Service of Divorce Summons Over Facebook

As the world is changing with emerging technologies, the courts are starting to accept new technologies and social media. In a recent decision, Baidoo v. Blood-Dzraku, 2015 NY Slip Op 25096 (Sup. Ct. New York Co. 2015), the court permitted service of divorce summons over Facebook.

In New York State, summons must be served in all divorce cases. In a typical New York divorce case, the defendant must be served with the summons personally and an affidavit of service describing the circumstances of the service must be filed.

However, there are frequently circumstances where the party seeking divorce does not know where the other party resides. If that spouse cannot be located, he/she cannot be personally served. Under those circumstances, a party could seek permission from the court to use an alternative method of service under New York’s procedural rules. Usually, the last resort is service by publication which is available only when a party could not be located after a diligent search. The problem with service by publication is that it is not effective and can be expensive.

In Baidoo, the wife was permitted to serve her husband by direct message through Facebook after she was able to establish that:

1.  She was unable to personally serve the summons personally on the defendant;
2. It would be “impracticable” to serve him by “substitute service” (service on a person of suitable age and discretion or “nail and mail”);
3. sending the summons through Facebook would reasonably be expected to give the defendant actual notice that he is being sued for divorce.

In Baidoo, the defendant has never resided in New York, had no last-known address or place of employment, refused to disclose to plaintiff where he lived, and was unregistered with the Department of Motor Vehicles. The only means of contact with him that plaintiff had was through Facebook.

Additionally, the plaintiff had to present the court with evidence that:

1. The Facebook account actually belonged to the defendant.
2. The defendant logged into the account with some regularity so that he would actually get notice of the divorce.

If plaintiff is able to establish the above, service through Facebook should be a viable method of alternative service.

I suspect that with time, we are likely to see that service through electronic communications and social media will become more and more common. For now, service through social media is uncommon and likely to see a considerable degree of scrutiny from the court.

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

One of the issues that occurs in cases where a party is ordered to make spousal maintenance or child support after the judgment of divorce is entered, is that party may fail to make such payments. This brings up a question of what remedy should be utilized under those circumstances.

A recent decision of Keller v. Keller, 2015 N.Y. Slip. Op. 02453 (2d Dept. 2015) demonstrates how the court approaches a contempt application based upon payor’s failure to pay child support and related expenses. In Keller, a contempt application was brought after the money judgment for child support went unpaid for a number of years, and 6 Family Court orders were apparently ignored by the payor. In discussing the remedies available, the Appellate Division stated that

Pursuant to Domestic Relations Law § 245, a spouse may be punished for contempt for failing to make payments pursuant to [a judgment of divorce], but it must appear presumptively, to the satisfaction of the court,’ that payment cannot be enforced pursuant to Domestic Relations Law §243 (sequestration), Domestic Relations Law §244 (money judgment), CPLR §5241 (income execution) or CPLR §5242 (income deduction)” (Jones v. Jones, 65 A.D.3d 1016, 1016; see Klepp v. Klepp, 35 A.D.3d 386; Higbee v. Higbee, 260 A.D.2d 603). Thus, contempt may be warranted where the record demonstrates “that resort to other, less drastic enforcement mechanisms [has] been exhausted or would be ineffectual” (Capurso v. Capurso, 61 A.D.3d 913, 914; see Jones v. Jones, 65 A.D.3d at 1016; Rosenblitt v. Rosenblitt, 121 A.D.2d 375).

While discussing the specific circumstances of the case, the Appellate Division stated that plaintiff repeatedly failed to pay child support as directed in the parties’ judgment of divorce, or to abide by the court orders and money judgments subsequently entered against him on account of child support arrears and related expenses. The record further showed that the defendant either exhausted all enforcement remedies other than contempt, or that such further attempts “would have been futile”. The court further held that the plaintiff had the burden of going forward with evidence of his inability to make the required payments. After reviewing the facts and applicable law, the Appellate Division found that holding plaintiff in contempt of court was the correct remedy.

