New York Divorce Lawyers Explain Family and Matrimonial Law

The Child’s Lawyer – The Role of the Law Guardian

The role of the child’s lawyer, previously known as the law guardian, now called “the attorney for the child” is very confusing, not only to parents, but the judges, lawyers and even to the law guardians. Recently, the role has been somewhat clarified by the passage of a new code of conduct for New York lawyers.

Under New York law, the judges in Supreme Court and Family Court can appoint a lawyer for children in child custody cases, or cases involving the safety of the child. The law guardian or lawyer for the children (the terms are interchangable, however, “lawyer for the child” is now preferred), is, quite simply the children’s lawyer. Where each parent has a lawyer to represent them, the court insures that the child also has a lawyer. This reason is that children’s interest may be different from that of one or both of the parents.

The classic example is the custody fight. Both parents want custody, and therefore it is clear that their interests are opposite. The next question is what is the interest of the child? Is it better for the child to be with the mother or the father? This is where the lawyer for the child steps in. S/he represents the child’s interest. No longer is it a two sided conflict, but a three sided one.

Lawyers for the child are also involved in orders of protection, neglect proceedings and matters involving foster care. In all instants, the lawyer for the child acts for the child’s interests.

The confusion about the law guardian’s role is whether she acts on behalf of the child or upon her belief as the best interests of the child. For example, what should the law guardian do if the child wants to live with the father, but the law guardian thinks that the mother is the best parent? Should she work to get custody for the father or the mother?

Should the law guardian blindly follow the dictates of the child client, regardless of age? If an abused 8 year old wants to return to the abuser, does the law guardian fight to enforce her client’s wishes, or fight to protect the child from an unwise decision?

The rule of thumb is that child up until age 12 have not real say in the matter. Child from 12 to 14 are listened to, and child 15 and over get their way. This is not written in any law or embodied in any judicial decision, but my perceptions of the situation.

But, as there is no law on the point, there is confusion on how the law guardian act. Hopefully, this will be answered on April 1, 2009, when the new rules of Attorney Professional Responsibility take effect. The rule which applies to this situation is 1.14 which says:

Client with diminished capacity

(a) When a client’s capacity to make adequately considered decisions in connection with a representation is diminished, whether because of minority, mental impairment or for some other reason, the lawyer shall, as far as reasonably possible, maintain a conventional relationship with the client.

(b) When the lawyer reasonably believes that the client has diminished capacity, is at risk of substantial physical, financial or other harm unless action is taken and cannot adequately act in the client’s own interest, the lawyer may take reasonably necessary protective action, including consulting with individuals or entities that have the ability to take action to protect the client and, in appropriate cases, seeking the appointment of a guardian ad litem, conservator or guardian.

(c) Information relating to the representation of a client with diminished capacity is protected by Rule 1.6. When taking protective action pursuant to paragraph (b), the lawyer is impliedly authorized under Rule 1.6(a) to reveal information about the client, but only to the extent reasonably necessary to protect the client’s interests.

Under the new rule the law guardian can act contrary to the wishes of the child, if it appears that the child’s decision is harmful. So, of the child wants to live with the father, the law guardian can advocate to the court that the child should live with the mother.

Privacy and Computers In a Divorce

There was a recent decision reported in the New York Law Journal, August 8, 2008 that shows how computers, used unwisely, can damage your position in a divorce. Justice Evans, in New York county, ruled that information found by the wife on the husband’s computer could be used in the trial.

The lap top computer, found in the trunk of the family car, contained “hundreds and hundreds of pages of really salacious conversations” between the husband and his girlfriend.

The court found that since the lap top did not have any passwords and the files were not encrypted, it was similar to an open file cabinet. Therefore, the husband had no claim to privacy in his computer files.

The lesson is clear for both parties in a divorce. First, don’t hide information on a computer. Second, if you really want to leave damning information on your computer, such as emails, instant messages, your internet browsing history or financial information, use a password to access the computer, and encrypt your files.

The Common Law Marriage Trap and 50 Cent

Hip hop star 50 Cent recently was the victim of a judicial drive-by shooting. 50 Cent has been engaged in a high profile family court action in Suffolk County, New York with his former live-in girlfriend and mother of his child.

He began a proceeding to evict her from their Dix Hills home. She then started an action in New York Supreme Court to stop the eviction. Her claim, removing all the legalese, was that they had a common law marriage.

Her attorney is a clever fellow and never actually uses the word “common law marriage” and neither did the judge, but the reality of what the judge did is clear. And if I were a betting man, I would be betting that the appellate court is going to reverse her.

