Even in situations where the agreement may have not been executed properly or otherwise invalid, if the party does not promptly act to challenge the agreement and accepts its benefits, the court may refuse to vacate the agreement. This is the situation that the Appellate Division, Second Department, addressed in Kessler v. Kessler, 89 A.D.3d 687 (2nd Dept. 2011).

In Kessler, the parties’ separation agreement was incorporated but not merged into the judgment of divorce. The parties entered into the separation agreement on June 10, 1980, after 25 years of marriage. The parties’ separation agreement, provided that the plaintiff husband would, among other things, make payments to the defendant wife for her support and maintenance and for the mortgage and carrying costs relating to the marital residence, where the defendant continued to reside. The plaintiff complied with the terms of the separation agreement and, in 2009, he commenced this action for a conversion divorce. In response to the plaintiff’s motion for summary judgment, the defendant submitted an affidavit asserting that the plaintiff had procured the separation agreement through fraud and duress, and that the agreement was unconscionable.

The defendant alleged, among other things, that the plaintiff had concealed from her his vast wealth, and had induced her to enter into the separation agreement at a time when, unbeknownst to her, New York’s equitable distribution law was about to be enacted. The Supreme Court granted the plaintiff’s motion for summary judgment, and subsequently entered a judgment of divorce, which, inter alia, directed the parties to comply with the terms of the separation agreement which was incorporated, but not merged into, the judgment of divorce. The defendant appealed.

The Appellate Division held that party who “accepts the benefits provided under a separation agreement for any considerable period of time” is deemed to have ratified the agreement and, thus, “relinquishes the right to challenge that agreement”. By contrast, when a party “received virtually no benefits from the agreement,” he or she “cannot be said to have ratified it”.

The Appellate Division further stated that assuming the truth of the allegations set forth in the defendant’s affidavit, the benefits she received pursuant to the separation agreement were far less than those she likely would have received had there been an equitable distribution of the assets accumulated during the marriage. The record, however, did not support a finding that the defendant received “virtually no benefits” from the agreement. Moreover, while “a spouse will not necessarily be held to have ratified an agreement if it is found to be the product of duress and overreaching”, the disadvantage to the defendant created by the alleged fraud and duress in this case cannot be deemed to have persisted throughout the 29-year period during which the defendant accepted the benefits of the separation agreement without challenging it.

The court held that the plaintiff made a prima facie showing that the defendant ratified the separation agreement and that the trial court properly granted the plaintiff’s motion for summary judgment.

There is a simple rule that applies to settlement and separation agreements. The party receiving substantial benefits under the agreement can’t challenge the agreement after a substantial period of time passes.

The parties were divorced on December 23, 2008 and have two sons, 18 and16 years old. Their judgment of divorce was silent as to the payment of the children’s college tuition and expenses.

In 2007, the older child was diagnosed with emotional and learning/anxiety disorders, which resulted in certain educational accommodations. Despite his disabilities, he graduated in 2011 from a selective public high school in Manhattan. He was accepted at Syracuse University, SUNY Binghamton and SUNY Buffalo, as well as other schools. The costs of college education varied from Syracuse at approximately $53,000 a year to attend, to SUNY Binghamton and SUNY Buffalo that cost about $18,000 a year. The child decided to attend Syracuse which he is now attending as a freshman.

The both parents are practicing attorneys in New York City. Plaintiff’s 2010 federal income tax return reported adjusted gross income of $109,896. Defendant’s 2010 federal income tax return reported adjusted gross income of $105,135. Plaintiff’s net worth statement showed she had assets of approximately $1,230,000. Defendant’s net worth statement showed he had assets of approximately $580,000. Both plaintiff and defendant went to private undergraduate colleges and law schools.

Defendant did not oppose an order directing him to contribute to his older child’s college education, but he requested that the court to apply the SUNY cap and limit his responsibility to a percentage of the costs of a state university education rather than to a percentage of a private college education. Defendant’s position was based on his claim that he was unable to meet the financial demands of paying for private college and on his belief that his son could receive as good an education at SUNY Binghamton as he could at Syracuse.

The court stated that Domestic Relations Law 240(1- b)(c)(7) gave the courts of this state the authority to “direct a parent to contribute to a child’s private college education, even in the absence of special circumstances or a voluntary agreement. The statute provides that when a court exercises its discretion to direct such a contribution from a parent, it is to do so “having regard for the circumstances of the case and the parties, the best interests of the child, and the requirements of justice.” The courts interpreted the provisions of DRL 240(1-b)(c)(7) by setting forth specific factors that are to be considered in determining whether to award college expenses. These factors include the educational background of the parents and their financial ability to provide the necessary funds, the child’s academic ability and endeavors, and the type of college that would be most suitable for the child.