If Keller was brought in Family Court, the court’s would apply a different set of rules. In Family Court, under Family Court Act §454(3), there is a presumption that a parent’s failure to pay court ordered child support is willful. Payee’s sworn testimony as to nonpayment of ordered child support payments from payor is a prima facie evidence of a willful violation. Once the violation is shown, the burden shifts to the payor to demonstrate inability to make the required payments.  Upon the court’s finding of willful violation, the court may grant attorneys’ fees, enter a money judgment, make an income deduction order, require an undertaking, make a sequestration order or suspend the respondent’s driving, professional or business license. Further, the court may direct incarceration of 6 months as a remedy as well. Thus, defendant would not have to make a showing that all available remedies were exhausted.

The above discussion illustrates that other remedies should always be considered before seeking a finding of contempt since a finding of contempt may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted or, alternatively, if nonpayment of child support, a willful violation petition should be filed in Family Court.

Enforceability of Prenuptial Agreements

Prenuptial agreements can be used to resolve issues related to spousal maintenance, equitable distribution, and other issues that may come up in the event the parties decide to divorce. While I have previously written about different issues involving validity and enforceability of prenuptial agreements, and how the courts would analyze them, a recent case raised an issue of what happens to the prenuptial agreement if a claim is made that the parties verbally agreed to revoke it.

In Braha v. Braha, 45 Misc 3d 1211(A) (Sup Ct. Kings Co. 2014), the wife claimed that the parties agreed to revoke their prenuptial agreement which was then torn in pieces and thrown off the honeymoon cruise ship. The agreement, which was entered by the parties shortly before the marriage after an engagement of less than three week, was signed by the bride after the groom told her that his father “threatened to cut him off” if he did not sign a prenuptial agreement. According to the wife, the parties never intended agreement to be enforceable and did not even attempt to negotiate it.

After twelve years of marriage, when the husband filed for divorce, he asked the court to enforce the agreement. The wife argued that she was fraudulently induced to sign the agreement after the husband told her that the agreement would never be enforced and that once on their honeymoon, the parties had torn up the agreement and threw it into the ocean. The husband pointed out to the court that both parties were represented by counsel and was able to produce an original agreement.

In rejecting the wife’s claims that parties orally agreed that they would not be bound by the agreement, the judge noted that the prenuptial agreement contained the boilerplate provision that:

This Agreement contains the entire understanding of the parties with respect to the matters set forth herein, including, without limitation, the rights of the party with respect to the property of the other party. There are no representations, warranties, promises, covenants or understandings, oral or otherwise, other than those expressly set forth herein.

The court further held that ripping up the agreement and throwing it into the ocean did not revoke the agreement since it provided that:

Neither this Agreement [nor] any provisions hereof, including without limitation, this article, may be altered, modified, terminated, or revoked, except by an instrument executed and acknowledged by both parties with the same formalities as this Agreement.

According to the terms of the agreement, the only way this agreement could have been revoked is in writing, signed and properly acknowledged by the parties.

The takeaway from Braha is that when it comes to prenuptial agreements, anything and everything has to be done in writing, signed and properly acknowledged. The parties should negotiate their agreements and not rely on oral statements. If there is a divorce action in the future, unless the agreement was properly revoked, it will be offered in court.

Constructive Emancipation and the Child’s Conduct

I have previously written about constructive emancipation issue and also addresses some of the applicable law in another post.  Generally, a child can become emancipated through his actions when the child either refuses to have contact with the parent or voluntarily abandon’s parent’s home. However, what happens when a child engages in abusive conduct directed toward the non-residential parent?

In a recent decision, Cornell v. Cornell, 2015 NY Slip Op 25030 (Sup. Ct. Monroe Co. 2015), the court held that where a child’s conduct directed at the parent is abusive and inappropriate, the court can construe such conduct as abandonment. In Cornell, the evidence presented to the court established that the child engaged in communications that established “a substantial hatred and/or disrespect for the mother”. In the court’s view,

a child who utters such terms about their parent cannot realistically expect this court to ignore such conduct and order the maligned parent to pay any form of support for the child. A child over the age of 18, seeking reimbursement for college expenses, cannot use such language toward a parent and then, either directly or through his other parent, seek child support, and/or payment of college expenses. No one should be permitted to refer to their mother in such fashion, and then, without recanting or asking for forgiveness, seek the court’s assistance to have that person support their future life. This court will not condone such actions by an unworthy son.