Starting from the beginning, New York has abolished common law marriage. If you are not legally married, you cannot receive the protections afforded to a spouse. If a husband buys a house, the wife is automatically a co-owner regardless of whose name is on the deed. However, if a boyfriend buys a house, unless the girlfriend’s name is on the deed, she has no right to the property.

Turning to 50 Cent’s case, he bought the house in Dix Hills. The girlfriend’s name is not on the deed and she did not contribute money toward the purchase. She should have been out of luck.

But her lawyer devised a clever legal argument and swayed the court with a story of her dutiful sacrifices for 50 Cent. So, the judge accepted the attorney’s novel theories and ordered that the girlfriend can remain in the house.

The girlfriend, Shaniqua Tompkins, argued that she had a contract with 50 Cent, wherein he agreed to take care of her and to share equally in his successes. In return, Tompkins agreed to keep his home and perform other home making services for him.

The court noted that, under New York law, an oral contract that cannot be completed in a year is void. For example, an oral contract to employ someone for six months is valid. On the other hand, an oral contract to employ a particular person as long as he is alive cannot be completed in a year and is void.

After noting this law, the court then ignores it.

The court next notes the law that ”cohabitation without marriage does not give to the property and financial rights which normally attend marital relations…”

The court then noted that an agreement which is not for ”marital” type services is enforceable. However, the rule envisioned a boyfriend having the girlfriend work in his business. Turning the rule on its head, the court found that Tompkins’ housekeeping was not a ‘marital’ function but unconnected to the romantic relationship. Therefore, the judge found a contract between 50 Cent and Tompkins.

What the court did was implicitly find a common law marriage. A promise to provide support in exchange for keeping house cannot be viewed by any stretch of the imagination as anything but a ‘marital relationship.’

Next the court went on to establish a constructive trust. A constructive trust is used when someone in a legal position of trust, known as a fiduciary, causes a person to improperly transfer property. For example, X owns a piece of
property. Y, his attorney, convinces X to transfer the property to him at no cost, but on a promise that the transfer will benefit X. Once Y gets the title, he turns X out of the property. Here the court admitted that Tompkins never owned the property and never paid any money toward it. Instead, the court found that she had transferred her effort in housekeeping and therefore the court found that a constructive trust could exist for the Dix Hills house.

Again, this type of reasoning violates the law against common law marriages. If a paramour can claim an ownership interest in a house by living it in, the common law marriage can be recognized.

Whether 50 Cent will appeal it or not is up to him. I believe that this decision, by seeking a back door to resurrect common law marriages, should be reversed.

Waiting in Family Court

I decided to jot down some of my thoughts about the system while I am waiting for a case to be called. Television and the movies have given people a skewed view of the court system. One thing that always surprises folks is the waiting. For example, it’s eleven o’clock and my case was scheduled for “trial certain” at nine. Whether I actually start my case today or not is still up in the air.

I don’t blame the judge. The simple fact is that the family courts are overwhelmed. For example, the Nassau Family court is housed in a building that was obsolete 20 years ago. There is no room for the volume of cases or to house new judges. Come to the Nassau Family Court on any day, and you’ll have to navigate packed hallways. There is no room in the courtrooms; there is no room in the waiting rooms and precious little room in the hallways.

It really is a tribute to the professionalism of the judges and court staff that anything resembling justice is accomplished. Most of the judges try very hard but the conditions of both the courthouse atmosphere and the heavy caseload can be very daunting.

For the client, it can be very frustrating to know that he is paying the lawyer by the hour and all the lawyer is doing is reading newspapers while waiting for the case to be called. I try to soften the blow by explaining the process at the beginning. When someone comes to me for a consultation or to hire me, I also show them my bag: it’s filled with magazines and newspapers.

The obvious question is “why don’t the courts use telephone conferences, so people don’t have to wait around?” In theory, it sounds great. Everyone could be taking care of business until the court is ready for the telephone conference. Telephone conferences are used in commercial cases and in federal court. Why then are the parties required to come to family and divorce courts?

There is no ”official” answer. But, it seems to me that people are less likely to settle a family law case if they are not physically present in the court. Not only have I noticed it, but so have several of my colleagues. Parties who cannot agree on anything will reach a settlement in the court’s hallways.

Well, got to run, the court officer is calling my name.

Ex Parte Foreign Nation Divorces

Although not as common as they used to be, ex parte foreign divorces are still an issue. By ex parte, we mean the court only had jurisdiction over one party. Back before New York eased, to some degree, its divorce laws, people found it easier to go to Nevada or Mexico to get a divorce. Typically, one party would go and it get. Since the court only had jurisdiction over the person before it, the divorce was “ex parte” (one party.) The New York courts were very concerned about this type of divorces, since with only one party showing up, there was a good chance that an injustice could be wrought on the absent spouse.

