Posts Tagged ‘Domestic Relations Law’

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New Temporary Maintenance – How Does It Work?

Saturday, November 13th, 2010

Among recent changes to New York’s divorce laws, the legislature amended provisions of the Domestic Relations Law that deal with temporary spousal maintenance.  DRL §236(B)(5-a)(c) presently includes a formula which, if applied according to the statute, results in the presumptively correct amount of temporary maintenance. DRL §236(B)(5-a)(c)(1) describes how those provisions are applied:

(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.

According to the legislative documents, the legislature intended that the temporary maintenance guidelines would only result in an award when there is an income gap between the two parties such that the less-monied spouse’s income is less than two thirds of the more-monied spouse’s income. For instance, if the payor’s annual income is $60,000 per year, the guidelines will only result in an award if the payee’s annual income is less than $40,000. The numerical guideline is only applied to the payor’s income up to $500,000 of her/his income, with a set of factors to be applied by the court to determine any additional amount of temporary maintenance on the payor’s income above this $500,000 cap.

Here are some examples of how the statute works:

Example 1

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $60,000
Payee‘s Income $30,000
Combined Income $90,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $60,000) = $18,000
Minus
20% of Payee‘s Income (20% x $30,000) = $6,000
Result of Calculation # 1: $12,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $60,000
Plus
Payee‘s Income = $30,000
Combined Income Equals $ 90,000
Multiplied by 40% ($ 90,000 x 40%) = $36,000
Subtract Payee‘s Income from Product:
($36,000 minus $30,000 = $6,000)
Result of Calculation # 2: $6,000

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, $6,000, Calculation # 2 controls, and the temporary maintenance award would be $6,000.

Example 2

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $120,000
Payee‘s Income $80,000
Combined Income $200,000
Step # 2:
Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $120,000) = $36,000
Minus
20% of Payee‘s Income (20% x $80,000) = $16,000
Result of Calculation # 1: $20,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $120,000
Plus
Payee‘s Income = $80,000
Combined Income Equals $200,000
Multiplied by 40% ($ 200,000 x 40%) = $ 80,000
Subtract Payee‘s Income from Product:
($80,000 minus $80,000 = $0)
Result of Calculation # 2: $0

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, zero, Calculation # 2 controls and the temporary maintenance award would be zero.

Example 3

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $100,000
Payee‘s Income $20,000
Combined Income $120,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $100,000) = $30,000
Minus
20% of Payee‘s Income (20% x $200,000) = $4,000
Result of Calculation # 1: $26,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $100,000
Plus
Payee‘s Income = $20,000
Combined Income Equals $120,000
Multiplied by 40% ($120,000 x 40%) = $48,000
Subtract Payee‘s Income from Product $100,000
($48,000 minus $20,000 = $28,000)
Result of Calculation # 2: $28,000

Because paragraph (d) provides that ―the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars,and because Calculation # 1 is the lesser amount, specifically, $26,000, Calculation # 1 controls and the temporary maintenance award would be $26,000.

There are several issues that are not addressed by the new statute. Initially, prior to its enactment, judges had discretion to set temporary awards based upon the actual needs of the parties. Under the prior statute, temporary maintenance was awarded to allow the non-monied spouse to preserve his or her financial circumstances and maintain the prior lifestyle during the divorce. While the goal of the prior statute was laudatory, unfortunately, the temporary maintenance awards varied greatly from case to case.

Since the new statute creates uniformity by using a formula, temporary maintenance awards are going to be consistent as far as their amount is concerned. At the same time, the new statute doe snot address duration of the maintenance and length of the marriage of the parties. For temporary maintenance purposes, a spouse in a long term marriage would receive the same temporary maintenance award as a spouse in a short term marriage. This is likely to create an incentive for parties in a short term marriage and their lawyers to extend the divorce action as long as possible.

Another problem with the new statute is that it applies to the first $500,000 of income, someone married to person who earns well in excess of that figure would receive less under the new statute than he or she would be entitled to receive under the old law, when the full income was used for determining temporary maintenance.

Finally, the temporary maintenance statute creates certain expectations on part of both litigants and judges. For litigants, there is now an expectation that any maintenance will be at the level set by the temporary maintenance formula. For judges, it is an easy way to set the final maintenance award.

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

Major Changes in New York’s Family Law Are Now In Effect

Wednesday, October 13th, 2010

Today is the day when New York’s family law begins a new era. The no-fault divorce law is now in effect and grounds for divorce will no longer preclude someone from obtaining a divorce.    In addition to the new no-fault divorce legislation, three new laws applicable to divorces and child support proceedings became effective including:

1.   a new procedure and formula for setting awards of temporary maintenance while a divorce is pending;
2.  a presumption toward grating attorneys fees to the less monied spouse during the divorce; and
3.   new circumstances for reviewing and modifying child support awards.

