Posts Tagged ‘Family Law’

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Acknowledgment of Paternity – Should It Be Signed By the Putative Father?

Monday, August 9th, 2010

During the last few months, I have been involved with a case that involved an acknowledgment of paternity that was signed by someone who was not the child’s biological father.  While most of the time the acknowledgment is signed without a great deal of consideration, I think that putative fathers should be careful and only sign the acknowledgment if they understand the full set of legal issues associated with this document.

Once the acknowledgment is signed, there is a limited period of time during which the acknowledgment can be vacated.  Usually this comes up in a situation where either the father or the mother discovers that the father of her child is not the biological father and wants to change his name to either hers, or that of the biological father. Unfortunately, it is not that simple.

Most of the time, a child, who has the father’s last name, has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married. In this situation, changing the child’s last name to either the mother’s name or the actual father’s name may require several steps in court, because the “notice” (the one who signed the acknowledgment) father can object to any proposed change.  In a situation where paternity needs to be established (or re-established), Family Court is the proper venue for filing a petition.  The mother can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the father is not the actual father, or; either she or the biological father, can file a Paternity petition.  In the first situation, assuming that the filing is timely, the court granting the mother’s request for vacating the Acknowledgement of Paternity does not automatically establish the real father of the child as the father for any purpose. Once the Acknowledgment is vacated, legally, there is no father that the court will acknowledge until there is someone that can be identified and brought to court.  Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the “legal” father, from the Court.  This is the legal document that is required by the Department of Health and Mental Hygiene (”DHMH”) to issue a new birth certificate with the new name on it, that of the father’s.

In second situation, if the either parent files a petition for Paternity, then the father can either consent to paternity or, if he does not, the court can order Genetic Marker (DNA) Test to confirm that he is actually the biological father.  However, before the DNA test is ordered by the court, it will have to address any equitable estoppel issues that may arise.  Assuming that equitable estoppel issues have been resolved, and the DNA test takes place, then the Court will issue an Order of Filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Equitable estoppel in those situations may be raised both offensively and defensively by either the man initially believed to be the biological father or the man believed to be the true biological father.  Not all fathers cooperate since an Order of Filiation typically results in an order for child support and, possibly, a liability for birth expenses.  The courts are reluctant to vacate an Acknowledgement of Paternity where there is currently a child support order against the man, initially believed to be the biological father, unless the court can identify the actual father so that the child has someone to support him.

There are several good reasons for someone to establish paternity.  For example, although a father whose name is on the child’s birth certificate is considered the “notice” father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited, until paternity is established.  A father whose paternity has been established is the “legal” father, on the other hand, has no limits with regards to his rights in any case in any court.

In almost all circumstances, it is wise to ascertain who the actual father is as soon as possible after the child’s birth, so as to limit any other legal issues that may arise, such as equitable estoppel.

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Posted in DNA testing, Family Law, New York Law, paternity, procedure | 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 Domestic Relations Law, Family Law, New York Law, collaborative law, custody, divorce, 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 DNA testing, Family Court, Family Law, best interests of the child, custody, paternity, procedure | 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, Family Law, New York Law, equitable distribution, maintenance | 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 Domestic Relations Law, New York Law, Supreme Court, divorce, evidence, grounds | No Comments »

Update on Dissolution of Out-of-State Civil Unions

Saturday, April 3rd, 2010

I have previously written regarding the problem posed by out-of-state civil unions.  Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.

The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union.  However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially.  As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.

Now we have the first appellate level decision to address this issue.  In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.”  The court did not determine the scope of the relief that may be available in such action.

What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution.  What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution.  All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law.  What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage.  Does entering into a civil union create a potential entitlement to a spousal maintenance?  I don’t know the answer to that question, I suspect that the courts do not know the answer to it either.  It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.

For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.

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Posted in Domestic Relations Law, New York Law, Supreme Court, divorce, jurisdiction, same sex marriage | No Comments »

Divorce and Reformation of Settlement Agreement

Sunday, March 28th, 2010

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

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

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

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

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

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

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

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Posted in Domestic Relations Law, Family Law, Settlement Agreements, Stipulations, Supreme Court, divorce, equitable distribution, modification, procedure | No Comments »

Child Support and Public Assistance

Sunday, March 7th, 2010

While I have repeatedly written about various issues involving New York’s Child Support Standards Act, here, here, here, and here, one issue that was not previously discussed and bears mentioning, is the interplay between the Child Support Standards Act and public assistance received by the parent receiving child support.  In Gregory v. Gregory, 68 A.D.3d 770 (N.Y.A.D. 2 Dept), the Appellate Division, Second Department decided the amount of child support payable by the non-custodial parent to the custodial parent was receiving public assistance.

