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Validity of Prenuptial Agreements in New York

Sunday, March 24th, 2013

I have previously written about prenuptial agreements and issues associated with them. Generally, in New York, a prenuptial agreement may be overturned only if the party challenging the agreement sustains the burden of proof, demonstrating that the agreement was the product of fraud, duress, or it was improperly executed.

In order to prove coercion or duress, a party must establish that he or she was somehow pressured into signing the agreement.  The threat that there will be no marriage unless the agreement is signed is not duress according to numerous court decisions.  If both of the parties were independently represented by counsel, and the agreement was the product of arm’s length negotiations, it may be nearly impossible to prove that the prenuptial agreement was procured by duress.

However, a recent appellate decision, Cioffi-Petrakis v. Petrakis, 2013 N.Y. Slip. Op. 01057 (2nd Dept. 2013), broke with the long-established line of cases and upheld a Long Island judge’s decision to void an prenuptial agreement that the wife of a millionaire says she was forced into signing by false promises made by her husband-to-be, 4 days before the wedding. The wife claimed that she believed her husband to be when he told her orally that his lawyers had made him get a prenuptial agreement signed to protect his business and promised to destroy the document once they had children and put her name on the deed to the house. She also claimed that her future husband gave her an ultimatum four days before the wedding for which her father had already paid $40,000, telling her to sign the document or it wouldn’t occur.

While the appellate decision is extremely brief, the trial decision is fairly detailed and provided the facts stated above. The key factor according to the trial judge was what he called a fraudulently induced contract and detrimental reliance on the part of the wife. Fraudulent inducement was the oral promise made by the husband to be and, according to the trial court, the bride relied upon that promise. However, most agreements in New York provide that the parties are only relying on the written representations contained in the agreement, and they are not relying on promises or representations not contained in the prenuptial agreement.

This decision is unprecedented. It is likely to create a great deal of litigation in cases where a party feels that his or her prenuptial agreement is unconscionable. I also suspect that it may get appealed to the Court of Appeals.

 

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Posted in divorce, Domestic Relations Law, drafting, Family Law, New York Law, pre-nuptial agreement, procedure, Supreme Court | No Comments »

There Is No Right to Grounds Trial In A No-Fault Divorce Case

Sunday, January 6th, 2013

I have previously written on the issue of whether there was a right to trial in a divorce case brought under the no-fault grounds. Earlier, trial level decisions were split, with some courts holding that a party was still required to establish no-fault grounds at trial, and other courts holding that a sworn statement that the marriage was irretrievably broken for a period of 6 months or longer was sufficient to establish that party’s right to divorce.

Finally, the Appellate Division, Fourth Department, issued a decision resolving this issue. In Palermo v. Palermo, 2012 N.Y. Slip Op. 07528 (4th Dept. 2012), the court affirmed Justice Dollinger’s decision holding that there is no right to dispute an allegation of irretrievable breakdown under the no-fault divorce ground provided by DRL §170(7). Appellate Division agreed with the key language in Justice Dollinger’s decision which stated that:

Under DRL §170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.

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.

The Appellate Division’s decision in Palermo is significant since it clarifies the Legislature’s intent in creating a true no-fault divorce in New York. Further, as a result, the parties will be able to avoid costly grounds trials that usually result in added animosity between the parties.

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, procedure, Supreme Court | No Comments »

A Cause of Action for DRL 170(7) Can Be Added to A Divorce Complaint Filed Prior to October 2010

Sunday, April 22nd, 2012

One of the more interesting procedural issues that arose after the New York State Legislature added a cause of action under Domestic Relations Law §170(7), irretrievably broken marriage for a period of 6 months or longer, is whether this cause of action can be introduced in divorce actions filed prior to the statute’s enactment. At least one court addressed this issue by holding that a separate action can be filed by the defendant alleging a cause of action under DRL §170(7), and the two actions can be consolidated.

A recent decision by Justice Richard A. Dollinger of the Monroe County Supreme Court,  G.C. v. G.C., 2012 N.Y. Slip Op 50653(U) (Sup. Ct. Monroe. Co. 2012), held that a defendant in a divorce action, filed prior to the enactment of the no-fault statute, can assert a counterclaim based on no-fault grounds.  Specifically, Justice Dollinger reviewed the procedural aspects related to counterclaims and analyzed whether such counterclaim would prejudice plaintiff’s substantive rights in the divorce.

