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.

Divorce and Reformation of Settlement Agreement

I have previously written about vacating settlement agreements on the grounds of mutual mistake.  Here is a case where the court actually reformed the parties’ settlement agreement on the grounds of mutual mistake.

In Banker v. Banker, 53 A.D.3d 1105 (3rd Dept. 2008),  the parties’ oral stipulation of settlement, which was incorporated but not merged into their 2005 judgment of divorce, provided that the parties would subdivide a parcel of property located in Delaware County.  However, despite that provision, after the judgment of divorce was entered, the defendant refused to do so.  In response to a motion by plaintiff to enforce the stipulation, Supreme Court, in February 2006, ordered defendant to obtain subdivision approval from the Town.  The Planning Board denied defendant’s subsequent subdivision application after discovering that the property was encumbered by a restrictive covenant against further subdivision.  In March 2006, defendant moved to reargue and/or renew February 2006 order, and requested a hearing to determine equitable distribution.

Supreme Court reserved decision on all pending matters pertaining to the parties until an appraisal of the property was completed.  Because the parties could not agree on an appraiser, the court appointed one and directed the parties, once the appraisal was complete, to settle the matter in a private auction or buyout.  The appraiser completed the appraisal in June 2006.  By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value.  Plaintiff made a similar request and explained that the parties had not been able to settle the matter or agree on a private auction.

Plaintiff responded with a motion seeking that the parties’ interests in the property be declared in conformance with the terms set forth in the stipulation and the values established in the appraisal, as well as an order allowing her to buy out defendant’s share of the property.  Defendant opposed the motion, arguing that the appraisal should not be adopted without an opportunity by the parties to cross-examine the appraiser and submit other evidence of valuation.  Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted.

Following the hearing, at which Supreme Court again denied defendant’s request to submit further evidence, the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant.  The court, fixed the parties’ interests as indicated above, appointed a receiver, and ordered the   public sale of the property.  Defendant appealed.  The Appellate Division rejected defendant’s argument that Supreme Court exceeded its authority by reforming the parties’ stipulation of settlement.  Where, as here, a mutual mistake rendered a portion of the parties’ settlement agreement impossible or impracticable, “the relevant settlement provision was properly set aside”.  No dispute existed that the parties’ agreement to physically divide the property could not occur given the restrictive covenant; and even defendant was not attempting to have the parties’ stipulation enforced.  Thus, after giving the parties ample opportunity to reach a new agreement,  the trial court was correct to move forward by appointing an appraiser so that an equitable distribution of the property, in as close accordance as possible with the intent of the parties as expressed in their settlement, could be achieved.

The Appellate Division noted that to achieve reformation or recission of the stipulation of settlement, one of the parties should have commenced a plenary action, rather than proceeding by motion but, in the context of this matter, concluded the defect to be nonfatal.  However, the lower court erred in resolving this matter without a full hearing permitting the parties to offer proof of valuation.  The court is authorized to appoint an independent appraiser in a matrimonial action but, unless the parties have stipulated otherwise, the court must afford the parties the opportunity to review the appraisal, cross-examine the appraiser and offer additional evidence on valuation.  Although the record contained evidence that the parties consented to Supreme Court’s appointment of the appraiser, it did not suggest that the parties agreed to be bound by the resulting appraisal.

This is an example of a situation where the mutual mistake allowed the court to reform the parties’ settlement agreement.  While those circumstances tend to be limited, the lawyers in Banker recognized that since the property could not be subdivided, it had to be sold or one of the parties would buy out the other party’s interest.  The question of valuation was secondary to the remedy chosen by the court as a result of reformation of the agreement.  At the same time, it is rather surprising that neither divorce attorney was aware of the covenant, since both parties, presumably, had access to the real property records and the property’s abstract of title.

Divorce, Monetary Obligations and Statute of Limitations

It is is not uncommon for a party to obtain a right to receive a sum of money in the judgment of divorce.  That right usually comes in situations where there are assets that are subject to equitable distribution.  It is also not uncommon for the parties to make their own agreements following the judgment of divorce as to how such sums of money will be paid.  One issue that would raise a concern for me would be a situation where the payment is extended over a long period of time.  It is a concern because a statute of limitations may come into play and, possibly, bar recovery.