Thus, the court emancipated the child and the mother was no longer obligated to contribute toward support of the child or pay a portion of his college expenses.

This decision is particularly interesting because of the court’s emphasis on the child’s negative conduct directed at the mother. The court also mentioned that the child refused subsequent contact with the mother. While refusal to have contact is significant, according to the controlling cases, the court also has to analyze the parent’s efforts to reestablish contact with the child. Unfortunately in Cornell, the court did not discuss what specific actions the mother undertook to reestablish contact with the child.

Ultimately, I think that the court has reached result.  It will be interesting to see if this decision will be appealed and what the Appellate Division’s decision will be.

Duration of Residency in New York as Prerequisite to Divorce Action

In order to have a valid divorce action in New York, certain residential requirements have to be satisfied. Domestic Relations Law §230 requires that:

1. You and your spouse were married in New York, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately before the commencement of the divorce action;
2. You and your spouse have resided in New York as husband and wife, and either of you is a resident of New York when the divorce action is started and has been a resident of New York for a continuous period of one year immediately preceding the beginning of the divorce action;
3. The grounds for divorce occurred in New York, and either you or your spouse has been a resident of New York for a continuous period of at least one year immediately before the beginning of the divorce action;
4. The grounds for divorce occurred in New York, and both you and your spouse are residents of New York at the time of the commencement of the divorce action;
5. Either you or your spouse has been a resident of New York for a continuous period of at least two years immediately preceding the commencement of the divorce action.

The statute requires that the residency be continuous. What happens if the party spends significant periods of time outside of New York?

In Murjani v. Murjani, 2014 N.Y. Slip. Op. 08366 (1st Dep’t. 2014), the Appellate Division held that durational residency requirements were satisfied by the defendant, despite the fact that defendant would spend significant periods of time in India and elsewhere. The court held that since defendant had maintained a permanent residence in New York and would return there with regularity, those facts satisfied continuous residency requirements. Thus, as long as permanent residence is being maintained in New York, and the party either returns or intends to return there, Domestic Relations Law §230 is satisfied and a divorce action can be maintained.

Statement That Marriage Was Irretrievably Broken Is Sufficient to Establish Cause of Action For Divorce

I have previously written about the issues associated with the grounds for divorce under the no-fault statute (Domestic Relations Law §170(7)). Prior decisions associated with issue were trial level decisions and, therefore, there were subject to potentially different result after appellate review. Now, there is some finality to this issue. Two recent appellate decision held specifically that a statement under oath that the marriage was irretrievably broken for a period of six months or longer was sufficient to establish a cause of action under Domestic Relations Law §170(7).

In Trbovich v. Trbovich, 122 A.D.3d 1381 (4 Dep’t. 2014) the Appellate Division, Fourth Department, affirmed an order which denied the plaintiff’s motion for summary judgment seeking a divorce pursuant to Domestic Relations Law §170(7). It agreed with plaintiff that the relationship has broken down irretrievably for a period of at least six months opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law §170(7) is not entitled to litigate the other spouse’s sworn statement, and indicated that to the extent that its decision in Tuper v. Tuper, 98 A.D.3d 55, 59 (4th Dep’t 2012) suggested otherwise, it declined to follow it. Nevertheless, the Appellate Division held that plaintiff was not entitled to summary judgment under Domestic Relations Law §170(7) at this juncture of the litigation because the ancillary issues had not been resolved by the parties or determined by the court.