Here is the summary of the most important provisions of the new laws:

No-Fault Divorce

There is a new no-fault cause of action for divorce that can be granted if the spouse filing for divorce makes a sworn statement that the marriage has irretrievably broken down for a period of six months preceding the commencement of the divorce action.

Temporary Maintenance

The new law provides that maintenance is to be awarded during the divorce when one parties’ income is less than 2/3of the other spouse’s income.

The amount of maintenance is determined by the following formula as the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non payor’s income.

Attorneys Fees

The  attorneys fee bill creates a  presumption that the “monied”  spouse should pay to the “non-monied” spouse interim attorneys fees in all divorce or family law case.  The purpose of the law is to make both spouses to be able to litigate their divorce case on equal basis.

Modification of Child Support

The Family Court Act (“FCA”) and matching provisions of the Domestic Relations Law (“DRL”) were amended to allow modification of an order of child support due to “substantial change in circumstances” which is now defined in a change in either party’s gross income by 15% or more.  Also, if three years have passed since the last order was entered, modified, or adjusted, the court can modify an order entered after October 13, 2010 order, unless the parties specifically opt-out of that provisions.  Additionally, a reduction in a party’s income shall not be considered as a ground for modification, unless it was involuntary and the party has made diligent attempts to secure employment.

As I have written previously, these are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

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

Equitable Distribution of Businesses and Enhanced Earning Capacity Does Not Always Mean Equal Distribution

Sunday, October 10th, 2010

I have previously written about equitable distribution issues here and here.  One of the most important issues that divorce attorneys have to address in dealing with equitable distribution is division of businesses or enhanced earning capacity arising as a result of acquisition of a professional degree or a license by one of the spouses.

In distributing marital property of almost every variety, the courts have focused on the relative significance of the non-titled spouse’s contribution toward the marriage, which would almost always result in equal or almost equal distribution.  However, with respect to distribution of business interests and enhanced earning capacity, as of late, the courts have focused on the degree to which the non-titled spouse’s efforts contributed toward the acquisition of each specific asset.

In the past, the non-titled spouse’s contributions to the other party’s business, career or degree, usually resulted in equal distribution of those assets.  However, the recent trend in court decisions has been to grant the non-titled spouse less than one half of the asset.

The courts have described their reasoning as follows: “[a]lthough in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible. . . there is no requirement that the distribution of each item of marital property be made on an equal basis.”  Kaplan v. Kaplan, 51 A.D.3d 635, 637 (2d Dept. 2008). In equitably distributing a spouse’s business interest, the court must consider the direct contributions the non-titled spouse made to the business as well as the indirect contributions to the ma-rital partnership, including homemaking, parenting, and providing the necessary emotional and moral support to sustain the titled spouse in carrying on the business.  Price v. Price, 69 N.Y.2d 8, 15 (1986).
Unlike other marital assets, in valuing a non-titled spouse’s share in a spouse’s business interest, the trend has been toward awards between 25% and 35% to the non-titled spouse. Chalif v. Chalif, 298 A.D.2d 348, 349, (2d Dept. 2002)(25% award to wife of husband’s medical practice and enhanced earning capacity); Granade-Bastuck v. Granade-Bastuck, 249 A.D.2d 444, 445 (2d Dept. 1998)(25% award to plaintiff of defendant’s law practice); Giokas v. Giokas, 73 A.D.3d 688 (2d Dept. 2010)(10% award to wife of husband’s business); Kerrigan v. Kerrigan, 71 A.D.3d 737 (2d Dept. 2010)(35% award to wife of the husband’s business); Ciampa v. Ciampa, 47 A.D.3d 745, 747 (2d Dept. 2008)(35% award to wife of husband’s business); Kaplan v. Kaplan, 51 A.D.3d 635, 637 (2d Dept. 2008)(30% award to wife of the husband’s dental practice).

This has been a trend state-wide and has been followed by the Appellate Division, Fourth Department, which is located here in Rochester, New York, and to which decisions from Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming and Yates Counties are appealed to.

As a result, the non-titled spouses and their divorce lawyers have an uphill fight if they try to obtain a substantial share of such assets as a spouse’s business, educational degrees or professional licenses.

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

No-Fault Divorce Becomes Law In New York

Sunday, August 15th, 2010

The no-fault divorce bill has been signed by the Governor Patterson and will go into effect in 60 days.  That means that starting on October 13, 2010, someone who wants to be divorced in New York will no longer be required to make allegations of martial fault by the other spouse and will only be required to swear that the relationship between husband and wife has  broken  down  irretrievably  for  a period of at least six months.  The new law will apply to the divorce actions commenced on or after such effective date.

In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.

These are important development in New York’s family law and I think that it will take some time to assess their impact.  At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.

