Temporary Spousal Maintenance and Marital Residence Expenses

One issue that keeps coming up repeatedly in appellate decisions is whether  the party paying temporary spousal maintenance, can also be ordered to pay carrying costs of the marital residence.   In Rouis v. Rouis, 156 A.D.3d 1198 (3rd Dept. 2018), the Appellate Division, Third Department, held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses.

The parties were married in 1993 and had two children. The wife commenced this action for divorce in 2014, after the husband departed the marital residence. Applying the pre-2015 temporary maintenance formula on the wife’s motion for temporary relief, the trial court granted the wife, among other things, temporary maintenance ($1,958 per month) and child support ($2,720 per month) and required the husband to pay for the carrying costs of the marital home ($4,859 per month), private school for the youngest child ($848 per month), health insurance for the family ($1,921 per month), interim counsel fees ($10,000) and the wife’s vehicle and fuel costs ($644 per month). The husband appealed.

The Appellate Division recognized that the combined monthly awards amounted to an annual award of $155,400, not including an additional $10,000 in interim counsel fees, to be paid from the husband’s annual gross income of $183,300.50 (the wife’s pre-award income was $11,700.00).  It held that the temporary awards were excessive and should be modified.

The Appellate Division noted that the (pre-2015) temporary maintenance formula resulted in a presumptive monthly temporary maintenance amount of $4,387.50. The trial court also granted the wife’s request that the husband also pay the $4,859 in the expenses related to the marital residence, including the mortgage, taxes, utilities, insurance and costs of maintenance. While acknowledging that it would not be equitable to require the husband to pay full maintenance, child support and all carrying costs on the marital home, it gave a reduction to the husband for one half of the carrying costs on the home ($2,429.50 per month) by reducing the presumptive maintenance award by that amount, resulting in a temporary maintenance award of $1,958 per month. The Appellate Division noted that when the wife’s vehicle expenses were added ($644 per month), the total combined monthly award was $7,461, plus the children’s tuition ($848 per month) and child support, the net effect of the trial court’s order was that the husband was ordered to pay the full presumptive maintenance award plus one half of the carrying costs on the home and the wife’s vehicle expenses.

The Appellate Division held that the statutory formula used to calculate the presumptive temporary maintenance award was intended to cover all of the nonmonied spouse’s needs and basic living expenses, including the carrying charges on the home and her vehicle expenses. In its holding, the Court cited the First Department’s observation in its 2012 decision in Khaira v. Khaira, 93 A.D.3d 194 (1st Dept. 2012), that “[n]o language in either the new temporary maintenance provision or the [Child Support Standards Act] specifically addresses whether the statutory formulas are intended to include the portion of the carrying costs of their residence attributable to the nonmonied spouse and the children. . . . But, in the absence of a specific reference to the carrying charges for the marital residence, we consider it reasonable and logical to view the formula adopted by the new maintenance provision as covering all the spouse’s basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses.”

Nonetheless, the Third Department held that while requiring the husband to pay a portion of the housing costs may have been appropriate, the trial court should stated its reasons why the presumptive award of temporary maintenance was “unjust or inappropriate” and the factors it considered.

The Appellate Division found that the combined award for maintenance, carrying costs and the expenses of the wife’s vehicle ($7,461 per month) — which was $3,073.50 per month in excess of the presumptive maintenance award ($4,387.50 per month) (without considering health insurance costs, child support or tuition) — was excessive. Accordingly, the court reduced the husband’s obligation to pay the carrying costs on the marital home by approximately one half of that $3,073.50 excess amount, or $1,540 per month, to $3,319 per month, leaving the $1,958 temporary maintenance award unchanged.

One interesting aspect of the decision was the issue of upkeep on the marital residence. The husband was required by the trial court to pay the monthly excess upkeep amount ($1,168), if any, into a separate account. The Third Department clarified that the upkeep payment was to be a part of the husband’s obligation to pay a total of $3,319 per month in carrying costs on the marital home. The Appellate Division stated in a footnote that wife, “of course,” is to be responsible for paying the remaining carrying costs on the home (other than the specified upkeep costs) from her temporary maintenance award. The parties’ respective pro rata obligations, in the event that the upkeep costs in any month exceed $1,168 and exceed any amount in the excess account, were to be deposited into a separate account pending resolution of equitable distribution issues.  What makes this unusual is the amount of upkeep and the direction that any unspent funds get deposited into a separate account and, if not used for upkeep, any remaining balance “shall be returned to the wife when the house is sold.”  Given that any post-commencement earnings are generally separate property of the party who had earned it, it is unclear what the trial court’s reasoning was with regard to those funds.