The facts of the case are as follows. The plaintiff brought a divorce action prior to October 10, 2010. He alleged that his wife had engaged in cruel and inhuman treatment toward him. The wife answered the complaint, denying the specific allegations, and has stated that she would contest the grounds for the divorce.  Meanwhile the parties lived apart and the wife moved to Ohio.

The husband moved to amend the complaint to assert two new grounds: a ground under Section §170(2) for abandonment and a claim under Section §170(7) for an “irretrievably broken” marriage. The wife opposed the abandonment amendment, claiming that the husband can not allege abandonment when it occurred during a year after the filing of complaint and that its assertion, now, after the action has been pending for more than two years, is untimely and prejudicial. The wife also opposed the amendment on the grounds of Section §170(7), arguing that this recently-enact statutory amendment can not be asserted in this action because the complaint was filed prior to the effective date of the change. She argued that the husband, in order to pursue this claim, needed to file a new complaint. The husband argued that if he files the new complaint with a Section §170(7) cause of action, he could then move for consolidation under CPLR §602(a), and the cases would likely be consolidated because they involve the same facts.

CPLR §3025(b), by its express language, envisions that other causes of actions, based on developing facts that occur during the pendency of the action, can be the subject of a proposed amendment to the original compliant. The statute uses the terms “subsequent transactions or occurrences” as the basis for a proposed amendment. The statute also permits an amendment “at any time.” CPLR §3025(b).

A cause of action under Domestic Relations Law §170(2) requires allegations that a spouse’s actual physical departure from the marital residence for one year is unjustified, voluntary, without consent of the plaintiff spouse, and with the intention of the departing spouse not to return. The amended complaint, on its face, met this minimal pleading requirement since it alleged that the wife left the marital residence in 2009, has not returned and her leaving was without justification.

In October, 2010, the Legislature added a statutory change to the Domestic Relations Law which created “no-fault divorce” and permitted one party to be granted the divorce upon a sworn declaration that the marriage was “irretrievably broken for a period in excess of six months” and the parties had agreed on all the issues related to support and equitable distribution. DRL §170(7). The statutory amendment states that the “act . . . shall apply to matrimonial actions commenced after the effective date.”, specifically after October 12, 2010. The Legislature apparently intended not allow litigants to simply amend their complaints, after the amendment took effect, and allow those claims to proceed to adjudication on the basis of the new “no-fault” allegations by claiming that the six months of “irretrievable breakdown” included time before the effective date of the amendment.

After reviewing statutory history, Justice Dollinger held that the husband was not seeking any relief other than that sought in the original complaint: a divorce and accompanying property distribution. By virtue of the statutory change, the husband, having waited six months after its effective date, can now meet the time requirement of six months because all of the time accrued after the amendment took effect. Justice Dollinger further found that  the husband was merely seeking to “invoke what the Legislature extended to him: a cause of action that has ripened because more than six months have passed since the date of the amendment and during that time, the husband swears that his marriage has been irretrievably broken.”

I think that this was the right result. If a party is able to assert a cause of action under DRL §170(7), the length and expense of the case are likely to be reduced since a trial on the issue of grounds will no longer be required.  This is likely to result in shorter and less costly divorce cases.

 

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, procedure, Supreme Court | No Comments »

Changes in Temporary Maintenance and Child Support Statutes

Sunday, March 18th, 2012

Because of the language in the statute providing for cost of living adjustments, temporary maintenance guidelines income cap was raised from $500,000 to $524,000. The “cap” on each spouses annual income, to be utilized in calculating temporary maintenance orders, has increased from $500,000 to $524,000 effective January 31, 2012 in accordance with Domestic Relations Law § 236 [B][5-a][b][5]. The statute provided that:

Beginning January 31, 2010 and every two years thereafter, the income cap increases by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the united states department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. The office of court administration is required to determine and publish the income cap. See Domestic Relations Law § 236[B], [5-a][b][5].