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Posted in attorneys fees, Domestic Relations Law, grounds, jurisdiction, maintenance, marital fault, New York Law, Supreme Court | No Comments »

A Brief Summary of Collaborative Law – A Way Toward Amicable Divorce

Sunday, July 18th, 2010

I have previously written about Collaborative Family Law as an alternative to traditional litigation methods of resolving family disputes. Here is some additional information that describes the process and the goals of Collaborative Law.

Collaborative Law is a method for conflict resolution in which the participants focus their efforts on reaching a mutually agreeable resolution. Attorneys and other professionals are retained during the collaborative process for the sole purpose of assisting their clients in reaching this goal.

The client and their lawyers agree to work respectfully and in good faith to gather all information needed to reach an agreement, including developing the interests of each client. The participants do not engage in traditional discovery process since it tends to be expensive and lengthy. The clients and their collaborative attorneys agree from the beginning that they will produce and exchange all necessary information and documents voluntarily and in a timely fashion. Non-legal professionals are usually retained as joint neutrals and work together with the participants to define the scope of their assignment and to gather information.

The process typically includes various meetings at which the clients and their attorneys, as well as other professionals meet together to discuss the issues, make any necessary interim arrangements, and to plan for information gathering (not every professional will be present at every conference.) These conferences continue to be utilized to exchange and clarify information and to brainstorm possible options for resolution. The clients and their lawyers focus on educating everyone regarding the underlying information, each client’s interests and possible solutions. Out of this process, a settlement which meets the approval of all clients can be fashioned. Negotiations are based upon efforts to find options that will serve the interests of all clients and other affected persons, and if applicable, create the possibility for a positive continuing relationship.

The clients and their collaborative attorneys agree that they will not go to court during the time they are working towards settlement. If the clients are unable to reach an agreement, the collaborative attorneys and other professionals withdraw and litigation attorneys take the dispute to court.

Collaborative family law started with one attorney in Minnesota in 1990 and is now practiced across the United States, Canada, and internationally. Collaborative family law was started in Rochester, New York, and Monroe County, a few years ago as an attorney centered method in family law. However, more recently, other affiliated professionals including financial analysts, psychologists, counselors and coaches also became involved.  Here in Rochester, collaborative professionals belong to Collaborative Law Association of the Rochester Area, Inc. (“CLARA”) which includes among its members attorneys, child specialists, coaches, mediators and financial professionals.

Here are some questions and answers about Collaborative Law.

1. What is Collaborative Law?

Collaborative Law is a way to resolve disputes between people in a fair, open and respectful manner. In Collaborative Law, the goal is to reach a mutually acceptable settlement of a dispute that both parties will be able to abide by. The parties retain Collaborative professionals such as attorneys, accountants, financial planners, and therapists, who agree to work in good faith to gather and share all information needed to reach an agreement. The parties and their Collaborative attorneys agree in advance that they will not go to court to ask a judge to resolve their dispute for them during the collaborative process. If they are unable to reach an agreement, and one of the parties decides to go to court, the Collaborative professionals withdraw from the case. Another set of attorneys is then retained by the parties to represent them in court.

2. How does Collaborative Law differ from other methods of dispute resolution?

There are many ways to resolve disputes. Litigation is the traditional legal approach. In litigation, lawyers work hard to convince a judge (or jury) that the lawyer’s client’s version of facts is correct. Often, this includes challenging the other party’s version of the facts. Trial is often compared to a battle, in which the best side wins. However, all lawyers understand that the “best side” doesn’t always win and that in many disputes, the party who “wins” at trial still loses in other ways. In some circumstances, litigation is the only appropriate option. For example, if a party consistently hides information or is abusive, the formal procedures used in litigation may be necessary. If a party is unwilling to negotiate in good faith, a third party decision may be needed. Litigation usually costs more than other forms of dispute resolution and the outcome is typically less satisfactory.

In mediation, a neutral professional assists the parties in settling the dispute. Generally, the parties agree that all information will be shared and that they are seeking a “win-win” solution. The mediator does not represent either party and the parties do not go to court. In some forms of mediation, attorneys serve only in a consulting or reviewing capacity. In other situations, attorneys participate in the mediation. Mediation can work well for parties who have the ability to communicate their needs directly to the other person and who have similar understanding of the financial and other information being presented.

Collaborative Law combines the positive qualities of litigation and mediation. As in litigation, each party has an independent lawyer who will give her or him quality legal advice and will assist in putting forward his or her interests. Similarly to mediation, the parties and their Collaborative attorneys commit to both an open information gathering and sharing process and to resolve their differences without going to court. In addition, the parties can mutually agree to engage other professionals such as child specialists, financial specialists, coaches, vocational counselors or other neutral consultants to provide them with specialized assistance. The parties acknowledge that the best result for each of them will occur when they reach the best result for all of them.

