Divorce and Exclusive Possession of Marital Residence During Pendency of the Action

I am often asked by a party to a divorce action if the other party can be forced to leave the marital residence. My usual response is that it can be done under the appropriate circumstances. Exclusive use and occupancy of the marital residence may be awarded during pendency of a divorce action upon a showing that a spouse’s presence has caused domestic strife and/or that the spouse has voluntarily established an alternative residence. See, Domestic Relations Law §234; Annexstein v. Annexstein, 202 A.D.2d 1062 (4th Dept. 1994). The standard for granting exclusive possession is a flexible one and may include any circumstance warranting judicial intervention. See, Grogg v. Grogg, 152 A.D.2d 802 (3rd Dept. 1989) (The presence of marital strife can be a recognized standard for an award of exclusive possession). In I.Q. v. A.Q., 228 A.D.2d 301 (1st Dept. 1996), where there was no dispute of a significant potential for strife should defendant return, and no genuine issue raised that defendant’s exclusion from the marital residence would cause him more than minimal disruption, the motion court’s award of temporary exclusive possession, without a hearing, was a proper exercise of discretion. Id.

Similarly, in Iuliano v. Iuliano, 30 A.D.3d 737 (3rd Dept. 2006), testimony clearly demonstrated the existence of marital strife between the parties requiring an award of exclusive possession to insure the personal safety of the parties. Given the disparate financial circumstances of the parties, the award of exclusive possession to defendant was deemed to be proper. Id. In Mitzner v. Mitzner, 228 A.D.2d 483 (2nd Dept. 1996), the Supreme Court was found to have properly awarded the defendant temporary exclusive possession of the marital residence, given the domestic strife caused by the plaintiff’s presence in the home and the fact that he had voluntarily established an alternative residence. Id. See, also, Block v. Block, 245 A.D.2d 153 (1st Dept. 1997) (In light of husband’s admission that due to marital strife, he voluntarily vacated the marital residence shortly after signing a one-year sub-lease for an apartment, and the unrebutted expert evidence concerning the impact of the domestic strife on the wife prior to the husband’s departure and the potential harm to the wife and children if the husband returned, the motion court erred in not granting the wife’s cross-motion for exclusive occupancy of the marital residence and in granting the husband’s motion for complete access thereto).

If the presence of one party has caused significant domestic strife in the marital residence and that party has sufficient means to secure an alternate residence, the other party may be granted exclusive use and occupancy of the marital residence. During a divorce, exclusive possession is one of the most important tools available to a divorce lawyer to improve client’s position, and to force the other party to establish a separate household. Grant of exclusive possession is likely to have significant consequences with respect to custody, visitation, temporary maintenance and other issues. Since the grant of exclusive possession under Domestic Relations Law §234 is within the court’s discretion, it is difficult to have it overturned on appeal.

Same Sex Marriage and Inheritance Rights

I have previously blogged about recognition of same sex marriages by New York courts, and specifically, Martinez v. County of Monroe, 50 A.D.3d 189 (4th Dept. 2008). The courts have applied Martinez in recognizing the right to benefits, divorce, adoption, and now, inheritance rights. In a recent decision, In re Ranftle, N.Y.L.J., (Feb. 3, 2009), the Surrogate Court in New York County recognized a same-sex marriage entered into in Canada for the purpose of determining decent’s distributees.

The decent H. Kenneth Ranftle, married his same sex partner, J. Craig Leiby, in Monreal, Canada, on June 7, 2008. He died on November 1, 2008, and was survived by Mr. Leiby and three siblings. Relying on Martinez, the Surrogate Court recognized the marriage as valid and entitled to recognition in the Sate of New York. Therefore, Mr. Leiby was declared to be decedent’s surviving spouse and sole distributee under Estates Powers & Trusts Law §4-1.1. Under Estates Powers & Trusts Law §4-1.1, Mr. Ranftle’s siblings will not be entitled to any part of his estate.

Non-Marital Property Is Not Subject to Distribution

I have previously written about relevant classification of property for equitable distribution purposes. Normally, the property is classified as either separate or marital, regardless of how the title is held. However, once in a while I have seen situations where property rights are claimed in a property which is titled in neither the husband’s or wife’s name.

