One question I get asked quite frequently is: if my spouse plays games in the divorce, can the court punish he/her by giving me the house?
To put that question is legalese: can the court alter the equitable distribution award if it finds that the spouse has been non-compliant or engages in frivolous conduct?
Recently, the Appellate Division for the First Department has answered in the case of Warner v. Houghton.
Under the New York Domestic Relations law, when making an award of equitable distribution the court must take in account the statutory factors found in section 236 B. The courts must consider these statutory factors when announcing the award. The factors are:
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper.
Turning to the Warner case, husband clearly was playing games. The husband fired his attorneys at least twice and failed and refused to attend a number of court conferences. Perhaps the straw that broke the camel’s back was his refusal to attend the inquest. Since the wife was unopposed at the inquest, the judge granted her everything she asked for.
The Appellate Division noted that “[w]hile the defendant’s conduct bordered on the contemptuous, the equitable distribution award must still be justified on the record, and should be supported by the specific finds [in the New York Domestic Relations Law].” The court cited an 1986 decision, Capasso v. Capasso, 119 AD2d 268, which held “that an insufficient explanation for the court’s distribution of property requires reversal of the judgment and remand for further consideration.”
The lesson of this case is that mere bad conduct may not be enough to allow the divorce court to alter the balance in an award of equitable distribution.
Professional licenses can be one of the more contentious pieces of property in a divorce. A professional license, whether it is a medical license, law license, CPA or architect’s license has been declared to be marital property. The New York Court of Appeals made that determination over 20 years ago in the landmark decision of O’Brien v. O’Brien, 66 N.Y.2d 576; 489 N.E.2d 712; 498 N.Y.S.2d 743 (1985).
The facts in O’Brien were simple: the parties were married for nine years. At first, both were teachers. In September 1973 the parties moved to Guadalajara, Mexico, where plaintiff became a full-time medical student. While he pursued his studies defendant held several teaching and tutorial positions and contributed her earnings to their joint expenses. The parties returned to New York in December 1976 so that plaintiff could complete the last two semesters of medical school and internship training here. After they returned, defendant resumed her former teaching position and she remained in it at the time this action was commenced. Plaintiff was licensed to practice medicine in October 1980. He commenced this action for divorce two months later. At the time of trial, he was a resident in general surgery.
The Court appeals ruled that the license was martial property: “A professional license is a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder, which may not be revoked without due process of law (see, Matter of Bender v Board of Regents, 262 App Div 627, 631; People ex rel. Greenberg v Reid, 151 App Div 324, 326). That a professional license has no market value is irrelevant. Obviously, a license may not be alienated as may other property and for that reason the working spouse’s interest in it is limited. The Legislature has recognized that limitation, however, and has provided for an award in lieu of its actual distribution.
Remember, in O’Brien, the husband started the divorce only two months after he received his degree. Since he had no medical practice, all that the court could value was the license. But, what if the husband had been practicing medicine for 20 years and had a thriving practice? Would not the license merge with the practice? In other words, would there be only one piece of property to value: the practice? Or would the court value the license and practice?
That question was answered by the court ten years later in McSparron .v McSparron 87 N.Y.2d 275; 662 N.E.2d 745; 639 N.Y.S.2d 265 (1995). The facts are more detailed as this was a long-term marriage.
The parties were married in 1969. At the time of their marriage, both parties had undergraduate college degrees and neither possessed any appreciable assets. Defendant’s husband attended law school during the first three years of the marriage, gaining admission to the Bar in 1973. He thereafter practiced law and was earning an annual salary of $ 97,000 as a Deputy First Assistant Attorney-General when the parties separated in mid-1989.
Plaintiff wife acquired a master’s degree in psychology during the early years of her marriage. Over the next 12 to 13 years, she worked as a school psychologist, taking time off occasionally to care for the couple’s children or to attend graduate school. In 1984, the plaintiff began attending medical school. She graduated in 1988 and, after completing a one-year internship, received a license to practice medicine in July 1989. Plaintiff commenced this matrimonial action on September 1, 1989, four months before the completion of her second internship.