Similarly, the child support cap was modified as well. The “combined parental income amount” utilized in calculating child support orders has increased from $130,000 to $136,000 effective January 31, 2012. The amount of the “combined parental income” is established by Domestic Relations Law § 240 (1-b) (2) as the amount set forth in Social Services Law § 111-I (2) (b). Domestic Relations Law § 240 (1-b) (2) provides that the amount established shall be multiplied by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent’s income is to the combined parental income. Social Services Law § 111-I (2)(b) provides that the $130,000 cap is increased automatically on January 31, 2012 and on January 31 every two years thereafter by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPI-U) as published by the United States Department of Labor Bureau of Labor Statistics for the two year period rounded to the nearest one thousand dollars.

While the change in the temporary maintenance cap is not likely to be applicable in vast majority of divorce cases, the change in the basis economic support amount applicable to child support cases is likely to be significant in a large number of cases in Family Court and Supreme Court.

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Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Family Court, Family Law, New York Law, procedure, Supreme Court | No Comments »

Parent’s Obligation to Pay for College Is Not Limited To Cost of SUNY Education Unless Proven Otherwise

Sunday, November 13th, 2011

In Pamela T. v. Marc B., 2011 N.Y. Slip. Op. 21355 (N.Y.Sup.2011), the court had to decide whether the parent’s obligation to pay for college should be limited to the so-called “SUNY cap”. The Supreme Court concluded that parent’s argument that before a parent can be compelled to contribute towards the cost of a private college, there must be a showing that a child cannot receive an adequate education at a state college, has no basis in the law.

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.

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Posted in child support, Child Support Standards Act, college expenses, court orders, Domestic Relations Law, Family Law, New York Law, Supreme Court | No Comments »

Statute of Limitations and QDROs

Saturday, June 11th, 2011

One of the questions that I was asked several times during the last year was whether there is a statute of limitations applicable to Qualified Domestic Relations Orders (QDROs)? This question usually come up in situations where one former spouse was entitled to a portion of the other former spouse’s retirement benefits, however, the QDRO was never done, and a substantial period of time has passed. If there was an applicable statute of limitations, the former spouse who has failed to act would lose his or her right to collect a portion of the former spouse’s retirement.

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.

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Posted in court orders, divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, QDRO, Settlement Agreements, Stipulations, Supreme Court | No Comments »

Tax Implications in Divorce – Need for Trial Evidence

Sunday, June 5th, 2011

One of the issues that frequently comes up in divorce is cases has to do with tax implications of the divorce action.  Tax issues may involve dependency exemptions, or may involve issues dealing with allocation of taxes on income or assets subject to equitable distribution.  The courts have addressed these issues in the past and have always required some admissible proof with respect to tax implications of the relief sought in the divorce action. However, some parties still fail to present admissible trial evidence that would allow the court to make decisions allocating tax liabilities, if any.

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.

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Posted in divorce, Domestic Relations Law, equitable distribution, evidence, Family Law, maintenance, New York Law, Supreme Court, taxes | No Comments »

Downward Modification of Child Support, Scope of Job Search and Custody Issues

Sunday, May 8th, 2011

I have previously written about downward modification of child support in a situation where the payor has lost his job or experienced a significant reduction in his income. Recently, I was personally involved in a case which also involved custody issues that directly impacted payor’s job search and were raised as a defense to an argument that the job search was insufficient. While I almost never write about cases while they are still pending, in this case, an article about the decision was published in the paper serving Rochester legal community, and I think that it is interesting one, because of the interplay between the child’s need for support and parent’s wish not to search for a job outside of his present community.

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.

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Posted in child support, Child Support Standards Act, court orders, Domestic Relations Law, Family Law, imputed income, modification, New York Law, Supreme Court | No Comments »

Contempt and Enforcement of Court Orders

Wednesday, April 20th, 2011

One remedy to a failure of one party to abide by existing court orders that is available to the parties in divorce and other family law actions is contempt of court. The power to punish for contempt arises out of the inherent power of the court, which is limited by §753(A)(3) of the Judiciary Law. It provides, in part:

753. Power of courts to punish for civil contempts
A. A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases:
3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the nonpayment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court.
8. In any other case, where an attachment or any other proceeding to punish for a contempt, has been usually adopted and practiced in a court of record, to enforce a civil remedy of a party to an action or special proceeding in that court, or to protect the right of a party.