In Woronoff v. Woronoff, 2010 N.Y. Slip. Op. 01479 (2nd Dept. 2010), the Appellate Division held that where a monetary award in the judgment of divorce is not reduced to a monetary judgment, such award is subject to a six year statute of limitations.  In Woronoff, the parties were divorced by judgment dated December 21, 1988, which provided, inter alia, that the plaintiff would pay the defendant the sum of $87,500 for her share of his businesses.  In 1990, the parties entered into an agreement which modified this portion of the judgment so as to, among other things, set forth a different payment schedule for the distributive award.  This agreement was not reduced to a court order.  The defendant never entered her distributive award as a money judgment nor sought to enforce collection thereof until 2007, when she obtained a clerk’s judgment against the plaintiff.  Thereafter, however, the plaintiff successfully moved to vacate the clerk’s judgment.

The plaintiff then commenced an action, inter alia, to recover damages for wrongful procurement of the clerk’s judgment including the counsel fees he expended in moving to vacate the clerk’s judgment.  The defendant’s first counterclaim asserted that the plaintiff had failed pay her the full amount of her distributive award for her share of his business, and alleged damages resulting therefrom in excess of $150,000.

The Appellate Division held that contrary to the defendant’s contention, the distributive award made to her in the divorce judgment for her share of the plaintiff’s business was not a “money judgment” subject to a 20-year statute of limitations.  Instead, her claim to enforce this award was governed by the six-year statute of limitations set forth in CPLR 213(1) and (2).  Accordingly, since the defendant did not seek to enforce her distributive award nor reduce it to a money judgment until well beyond six years after the divorce judgment was entered, and even well beyond six years after the parties entered into their modification agreement, the Supreme Court properly dismissed this counterclaim as time-barred.

The lesson of the above case for divorce lawyers is that in the event there is a monetary award in the judgment of divorce, it is a good idea to reduce it to a monetary judgment.  Alternatively, if the parties agree to extend the payment of the amount due beyond six years, such agreement should be reduced to writing and should include a provision specifically waiting statute of limitations.

Appreciation of Separate Property and Equitable Distribution

One issue that periodically comes up in my divorce practice here in Rochester has to do with appreciation of separate property during the marriage.  I have previously written about this issue in the past.  A recent case decided by the Appellate Division, Third Department, Albanese v. Albanese, 2010 N.Y. Slip. Op. 00036 (3rd Dept. 2009), has illustrated a related aspect of this issue.  In Albanese, the critical issue before the court was whether or not the wife’s lawyer was able to establish how much the husband’s law practice has appreciated during the marriage.  In this type of situation, the divorce attorney has to be concerned about two different valuations.  The first one is the valuation of the business at the time of the marriage, and the second one is the valuation of the business at the time of commencement of the divorce action.

However, during the trial, the wife’s divorce attorney appears to have not established what the value of the law practice was at the time of the marriage.  The Appellate Division stated,

Here, the only evidence in the record regarding the value of defendant’s law practice related to the purported value at the time the divorce action was commenced. Plaintiff, who was represented by seasoned counsel and retained an experienced expert, presented no proof of a baseline value at the time of the marriage or of an appreciation in the value of the practice during the marriage. While plaintiff’s role as homemaker and mother to the parties’ children established that she was entitled to a share of any appreciation, there was no evidence offered from which appreciation could be found. Under such circumstances, an award for the value of the law practice was inappropriate.  (Citations omitted).

In such situations, the non-titled spouse bears the burden of proof, and any appreciation in value of such separate property may be subject to distribution if there is a nexus between the titled spouse’s efforts and the increase in value and those efforts were aided or facilitated by the nontitled spouse.  However, without the starting point value, the non-titled spouse simply could not prove her case. As a result, the wife has received no portion of the law practice that has likely appreciated since the parties’ marriage in 1987.

The above illustrates that sometimes even the most obvious issues occasionally escape the attention of counsel.  Therefore, the Appellate Division’s reference to the plaintiff’s attorney as “seasoned counsel” and her expert as “experienced expert” indicates its likely surprise that this issue was overlooked during the trial.

Disability Payments, Divorce and Equitable Distribution

I have previously written about different classes of property that most of the time will be considered to be separate property of the party during the divorce.  Periodically, divorce lawyers have to deal with situations where one of the parties becomes disabled during the marriage and begins to receive disability payments, either social security disability or payments under a private disability insurance policy.