The Court specifically rejected the concept that the license merges with the career after a period of time. “Such a narrow approach is inconsistent with the equitable goal of assuring both spouses a fair share of all of the assets that were produced by the marital partnership. Application of the merger doctrine is particularly inimical to the statutory purposes because it generally favors the nonlicensed spouse in a shorter marriage over the nonlicensed spouse who is faced with rebuilding his or her economic life after the breakup of a long-term marriage.”Furthermore, care must be taken to ensure that the monetary value assigned to the license does not overlap with the value assigned to other marital assets that are derived from the license such as the licensed spouse’s professional practice. So, the New York Court of Appeals held that in New York Divorce, professional practice is to be valued separately from the license to practice.
This solution now raised a new problem: maintenance. Let’s say that the husband’s license and practice were collectively valued at $1.7 million. Of that sum, the wife’s share was determined to be $770,000. The wife also has asked for maintenance. Should the award of maintenance take into consideration the equitable distribution award of $770,000 or not?
The court addressed that question in Grunfeld v. Grunfeld 94 N.Y.2d 696; 731 N.E.2d 142; 709 N.Y.S.2d 486 (2000). The court split a few hairs here. In Grunfeld, the husband’s law license and practice were valued separately, then the wife was awarded maintenance. The Court of Appeals reversed the appellation division’s decision that did not fully take into account the equitable distribution award. “Here, however, the Appellate Division flatly based its ruling in part on the fact that “defendant’s future earnings”–which only could be expected to come from his own professional endeavors–were likely “to exceed $ 1 million yearly.” Additionally, the Court apparently recognized that income from other resources could only be expected to support “a portion of the maintenance.” Therefore, on the face of the Appellate Division’s decision, in ordering full distribution of the plaintiff’s share of the defendant’s license without any adjustment of maintenance, the Court engaged in double counting of income. This is inconsistent with McSparron. Thus, that portion of its order cannot be affirmed.”
The appellation division was reversed because the award took into account increased income from the husband’s law practice. But, the Court of Appeals left open the viability of an award of maintenance derived from sources other then the practice. It is possible that if the husband had incoming producing separate property, then the concern about offsetting would not exist.
In conclusion, divorces involving licenses can be complicated as they involve several issues of equitable distribution and maintenance. The valuation of the property can be complicated and expensive. In New York, the judges will order that a forensic account value the practice and the license. These numbers will drive the decisions on the distribution and the ultimate award of maintenance.
Military divorces have unique problems and issues. Perhaps, the most common issues revolve around custody and visitation. A military divorce must address issues of the cross and out-of-state visitation, travel, and visitation in foreign countries and the issues created by mobilization and deployments.
One frequent custody and visitation issue involves mobilizing or deploying parents. The marital combination could involve two active-duty parents, mixed active and reserve/guard parents, two active/guard parents or only one military parent.
The classic case involves a dad in Germany and a mom in New York. Mom has physical custody and dad has visitation. Mom gets orders mobilizing or deploying her to Iraq. Under her family care plan, she will give custody to her mother or sister. As far as the Army, Air Force, Navy, Marines, and yes, the Coast Guard, are concerned, the mom has done her duty and can go. But, under New York law, there is a problem.
A second but related issue involves what happens after the parent with physical custody returns from deployment. Can she get her child back?
The starting point for these inquiries is New York family law. Under both the New York Domestic Relations law and the New York Family Court Act, and subject to some very limited exceptions, no one has superior rights to custody of a child over the natural parents. Legally, the mother’s power of attorney granting guardianship to her mother is trumped by the father’s rights.
Under the first scenario, in the absence of a court order, the father can walk into grandma’s apartment take the child and walk out. And there is nothing Grandma or mom can do.
Now, let’s change the facts a little. Mom has a separation agreement, but not a court order. If the dad takes the child he may be in violation of the agreement but will not be subject to arrest for violating a court order.
Finally, assume mom has a court order of custody. Even though she’s in Iraq, dad can’t just take the child. He must go to court in order to gain custody.