In Gregory, the parents physically separated and the mother retained custody of the children.  Eventually, the parents agreed that the father would have primary custody of their two sons, and the mother would have primary custody of their daughter.  While there was no written agreement or court order concerning child support, the father claimed that he and the mother agreed that each parent would support the child or children in her or his custody, respectively.

Thereafter, the mother applied for and was awarded public assistance.  The mother received public assistance from August 1, 2004, until May 31, 2007, totaling $26,830.67, of which $13,415.44 was attributable to the support of the parties’ daughter, who was the child in mother’s custody.  In May 2007 the mother commenced a proceeding seeking child support for the parties’ daughter.  The Department of Social Services (DSS) intervened in the proceeding, seeking payment of child support from the father, which sum included the money it had paid to the mother on behalf of the parties’ daughter.

After a hearing, the Support Magistrate calculated the father’s support obligation for his daughter for the period to be $26,006.26, and directed him to pay that amount to the DSS.  The Appellate Division held that Family Court’s directive that the father pay the DSS the sum of $26,006.26 was proper.  Since the support obligation of a parent of a child receiving public assistance is measured by the child’s needs and the parent’s means, not by the amount of public assistance paid on behalf of the child, the Family Court acted properly in declining to limit the amount required to be paid by the father to the DSS to the child’s share of the public assistance grant.  Contrary to the father’s contention, he was not entitled to offset alleged unpaid child support from the mother against the amount he owed to the DSS. During the relevant time period, there was no support obligation imposed upon the mother for the children who were in the custody of the father.

The lesson of this case is that whenever the DSS is involved in assisting the custodial parent, this assistance is likely to come at a high price to the non-custodial parent.  What is significant in the opinion is that the typical child assistance payment amounts to a few hundred dollars.  On the other hand, the amount of child support owed by the non-custodial parent and calculated on the basis of that parent’s income, can be several times higher.  The non-custodial parent will not receive the difference between the two figures since it would be retained by the DSS.  In similar situations, depending on the incomes involved, a family law lawyer may recommend to the non-custodial parent to pay the custodial parent the total amount of public assistance privately since it may cost a lot less.

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Posted in Child Support Standards Act, Family Court, Family Law, New York Law, child support, child support enforcement | No Comments »

Child Support, Emancipation and Child’s Economic Independence

Saturday, January 30th, 2010

One of the most common questions I hear as a part of my family law practice is a question of when a child become emancipated for child support purposes.  My usual response is that emancipation of minors depends on a variety of circumstances.  The Child Support Standards Act’s provisions dealing with emancipation hold that the child becomes emancipated upon reaching the age of 21, joining military, or getting married. In addition, the child may become constructively emancipated by willingly abandons the parent and withdrawing from parental supervision and control. In addition, the child may become emancipated, assuming the child is of employable age, by becoming economically independent of the parents. If emancipation is sought for a child who is of employable age, and is working, I usually tell my client that the child has to work between 35 and 40 hours per week and generate sufficient income to be economically independent of the parents.  In some situations, however, even a full-time job may not be enough.

A recent case, Thomas B. v. Lydia D., 2009 N.Y. Slip. Op. 06789 (1st Dept. 2009), is an excellent illustration of these concepts.  In Thomas B., the Appellate Division held that two parents may not, by written agreement, terminate the child support obligation because of the child’s full-time employment, without a simultaneous showing of the economic independence of the child.

Pursuant to a stipulation of settlement entered into as part of the parties’ judgment of divorce, father was obligated to pay annual child support until the parties’ child reached the age of 21 or was otherwise “emancipated.”  The stipulation defined emancipation as “the Child’s engaging in full-time employment; full-time employment during a scheduled school recess or vacation period shall not, however, be deemed an emancipation event.”  The father brought a motion seeking to declare the child emancipated and argued that under the terms of the stipulation of settlement, the child became emancipated by reason of his full-time employment at a music store from July through December 2005.  The mother opposed the motion, arguing that during the time in question, the child was living in a halfway house as part of his treatment for substance abuse.  His employment at the music store was one of the conditions of that treatment.  She also argued that the child was not economically independent, as he received financial support from her in addition to her payment of 100% of his unreimbursed medical expenses.