The propriety and fairness of awarding the wife the balance of any funds paid by the husband into the upkeep account is a matter to be resolved at trial as part of the overall equitable distribution award and, accordingly, the Third Department did not comment on that issue at this juncture.

The Appellate Division also found that the trial court had miscalculated the child support award and the parties’ pro rata shares of add-on expenses and remitted the case for immediate recalculation of the husband’s temporary child support obligation.

Unfortunately, it is fairly uncommon for the trial courts to make these types of mistakes related to temporary spousal support.  The remedy, in most situations, is the trial.

Exclusive Possession of Marital Residence Revisited

I have previously written about exclusive possession of a marital residence during a pending divorce action.  The applicable standard requires a showing of a marital strife and that the parties were unable to coexist in the same house.  I recently had an opportunity to litigate this issue in a situation where the parties’ conduct has not arisen to the level of marital strife, but the conflict was affecting the parties’ children.  Justice Richard A. Dollinger of the Monroe County Supreme Court reviewed and addressed this issue in L.M.L.v. H.T.N. a/k/a H.T.N., 57 Misc.3d 1207(A) (Sup. Ct. Monroe County 2017).

Having reviewed the history of the marital strife standard, Justice Dollinger wrote that lower courts have generally required more evidence of “strife” than the “petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce.”  However, he also noted that even minimal levels of domestic discord impact children living in a besieged household.  Given those circumstances, he wrote that:

The harm of a hostile home environment – populated with foul words, disparaging comments, loud demeaning voices, frequent arguments and verbal fights – and the fear for safety of the mother and the children rise, in this court’s view, to the level of domestic violence that [*10]mandates court intervention.Second, this court concedes that simply separating the parents may not end the torrent of verbal abuse directed at the other parent: even in new separate residences, a parent can unleashed verbal abuse and make demeaning comments about the other parent. The children will be exposed to that language, perhaps even harsher than what would be uttered in the company of both parents. But, the children will be spared the retort, the rising voices, the angry face-to-face confrontations that ensue when a parent begins a verbal argument. This difference — between the comments of separated parents living in separate residences and confrontations of parents living in the same residence — may be seem of minor importance to the judiciary, but it would seem to be easily classified as in the “better interests” of the children.

Justice Dollinger summarized the issues before the court as “[t]he mere suggestion that “exclusive use” should hinge, in any fashion, on the “voluntary establishment of an alternative residence” also suggests that preventing domestic violence may depend, in part, on the untenable notion that the convenience of one party’s ability to secure short-term housing away from the home is somehow more important than the emotional security of the children.”  The above holding represents a significant departure from the existing standard.  I agree with the decision and have always thought that the marital strife standard was unduly restrictive.  I will be interested to see if this decision will be followed by other court in pending divorce cases.

 

Final Custody Determination Requires a Plenary Hearing

A mother who lost custody of her children after she broke windows at their father’s house and set fire to his clothes in the driveway should have received an evidentiary hearing, the Court of Appeals has ruled in S.L. v. J.R., 2016 N.Y. Slip. Op. 04442 (2016).  According to the filings, the mother, identified as S.L., and the father, identified as J.R., were married in 1997 and had two kids together.

In September 2012, after 15 years of marriage, S.L. filed for divorce from J.R., and sought full custody of the children. Also that month, she texted J.R.—who had moved out of the family’s house several months prior—that she would burn down the house and set his clothes on fire.

J.R. arrived at the house to find his clothes burnt in the driveway and windows at the house smashed out.  He filed for temporary sole custody of the children, alleging that he feared for their safety because of incidents involving harassment by S.L. and that she also had extramarital affairs and abused alcohol and drugs.

S.L. admitted to setting fire to J.R.’s wardrobe and her involvement in several other incidents, including a past charge of aggravated assault. In October 2012, the trial ruled that there were “enough red flags” to justify granting temporary sole custody of the children to J.R. In April 2013, S.L.’s visitation was suspended after a therapist determined that it would not be in the best interest of the children to allow visitation to continue until she entered anger management therapy.