As a lawyer, I find that all three of those scenarios are messy. My solution is, typically, a military one: preplanning and prepositioning.
Any agreement or court order must contain provisions to cover the mobilization or deployment (I also include TDY as well) of the custodial parent. Generally, there should be a clause that states that the non-custodial parent has the right of first refusal in any situation where the custodial parent is mobilized, deployed or on TDY. This will resolve this problem.
But, what happens, I hear you ask, if we can’t agree? Well, that’s why the gal in the black robes gets paid the big bucks. In the event the parties can’t agree, the judge will decide. Generally, unless it is unsafe for the child to be with the non-custodial parent, Grandma loses out.
Moving on to the second problem of what happens when mom returns home. This one is a minefield. There have been several judges around the country who have permanently changed custody from the military parent to the non-military parent. The reasons given by the courts are, and I find as a military member, offensive. Basically, these judges believe that military service is incompatible with physical custody. There is a question in my mind whether this constitutes unlawful discrimination.
One way to try to avoid this problem is to specifically include in the divorce papers a clause that states that upon return, the custodial parent regains custody. I am not aware of any New York judge refusing to honor such a clause.
In fact, I had such a case before late Justice Ross in Nassau County. My client was mobilized under Noble Eagle. Under the terms of the divorce papers, she relinquished custody to the dad. When the end of her tour approached, dad made an application to change custody. Judge Ross did not grant the application and my client got her children back.
The real teaching point is that preparation and preplanning can go a long way to avoiding mobilization/deployment-related custody problems.
In fact, I had such a case before Justice Ross in Nassau County. My client was mobilized under Noble Eagle. Under the terms of the divorce papers she relinquished custody to the dad. When the end of her tour approached, dad made an application to change custody. Judge Ross did not grant the application and my client got her children back.
The real teaching point is that preparation and preplanning can go a long way to avoiding mobilization/deployment related custody problems.
New York Post-Divorce Maintenace Law Changed in 2016. Under the new Law, maintenance is based upon a mathematical calculation. This post is about the old. If your divorce occurred before 2016, then the below still applies to you. However, for any divorce after the law changed, the below does not apply. Here’s the link to the article on the new Law:https://nydivorcefacts.com/post-divorce-maintenance-divorces-filed-january-25-2016/
One of the big questions I get asked about is alimony. Generally, the question is either “Do I have to pay alimony?” Or “Can I get alimony?”
The problem is that there is so much misinformation out there. From television to friends, there is no dearth of bad information and myths regarding alimony.
So, I’m going to try to shoot down some of these myths and correct some of the misinformation floating around.
First, and most importantly, in New York under the domestic relations law, there is no alimony. Let me repeat it, under New York divorce law, there is no alimony. Just so we are clear, alimony was a permanent life time monthly payment from the divorced husband to the divorced wife.
Second, instead of alimony we have “maintenance.” Maintenance is a temporary periodic payment from one ex-spouse for the purpose of rehabilitating a non-working spouse back into the workforce. Maintenance is not a lifetime paycheck. It is temporary, but, under certain circumstances as I will show below, it can be permanent. There are two types of maintenance: (1) while the divorce is pending, called pende lite maintenance and (2) final maintenance which is awarded at the end of the divorce. This post is will only address final maintenance.
Third, it is not for the benefit of the wife, but for the non-working spouse. The statute is gender neutral.
Now, let’s look at the specifics under the law. When making or denying an application for maintenance the court must consider the listed factors in New York Domestic Relations Law section 236B. This is the main article for divorces in New York.
In determining an award of maintenance the court should have a:
regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. In determining the amount and duration of maintenance the court shall consider :
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.
In Hartog v. Hartog, 85 NY2d 36 (1995), the New York Court of Appeals stated that the Legislature, in enacting the 1986 amendments to Domestic Relations Law 236B, specifically charged the courts to consider the pre-divorce standard of living when determining an award of maintenance. The “courts must consider the payee spouse’s reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly.”
Based upon this reasoning, the court could award maintenance even for a self-supporting spouse, if it finds that she needs additional money to return to the pre-divorce standard of living.