In a recent case, Masella v. Masella, 2009 N.Y. Slip. Op 08190 (2nd Dept. 2009), the Appellate Division, Second Department, held that the proceeds of the defendant’s disability insurance policies are his separate property. Similarly, the court held that the proceeds of the defendant’s Social Security disability benefits also are his separate property, and are not subject to equitable distribution.  The reason that Social Security benefits are not subject to equitable distribution, is because Social Security benefits are not a pension.  With respect to the disability insurance, any disability insurance payments constitute compensation for personal injury and would not be subject to equitable distribution.

In a situation where one of the parties is disabled and is receiving disability payments, the other party might not be able to obtain equitable distribution of such payment, regardless of the amount received.  While some may argue that this may not be fair to the other party, the above principles are uniformly applied in New York divorces and are unlikely to be overturned in the future.  When handling similar situations, divorce attorneys will need to investigate the source of payments, the reasons for them and try to figure out if the income can be reached in some other way, perhaps by a spousal maintenance claim.

Vacating Settlement Agreements on Grounds of Mutual Mistake

In is not unusual for a party to attempt to vacate a settlement agreement.  In order to do so, a party must meet a significant burden of proof that the agreement came as a result of a material, mutual mistake, fraud, or other relevant facts.  A interesting illustration of the above principles came in a recent decision, Simkin v. Blank, Sup. Co. New York County (December 22, 2009).

In 2006, Mr. Simkin, a partner at Paul, Weiss, Rifkind, Wharton & Garrison and his wife negotiated a settlement agreement in their divorce action.  One of the marital assets was an account the parties opened during their marriage with Bernard L. Madoff Investment Securities LLC which was worth $5.4 million.  As part of a 2006 equitable distribution agreement, Mr. Simkin  paid Ms. Blank $2.7 million, which represented what he thought was his ex-wife’s fair share of their Madoff investments.

After Mr. Madoff’s arrest, Mr. Simkin attempted to reform the agreement, claiming it was based on a “material, mutual mistake” and resulted in a “windfall” for Ms. Blank. He argued that the agreement did not accomplish the parties’ goal of ensuring that each would keep approximately half of the marital assets.  Ms. Blank responded that as long as Mr. Simkin could have redeemed the account for the value that the parties agreed to on the cut-off date, he received what he bargained for. Noting that Mr. Simkin had liquidated part of his investment to fund his ex-wife’s equitable entitlement, the court pointed out that in 2006 and “the several years after that plaintiff maintained this investment,” the account “could have been redeemed for cash, presumably significantly in excess of its 2004 value.”  While Mr. Simkin claimed the Madoff account held no assets, he did not allege it had no value, the judge wrote.  “An investor’s ability to redeem an account for value, was the assumption on which the parties relied in dividing their property and in doing so they made no mistake,” the court found.

Justice Evans agreed with Ms. Blank holding that while Mr. Simkin’s decision to retain the Madoff account may have been “improvident,” that did not give the court an equitable basis to set the agreement aside. In dismissing Mr. Simkin’s complaint, Justice Evans wrote, “There is no evidence that defendant was unjustly enriched. In 2006, at the time of their agreement, each of the parties received the benefit of his and her bargain.”

The lesson of the above case is that clients and their divorce attorneys should be careful in fashioning settlement agreements.  Even when significant mistakes are made at the time the agreements are entered into, it is very difficult to set them aside, even in such extreme circumstances as described above.

Divorce, Equitable Distribution and Appreciation of Separate Property

One issue that comes up periodically in divorce cases has to do with appreciation of separate property brought into the marriage by one spouse.  If that separate property is a business that appreciated during the marriage, did that appreciation come as active spousal effort, which would render the appreciation marital property, or did the appreciation come as a result of passive, non-spousal effort, and therefore should be treated as separate property? In other words, what was the comparable economic contribution of each party to the appreciation of such asset?

While the courts do not utilize the terms active and passive appreciation as much as they did in the past, it is clear from the recent decisions that those concepts are still utilized.  In Smith v. Winters, 64 A.D.3d 1218 (4th Dept. 2009), the Appellate Division, Fourth Department, recently answered the above question by evaluating how much the efforts of the titled spouse increased the value of the asset in dispute, by looking at what specific efforts of the titled spouse led to the appreciation.  In Smith, the plaintiff owned a business that later on purchased another company, PNA.  PNA has appreciated significantly during the course of the marriage.  After discussing the facts related to the plaintiff’s efforts and involvement in PNA, the court stated:

With respect to PNA, the court found that the value of PNA appreciated by $20 million during the course of the marriage but that the increase in value attributable to plaintiff was minimal when compared to the increase attributable to those hired by plaintiff to run the company. The court thus determined that only 10% of the appreciation in value of PNA was marital property subject to equitable distribution.