The Court stated that DRL 240(1-b)(c)(7) does not provide for a SUNY cap. The SUNY cap appeared in a number of decisions rendered since the enactment of the statute. These cases have not provided an explanation as to when a SUNY cap might be properly applied over the objection of the parent who is seeking an award for college expenses.

The court found that Berliner v. Berliner, 33 A.D.3d 745, 749 (2d Dept. 2006) was instructive because in that case the Second Department stated that there “is no basis in this record” for imposing the SUNY cap implied that the burden falls on the proponent of the cap to demonstrate that it is warranted. The inference to be drawn is that there is no presumption that a parent’s obligation to pay for college is to be limited to the cost of a SUNY education unless proven otherwise; if anything, the presumption goes the other direction. It was also instructive because the decision’s reference to the “so-called SUNY cap” implied that even the Second Department views the SUNY cap as something less than an established doctrine.

The court rejected defendant’s argument that plaintiff be required to prove that Syracuse was a better school than SUNY Binghamton, in order for him to be required to pay Syracuse’s higher expenses. The decision noted that it is difficult to conceive of a workable procedure, let alone a methodology, for a court to make a finding that one college is “better” than another. The court found that there was sufficient showing to support the child’s choice of Syracuse, irrespective of whether it is ranked lower, higher or the same as SUNY Binghamton or any other SUNY school. If there are funds are available to finance the child’s education, the fact that Syracuse was a private school and cost more than a public school was not a reason to interfere with the child going to the school he chose and he wanted to attend.

The court further held that one of the factors to be considered when making a determination under DRL 240(1-b)(c)(7) is the parents educational background. Inasmuch as plaintiff attended Northwestern and defendant attended Columbia, the court could reasonably assume that there would exist an expectation in the family, and in the child himself, that he too could attend a private college.

Having found that defendant had to contribute to his son’s education at Syracuse University, the court had to consider the defendant’s ability to pay. It was defendant’s position that even though plaintiff may have the means to pay the high cost of their son attending Syracuse, he lacked the means to do so. Consequently, he argued that he should have to pay no more than $9,000 a year towards his son’s education, an amount that is roughly 50% of the present annual cost of a SUNY school.

The court rejected defendant’s contention as to his inability to pay a significant share of the child’s actual educational expenses being incurred at Syracuse. The court held that the parties’s incomes and assets would allow them to pay for their child’s education at Syracuse.

The court further held that there was no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child’s college expenses. Although defendant’s contribution should be less than plaintiff’s, based on the difference between their net assets, and in particular what each of them had available for eventual retirement, that contribution should not be subject to some artificial construct like the SUNY cap. On this basis, the court held that defendant shall be obligated to contribute 40% of the total cost of the older child attending Syracuse University, with those costs to include tuition, room and board, fees and books.

Thus, this decision confirms that if a parent is hoping to place a limit on future college costs, it is very important to include provisions in the parties’ separation agreement or settlement stipulation placing an upper limit on such costs.

The court held that a significant change in circumstances occurred which reflected real need to modify parties’ stipulated custody order. The court found that mother admitted to moving with child to different county, 42 miles away from father, without informing him, and parties’ relationship deteriorated to point of inability to discuss important matters concerning their child. Further, mother also consistently arrived between 15 minutes to 2 hours late in dropping child off or picking child up. Mother interfered with father’s visitation rights by arriving late for dropping off and picking up child. The court also held that evidence showed as well that mother promoted her boyfriend as substitute for child’s father and that her relocation both required the child to change schools and hindered the father’s involvement in the child’s life. The father, on the other hand, manifests a markedly greater ability to control his behavior in front of the child, as well as a willingness to foster the relationship between the mother and child. The court noted that while custody with the father will unfortunately separate the child from his half brother, with whom he has a close relationship, the father testified that the half brother would be welcome in his home.

In view of the above circumstances, the court held that an award of sole custody to father with visitation to mother in child’s best interests. The court’s decision to modify existing custodial arrangement is not a common one. In most cases, courts are likely to fashion a less drastic remedy.

The bill, codified as the Marriage Equality Act amends the Domestic Relations Law to provide:

• A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex

• No government treatment or legal status, effect, right, benefit, privilege, protection or responsibility relating to marriage shall differ based on the parties to the marriage being the same sex or a different sex

• All relevant gender-specific language set forth in or referenced by New York law shall be construed in a gender-neutral manner

• No application for a marriage license shall be denied on · the ground that the parties are of the same or a different sex

Under the bill, the rights under same-sex marriage will include:

• Employer-sponsored health insurance.