Let’s look at some examples of how this works. In Wilkinson v. Wilkinson, 149 AD2d 842, the wife was awarded maintenance in the amount $225 per week from 1988 until June 1993. The husband appealed. The appellate division found no fault with the award. “Defendant next challenges the maintenance and child support awards as excessive. Considering defendant’s stable employment for over 30 years as a conductor for Conrail, defendant’s salary of $ 56,000 subject to annual increases, plaintiff’s income of $ 6,400 with a maximum potential of some $ 15,000 and the other statutory factors necessarily addressed by Supreme Court (see, Domestic Relations Law § 236 [B] [6] [a], [b]), we find no reason to disturb the maintenance award. Likewise, the child support award is reasonable under the circumstances as found by the court and supported in the record.”
In Panaggio v. Panaggio 133 AD2d 526, the appellate court increased the award of maintenance. The appellate court found the lower court’s award “does not adequately reflect the parties’ preseparation standard of living or defendant’s capacity to contribute to plaintiff’s support. Based on the circumstances, including the husband’s receipt of large partnership distributions in 1983 and 1984, we exercise our discretion to award the wife $ 500 per week in maintenance. Domestic Relations Law § 236 B (6) (a) (1) requires the court, in fashioning a maintenance award, to consider the “income and property” of the respective parties. Moreover, the evidence establishes that those distributions, while not reported as income by defendant, are not required to be repaid by him and were treated by him as disposable income. In any case, the record establishes that defendant has sufficient means to meet the additional maintenance obligation we are imposing, even disregarding the partnership distributions.”
In Weiss v. Weiss, 213 AD2d 542, “the court found that the defendant earned a gross income of $ 51,351.78 in 1991, which is approximately three times the amount earned by the plaintiff. Under all the circumstances presented, the award of maintenance in the sum of $ 225 per week is not excessive.”
The decision in Schnee v. Schnee 152 AD 2d 665, is very instructive. The case pulls together several factors which a court must consider in awarding maintenance, such as the length of the marriage, jobs skills of the non-working spouse and the lifestyle of the parties:
At the time of their marriage in November 1977, the plaintiff was 48 years old and the defendant was 32. The childless marriage was the second for each party. The defendant owned a lucrative knitwear business which he inherited from his father. The plaintiff was employed in the business as a bookkeeper at a net salary of about $ 275 per week. By 1984 the business was generating substantial and increasing income and numerous perquisites enabled the couple to maintain a lavish home in Brookville, New York, and a vacation home in Boca Raton, Florida. They acquired collections of paintings, porcelain figurines and other objects d’art, and three luxury automobiles; took numerous vacations and enjoyed a generally comfortable life-style. At the time of trial, the plaintiff was approximately 58 years of age and had been unemployed since August 1985, when she commenced this matrimonial action and the defendant had discharged her from her position as bookkeeper with his business. “However, we do find that the trial court’s award to the plaintiff of maintenance in the amount of $ 400 per week for five years was inadequate. In view of her age, which presents an obstacle to finding a new position, her limited earning capacity as a bookkeeper, the parties’ lavish standard of living during their marriage and the defendant husband’s substantial income, we find it more appropriate to grant the plaintiff an award of maintenance in the sum of $ 500 per week, to be paid until she remarries or she or the defendant dies.”
On the other hand in Pontorno v. Pontorno, 172 A.D.2d 734 (N.Y. App. Div. 1991), the appellate division agreed that no maintenance should be awarded. “The Supreme Court properly declined the defendant’s request for maintenance. The parties were married for only 15 months before the plaintiff commenced this action. The record does not support the defendant’s claim that she needs “some rehabilitative maintenance”. Before, during and after the marriage, the defendant had the ability to be self-supporting, having terminated her employment solely as a result of her pregnancy. In addition, at the time of the trial, the defendant indicated that she had already returned to part-time employment.”