Subsequently, the court held that the non-titled spouse was entitled to 40% of the appreciated marital value based on her contributions as a homemaker.  Thus, the titled spouse, in this case the husband, was able to retain 96% of appreciation of PNA.

The above represents continuation of the trend toward reevaluating the status of marital property on the basis of various forms of contribution by the parties to the marriage, or, perhaps, third parties as well.  The courts have long held that “an increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker . . . should be considered marital property”.  See Price v Price, 69 N.Y.2d 8, 11 (1986).  However, the latest decisions in this area are refocusing on requiring  “some nexus between the titled spouse’s active efforts and the appreciation in the separate property”, when a nontitled spouse’s claim to appreciation and the other spouse’s separate property is predicated solely on the nontitled spouse’s indirect contributions.  See Hartog v. Hartog, 85 N.Y.2d 36, 46 (1995).   Therefore in Smith, the Appellate Division Fourth Department held that the trial court properly considered the “active efforts of others and any additional passive or active factors” in determining the percentage of total appreciation that constitutes marital property subject to distribution.

The above case opens various possibilities to lawyers and titled-spouses contesting an appreciation claim.  Situations similar to the one in Smith will require a divorce attorney to evaluate carefully how the asset appreciated and what role each spouse or third parties played in that appreciation.

Non-Titled Spouse, Enhanced Earnings and Substantial Contribution

I have previously written about several issues related to distribution of enhanced earnings during the equitable distribution portion of the divorce action here, here, here and here.  One of the critical issues facing a divorce lawyer, seeking seeking equitable distribution of a portion of such earnings for his/her client, is the burden of proof with respect to the non-titled spouse’s contribution to enhanced earning capacity.  The non-titled spouse seeking a distributive share of enhanced earnings must demonstrate that he/she made a substantial contribution to the titled party’s acquisition of that marital asset.

In Kriftcher v. Kriftcher, 59 A.D.3d 392 (2nd Dept. 2009,) the trial court awarded the plaintiff-wife $828,699.20 as her 40% share of the husband’s enhanced earning capacity, an attorney’s fee of $30,000, declined to award her maintenance, awarded her $1,229.71 per week in child support, and failed to award her equitable distribution of the husband’s bonus for the calendar year 2005, which the husband received in 2006.  The Appellate Division found that trial court correctly concluded that the enhanced earnings resulting from the law degree and license obtained by the husband during the marriage were marital property subject to equitable distribution.  Nevertheless, it is incumbent upon the non-titled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party’s acquisition of that marital asset, and where only modest contributions are made by the non-titled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity.  Here, the wife’s minimal contributions to the husband’s obtaining of his degree and license entitled her to a share of only 10% in the enhanced earnings that have resulted.

In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties.  Although the wife earned a teaching license during the course of the marriage, she was, at present, primarily a homemaker, who worked only part-time as a substitute teacher earning approximately $10,000 per year.  In sharp contrast, the husband was an attorney making approximately $500,000 per year. It held that a maintenance award of $1,000 per week for 10 years was appropriate.

The above decision is a good illustration of the recent trend where the non-titled spouse has to present evidence of his/her contribution toward creation of the other spouse’s enhanced earning capacity.  When handling such situations, divorce attorney would do well to learn everything there is to know regarding non-titled spouse’s involvement in the titled spouse’s efforts to obtain a license or degree that ultimately resulted in enhanced earning capacity.