A few months later, the trial court granted sole custody to J.R. without having a hearing, writing that a hearing was not necessary because the “allegations are not controverted” and that S.L. was being charged in three pending cases in the Integrated Domestic Violence part. In two of the cases, the judge said, S.L. was charged with breaking orders of protection prohibiting her from contacting J.R. or the children.

S.L. appealed trial court’s ruling, but in 2015, the Appellate Division, Second Department affirmed the lower court in S.L. v. J.R., 126 A.D.3d 682 (2nd Dept. 2015), writing that, while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court “possesses adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing its 2004 ruling in Matter of Hom v. Zullo, 6 A.D3.d 536 (2nd Dept. 2004).

But, on June 9, the Court of Appeals unanimously reversed the Second Department’s decision. The Court wrote that while there should be no “one size fits all” rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing. In the case of S.L., there were facts relevant to the best interest analysis that were still in dispute, and the trial court appeared to base its decision on hearsay and on the statements of a forensic investigation whose credibility was not questioned by either party.

While the mother was successful in reversing the trial court’s determination, ultimately, I do not believe that it will make a difference when the case is tried. Given the conduct at issue, it is unlikely that the parties will be able to have a joint custodial arrangement.

What Makes a Marriage Valid?

Occasionally, it is not clear whether the parties have a valid marriage which can be critical to such issues such as spousal maintenance and equitable distribution. So what makes a marriage valid?

In a recent decision, a trial court held that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license. Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license. They were living together with their young children from prior marriages in a small apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm. The rabbi found them a larger apartment and suggested they should marry before moving. He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urged them to get a marriage license. The parties did not not obtain one, however.

Ten years after the purported marriage ceremony, the woman filed for divorce and the man moved to dismiss, contending they were never validly married. The woman relied on New York Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license.

After hearing the extensive testimony of the man, the woman, and the rabbi on the issue of whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued. The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

The trial court relied upon the Supreme Court’s decision in Obergefell v. Hodges (576 U.S. – [2015]):

In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations.  What is key to the process is the marriage license itself.  This is not only true for New York, but for the entire nation.  After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).

Domestic Relations Law Sec. 25 was also critical to the court’s decision, with the court writing that:

DRL Sec. 25, in its present form, serves no useful function in today’s world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.

The court concluded that “[i]n light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court disregarded the couples’ ten years of cohabitation after the quick marriage ceremony as a basis for finding the woman eligible to seek a formal divorce and disposition equitable distribution of the parties’ assets. The court  concluded that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man. The court noted that the man, the woman and the rabbi each provided a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

So in order for the marriage to be valid, there has to be a marriage license and that the ceremony be performed. Ultimately, it will be interesting to see if this decision will be upheld on appeal.

Enforcement Proceedings and Attorney Retainer

Whenever there are proceedings brought to enforce child support or spousal support awards, attorneys can issue executions against assets owned by responsible party. In M.M. v. T.M., 2015 N.Y. Slip.Op. 25294 (Sup. Ct. Monroe Co. 2015), the trial court held that a retainer paid to an attorney to defend an enforcement proceeding can be subject to an execution by the opposing party.

In M.M., the trial court had to determine whether the execution issued pursuant to the judgment for unpaid spousal maintenance can be used to restrain a retainer held in attorney’s trust account, that was paid to defend the enforcement proceeding. Specifically, defendant-husband objected to the execution stating that ‘to permit the turnover would cause the husband “extreme hardship.'” Further, defendant argued that he held no interest in the escrowed funds and that by virtue of commencing representation, the defendant’s attorney acquired an interest superior to that of the plaintiff.

In addressing these arguments, the court held that the evidence in this case, based on the affidavit from the defendant-husband, was insufficient to meet the extreme hardship test. There was no demonstrated evidence of any “extreme hardship” and no evidence of severe financial impact on the defendant-husband if the funds are subject to the wife’s restraining notice. The defendant baldly asserted that there is such harm, but when push comes to shove, had no extrinsic proof to back up his assertions. There was no evidence of other unpaid creditors or financial hardship to the defendant. In the absence of such factual assertions, the court was not inclined to grant any protective order based on an inherent financial harm to the defendant-husband.