In Mattioli v Mattioli,48 A.D.3d 1143 (4th Dept. 2008) the Appellate Division held that Supreme Court properly refused to treat the former marital residence, which was titled in the names of plaintiff’s parents or in one of their names, as marital property subject to equitable distribution, despite the fact that plaintiff paid her father $42,899 during the marriage as a down payment towards its purchase. The Appellate Division held that the trial court erred, however, in basing its decision solely on the fact that title to the property was held by one or both of plaintiff’s parents, rather than by plaintiff and/or defendant. That fact was not necessarily dispositive because Domestic Relations Law 236(B)(1)(c) defines marital property as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” Thus, the dispositive issue was whether plaintiff and/or defendant held “any valuable property rights” in the former marital residence, inasmuch as property is “not marital property [where] neither the wife nor the husband [holds] any valuable property rights” in it. While the parties in this case alluded to an agreement between plaintiff, defendant, and plaintiff’s parents for the purchase of the former marital residence, no written agreement for the purchase and sale thereof was presented to the court. In the absence of a written contract, there was no evidence before the court that either plaintiff or defendant held the requisite “valuable property rights” in the former marital residence to render it marital property.

The Appellate Division held that the trial court erred in applying the doctrine of judicial estoppel in precluding defendant from presenting evidence of funds received by plaintiff from the sale of the former marital residence. Defendant attempted to establish that the $8,000 to $9,000 received by plaintiff from the sale of the former marital residence was marital property in the form of appreciation in the value of the property resulting from improvements he made to it during the marriage. The Supreme Court erred in relying on its decision when it applied the doctrine of judicial estoppel to the former marital residence. The record established that during the marriage defendant twice filed for bankruptcy under chapter 7 of the Bankruptcy Code and received discharges, and that he claimed in both bankruptcies that he was single and did not list the former marital residence as an asset in his bankruptcy schedules. The court thus determined that judicial estoppel prevented defendant from claiming any interest in funds received upon the sale of the former marital residence. Because marital property rights are determined upon the granting of a divorce, and defendant was not required to list possible future rights to marital property in the bankruptcy schedules. The Appellate Division modified the judgment by remitting the matter to Supreme Court to reopen the proof at trial to permit defendant to submit evidence that the funds received by plaintiff from the sale of the former marital residence were marital property.

The lesson of Mattioli is a simple one. If you are entering into any kind of agreement that may involve property to which you may have to establish a right to, make sure that the agreement is in writing.

Basics of Prenuptial Agreements

One of the basic agreements in divorce and family law is the prenuptial agreement, which is signed prior to the parties’ marriage. It is typically used to protect one or both parties’ separate property from becoming marital property or to address any other issues between the parties in the event of dissolution of the marriage. Prenuptial agreements are encouraged as consistent with the public policy of New York. Such agreements, however, must be fair and reasonable and not invalidated by fraud, misrepresentation, coercion of one of the parties. In the absence of fraud, misrepresentation, coercion, these agreements are presumed to be valid, and the party seeking to set aside the agreement has the burden of proof.

Domestic Relations Law (DRL) §236(B)(3) governs prenuptial agreements and addresses their subject matter. Such agreements typically address the following:

1) The right to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will;
(2) Ownership, division or distribution of separate and marital property;
(3) The amount and duration of maintenance or other terms and conditions of the marriage relationship; and
(4) Custody, care, education and maintenance of any child of the parties.

The courts carefully scrutinize such agreements if one of the parties is seeking to enforce it. For example, an agreement concerning the amount and duration of spousal maintenance must be fair and reasonable at the time it is made, and not unconscionable at the time of entry of final judgment in the divorce action. See Domestic Relations Law §236(B)(3); Deckoff v. Deckoff, 284 A.D.2d 426 (2d Dept. 2001). Further, no spouse may relieve the other of the requirement of support to the extent that the spouse may become a public charge. Bloomfield v. Bloomfield, 97 N.Y.2d 188 (2001). An agreement as to child support must set forth the amount of child support that would be owed under the relevant guidelines and, if the amount agreed to deviates from the same, an explanation why. Domestic Relations Law §240(1-b)(h). Moreover, even if the agreement complies with the statutory requirements, the courts “retain discretion with respect to child support”. Domestic Relations Law § 240(1-b)(h); Gravlin v. Ruppert, 98 N.Y.2d 1, 5 (2002). Similarly, a prenuptial agreement as to child custody is not binding on the court. Friederwitzer v. Friederwitzer, 55 N.Y.2d 89 (1982); Fanelli v. Fanelli, 215 A.D.2d 718 (2d Dept. 1995). Nor is an agreement concerning the physical location of a child subject to a joint or shared custody arrangement. Tropea v. Tropea, 87 N.Y.2d 727 (1996). In short, the statutory scheme may trump an agreement if there is an inconsistency.