3. How is information gathered in Collaborative Practice?

The parties do not engage in expensive legal procedures to obtain information. The parties and their Collaborative attorneys agree from the beginning that they will share all necessary information and documents voluntarily and in a timely fashion. Hiding documents or unnecessary delays are not permitted. If a party is not acting in good faith and “hides the ball”, it is the duty of the attorney to work with the client to change his or her behavior and to withdraw if the behavior continues. If a party continues to refuse to act in good faith, the Collaborative process can be terminated.

The parties decide what type of additional assistance is needed in the information gathering process and jointly engage consultants. For example, the parties can jointly hire a financial specialist to assist them in gathering and organizing financial information and to create projections for future financial possibilities. Or, they can jointly engage an appraiser to provide them with an opinion regarding the value of a particular asset.

4. How are questions relating to children addressed in Collaborative Practice?

One of the most important aspects of Collaborative Practice in a divorce dispute is the opportunity to resolve the divorce in a manner which creates a healthy co-parenting relationship so that the children’s interests and family relationships are protected. Sometimes, the parties have developed a working co-parenting relationship prior to entering the Collaborative Process. However, in many cases, the parents need assistance in transitioning from parenting in one household to parenting in two households. Divorce coaches and child specialists can assist parents in developing effective communication and in creating a parenting agreement. The Collaborative attorneys assist as needed in working out an agreement and preparing the necessary final legal documents.

5. How do the parties and professionals work together?

After initial meetings with their own Collaborative attorneys, the typical process is to start the case with a 4-way conference — the parties and Collaborative attorneys, and sometimes coaches, meet together to discuss the issues, make any necessary interim arrangements regarding children or finances, and to plan for information gathering. In addition, the parties can work individually and jointly with coaches to develop effective communication techniques and to manage the intense emotions that often accompany conflict. Additional consultants such as financial specialists, child specialists, or appraisers can also be hired to assist in other aspects of information gathering and processing. The multi-person conferences continue to be the normal means of exchanging and clarifying information and to brainstorm possible options for resolution. The Collaborative professionals work together and with their clients to plan each meeting. The parties and Collaborative attorneys focus on educating everyone regarding the underlying information, each party’s interests and possible solutions. Out of this process, a settlement which meets the approval of the parties can be fashioned.

6. Does it work to have everyone together in the same room in the middle of a conflict?

The job of the Collaborative professionals is to establish positive communication. People in a legal dispute often feel vulnerable and emotional and can be less aware of how their patterns of communication can cause problems. The Collaborative professionals help each client to present his or her interests and needs in a positive manner that will be heard by the other participants. Meeting together can help everyone to be “on the same page”, which ultimately facilitates reaching an agreement. The focus of the meetings is to find a solution, not attack each other.

7. Must an agreement be reached in Collaborative Practice?

No. All parties must voluntarily agree to the solution. No party is forced to accept a solution that does not meet his or her interests and needs. The parties understand that the goal is to fashion a solution that comes as close as possible to a “win-win” agreement, while recognizing that they won’t receive everything on their “wish list.”

8. If the parties reach an agreement through Collaborative Practice, what happens next?

The Collaborative attorneys will draft the necessary legal documents to memorialize the parties’ agreement. This paperwork is then submitted to the court for approval. A court hearing is not required.

9. What happens if a settlement cannot be reached?

If the parties cannot reach an agreement, the parties can explore other options for settlement such as mediation, arbitration, private judging and neutral case evaluation, some of which may allow them to stay within the collaborative framework. If court hearings are required, the Collaborative attorneys withdraw and each party retains a new attorney for trial.

10. Why is it necessary for the Collaborative attorney to withdraw if an agreement is not reached?

Attorneys are typically trained to approach cases with the underlying assumption that a court will make the ultimate decision. Cases are analyzed with this foundation and are settled with the backdrop being “what will happen if we go to court.” “Going to court” can often become a threat that makes communications difficult and pushes the parties apart rather than moving them toward a settlement. Since settlement has not been the focus from the very beginning, cases often do not settle until the parties are “at the courthouse steps,” after incurring substantial attorney’s fees and depleting their emotional resources.

The agreement by both the parties and Collaborative attorneys that their Collaborative attorneys will not go to court focuses everyone on creative means of settling the case in a way that is acceptable to all parties. The focus of the process stays on reaching an agreement rather than preparing a case for trial since the Collaborative attorneys will not be representing the parties in court. The tendency to “drift” to court as the default decision-making method is reduced.