An ex parte foreign divorce where there was no service or appearance by the other party is generally void. In Matter of Levi, NYLJ Volume 215 Number 52 (Nassau County Surrogate 1996), the court recognized the long settled principle that ex parte foreign divorces are void. Surrogate Radigan found that the decedent and his first wife were not domiciled in the Dominican Republic at the time of the divorce. “Under the circumstances, the Dominican divorce is void where it is at best an ex parte foreign divorce decree.”

The foreign court must obtain jurisdiction over the proponent of the divorce as well as the absent spouse. In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign decree. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709 (1965). In Maltese, the court found that the sole purpose of the wife’s trip to Mexico was to get the divorce.

it is clear that defendant’s appearance in Mexico was for the sole purpose of participating in the divorce proceeding, not for the purpose of residing there; she remained at all times a resident and domiciliary of New York State. As was said in the Rosenbaum case, supra, ‘Thus under comity as contrasted with full faith and credit our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments. * * * The recognition of a foreign county judgment is far less certain, the judgment itself is far more assailable and vulnerable, than sister state judgments and is subject to a test of policy.’Accordingly, plaintiff is entitled to a judgment declaring the Mexican divorce decree null and void,

Similarly, Surrogate Preminger found that a Mexican divorce was void where the decedent was not a domiciliary of Mexico , Matter of Barton, NYLJ Volume 222, Number 13 (N.Y. Surrogate Court 1999).

When a divorce decree is void, either party may attack it. Further, the party who obtained the divorce is not prevented from attacking it’s validity. See Marum v. Marum, 8 A.D.2d 975, 190 N.Y.S.2d 812 (2^nd Dept 1959).

The Domestic Relations Law, section 236B(2) specifically grants the court jurisdiction to determine issues of property distribution upon a foreign divorce.

Matrimonial actions. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section.

Emphasis added.

While a divorce granted by a foreign sister is accorded full faith and credit, “[i]t is equally well settled, however, that a valid ex parte foreign divorce terminates only the marital status of the parties. Such a divorce is ‘divisible’ in that it has no effect upon the property held by the parties outside the jurisdiction of the state issuing the judgment.” Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2^nd Dept 1992). See Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360 (1957) (Ex parte judgments from a foreign sister state resolving issues of support and property are not granted full faith and credit). “An ex parte foreign divorced decree is entitled to recognition to the extent of determining the marital status, though not to the extent of affecting personal rights stemming from the marital relationship such as property and custodial issues…” Matter of Childers, NYLJ Volume 222 Number 112 (New York County Surrogate’s Court, 1999).

The court in Mattwell v. Mattwell, 194 A.D.2d 715, 600 N.Y.S.2d 90 (2^nd Dept 1993) explained that the purpose of DRL § 236(B)(2) & (5) was to address the divisible nature of foreign divorces. Accordingly, to provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law § 236B(2) and (5) provide that a divorced spouse who possesses an interest in marital property within this state may commence an action for equitable distribution of property… The court has the power to convert an action into one for equitable distribution following the entry of a foreign divorce. Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2^nd Dept 1992).

Therefore, in the case of valid ex parte foreign divorces the court has the power and authority under DRL 236B(2) and (5) to proceed to address and determine the issues of equitable distribution, custody, support and visitation.

Sometimes its not that easy to determine if a divorce is ex part. For example, assume that the couple is from the Dominican Republic. Both are legally in the United States, and residents of New York. Both are also still citizens of the Dominican Republic. Assume that one of the spouses goes back to the DR and obtains a legal and valid divorce and the other spouse remained in New York. Was it ex part or not? There would be an argument either way. At present I’m not aware of any case addressing this issue.

Therefore, let prudence be your guide and avoid any appearance of an ex-parte divorce. If you are looking for a divorce and you live in New York, consult a New York divorce lawyer. If you are looking for a quick solution, you might find that you have severely prejudiced your rights.

Foreign State Divorces and Equitable Distribution

Foreign divorces can be very tricky, and ultimately very dangerous for the unwary. The problem is that under the New York divorce law, all issues between man and wife must be settled in the divorce. Any issue not resolved or raised is waived.

For example, let’s assume that the divorce papers are silent as to the marital home. Nothing is mentioned about how the house will be disposed of, and there is no provision for who will take the house. After the divorce, the parties fight and now one of the wants to force a sale and get his interest. Under New York law, when co-owners of a piece of property can’t get along, there is legal proceeding called a “partition”. If the ex-spouse tries to bring a partition action here, he will be told that he had his chance in the divorce, and now the New York courts are closed to him.