Even with the courts’ ability to review and vacate prenuptial agreements, they are the single best tool family law lawyers have to plan ahead and to allow their clients to prearrange for orderly dissolution of the marriage. A prenuptial agreement may be required if one spouse is involved in a business, and his or her partners may want to protect the business from any effects of equitable distribution. If one of the parties is entering the marriage with valuable property, including real estate, a business or a license or a degree, that property, and any appreciation in its value can be protected. If one of the prospective spouses is attending law school or medical school, a prenuptial agreement will protect against such degree becoming marital property. A prenuptial agreement will allow both sides in the marriage to address issues that may arise if the marriage is dissolved. . It sets forth each party’s rights in the event of a divorce or separation.

Usually, the significant issue related to the validity of prenuptial agreements is nondisclosure. During marriage spouses are subject to the special duties imposed by their confidential relationship. As noted in Christian v. Christian, 42 N.Y.2d 63 (1977) those fiduciary duties are imposed independently of any statute. In addition, the Domestic Relations Law requires full disclosure between spouses, and to “opt out” of the statutory system there must be a full and complete disclosure of all financial data, unless there is an intelligent waiver. Courts ordinarily are wary of waivers of full disclosure.

Family law attorneys often insert clauses in settlement agreements that contain declarations that each party has made full financial disclosure to the other; that their respective counsel has fully explained to each of them the legal and practical effect of the terms of the agreement, and that the circumstances surrounding the preparation and execution of the agreement were fair, and not the result of fraud, duress or undue influence. However, unless such disclosure was actually made, there is a significant risk that the agreement would be vacated by the court.

If “unconscionability” is established, such clauses certainly have limited, if any, effect. But if the settlement agreement is fair on its face, and especially if the complaining party was represented by independent counsel, such clauses are effective and, at a minimum, place a heavy burden on the party who asserts invalidity. It should be noted that courts have sustained the validity of a prenuptial agreement where there was an intelligent waiver and full disclosure was not made. In Hoffman v. Hoffman, 100 A.D.2d 704 (3rd Dept. 1984), the court held that a failure to disclose the full extent of a party’s assets does not in itself constitute such fraud or overreaching that would invalidate a prenuptial agreement, where no representations were made and thus none were relied upon.

There are also important procedural requirements applicable to such agreements. A prenuptial agreement is valid only if it is “in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded”. Domestic Relations Law §236(B)(3); Matisoff v. Dobi, 90 N.Y.2d 127, 132 (1997). If the acknowledgment is does not comply with the statute, specifically Real Property Law §309-a, the agreement will be invalidated by the court.

Same-Sex Spouse Needn’t Be Certified to Adopt Partner’s Child

In November of 2008, I wrote about New York courts granting a divorce to a same sex couple. In C.M. v. C.C. (Sup. Ct. New York Co. October 14, 2008), the trial court held that the New York court had subject matter jurisdiction to grant a divorce to a same sex couple who were married in Massachussetts. The trial court held that in following Martinez v. County of Monroe and other cases dealing with recognition of the same sex marriage, it had the subject marriage jurisdiction and the divorce case between two women could continue. Since that time, we are seeing various rulings that followed the holding in Martinez. A few days ago, in Matter of Donna S., 2009 N.Y. Slip Op. 29009 (Fam. Ct., Monroe County, AC-14386-08), Judge Joan S. Kohout, held that there was no need for the same-sex spouse of a woman due to give birth in March to seek pre-certification to adopt her partner’s child. Judge Kohout ruled that because the couple’s Canadian marriage is recognized under New York law, the spouse could be treated exactly the same as the husband of a woman who became pregnant through donor insemination, in which case neither pre-certification nor an adoption proceeding would be necessary to establish a parental relationship with the child.

According to Judge Kohout’s opinion, Donna R.S. and Lisa P. were married on July 4, 2007, in Ontario, Canada. Lisa has become pregnant through donor insemination, and is due to give birth in March. Donna initiated the process of being approved as an adoptive parent, with the intention of adopting the child when he/she is born. As part of a normal adoption process, she submitted to a home study by a social worker, who produced a positive report, and then she submitted her petition to the court to be “pre-certified” as an adoptive parent, so the adoption procedure could be handled expeditiously after the child is born.