11. Who should consider the Collaborative approach for their dispute?

Collaborative Practice works best for parties who wish to settle without going to court and are willing to commit to a good faith effort to do so. In Collaborative Practice, you maintain control over your decision making rather than letting a judge decide. You can also control the amount of information that becomes a part of the public record (normally, the entire divorce file is open to the public, including any allegations made by either party in obtaining temporary orders or at trial.)

People in conflict often have continuing relationships with each other, as co-parents, business colleagues, or through their circle of friends and relatives. Collaborative Practice will increase the possibility of maintaining a civil or even cordial relationship with the other person after the resolution of your conflict.

You should also consider Collaborative Practice if you wish to dramatically reduce your legal fees. A dispute that goes through the entire legal process including a trial can cost tens of thousands of dollars for each party. The formal legal procedures take much more attorney time (and your money) than the informal process used in Collaborative Law. The focus on settlement moves the case to resolution faster than the typical court-directed case, which also reduces your fees.

12. What do I do if I want to use Collaborative Practice for my dispute?

You will need to find a Collaborative attorney whom you can trust to provide you with both quality legal advice and the skills needed to work towards a settlement. You can discuss with the Collaborative attorney the ways of approaching the other parties about the collaborative process, which can include you discussing the idea with him or her, your attorney contacting the other party, or your attorney discussing it with the other party’s attorney(s), if one has been retained. In the alternative, you can contact coaches or other professionals who may be involved in the collaborative approach and discuss the process with them.

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Posted in collaborative law, custody, divorce, Domestic Relations Law, Family Law, New York Law, procedure, separation, visitation | No Comments »

Asserting Equitable Estoppel As a Defense to a Paternity Proceeding

Sunday, June 6th, 2010

I have previously written about equitable estoppel.  In a typical equitable estoppel situation, the birth parent, typically the mother, asserts equitable estoppel to prevent genetic blood marker testing to determine whether the individual who believed himself to be the child’s father is in fact that child’s biological father.

In a recent case, Juanita A. v. Kenneth Mark N., 2010 N.Y. Slip. Op. 03758 (2010), the Court of Appeals held that a biological father may assert an equitable estoppel defense in paternity and child support proceedings, where there is another father-figure is present in the child’s life.

On June 25, 1994, the child was born. At the time, mother was unmarried, but living with Raymond S., who was listed as the child’s father on her birth certificate. Mother and Raymond had a previous child together and, after the birth of that child, had another child. When the child was seven years old, during a family dispute, she became aware that Raymond may not be her biological father. At that time, mother called Kenneth at his home in Florida and had him speak with the child. The conversation lasted less than ten minutes, during which time A. asked questions concerning his physical characteristics. Kenneth’s attempt to speak with the child a second time was rebuffed by Raymond, who warned Kenneth not to speak to her again. Kenneth has had no further contact with the child.

In 2006, when the child was approximately twelve years old, mother filed the instant petition against Kenneth, seeking an order of filiation and child support. Kenneth appeared before Family Court for the first time by way of telephone. The Support Magistrate advised Kenneth, among other things, that he had the right to admit or deny that he was the father of the child. However, the Magistrate did not advise Kenneth that he had the right to assignment of counsel, or inquire whether he wished to consult with counsel prior to proceeding. Kenneth agreed to the ordered genetic marker testing, which indicated a 99.99% probability that Kenneth is indeed the child’s biological father.

At a hearing in January 2007, Kenneth, having now been assigned counsel, appeared once again via telephone, but protested that he had yet to speak with the lawyer assigned to him. Counsel admitted that he had not spoken to his client, and that the “file fell through the cracks for me.” Despite Kenneth’s protest, the Support Magistrate proceeded with the hearing. When the issue of equitable estoppel was raised by Kenneth, the Magistrate, lacking the authority to hear that issue, transferred the case to a Judge of the Family Court. That court, determining the issue on motion papers and oral argument, held that Kenneth was the father of A. and entered an order of filiation.

The Appellate Division affirmed, holding that the doctrine of equitable estoppel is applicable in paternity proceedings only where it is invoked to further the best interests of the child, and “generally is not available to a party seeking to disavow the allegation of parenthood for the purpose of avoiding child support” (Aikens v. Nell, 63 AD3d 1662 (4th Dept. 2009)). The court also rejected Kenneth’s contention that he was denied effective assistance of counsel.

In Shondel J. v Mark D., 7 N.Y.3d 320 (2006), the Court of Appeals set forth the law applicable to equitable estoppel in paternity and child support proceedings. It held that

purpose of equitable estoppel is to preclude a person from asserting a right after having led another to form the reasonable belief that the right would not be asserted, and loss or prejudice to the other would result if the right were asserted. The law imposes the doctrine as a matter of fairness. Its purpose is to prevent someone from enforcing rights that would work injustice on the person against whom enforcement is sought and who, while justifiably relying on the opposing party’s actions, has been misled into a detrimental change of position.