The court stated that mere full time employment was not enough, and emancipation would require economic independence from the child’s parents which is not established by merely working a standard, full-time work week.  Thus, even where a child is working but still relies on a parent for significant economic support such as paying for utilities, food, car insurance, medical insurance and the like, the child cannot be considered economically independent, and thus is not emancipated. This is true even where the child is residing with neither of the parties, so long as the child is still dependent on one of the parties for a significant portion of his or her support.  Moreover, the parties cannot contract away the duty of child support.  The Appellate Division found insufficient evidence in the record to support a finding that the child was economically independent of his parents as a result of his working 35 hours per week while living in a halfway house. The child’s employment was one of the requirements of participation in the halfway house substance abuse program.  In Thomas B., it was clear, that although he was working 35 hours per week during the period of time in question, the child was not economically independent of his parents, and thus was not emancipated during that period of time.

One lesson of Thomas B. is that the lawyer dealing with this type of situation must present sufficient evidence to establish the child’s work hours and income, as well as his/her needs and expenses.  It is also critical to present testimony as to whether the other parent is meeting the child’s other financial needs, and whether such financial assistance is necessary or is merely voluntary.  If you believe that your child became emancipated due to employment, I would recommend consulting with a family law attorney.

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Posted in Child Support Standards Act, Family Law, New York Law, Settlement Agreements, Stipulations, Supreme Court, child support, court orders, emancipation, procedure | No Comments »

Determining Validity of Separation Agreements

Saturday, January 23rd, 2010

I have previously written about separation agreements and their validity, here, here and here.  Periodically, I see separation agreements that are extremely one-sided or I am asked to draft a separation agreement that is very one-sided.  In those situations a divorce lawyer is usually asked if the agreement can be set aside.  My usual response is that the court’s determination whether to set aside the agreement depends on a variety of factors.

The legal standard for setting aside separation agreements states that a separation agreement in a divorce proceeding may be vacated if it is manifestly unfair to one party because of the other’s overreaching or where its terms are unconscionable, or there exists fraud, collusion, mistake, or accident.  Separation agreements may be set aside as unconscionable if their terms evidence a bargain so inequitable that no reasonable and competent person would have consented to it.  Moreover, evidence that one attorney ostensibly represented both parties to a settlement agreement raises an inference of overreaching on the part of the party who is the prime beneficiary of the assistance of the attorney. Such an inference is, rebuttable, if it appears that the separation agreement is fair and equitable or that both parties freely agreed to it with a thorough understanding of its terms.

In a recent case of Pippis v. Pippis, 2010 N.Y. Slip. Op. 00492 (2nd Dept. 2010), the Appellate Division, Second Department vacated the separation agreement holding that plaintiff was guilty of overreaching with respect to the parties’ separation agreement.  The court found that the defendant was not represented by counsel at any point during the relevant time period.  According to the plaintiff, his attorney drafted the stipulation of settlement, and only one attorney was present at the signing.  Under these circumstances, and where the terms of the stipulation “evidence a bargain so inequitable” in favor of the plaintiff “that no reasonable and competent person” would have consented to the defendant’s end of the bargain, an inference of overreaching on the part of the husband was raised.  Since the plaintiff failed to rebut the inference, the Appellate Division held that the trial court properly determined that the stipulation was the product of his overreaching, and granted the defendant’s motion to set it aside.  The Appellate Division also held that the trial court properly rejected the plaintiff’s ratification argument, since the defendant “received virtually no benefits from the agreement and thus cannot be said to have ratified it”.

While occasionally I am asked to prepare a separation agreement in a situation where the opposing party is unrepresented, I advise my client that it is in his/her best interests that the other party is represented and that the agreement is not entirely one-sided.  As a divorce lawyer, I have to advise my client that any agreement that is extremely one-sided may be vacated by the court in any pending or subsequent divorce action.  If the agreement is reviewed by counsel and conveys some benefits to the other party, the likelihood of it being overturned by the court is greatly diminished.

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Posted in Domestic Relations Law, New York Law, Settlement Agreements, Stipulations, Supreme Court, divorce, drafting, procedure | No Comments »

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