Pre-certification is a legal process that is typically handled at the start of every adoption. A successful pre-certification process is critical and involves filing pleadings with the appropriate court, a home study, child abuse clearance and criminal record check. Once a prospective adoptive parent has been precertified, he/she can proceed with pursuing a domestic adoption. The “certification” includes a homestudy, child abuse clearance and criminal record check prior to the adoption, and a follow-up homestudy before the adoption is finalized. This requirement was brought into being as a result of the infamous Steinberg case, so that all parties in the adoption process are protected.

The petition did not specify that Donna was seeking to adopt any particular child, but merely wished to be certified as qualified in general to be an adoptive parent. The home study made it clear to the court that her intention was to adopt her same-sex spouse’s child.

Judge Kohout considered the pre-certification process to be unnecessary. Pointing out that the Appellate Division’s ruling last year in Martinez means that “the marriage of same sex couples legally married in other jurisdictions must be recognized by New York,” and mentioning as well that Governor David Paterson had directed New York state agencies to “apply statutes and regulations in a gender neutral manner to same sex parties validly married in another jurisdiction,” Judge Kohout decided to treat Donna similarly to the husband of a woman who has become pregnant through donor insemination.

In those situations, an adoption proceeding is unnecessary. Spouse’s parental status is established by the parties’ execution of a consent form, indicating their agreement that the birth mother’s spouse will be the legal parent of the child.

Additionally, Judge Kohout considered an alternative approach: “Since Ms. S. is the spouse of Ms. P., she will at the very least be considered a step-parent to Ms. P.’s child after the child’s birth. Step-parents are not required to be pre-certified as qualified adoptive parents for the purpose of adopting their spouse’s child.” However, step-parents would have to fulfill a one year waiting period to adopt, or get approval to waive the waiting period from the court.

In conclusion, Judge Kohout stated that the situation could be resolved by the statute governing donor insemination, pointing out that “a child born to a married woman by artificial insemination is deemed the legal child of the husband if both spouses execute a consent to that effect. Given the holding in Martinez, it would seem that by the simple execution of a consent, Ms. S. could become the baby’s legal parent without the necessity of an adoption.”

However, since all the paperwork was in order and there was a positive home study report on file, Judge Kohout granted the pre-certification petition, so the petitioner was eligible to adopt a child until the expiration of the petition in May 2010.

Assigned Counsel in Divorce and Custody Cases

I am often asked whether there is a right to assigned counsel in divorce and custody cases that are either brought or are pending in the Supreme Court. While assignment of counsel to those who cannot afford it is a common place occurrence in the Family Court, until fairly recently, there was no right to assigned counsel in the Supreme Court. However, the New York Legislature recognized that litigants in custody and visitation cases brought in the Supreme Court should have the same right to the assignment of free counsel as litigants in custody and visitation cases brought in the Family court. Thus, Judiciary Law §35 has been amended to require justices in the Supreme Court to assign counsel in such cases. The Supreme Court justices are now required to notify parties of the right to counsel, as well as the right to an adjournment to obtain counsel, and to the right to the appointment of free counsel, if they can not afford to retain an attorney. In divorce cases, the right to assigned counsel exists only where custody or visitation are at issue. Therefore, if you are a defendant in a divorce action, and the custody or visitation is at issue, you can have a court appointed attorney represent you if you cannot hire your own counsel.

Paternity and Equitable Estoppel

Equitable estoppel typically arises as a defense in situations where a person, typically a nonbiological father, seeks to avoid child support obligations or the biological father belatedly seeks recognition of his parental rights.

DNA testing is a way to guarantee that non-custodial parents provide financial support for their children and make it possible to accurately determine a child’s paternity in a quick and inexpensive manner. The widespread availability of reliable genetic testing has reduced the need for extensive fact finding hearings and protracted litigation in the court system and can essentially ensure that the presumptive father is really the child’s biological father. However, in New York, not every putative father entitled to a DNA test.