Further, the court addressed the argument that the defendant-husband did not have an interest in the escrowed funds. After reviewing the retainer agreement, the court found that according to the retainer agreement, the retainer paid was a “security retainer” that defendant’s attorney could not draw upon until the work was performed and the client was billed.  Until the bill was issued, the funds remained property of the client and the client would be entitled to the funds if the relationship was terminated. Therefore, the court held that defendant-husband continued to hold an interest in the retainer.

Finally, the husband’s attorney argued that his lien interest in the escrowed funds is superior to the plaintiff-wife’s claim for unpaid maintenance. The defendant-husband, in this instance, argued that the retainer funds, which are billed against, but not yet transferred into the attorney’s accounts, are subject to the attorney’s lien for services and that the wife, as a judgment creditor, did not have a superior claim to those funds. The court rejected this argument outright stating that:

To say husband’s argument is somewhat untested in New York is an understatement. This court can find no prior precedents to support this novel theory. In the absence of any precedents and the strong policy preference in New York statutory and case law to allow collection of family support funds, this court is unwilling to recognize that the husband’s counsel’s retaining lien holds a superior position when compared to the wife’s claims against the retainer funds on deposit with counsel.

Given the above, whenever a family law attorney is involved in defending post-divorce proceedings involving claims for unpaid spousal maintenance or child support, that attorney’s retainer is at risk of being restrained and, ultimately, collected by the opposing party. This makes representation of clients in similar circumstances risky and attorney is jeopardizing his chances of being paid. Since the court in M.M. suggested that advanced payment retainer, unlike the advanced payment retainer utilized by defendant-husband’s attorney, would not be considered property of the defendant, then the retainer would not be subject to being restrained. Therefore, utilizing that type of retainer would reduce the risk, however, there may be other issues since New York matrimonial rules frown upon non-refundable retainers. Another option, and probably a better one, would be to have a third party to pay the retainer.

New York Legislature Passes New Statute Modifying Temporary and Post-Divorce Spousal Maintenance Formulas

On June 24, 2015, the New York State Senate passed Bill A7645-2015 which modified the duration and amount of temporary and post-divorce spousal maintenance. The bill passed the State Assembly on June 15th. It is expected to be signed by Governor Cuomo in the near future.

The new law’s formulas apply to actions commenced on or after the 120th day after the bill become law (except for the temporary maintenance formulas which apply to actions commenced on or after the 30th day after the bill become law). The new law can not be used as a basis to change existing orders and agreements.

The new law represents a very significant change to the post-divorce spousal maintenance provisions of Domestic Relations Law §236, as well as temporary spousal maintenance provisions that were passed in 2010.

As to maintenance, the following are the key aspects of the law contained in the Sponsor’s Memo:

The “cap” on the payor’s income used for the maintenance formula is $175,000, above which will be a matter of the court’s discretion. This reduces the cap (which now applies only to temporary pendente lite maintenance) from $543,000. The same $175,000 cap applies to post-divorce maintenance awards.

The statutes creates two formulas: one where child support will be paid to the maintenance recipient; and one where child support will not be paid, or where it will be paid to the maintenance payor. Those formulas are as follows: a. With child support where the maintenance payor is also the non-custodial parent for child support purposes: (i) subtract 25% of the maintenance payee’s income from 20% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance; maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee’s income from 30% of the maintenance payor’s income; (ii) multiply the sum of the maintenance payor’s income and the maintenance payee’s income by 40% and subtract the maintenance payee’s income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

First, maintenance gets calculated. Next, child support is calculated using the income of the payor after subtracting maintenance to be paid, and the income of payee income, including maintenance received.

The court may adjust the guideline amount of maintenance up to the cap where it finds that the guideline amount of maintenance is unjust or inappropriate after consideration of one or more factors, which are to be set forth in the court’s written or on the record decision. Where there is income in excess of the cap, additional maintenance may be awarded after consideration of one or more factors, which are to be set forth in the court’s decision or on the record.