• Equitable property distribution, maintenance, custody and visitation if the couple divorces.

• A presumption that a child in a dissolved marriage is the child of both parents.

• Statutory inheritance rights.

• The right to bring a claim for the wrongful death of a spouse.

• The right to seek Workers’ Compensation death benefits.

• The spousal privilege in legal proceedings.

However, a couple of recent decisions made it clear that with respect to QDROs, there is no applicable statute of limitations and a QDRO can be submitted to the court at any time. In Denaro v. Denaro, 2011 N.Y. Slip. Op. 04409 (2nd Dept 2011), the Appellate Division, Second Department, held that “the statute of limitations does not bar issuance of the QDRO.”  Relying on Bayen v Bayen, 81 A.D.3d 865 (2nd Dept. 2011), the court held that ”[M]otions to enforce the terms of a stipulation of settlement are not subject to statutes of limitation… [B]ecause a QDRO is derived from the bargain struck by the parties at the time of the judgment of divorce, there is no need to commence a separate action in order for the court to formalize the agreement between the parties in the form of a QDRO”. Id. (citations omitted.)

While I would not recommend to anyone delaying preparing and submitting a QDRO, any such submission is not going to be barred by a statute of limitations. At the same time, any late submission is likely to cause another set of problems if the retirement asset is in pay status  and payments are being made to the other spouse.

In Bayer v. Bayer, 80 A.D.3d 492 (1st Dept. 2011), the Appellate Division had to address whether the trial court properly disregarded the tax consequences impacting plaintiff’s receipt of fifty percent of monies which defendant had earned in the fiscal quarter preceding commencement of the divorce action.  The Appellate Division held that since defendant failed to present evidence from which the court could determine the amount of such taxes, the trial court acted properly.  The Appellate Division relied upon D’Amico v. D’Amico, 66 A.D.3d 951 (2nd Dept. 2009).  In D’Amico, the court held that “[W]hile this court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party, where the party seeking the discount fails to present any evidence from which the court could have determined the dollar amount of the tax consequences, the computation of the award without regard to tax consequences will be deemed proper”. (citations omitted)

Therefore, if there are tax issues associated with dependency exemptions, maintenance, retirement assets or equitable distribution, in order to have trial court consider those issues , a party must present admissible evidence of any tax consequences that may result. If a party fails to do so, the trial court will not consider any tax implications. As a result, a party seeking the court’s decision with respect to tax issues will have to present expert testimony of an accountant who would be able to present admissible evidence of any tax implications.

In Szalapski v. Schwartz n/k/a Szalapski, Justice Richard A. Dollinger had to decide whether an unemployed parent with support obligations must clearly make a diligent job search limited to the Rochester area, or expand it beyond Rochester. Mr. Szalapski, who lost his employment earning six-figure income a number of months ago, brought a downward modification obligation claiming that despite his diligent job search, he was unable to find a comparable job and his income for child support purposes should be reduced to $15,000 per year. Mr. Szalapski has a number of advanced science and engineering degrees, and has held both teaching and industry positions. When Ms. Schwartz raised an argument that Mr. Szalapski was obligated to search for a job outside of Rochester area, Mr. Szalapski claimed that because of the parties’ custodial and visitation arrangements, and his involvement in one of his children’s life, he did not have to search for employment beyond 60 mile radius from his present residence. As result, the court had to address the apparent tension between the children’s need for support and the parent’s wish to maintain existing relationship with his child. Mr. Szalapski argued that if he is forced to accept a job some distance away from Rochester, his relationship with his son would be negatively impacted.

The court ruled that a potentially high earning plaintiff such as Mr. Szalapski, who is seeking modification, should be required to examine the prospects of employment in another area before the court substantially reduces his child support obligation. “New York law is strangely silent on this issue and, based on this court’s research, the question of the ‘radius of a reasonable job search’ has been seldom analyzed in the Empire State,” Justice Richard A. Dollinger wrote in the decision. “In essence, the husband [plaintiff] must prove that the benefit of the increased support, occasioned by finding a job in a new location, would be outweighed by the deleterious impact on his relationship with his son and that no alteration in the visitation schedule could accommodate his visitation with his son.” The court suggested that a high paying job (in excess of $100,000) in a nearby city such as New York, Boston, Cleveland or Washington, D.C., may be able to accommodate a visitation schedule that requires a short airplane flight.