In Hoffer-Adou v. Adou, 2014 Slip.Op.  07436 (1 Dep’t. 2014) the Appellate Division held that contrary to the husband’s contention, the wife was entitled to a judgment of divorce under the no-fault provision of DRL §170(7), since her statement under oath that the marriage was irretrievably broken for a period of six months was sufficient to establish her cause of action for divorce as a matter of law. Trial court’s grant of the divorce did not contradict DRL §170(7)’s requirement that “[n]o judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts’ fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.” The parties’ separation agreement resolved the issues of child custody and support. Their subsequent commencement in the Family Court of proceedings concerning these issues did not render the court without authority to grant the divorce, since non-compliance with/or enforcement of, the separation agreement is not an element of Domestic Relations Law §170(7).

Thus, as long as the party seeking divorce is able to make a sworn statement that the marriage was irretrievably broken for a period of six months, that party will receive a divorce once all other issues have been resolved. There is no way for the defendant to challenge that statement, and the court will not permit introduction of testimony challenging it. This follows the intent of the no-fault statute to prevent grounds trials.

Tracing Method of Dividing Defined Contribution Retirement Assets

I have previously written about division of marital retirement assets which is traditionally done by computing a time based coverture fraction pursuant to the New York Court of Appeals’ decision in Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Majauskas was the seminal New York case that decided that the portion of the spouse’s pension or a retirement plan such as 401k, earned during the marriage, is marital property subject to equitable distribution. To the extent that a pension was earned or 401k contributions were made during the marriage, they are, for purposes of New York law, are considered to be marital property. The Majauskas decision sets forth the formula that normally is to be followed in dividing retirement assets and consists of a fraction computed on the basis of duration of the marriage and duration of the party’s employment.

While Majauskas has been the prevailing law for the last 30 years, a recent decision suggests that with regard to defined contribution retirement plans such as 401k or 403b plans, or their equivalents, the trial court has discretion to utilize a tracing method of equitable distribution. According to Jennings v. Brown, 43 Misc.3d 1229(A) (Sup. Ct. Seneca Co. 2014), “a small minority of cases have started to hold that use of a time-based fraction to determine the marital share of a defined contribution plan is permitted”. Tracing would allow the court to treat appreciation on any separate property portion of such retirement assets as separate property, thereby reducing the non-titled party’s interest in the asset. The court observed that utilization of time coverture fraction methodology utilized by the Court of Appeals in Majauskas may result in overvaluation of non-vested party’s interest and tracing method would remedy that problem.

In Jennings, the plaintiff argued that the tracing method should be utilized to establish defendant’s interest in plaintiff’s 401k plan. However, while accepting tracing methodology as valid, the court held that it was constrained by the terms of the parties’ judgment of divorce which referenced Majauskas method of dividing retirement assets.

While Jennings is a trial level decision, and I question at least one of the cases it relies on, it suggests that with regard to defined contribution retirement funds, tracing method could be accepted by the trial court. Under appropriate circumstances, tracing method may greatly benefit the titled spouse. It also suggests that when the case is tried, the party seeking to utilize tracing method will need to present expert testimony on this issue. In Jennings, an affidavit of a CPA was presented to the court.  Since Jennings is a trial level decision, it remains to be seen whether the appellate courts will agree with its reasoning.

Temporary Maintenance and Payment of Additional Expenses by Monied Spouse

One issue that comes up fairly often in divorce cases is the issue of whether the monied spouse who is paying temporary maintenance is also responsible for additional expenses incurred by the non-monied spouse. At least some of the prior decisions held that when the temporary maintenance is being paid, the recipient was responsible for his or her living expenses, including any mortgage payments or housing expenses.

However, it appears that at least some of the appellate decisions hold otherwise. In Vistocco v. Jardin,116 A.D.3rd 842 (N.Y.A.D. 2 Dept.), the parties were married in 1995 and had three unemancipated children. The wife made a request for temporary maintenance as well as for payment of carrying costs on the marital residence. The trial court awarded the defendant $3,000 per week for child support and $3,000 per week in temporary spousal maintenance, directed the plaintiff to pay the mortgage and taxes on the marital residence where the defendant resided with the parties’ children, directed the plaintiff to pay the defendant’s car insurance, and awarded the defendant interim counsel fees and expert fees in the sums of $12,500 and $3,500, respectively. The Appellate Division affirmed.