When determining temporary maintenance, the court can allocate between the parties the responsibility for payment of family expenses” while the divorce action is pending. The definition of income for post-divorce maintenance will include income from income-producing property that is being equitably distributed. New factors in post-divorce maintenance will include: termination of child support, income or imputed income on assets being equitably distributed, etc. The duration of post-divorce maintenance is a function of a formula that includes ranges of different percentages of the marriage length, depending on how long the marriage lasted. For marriages of zero to 15 years, the guideline for maintenance awarded would be 15% to 30% of the length of the marriage; for marriages of more than 15 up to 20 years, maintenance would be 30% to 40% of the length of the marriage; for marriages of more than 20 years, maintenance would be for 35% to 50% of the length of the marriage. However, nothing prevents the court from awarding non-durational, post-divorce maintenance in an appropriate case.

In determining the duration of maintenance, the court is required to consider anticipated retirement assets, benefits and retirement eligibility age. Actual or partial retirement will be a ground for modification of post-divorce maintenance assuming it results in a substantial diminution of income.

As an example of the application of the formulas, consider the following calculations where a) the payor is the non-custodial parent and having C.S.S.A.-adjusted income of $150,000, and the payee is a custodial parent having C.S.S.A.-adjusted income of $50,000; and b) the payor and payee have the same incomes but there are no children being supported.

Calculation of Spousal Maintenance-page-001

Calculation of Spousal Maintenance-page-001

 

Additionally, the new law eliminates value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement as a marital asset. This is a significant change from the existing law. However, enhanced earnings may still be considered by the court when distributing other marital assets.

The changes to the Domestic Relations Law, once effective, will likely result  in greater uniformity of spousal support awards. Further, elimination of enhanced earnings as a distributable asset represent a significant change in New York’s law.

Terminating Spousal Support Provisions After Divorce Due to Change In Circumstances

In New York, spousal support, also sometimes referred to as “alimony” or “spousal maintenance” can be granted in a divorce case to either spouse by the court pursuant to Domestic Relations Law §236. Alternatively, the parties can agree to a specific amount of maintenance, its duration, and the circumstances under which it will terminate in their settlement agreement.

Factors that a judge or the parties will consider in determining spousal support, among others, include:

The duration of the marriage and the age and health of both parties;
The present and future earning capacity of both parties;
The ability of both to become self-supporting;
The reduced or lost lifetime earning capacity resulting from having foregone or delayed education, employment training or career opportunities during the marriage;
The presence of children;
Tax consequences.

Even once the amount of maintenance is determined and included in the judgment of divorce or settlement agreement, spousal maintenance can be modified.

However, if the maintenance was set by the parties’ settlement  agreement, the party seeking its modification due to a change in circumstances will have to meet a significant burden of proof. Specifically, the party seeking the change will have to show prima facie evidence of “extreme hardship” before the court can hold a hearing to resolve these issues. Extreme hardship means that the payor’s circumstances are so adverse that the party can’t meet its living expenses without modifying spousal support. In a recent decision, McKelvey v. McKelvey, 2015 N.Y. Slip. Op. 02830 (3rd Dept. 2015), the Appellate Division found that the husband presented such evidence when he was able to show that “the undisputed proof indicating that the husband earns, after taxes, less than his monthly support obligation was sufficient to demonstrate prima facie evidence of extreme hardship, and Supreme Court should have held a hearing on his request to modify his support obligation.” Once such evidence is presented then the court hearing the case would hold a fact-finding to determine how spousal maintenance should be modified.

If spousal maintenance was set by a judge after a hearing, the party seeking the modification must establish a substantial change in circumstances and show that the needs of the dependent spouse or financial abilities of the paying spouse that warrant modification. The party making such request would face a significant burden and the court will have to consider such factors as the party’s current and past earnings, costs of living, financial obligations, as well as assets and liabilities.  In Klapper v. Klapper, 204 A.D.2d 518 (2d Dept. 1994), the Second Department held that, in determining whether there was a substantial change in circumstances sufficient to warrant downward modification, “the change is to be measured by a comparison between the payor’s financial circumstances at the time of the motion for downward modification and at the time of divorce or, as the case may be, the time that the order of which modification is sought was made.”

Further, a party who willfully or voluntarily reduces income will not receive a reduction in support payments. If evidence of such actions is presented to the court, the party seeking modification will not receive and is also likely to be ordered to pay the other spouse’s attorneys’ fees.

Service of Divorce Summons Over Facebook

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

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

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

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

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

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

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

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

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

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

Enforcement of Payment Obligations Pursuant to Judgment of Divorce

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

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

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

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

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

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

Enforceability of Prenuptial Agreements

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

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

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

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

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

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

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

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

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