“The paramount importance of maintaining the child’s standard of living is what drives the need for a diligent job search when an obligated parent loses their employment,” Justice Dollinger wrote. “In this court’s view then, the scope of the job search should extend beyond the convenience of either parent, and reach to a point where the benefit of employment in a new more distant location outweighs the consequence s of distance on the relationship between the parent and child” the justice continued. The court noted that the burden of  establishing whether the job search was adequate rests with the plaintiff seeking modification to prove “diligent search for employment” and ordered a hearing on the adequacy of his job search.

I think that this is an interesting decision and that Justice Dollinger did an excellent job addressing both sides of this factual scenario. As far as hearing, it is still in the future.

Six months after the no-fault statute was enacted by the New York’s legislature, we are learning that the courts are divided on this issue, with some courts requiring proof that the marriage was actually irretrievably broken for a period of six months or longer, and with some courts holding that there is no defense to the no-fault grounds.

In Strack v. Strack, 2011 N.Y. Slip. Op. 21033 (Sup. Ct. Essex Co. 2011), the court held that the question of whether the marriage was irretrievably broken was a question of fact requiring a trial.

The facts in Strack are as follows. The parties were married on May 25, 1963 and plaintiff sought a divorce based upon the no-fault grounds contained within Domestic Relations Law §170 (7). Defendant moved to dismiss the complaint, contending (1) that the complaint lacked specificity; (2) that the conduct alleged in the complaint was barred by the five-year statute of limitations; and (3) that the complaint failed to state a cause of action for divorce under Domestic Relations Law §170 (7).

Effective relative to actions commenced on or after October 12, 2010, Domestic Relations Law §170 (7) permits divorce where “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.” This additional ground for divorce has given parties the option of securing a divorce without alleging fault.

Here, the allegations in the complaint were as follows:

The relationship between husband and wife has broken down such that it is irretrievable and has been for a period of at least six months. For a period of time greater than six months, Defendant and Plaintiff have had no emotion in their marriage, and have kept largely separate social schedules and vacation schedules. Each year Plaintiff and Defendant live separately throughout most of the winter months. Though they share the residence for several months out of the year, Plaintiff and Defendant have not lived as husband and wife for a period of time greater than six months. Plaintiff believes the relationship between she and Defendant has broken down such that it is irretrievable and that the relationship has been this way for a period of time greater than six months.

Having decided that the above allegations stated a cause of action and were not barred by the statute of limitations, the court stated that Domestic Relations Law §170 (7) is not a panacea for those hoping to avoid a trial. Rather, it is simply a new cause of action subject to the same rules of practice governing the subdivisions which have preceded it. By referring to Domestic Relations Law §173 which provides that “[i]n an action for divorce there is a right to trial by jury of the issues of the grounds for granting the divorce” and, here, the Legislature failed to include anything in Domestic Relations Law §170 (7) to suggest that the grounds contained therein are exempt from this right to trial.  The court further held that since the phrase “broken down such that it is irretrievable” is nowhere defined in the statute, the determination of whether a breakdown of a marriage is irretrievable is a question to be determined by the finder of fact.

In a more recent decision, A.C. v. D.R., 2011 N.Y Slip. Op. 21113 (Sup. Ct. Nassau Co. 2011), the court held that once the plaintiff makes a sworn allegation that the marriage had irretrievably broken down, a trial not required, and there is no defense to the action. The court held that the only requirement to satisfy the no-fault ground for divorce is a party’s sworn statement alleging that the marriage has irretrievably broken down. Specifically, the court stated:

It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation.  In other words, a plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

While I am not aware of the court decisions on this issue here in Rochester, I hope that the courts will grant divorce solely on the party’s subjective allegation that the marriage has irretrievably broken down. Since the trial courts are split on the issue, it is likely that appellate courts will have to address this issue eventually.  I hope that the holding of the more recent case will be widely adopted follwint he Legislature’s intent in creating a true no-fault divorce in New York.

The following types of marriages are void: incestuous; bigamous; and marriages performed by an unauthorized person.  An incestuous marriage occurs between an ancestor and a descendant, such as a father and daughter, between siblings, or between an uncle and niece or an aunt and nephew.  A bigamous marriage occurs when one spouse marries a third person despite the fact that his or her prior spouse is still alive and the marriage has not been dissolved. A marriage performed by an unauthorized person usually involves a marriage that was performed by a civil official or a religious official who does not meet New York’s requirements for officiating a marriage ceremony.

