241 (Sup. Ct. Erie Co. 2002), where the trial court held that health insurance benefits were a marital asset and subject to Equitable Distribution. The court in Henig found that case distinguishable since in Walek, the husband used a portion of his sick time, which could have been paid to him directly, to fund the 10% required premium payment necessary to receive those post-retirement, lifetime benefits.  The sick time had a value, which was arguably marital property, which marital property was then used to directly fund those lifetime benefits.

Section 255 of the Domestic Relations Law states in pertinent part that:

A court, prior to signing a judgment of divorce or separation, or a judgment annulling a marriage or declaring the nullity of a void marriage, shall ensure that:

1. Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan.
2. If the parties have entered into a stipulation of settlement/agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/agreement entered into between the parties shall contain a provision relating to the health care coverage of each party; and that such provision shall either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party’s health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available.

Section 236 B(6) of the Domestic Relations Law states in pertinent part that:

In determining the amount and duration of maintenance the court shall consider:

(11) the loss of health insurance benefits upon dissolution of the marriage; and

The trial court held that the threshold question was whether the lifetime health benefits constituted property and the wife has failed to submit proof establishing this.  Even if it were to be deemed property, wife has failed to provide the court with a sufficient showing to justify classifying such benefits are “marital property” or that  the post-retirement lifetime benefits involved a reduction in husband’s earned wages in order to obtain such benefits or that these lifetime benefits are provided through the employer utilizing funds set aside from a portion of the husband’s income earned through his employment.  She did not allege that husband had an opportunity to “opt out” of such benefits in exchange for higher wages.

Additionally, the argument with respect to the de minimus amount husband is required to pay for the continued health insurance and that husband’s cost for such comparable medical benefits pales in comparison to that which it would cost wife was not persuasive.  Even if this argument were accepted, the loss of benefits for one spouse has been contemplated by the Legislature in its amendment to the Domestic Relations Law to include the loss of health insurance benefits in the determination of maintenance.  Although wife’s attorney argued that such savings for Husband constitutes an asset to which Wife contributed, this argument did not persuade the court.

What is the final lesson of Henig?  I agree with the court that the health benefits are not marital property as contemplated by the Domestic Relations Law.  Furthermore, it was the intent of the Legislature to exclude such benefits from the totality of marital assets, as evidenced by the amendments to the Domestic Relations Law that specifically ensure that such loss of benefits by a spouse post-judgment is a consideration in the determination of maintenance, as well the recent language adopted to ensure that all parties are aware of the possibility of loss of such health benefits.  Wife was not left without a remedy, since the future cost of health benefits is a consideration for any award of maintenance and Equitable Distribution.

Update on Dissolution of Out-of-State Civil Unions

I have previously written regarding the problem posed by out-of-state civil unions.  Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.

The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union.  However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially.  As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.

Now we have the first appellate level decision to address this issue.  In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”  The court did not determine the scope of the relief that may be available in such action.

What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution.  What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution.  All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law.  What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage.  Does entering into a civil union create a potential entitlement to a spousal maintenance?  I don’t know the answer to that question, I suspect that the courts do not know the answer to it either.  It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.

For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.