The power of contempt is exists to punish the party who engages in an evasion or a violation of duty, or misconduct, which resulted in defeating or prejudicing the other party’s rights. There are a number of procedural requirements that have to be strictly followed in order for the court to find a party in contempt. A motion to punish for contempt will be dismissed unless on its face it contains both a notice that the purpose of the hearing is to punish for contempt and that such punishment may consist of a fine or imprisonment. Without this notice and warning, the court is without jurisdiction to punish for contempt.

The party must also be advised by the court of the right to counsel and assigned an attorney if financially unable to obtain counsel. In addition, DRL §245 requires a finding that payment cannot be enforced pursuant to DRL §243 or §244 or CPLR §5241 and §5242 and the exhaustion of these remedies or a finding that they would be ineffectual as a prerequisite to a contempt for disobeying an order requiring payment of money in a matrimonial action.  The court must find that the violation was willful and find expressly that the actions of the defaulting spouse were calculated to or actually did defeat, impair or impede or prejudice the other spouses rights or remedies. Nonpayment alone does not establish the requisite willfulness to support contempt. DRL §246(3) provides that financial inability to pay is a defense to a contempt proceeding under DRL §245. A person who asserts in an opposing affidavit financial inability to comply with the order is entitled to an evidentiary hearing to determine whether he or she has an ability to pay.

The punishment for contempt for failure to make ordered payments is imprisonment until payment is made. The defaulting spouse may pay the money due and be released. If the court finds that the party committed the offense charged and that it was calculated to or actually did defeat, impair, impede or prejudice the rights or remedies of the other spouse, the court must make a final order directing fine, imprisonment or both, as it finds necessary.

Civil Rights Law §72 limits the length of imprisonment for nonpayment of alimony, maintenance, distributive award, special relief in a matrimonial action and counsel fees in a divorce case to three months for a default of less than $500, and to six months for $500 or more. Noticeably absent is any mention of child support. If a party has an actual loss or injury because of the proven other spouse’s misconduct, a fine must be imposed sufficient to indemnify the aggrieved party and when collected, paid to the aggrieved party.

In contrast to the DRL, the Family Court Act (FCA) takes a tougher approach by providing for commitment as one of the remedies for nonpayment of support. Section 454(2) provides that where a respondent is brought before the court for failure to obey any “lawful order” of the Family Court for support and following a hearing the court is satisfied that the respondent has failed to obey the order, it may 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.

Here is an example of how a contempt application will be viewed by the court. In a recent case, H.S.M. v J.T.M., 2011 N.Y. Slip. Op. 50069(U) (Sup. Ct. Nassau Co. 2011), the court was asked to hold defendant in contempt of Court for his willful failure to comply with the Judgment of Divorce entered in this action , and for his willful refusal to pay the sum of $43,351.87, together with interest. The parties’ marriage was dissolved pursuant to the Judgment of Divorce, entered June 24, 2008, which incorporated but did not merge with a Stipulation of Settlement, dated December 19, 2007. The Stipulation stated in pertinent part that:

The Husband shall pay to the Wife, as and for child support, the sum of One Thousand Seven Hundred Eighty-five ($1,785.00) Dollars per month … The parties agree that the child support payments will be made through the Nassau County Support Collection Unit. [Article XXVI]

Pursuant to the Order of the Hon. Denise L. Sher, J.S.C., dated October 4, 2006, the Court ordered pendente lite relief awarding to the Wife the sum of One Thousand Four Hundred ($1,400.00) Dollars per month temporary maintenance, as well as child support in the sum of Two Thousand ($2,000.00) Dollars per month. The award was retroactive to the date of service, which was July 18, 2006. [Article XXVII]

The Husband agrees that arrears for child support and maintenance as of the date of execution of this Agreement amount to Thirty-Eight Thousand Two Hundred ($38,200.00) Dollars, and agrees to the entry of judgment for said arrears. Said arrears shall be liquidated by the Husband paying to the Wife the sum of Three Hundred ($300.00) Dollars per month until all arrears are paid. The Father further agrees that in order to liquidate arrears, the Father shall remit to the Mother his income tax return refunds that he receives commencing with the tax year 2007 and shall pay over to the Mother the entire refund by June 1, 2008, and by June 1st every year thereafter until such time as his arrears have been liquidated. [Article XXII]

The Husband shall pay to the Wife, as and for spousal maintenance, the sum of Four Hundred ($400.00) Dollars per month…through support collection. [Article XXXVI]

Pursuant to the “So-Ordered” Stipulation of the parties dated May 19, 2010, “Def[endant] agrees to pay to Pl[aintiff] as and for child support arrears the minimum sum of $1,000.00 (One Thousand and no/100) by May 26, 2010.