The following types of marriages are voidable: when one or both spouses are under the age of consent, when one or both spouses are mentally incapable to consent to the marriage, when one or both spouses are physically incapable to consent to the marriage, or when one or more spouses is coerced into the marriage.

In order to give a valid consent to marriage in New York State, the person giving such consent must be at least eighteen years old.  In order for someone younger than eighteen to marry, written consent of both of the underage spouse’s parents is required. A person under the age of sixteen may marry, provided that both parental consent and a judge’s order are obtained. No one under the age of fourteen is permitted to marry.

A person under the age of eighteen as well as a parent of the underage spouse and/or the underage spouse’s guardian may seek to have the marriage annulled. It is in the court’s discretion to grant an annulment due to the spouse’s age, taking into consideration all of the facts and circumstances of the marriage.  The right to seek an annulment due to being under the age of consent terminates when the spouse reaches the age of 18.

In an action to determine a marriage voidable due to want of understanding, the court will decide if the parties were capable of fully understanding the nature of the marital relationship and its consequences.  An annulment action for want of understanding may be based upon the mental retardation or mental illness of a spouse.  An action brought due to mental illness may be brought by the mentally ill spouse when the illness has been cured, so long as he or she does not continue to cohabit with the spouse, which ratifies the marriage, i.e., makes it valid.  The spouse who is not suffering from mental illness may file to have the marriage determined voidable if: the other spouse was mentally ill at the time of the marriage, the non-mentally ill spouse was not aware of the illness, the action was brought as soon as the non-mentally ill spouse learned of the illness and the mental illness is present when the annulment is sought.

A spouse may seek to have a marriage declared voidable when the other is unable to have sexual relations due to an incurable condition (not sterility). It is commonly referred to as a failure to consummate the marriage. An annulment action brought for this cause must be filed within five years after the marriage.

Both parties to a marriage must knowingly consent to the marriage of their own free will. A marriage may be annulled if either party consents to the marriage due to duress, force or fraud. An action for this cause may be brought by a spouse, a parent of a spouse or a relative of a spouse who has an interest in annulling the marriage.

Finally, an action seeking an annulment may be brought by one spouse if the other spouse develops an incurable mental illness lasting five or more years. The mental illness can develop after the marriage.

In my practice, it is not common to see annulment actions since they are subject to very specific legal and factual requirements. If you think that you may be entitled to an annulment, you should discuss these issues with a divorce lawyer.

In P.S. v. R.O., 2011 N.Y. Slip. Op. 21031 (Sup.Ct. New York Co. 2010), the court specifically addressed this issue.  The court held that violation of automatic orders can subject a party to civil contempt.

The wife commenced divorce on October 13, 2010, by filing summons with notice and notice of automatic orders setting forth the statutory automatic orders verbatim, which were served on husband. Parties owned joint vacation home in Vermont and had joint bank account. Upon separating, parties continued to deposit rental income from Vermont home into joint account to pay for Vermont home expenses, until December 15, 2010, when rental broker deposited $6,000 into joint account and wife transferred fund into her sole bank account. On January 4, 2011, wife transferred those funds back into joint account. Husband moved to hold wife in contempt, alleging that since May 2009, he has used funds in joint account to pay for Vermont home expenses. Wife contended that she transferred such funds out of account because she feared husband would not spend funds on Vermont home and dissipate such asset.

In addressing these issues, the court stated that to establish civil contempt, moving party must demonstrate by clear and convincing evidence that party charged with contempt violated clear and unequivocal court mandate which prejudiced moving party.

In analyzing whether the automatic orders amounted to a clear and unequivocal court mandate, the court reviewed the Court Rules, 22 N.Y.C.R.R. §202.16-a, which requires service of a copy of the “automatic orders” on defendant, and contains language identical to that found in DRL §236(B)(2)(b). The Court Rules are promulgated by the Chief Administrator of the Courts on behalf of the Chief Judge of the Court of Appeals under the authority vested in them by Judiciary Law Sections 211(1)(b) and 212(2)(b), and by Article Six, Section 30, of the New York State Constitution, to adopt rules to regulate practice and procedure in the courts. Thus, the court found that the Court Rules constitute lawful mandates of the court. It further found that the legislative history of Domestic Relations Law §236(B)(2)(b) makes clear that the legislature intended that a violation of the automatic orders would be redressed by the same remedies available for violations of any order signed by a judge.

Accordingly, the court found that civil contempt is available as a remedy for violation of the automatic orders, provided that the plaintiff has served the defendant with adequate notice of the automatic orders, as has been done in this case. However, the court in P.S. found that the wife did not violate the orders, or met the other requirements for imposition of contempt.