The plaintiff argued that the Supreme Court erred in directing him to pay, in addition to spousal maintenance, the mortgage and taxes on the marital residence and the defendant’s car insurance. He contended that the pendente lite maintenance award is intended to cover the defendant’s basic living expenses, which include the mortgage, property taxes, and her car insurance. The Appellate Division held that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a  payee spouse’s basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses (see  Khaira v. Khaira, 93 AD3d 194). It further held that it may be appropriate to direct payment by the monied spouse of the mortgage and taxes on the marital residence and other expenses of the nonmonied spouse under certain circumstances (see id.). In light of the evidence that the plaintiff’s income exceeded $500,000 and the gross disparity between the plaintiff’s income and the defendant’s income, the trial court properly awarded additional support in the form of a directive to the plaintiff to pay the mortgage and taxes on the marital residence (Domestic Relations Law § 236[B][5-a][c][2][a][ii] ), as well as the defendant’s car insurance.

Unfortunately, until the Court of Appeals hears a case involving these issues, it is likely that there will not be uniformity among the trial court decisions. If you are non-monied spouse, you have nothing to lose by making a request for carrying costs of the marital residence, provided that there is financial wherewithal on the part of the monied spouse. Ultimately, a decision of whether such additional should be requested should be made on case by case basis.

Updates to New York’s Child Support Standards Chart

According to the Child Support Standards Chart, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, and released March 12, 2014, the 2014 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,670 and the 2014 self-support reserve is $15,755. These numbers are highly relevant for child support calculations and may have a role in determining child support arrears in situations where payor’s income is less than the guideline amount for a single person. The Chart is found at this link. The Child Support Standards Chart is released each year on or before April 1.

Additionally, as required by the Child Support Standards Act, the combined parental income amount used to calculate basis economic support has been changed to $141,000. This figure is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The basic economic support figure is highly relevant in the cases where combined parental income is substantially in excess of it since the court may utilize parental income in excess of the basic economic support figure under appropriate circumstances.

Transmutation of Separate Property into Marital Property

One of the basic theories in equitable distribution and divorce litigation is that of transmutation. Transmutation theory holds that by their actions, the parties are able to modify the status of the property they own from separate property to marital property. Most of the time transmutation occurs when the parties commingle separate property with marital property or place what otherwise be separate property into both parties’ names.  This was demonstrated in Fehring v. Fehring, 58 A.D.3d 1061 (3rd Dept. 2009), where the money received on account of personal injuries by the husband, would be initially classified as his separate property. However, the husband deposited check in brokerage account held and used jointly by the parties. In January 2006, husband used $50,000 from account to purchase real property. The court held that transferring separate property assets into a joint account raises rebutable presumption that funds are marital property subject to equitable distribution and that the husband failed to rebut presumption of marital property given commingling of funds. It held that the lower court providently exercised discretion in distributing equally the value of interest in real property purchased with funds held in joint account.

Another example of how separate property may become a marital asset was addressed in a recent decision from the Appellate Division, Fourth Department. In Foti v. Foti, 2014 N.Y. Slip Op 00835 (4th Dept. 2014), defendant received several pieces of real property as gift from her father. Subsequently, tax losses associated with those properties were taken on the parties’ joint income tax returns. The court held that there was a question of fact whether defendant commingled her interests in the entities with marital property and whether a joint federal tax return in which defendant reported her interest in the entities as tax losses, precluded her from taking “a position contrary to a position taken in an income tax return”.

Unfortunately, the Foti decision does not give us enough facts to find out exactly what the tax returns stated. Nonetheless, this shows that even a seemingly innocuous act of filing a tax return may change the status of the property. In my view, decisions like this one, could have been prevented if the parties had signed either a prenuptial or a postnuptial agreement. If you are contemplating divorce, be careful to avoid taking any action that converts your separate property to marital property. Once transmutation takes place, it is highly unlikely that you would be able to change the property’s status back to separate property, even with a lawyer’s assistance.