This is a fairly harsh rule, but it is New York divorce law. Any issue of equitable distribution not raised is waived forever. It can never be revisited.

This rule has a serious impact on foreign divorces. By foreign divorces, I mean a divorce from either a sister state or foreign country.

The issue of a New Jersey divorce was recently examined by Judicial Hearing Officer Stanley Gartenstein in the case of Ottomanelli v. Ottomanelli, decided on September 17, 2007.

The husband, who had established residence in New Jersey, commenced a no-fault divorce there. The court found jurisdiction over both the husband and the wife, although the wife was still a New York resident, living on Long Island.

The court’s divorce decree made no reference either to equitable distribution or maintenance.

The husband, having secured the divorce in his home state, returned to Long Island and commenced an action for equitable distribution. His action was dismissed.

JHO Gartenstein found that the New Jersey divorce was final and could not be amended.

He found that once the court has acquired jurisdiction over both parties, it had the power to decide all issues regarding the marriage and divorce and therefore he was without authority that amend that decision and made a property distribution.

In support of his decision, JHO Gartenstein cited the New York Court of Appeals case of O‘Connell v. Corcoran, 1 NY3rd 179, which involved a Vermont divorce. In that case, the wife appeared before the Vermont court and stated that no application would be made for an equitable distribution award as all the assets were in New York. The Vermont court issued a final judgment of divorce without contest and made no other awards. The wife then started an action in New York for equitable distribution. The Court of Appeals would not allow such an action. It found that the issues were before the Vermont court and the failure of the court to render an award, for whatever reason, ended the matter.

Following the holding of O’Connell, JHO Gartenstein dismissed the husband’s action for equitable distribution, as it should have been raised in New Jersey. The failure to raise the issue waived it.

This rule also applies to divorces from other countries. In DeGanay v. DeGanay 261 AD2d 175, a bilateral divorce in France was also viewed as final.

This rule only applies to “bilateral” divorces, that is divorces where the court has jurisdiction over both parties. When the court does not have jurisdiction over both parties, it is an ex parte divorce. In an ex parte divorce, the issue of equitable distribution remains alive. Ex parte divorces are a large and somewhat complicated area, and I’ll address it in another posting. Just remember for this posting, that if the court has jurisdiction over both parties, its a real good idea to address all issues of the divorce. If you “leave something for later” you’ll find that you’ve waived your rights.

Getting a Divorce From A Missing Spouse

I get a surprising number of telephone calls from people asking if they can get a divorce in New York, even if they cant find their spouse. The answer is “yes” but the process involves some extra steps.

Under the New York Domestic Relations Law §232, : “A judgment shall not be rendered in favor of the plaintiff upon the defendant’s default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice.”

What this means in English is that divorce papers must be delivered into the hands of the defendant. It can’t be mailed; it can’t be left on the door step, or left with his mother. It must be placed in his hands.The problem arises when the spouse is blowing in the wind. In that instance, the plaintiff must make an application to the court to serve the defendant in some other manner. This is called a request for “substituted service.”

Basically, the court allows service in some other manner to be substituted for the service upon the defendant.

But, when the spouse can’t be found, nail and mail is not practical. The New York courts will allow divorce papers to served by other methods. Basically, the court will allow any form of service that is reasonably likely to provide notice to the spouse. For example, if the spouse has been deported back to this home country, it be impractical or impossible to serve him in his home country. But, if he has relatives in the United States, such as a sister, brother, aunt or uncle, the New York courts will allow service upon on of these relatives.

In one case, the husband voluntarily returned to his home country, but refused to tell his wife or adult children his address. All that was had was his post office post. The court allowed service by regular mail upon this post office box. In another case, the court was informed that all service members are issued military email and must regularly check that email. As a result the court allowed the service upon a soldier by email.

Finally, if there is no way to find the person, and no relatives to service, the court call allow service by publications. Basically, the court will allow the papers to be published in a local paper. Upon the printing of the papers, the court will find that service has been completed.

There was a recent decision published in the New York Law Journal, (July 31, 2007, page 27, column 3) where this issue was examined. Although not a divorce action, the father was seeking permission to serve the mother a motion for contempt for violating the visitation order. The problem was that she had moved and he didn’t know where she had gone. The court refused to grant the motion stating that the father did not make sufficient efforts to locate the mother. Specifically, he did not search the motor vehicle records, the voter registration records, the postal records, search of hospital and school records for the child’s name and discussions with people who might know where the mother and child were.