We concluded that the “paramount” concern in such cases “has been and continues to be the best interests of the child.

Id. at 326.

Equitable estoppel has been used, as it was in Shondel J., to prevent a man from avoiding child support by claiming that he is not the child’s biological father. In such a case, the man has represented himself to be the child’s father and the child’s best interests are served by a declaration of fatherhood. The doctrine in this way protects “the status interests of a child in an already recognized and operative parent-child relationship” (In re Baby Boy C., 84 NY2d 91, 102n [1994]). Here, Kenneth sought to invoke the doctrine against mother, who led Kenneth to form the reasonable belief that he was not a father and that Raymond is A.’s father. He argued that it is not in A.’s best interest to have her current, child-father relationship with Raymond interrupted.

At the time the instant petition was brought, A. was 12 years old and had lived in an intact family with Raymond and her mother. His name appears on her birth certificate and he is the biological father of her older and younger siblings. For most of A.’s life, she referred to Raymond as father. Thus, Kenneth appropriately raised an issue as to whether it is in A.’s best interest to have someone besides Raymond declared her father this late in her childhood. As a result, the Court concluded that it was proper for him to assert a claim of estoppel to, among other things, protect the status of that parent-child relationship.

The Court of Appeals disagreed with the Law Guardian’s position that a person who has already been determined to be a child’s biological father cannot raise an equitable estoppel argument. The Court stated that the doctrine has been used to prevent a biological father from asserting paternity rights when it would be detrimental to the child’s interests to disrupt the child’s close relationship with another father figure. The same best-interests considerations that justify estopping a biological father from asserting his paternity may justify preventing a mother from asserting it. Indeed, whether it is being used in the offensive posture to enforce rights or the defensive posture to prevent rights from being enforced, equitable estoppel is only to be used to protect the best interests of the child. Therefore, the Court held that the doctrine of equitable estoppel may be used by a purported biological father to prevent a child’s mother from asserting biological paternity — when the mother has acquiesced in the development of a close relationship between the child and another father figure, and it would be detrimental to the child’s interests to disrupt that relationship.

As a result of the Court’s decision, the case was remanded for a hearing where Raymond will be joined as a necessary party, so that Family Court may consider the nature of his relationship with the child and make a proper determination of the child’s best interests.

I think that this is an important case but its application is limited to very specific factual situations.

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Posted in best interests of the child, custody, DNA testing, Family Court, Family Law, paternity, procedure | No Comments »

Prenuptial Agreements and Waiver of Retirement Rights

Sunday, May 16th, 2010

One issue that consistently comes up dealing with prenuptial agreements is whether or not rights to future retirement benefits can be waived prior to the marriage despite the fact that any such future rights will not come into existence until after the marriage.  Prior case law wasn’t particularly clear in dealing with this issue since by necessity any such prenuptial agreement implicated Employee Retirement Income Security Act (“ERISA”).  The prior case law held that under ERISA, only a spouse can waive spousal rights to employee plan benefits, that a fiancee is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.

In Strong v. Dubin, 2010 N.Y. Slip. Op. 04121 (1st Dept. 2010), the Appellate Division, First Department, overturned the prior case law, including its own decisions, and held that a waiver of retirement rights included in a prenuptial agreement is valid and does not violate ERISA.

The court’s reasoning in reaching this conclusion was as follows. Initially, the parties’ prenuptial agreement, read as a whole and giving effect to all provisions, expressed an intent to opt out of the statutory scheme governing equitable distribution, which encompassed plaintiff’s retirement funds.  The prenuptial agreement provided that “[t]he parties desire, in advance of their marriage, to settle their financial, property, and all other rights, privileges, obligations and matters with respect to each other arising out of the marital relationship and otherwise, as more particularly hereinafter provided”.  Article I of the prenuptial agreement provided: ”it is the intention [of the parties] . . . that the property owned by each of them shall remain completely and wholly vested in each such person in whose ownership it presently exists.”

Article I of the Agreement expressly referenced Domestic Relations Law § 236(B)(3), which provides that a prenuptial agreement may include, among other things a “provision for the ownership, division or distribution of separate and marital property,” and reflects an intent to opt out of equitable distribution “with respect to the division of all marital and separate property either now in existence or which is hereafter acquired” (emphasis added), which encompasses the retirement funds at issue.   According to the Appellate Division, if this clause is disregarded, that would render the reference to property that is “hereafter acquired” meaningless, leaving that provision without force or effect.  According to the prenuptial agreement, the only assets specifically designated to be “marital property” are the prospective joint banking, savings or investment accounts or assets purchased from the proceeds of those joint accounts set forth in Article I, paragraph 5. The retirement assets in question were not held in joint names or funded with money from an account in the joint names of the parties and are not marital property within the meaning of the agreement.  The agreement also included a waiver which provided that