Wife claimed that Husband has willfully failed to i) comply with the Judgment of Divorce dated August 6, 2008, which incorporates the Stipulation; ii) comply and pay the money judgment entered on February 3, 2010, in the sum of $49,746.27; and iii) comply with the “So-Ordered” Stipulation entered into by the parties on May 19, 2010. Wife claimed that subsequent to the entry of the money judgment, she contacted the Nassau County Office of Child Support Enforcement to seek payment of the child support obligation for the parties’ three children, as well as maintenance for herself. She claimed that notwithstanding the attempts of the Child Support Enforcement Bureau, no payments have been received from the defendant or his employer. She further alleged that the total sum now due and owing is $87,864.01, and that none of it has been paid.

In February of 2010, husband testified that he has no assets nor property which could be sequestered. In support of her application, wife claimed that nothing less than a fine and incarceration will persuade the husband to comply with the Court orders and judgments. She argued that other enforcement devices, including income deduction orders, income executions or sequestration will be unsuccessful in view of husband having made himself judgment proof; moving out of the State of New York; and failing to comply with any judgment or stipulation entered into by the parties.

Wife claimed that she is attending graduate school but that in the interim, she is completely dependent on her family for her support and the support of the parties’ three children. She claimed that the last time she received any funds from husband was in March of 2010, and that since that time she has received no support payments or maintenance. She argued that based upon those facts, husband’s intentional non-compliance with the judgment, orders and “So-Ordered” Stipulation has defeated, impaired and prejudiced her rights.

The court stated that a contempt citation is a drastic remedy which should not be granted absent a clear right to such relief.  Further, to prevail on a motion to punish a party for civil contempt, the movant must demonstrate that the party charged with contempt willfully violated a clear and unequivocal mandate of a court’s order, with knowledge of that order’s terms, thereby prejudicing the movant’s rights.  The court further held that pursuant to Domestic Relations Law §245, before a defaulting party can be held in contempt for the non-payment of a sum of money, it must appear “presumptively, to the satisfaction of the Court,” that the movant exhausted the less drastic enforcement remedies available under Domestic Relations Law §§ 243, 244 and 245, CPLR §§ 5241 and 5242, or such other enforcement mechanisms that would be ineffectual.  Once the movant has made a prima facie showing that the party against whom a contempt citation is sought has failed to pay a sum of money as ordered, the burden then shifts to the obligor to adduce some competent, credible evidence of his inability to make the required payments, in order to show that the failure to pay was not willful. The court determined that wife has satisfactorily demonstrated the existence of a clear and unequivocal mandate of the court, and that husband has knowingly violated the order’s terms, thereby prejudicing her rights. The court also found that other methods of enforcement would prove ineffective in light of husband having made himself judgment proof. The court, however, determined that it must conduct a hearing to determine husband’s willfulness in violating the subject orders. In order for a non-compliant party be incarcerated for his willful violation of the court’s mandates, the movant must prove such willfulness beyond a reasonable doubt.

The above decision illustrates that while contempt is a remedy, it may require a substantial motion practice and, most likely, a hearing.  Thus, contempt motions should not be brought unless all other remedies were exhausted.

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Posted in divorce, Family Court, Family Law, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court, Uncategorized | No Comments »

Can a Divorce on No-Fault Grounds Be Opposed?

Saturday, April 9th, 2011

One question that so far has not been resolved with any degree of certainty by the courts is whether in a divorce action brought pursuant to the new no-fault divorce statute requires specific proof that the parties’ marriage was irretrievably broken for a period of six months or longer. It is an important question since in the past divorce attorneys were able to challenge grounds for divorce and force plaintiffs to establish that there were adequate grounds for divorce. In a significant number of cases, grounds trials were held for economic reasons, i.e., the monied spouse did not want to divide assets and/or pay spousal maintenance.

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.

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Posted in divorce, Domestic Relations Law, Family Law, grounds, New York Law, Supreme Court | No Comments »

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