Divorce, Equitable Distribution and Wasteful Dissipation

“Wasteful dissipation”
(i.e., DRL 236 (B)(5)(d)(11), hereinafter referred to as “Factor
11”) is a term of art that has never been defined with any real
precision, however. It can apparently consist of gambling and
poor business judgment, as well as other forms of economic
misconduct. Given the absence of appellate leadership in
establishing a reliable equation to which we practitioners can
refer, what may or may not constitute marital waste remains as
much a mystery as how that waste will ultimately affect equitable
Until an ambitious Appellate Court commits itself to developing
a more reliable methodology for sniffing out marital waste, the
lower courts can be assured that the litigious will continue to
make a stink. Conclusion: Attorneys seeking to avoid being a
waste of marital funds themselves tend to mine any negative
impact on the marital estate that can be traced to the dubious
conduct of the other spouse. Hopeful that an adjustment to a
client’s equitable entitlement might be sparked by blaming the
other spouse for a decline in the overall value of the marital
estate, an unpredictable Factor 11 claim all too frequently becomes
an opportunity to leverage an outcome on a whim or whiff.Wife’s Inability to Testify with Specificity as to How She Spent the Proceeds of Loan Suggested She Dissipated Marital Assets in Contemplation of Divorce.
In Abrams v Abrams, — N.Y.S.2d —-, 2008 WL 5376644 (N.Y.A.D. 2 Dept.) the Appellate Division pointed out that “The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting”. It held that the trial court properly awarded the former wife maintenance, but it improvidently exercised its discretion in extending the duration of the maintenance award beyond five years, and concluded that an award of $2,500 per month for five years was appropriate. It also found that the former husband correctly contended that he was entitled to a portion of the proceeds of a home equity loan that the wife obtained with respect to certain investment residential property, especially in light of the wife’s inability to testify with specificity as to how she spent the proceeds of that loan. This suggested that the wife dissipated these marital assets in contemplation of divorce. The judgment was modified to award the husband a credit which represented his share of the proceeds of that loan, after accounting for the taxes paid by the wife on both the marital residence and the investment residential property. It noted that a parent has no legal obligation to provide for or contribute to the support of a child over the age of 21 Therefore, the court erred

One issue that tends to come up in divorce case is wasteful dissipation.  While I mentioned it in the past, this post will address it in greater detail.

Wasteful dissipation is one of the statutory factors that must be considered by a trial court upon rendering a determination of the equitable distribution of marital assets as set forth in Domestic Relations Law §236(B)(5)(d):

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of issolutio;(5) any award of maintenance under subdivision six of this part; (6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (7) the liquid or non-liquid character of all marital property; (8) the probable future financial circumstances of each party; (9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (10) the tax consequences to each party; (11) the wasteful dissipation of assets by either spouse; (12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (13) any other factor which the court shall expressly find to be just and proper.

“Wasteful dissipation” is a term commonly used to describe a spouse’s unnecessary or unjustified use of marital money to justify a disproportionate equitable distribution. What makes wasteful dissipation problematic from a lawyer’s point of view is that its definition is vague and imprecise.  It can consist of gambling and poor business judgment, as well as other forms of financial or economic misconduct.  While the appellate courts have not given a precise definition of what actions by a spouse fall within the scope of wasteful dissipation, the trial courts and divorce attorneys deal with this issue frequently.  This also provides a significant opportunity for prolonging divorce litigation.  At times, a party will look for situations where any negative impact on the marital estate can be traced to the imperfect conduct of the other spouse.  Divorce lawyers may seek to improve their clients’ equitable distribution award may blame the other spouse for a decline in the overall value of the marital estate.

With respect to a business, wasteful dissipation may occur if a party fails to recoup a value from an unsuccessful business or “it necessarily is a wasteful dissipation of assets to fail to recoup the value of a profitable business, such as plaintiff’s masonry business. ” Scala v. Scala, 59 A.D.3d 1042 (4th Dept. 2009).  Failure to take care or repair a marital property also may amount to a wasteful dissipation.

In a recent decision, Abrams v. Abrams, 57 A.D.3d 809 (2nd Dept. 2008), the Appellate Division held that the wife’s inability to testify with specificity as to how she spent the proceeds of loan suggested she dissipated marital assets in contemplation of divorce. The Appellate Division pointed out that “the former husband correctly contended that he was entitled to a portion of the proceeds of a home equity loan that the wife obtained with respect to certain investment residential property, especially in light of the wife’s inability to testify with specificity as to how she spent the proceeds of that loan. This suggested that the wife dissipated these marital assets in contemplation of divorce. The judgment was modified to award the husband a credit which represented his share of the proceeds of that loan, after accounting for the taxes paid by the wife on both the marital residence and the investment residential property.”

A party’s use of marital assets to pay for “basic living expenses” does not constitute wasteful dissipation.  Damas v. Damas, 51 A.D.3d 709 (2nd Dept. 2008).

If a party makes financial decisions and acts in such way that the marital estate is diminished, that party should be ready to provide a legitimate explanation for his or her actions. The client is well advised to make a full disclosure of all such activities to the divorce lawyer and to provide a detailed explanation for the course of action taken.