Except as otherwise expressly provided herein, each party hereby releases . . . the other, of and from all causes of action, claims, rights, or demands, whatsoever, in law or in equity (including, but not limited to claims for equitable distribution, distributive award or claims against the separate property of the other spouse) which either of the parties hereto ever had, or now has, against the other, except (a) nothing herein contained shall be deemed to prevent either party from enforcing the terms of this Agreement or from asserting such claims as are reserved by this Agreement to each party against the estate of the other; provided, however, that the claims so asserted arise out of a breach of this Agreement; and (b) nothing herein contained shall impair or waive or release any and all cause [sic] of action for divorce, annulment or separation, or any defenses which either may have to any divorce, annulment or separation action which may hereafter be brought by the other.

According to the Appellate Division, the contention that this waiver clause encompasses only property which either of the parties held at the time the prenuptial agreement was executed, to the exclusion of after acquired property, was unsupportable.  While the waiver clause stated that it is a release of all causes of action, claims, rights or demands whatsoever in law and in equity “which either of the parties hereto ever had, or now has against the other.” However, the illustrative claims listed include, but are not “limited to claims for equitable distribution, distributive award or claims against the separate property of the other spouse.” At the time the prenuptial agreement was signed, neither party had any of these delineated claims, all of which would accrue in the future, once the parties were married. Similarly the exceptions for breach of the antenuptial agreement and divorce demonstrate that the waiver clause was intended to apply to future causes of actions that would accrue after the marriage. In light of this language, to limit the claims to property that either party had at the time of the marriage would render the waiver clause meaningless in that property owned by either party at the time the prenuptial agreement was entered into would already be separate property as to which there is no right to equitable distribution or a distributive award.

The court further stated that for purposes of equitable distribution, a waiver of any interest in a pension as marital property by an otherwise valid prenuptial agreement is not prohibited by ERISA.  In New York, vested or matured rights in a pension plan are considered marital property subject to distribution in a divorce action to the extent that the benefits result from employment by the participant after the marriage and before the commencement of the divorce action.  There is nothing in the matrimonial law of New York prohibiting a spouse from waiving his or her interest in such marital property by agreement made before or during the marriage in accordance with Domestic Relations Law § 236(B)(3).

This is an important decision since it resolved some to the uncertainty associated with waivers of future retirement rights included in prenuptial agreements.  In the future, divorce lawyers can be more comfortable in including such waivers for their clients.  In appropriate situations, value of such waiver can amount to a substantial amount of money and may become subject of litigation in divorce.

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

Varying From Statutory Child Support Percentages

Sunday, May 9th, 2010

I have previously written about the court’s ability to consider not only the income one or both parties actually reported but the income as should have been reported.  What is not commonly known is that the court, whether Supreme Court or Family Court, can vary from the statutory percentages, by either increasing or reducing child support amounts.

In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses.  The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)).  Family Court providently exercised its discretion in departing from the prescribed percentage.

The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA.  It is unfortunate that the Appellate Division did not discuss the facts of the case in detail.  Whatever the circumstances were that resulted in the court’s decision may applicable in other cases.  If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.

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

For Unmarried Couples, Promise to Support Your Significant Other Is Not Binding

Saturday, May 1st, 2010

Marriage of the parties creates binding legal obligations and rights between spouses, including an obligation to support your spouse financially, as well as the right to division of jointly acquired assets in the event of divorce.  Once in a while, I am asked about a situation where the parties have been in a relationship for a long time and have treated their relationship as a marriage, but did not actually get married.  In this situation, my usual answer is that neither party has acquired a right to support from the other party, and any assets that one of the parties accumulated will remain assets of that party, unless titled in both parties’ names.

A good illustration of the above took place in a recent case of M. v. F., 27 Misc.3d 1205(A) (Sup.Ct. New York Co. 2010).  In M. v. F., the parties resided together for approximately 13 years between 1994 and 2007, and have a child together.  They have never been married to each other.  The girlfriend argued that the boyfriend told her that he would always take care of her, that they would combine their efforts and earnings, and what was his was hers.  Once the parties split up, the girlfriend asked for a portion of the boyfriend’s assets, a portion of the profits from his business, and other financial support.

After the girlfriend commenced an action to obtain financial relief under various causes of action, the trial court held that the boyfriend’s promise to support his girlfriend if they ever broke up are unenforceable.  The girlfriend is not entitled to “equitable distribution” of the assets acquired during the relationship.  The court held that such statements as “I will always take care of you” and “everything that we put in, we will enjoy together” do not constitute legally binding promises.

Specifically, the court stated that even “an explicit promise that, upon separation, [the plaintiff] would be entitled to ‘equitable distribution’ of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people.”   According to the court, the absence of a marriage is the determinative factor of her property rights.  The court stated that “Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple.”