Consider a scenario where a presumptive father files a paternity petition in a New York family court, together with a petition for custody of a child he believed to be his own. The child’s mother concedes paternity and acknowledges that her son refers to the putative father as his father and that the putative father has had some involvement with the child. Lets assume farther that during the paternity hearing, however, the putative father requests that the Court order a DNA test to confirm that he is indeed the child’s biological father. Must the Court issue an order subjecting the child to DNA testing?

In New York, the answer is no. Under what is known as the doctrine of equitable estoppel, the Court may deny an application for a DNA test in a paternity proceeding on the principle of fairness and in the best interests of the child. Equitable estoppel precludes a presumptive father from speaking out against his own acts, commitments or representations if they are reasonably relied upon by the child.

If a substantial parent-child relationship has developed between the putative father and the child and no biological father has come forward to contribute to the costs of the child’s upbringing, New York courts may find that it is not in the child’s best interests to admit DNA evidence that disproves the presumptive father’s paternity. The doctrine of equitable estoppel has often been applied to protect the child from an untimely assertion or denial of paternity, which, if permitted, would damage an existing parent/child relationship.

In Shondel J. v. Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals directly addressed the application of equitable estoppel in paternity and support proceedings. In that case, the court found that the respondent, who never married the mother and was not the biological father of the woman’s child, was equitably estopped from denying paternity. The child was believed to be the product of a brief liaison between the respondent and the mother. The respondent initially acknowledged paternity and provided some financial support. He had intermittent visitation with the child, although he was often not even in the same country as the mother and child. Four years after the child’s birth, it was determined that he was not the biological father. The court found that the respondent was equitably estopped from raising the issue of paternity, both by statute (Family Court Act § 418 [a]; § 532 [a]) and at common law. The court concluded that both the statute and case law required that the best interests of the child controlled whether a person was required to continue support payments, even if it was belatedly determined that he was not the biological parent. “The potential damage to a child’s psyche caused by suddenly ending established parental support need only be stated to be appreciated. Cutting off that support, whether emotional or financial, may leave the child in a worse position than if that support had never been given. . . . [T]he issue does not involve the equities between the two adults; the case turns exclusively on the best interests of the child.”

The doctrine of equitable estoppel evolved as a balancing test between the best interests of the child and the rights of the parent. Where there has been a bond formed between the parent and child, the interest of the child in preserving that relationship and the obligations of the parent toward that child, outweigh the putative father’s interest in establishing whether he is really the child’s biological father.

The Return of Engagement Gifts

A person’s right to the return of wedding presents given in contemplation of a marriage that fails to materialize is governed by §80-b of the Civil Rights Law, which permits the recovery of such gifts. The statute provides that:

Nothing in this article contained shall be construed to bar a right of action for the recovery of a chattel, the return of money or securities, or the value thereof at the time of such transfer, or the rescission of a deed to real property when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage which has not occurred, and the court may, if in its discretion justice so requires, (1) award the defendant a lien upon the chattel, securities or real property for monies expended in connection therewith or improvements made thereto, (2) deny judgment for the recovery of the chattel or securities or for rescission of the deed and award money damages in lieu thereof.

This statute permits recovery when the sole consideration for the transfer of the chattel, money or securities or real property was a contemplated marriage that has not occurred. It has been held that there is a strong presumption that any gifts made during the engagement period are given solely in consideration of marriage. This presumption is rebuttable, but clear and convincing proof is necessary to overcome it.
In Gaden v. Gaden, 29 N.Y.2d 80 (1971), the Court of Appeals held that fault was irrelevant under Civil Rights Law §80-b, which contemplates situations where one party has directly transferred property to another, as well as situations where the transfer was made by a third party to both of the parties. The Court held that just as the question of fault or guilt has become largely irrelevant to modern divorce proceedings, so should it also be deemed irrelevant to the breaking of the engagement. The purpose of §80-b was to return the parties to the position they were in prior to their becoming engaged, without without rewarding or punishing either party for the fact that the marriage failed to materialize.
Thus, if an engagement does not result in a marriage, the ring or any other gifts given in contemplation of the marriage, should be returned to the party who made the gift. Alternatively, one should be prepared to fight a law suit.

Starting a practice and starting a blog

After spending the last 12 years practicing in a mid-size firm setting in Rochester, I have left my job and started my own practice. As of Monday, July 28, 2008, The Law Office of Alexander Korotkin, Esq. is open for business. In conjunction with running my practice, which is not limited to family law matters, I intend to publish this blog which will focus primarily on Family Law.