This case illustrates the fact that marriage is the critical legal event that creates financial rights and obligations between the parties that can be enforced by the courts.  For those couples who choose to cohabit, without getting married, each party should be able to rely on their own ability to earn and not to expect any financial assistance from the other party in the event of breakup.  With respect to M. v. F., the answer would likely be different if there was a written agreement to provide support.  Any such agreement, assuming properly created and executed, would probably enforceable as any other contract.

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Posted in Domestic Relations Law, equitable distribution, Family Law, maintenance, New York Law | No Comments »

Grounds for Divorce Revisited

Monday, April 26th, 2010

I have previously discussed New York’s grounds for divorce and lack of no-fault divorce.  While the cases have traditionally stated that the longer is the duration of the marriage, the higher is the burden of plaintiff with respect to the grounds such as cruel and inhuman treatment.  Recently, I came across the case that left me surprised despite handling many divorce cases here in Rochester over the last 14 years.

In S.K. v. I.K., 2010 N.Y. Slip. Op. 50556(U) (Sup. Ct. Nassau Co. 2010), the plaintiff husband was seeking a divorce on the grounds of cruel and inhuman treatment after 29 years of marriage.  One of the grounds alleged was cruel and inhuman treatment.  Specifically, the husband testified that wife was extremely physically abusive, and that in August of 2005, she attempted to attack him with a Japanese sword.  Husband testified that wife could have killed him if not for the parties’ daughter’s intervention.  He testified that the sharp edge of the sword came within a few inches of his chest. He testified that wife came to the marital residence around 1:00 p.m., and when husband questioned her as to where she had been, wife refused to answer, and stated that she did not have to tell him. He testified that wife began acting “crazy” and began yelling and screaming at him. She then came after him waving her hands and pounding on his chest, striking him repeatedly.  He testified that at the start of the confrontation, the parties were in the kitchen, but that upon escalation of the incident, he ran to the master bedroom, and fearing for his safety, he locked himself in the bedroom for his protection.  He testified that wife began pounding on the door and kicking it with her feet, while screaming and insisting that he open the door.  Husband testified that he heard the parties’ daughter come out of her bedroom, and that she was pleading for the wife to stop.  Fearing that wife would hurt their daughter, he came out of the bedroom and walked towards the kitchen where the wife was holding the large Japanese sword, while their daughter was trying to block wife and stop her from moving forward. Husband testified that he observed the wife pushing their daughter back in an attempt to reach the bedroom, but when she saw husband in the kitchen, she began to charge at him and waive the sword through the sides of their daughter’s body. He testified that the wife became frantic in her attempts to reach him and almost did hit him on the head and parts of his chest.  He testified that he slowly retreated back in the bedroom and locked himself in for the night, fearing that the wife would come back and hurt him in the middle of the night. He did not call the police at any point in this incident, nor did he testify as to any actual injuries inflicted by the wife upon him during the course of the incident.

The parties’ children testified and corroborated the husband’s testimony.  The wife denied the allegations of Husband with respect to the incident involving the Japanese sword.

The trial court, after hearing all of the testimony involving the Japanese sword, held that the husband did not sustain his burden of proof with respect to physical or mental injuries. The testimony was that no one sustained any physical injuries, neither party was seen at a hospital or by any doctor.  The court stated that the husband never contacted the police nor did he seek protection from the Family Court, and he testified that he continuously pleaded with the wife to return to the marital residence to work on their marriage.

Husband provided no testimony from any physicians nor did he produce any medical records.  Accordingly, the trial court held that the husband failed to establish a prima facie showing of cruel and inhuman treatment by the wife, and dismissed that cause of action.

What is surprising about this case is that there was corroborated testimony that the wife engaged in conduct that would have likely resulted in a serious injury or death of the husband, were it not interrupted by the parties’ daughter.  If attempting to kill or seriously injure your spouse with a sword is not cruel and inhuman treatment, it is hard to conceve of the conduct that would actually amount to cruel and inhuman treatment.

In my view, the cases such as S.K. continue to reiterate the need for New York to pass no-fault divorce legislation.  At the same time, the husband’s divorce lawyer should have presented testimony with respect to how this attack affected the husband.  It should have been possible to have the husband evaluated by a psychologist and have psychologist’s testimony presented to the court.  As a postscript, while the trial court did not grant divorce on the grounds of cruel and inhuman treatment, the divorce was ultimately granted on the grounds of abandonment because the wife moved for a period of time to Virginia and said move was unjustified and without an intention to return.

The irony of all of the above is that this case is not unique.  While the facts in S.K. are shocking, there are many marriages that have ended many years ago but cannot be legally dissolved.  Until New York does something about its grounds requirements, similar cases will continue to take place.

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

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