Sometimes, neither party is happy. “In the present case, the trial court’s award of maintenance to the defendant in the sum of $ 200 per week for a period of seven years was neither excessive, as claimed by the plaintiff, nor inadequate, as claimed by the defendant. In making the award, the court, inter alia, took into account the financial circumstances of both parties, including their reasonable needs and means, as well as the plaintiff’s present and anticipated income, the defendant’s present and future earning capacity, and both parties’ standard of living. Moreover, the duration of the award was sufficient in length and designed “to render the recipient self-supporting.”Bootle v.Bootle 214 Ad2d 636.
The court must also consider the skill set of the spouse seeking maintenance. In Lord v. Lord, 124 AD2d 930, the appellate court stated: “We reject the contention that the failure to award defendant, who is apparently 45 years of age, permanent maintenance was error. Trial Term determined there was no need to do so in light of defendant’s full-time employment, income from two apartment buildings distributed to her (2nd Avenue and Yale Street), and payment to her of a distributive award of $ 50,000, bearing interest at the rate of 10% annually, in 144 equal monthly installments.”
The appellate court in De Marco v. De Marco 143 AD2d 328, reduced an award of maintenance. “The Supreme Court awarded the plaintiff the sum of $ 225 per week as maintenance for a five-year period and the sum of $ 100 per week thereafter, until she dies, cohabits or remarries. We conclude that the foregoing award is excessive and should be reduced to the sum of $ 75 per week for a period of five years. The record discloses that the plaintiff is now capable of earning $ 200 to $ 250 per week as a bookkeeper. The defendant, on the other hand, is unable to work as a result of his accident. In view of the fact that the plaintiff will be receiving, inter alia, a distributive lump-sum award of 40% of the value of the defendant’s pension in addition to an equitable distribution of all other marital assets, the $ 75 per week figure, for the five-year period, is sufficient. For similar reasons, we also conclude that the plaintiff is financially able to  pay for her own counsel fees.”
The courts will look to earning capacity of the paying spouse rather than the money he actually earns. “The trial court erred in failing to award the plaintiff wife lifetime maintenance in light of the length of the parties’ marriage, the plaintiff’s age and health problems, and her negligible earning potential. The plaintiff worked in the gas station business run by the defendant, but she has no real marketable skills. The defendant, on the other hand, is an enterprising businessman who turned a small, one-island gas station into an extremely lucrative business which supported the parties’ lavish marital lifestyle. While, at the time of trial, the defendant’s employment income was low, an award of maintenance is determined by earning capacity, not by actual earnings. The defendant clearly has excellent business skills and a proven ability to make substantial sums of money. Although it is unlikely that he will ever again earn the income he enjoyed from the gas station business, nor will either party enjoy the lifestyle that they once shared, the defendant does have the experience and proven earning ability to pay an award of maintenance. Under the circumstances, we find it appropriate to award the plaintiff lifetime maintenance in the sum of $ 150 per week.” Borra v. Borra 218 AD2d 780.
Looking over these cases, we can find some basic principles. If the marriage was a long term, ten years or more, and the working spouse had a good income, and the non-working spouse has no skills, then the court can order maintenance, and may order lifetime maintenance. If there is a serious disparity of income, the court can also award maintenance. Lifestyle will be considered as a factor. By the same token, if the marriage is of a short term, and/or there is a reasonable parity of income, then maintenance probably won’t be ordered.
As I have stated elsewhere, the issues regarding LGBTQ marriages change faster than I can post. This post is obsolete, but I am keeping up because as a tribute to the courage and fine work of Tom DiNapoli. Since homosexual marriages are valid and recognized in New York, all the laws regarding marriage and equitable distribution apply, including pension rights.
A man I personally admire, New York State Comptroller, Thomas DiNapoli, recently recognized, for pension purposes, a Canadian same-sex marriage. He decided that the marriage was valid even though New York State’s highest court, the Court of Appeals, recently held that same-sex marriages are not permissible under the New York state constitution. Mr. DiNapoli recognized the same-sex union between two state workers who got married in Canada.
Mr.DiNapoli’s decision was taken to court, and Justice Thomas J. McNamara in the case of Godrey v. Hevesi, 5896-06, agreed with him. Judge McNamara noted that New York has long recognized the legality of marriages performed in other states and countries, even if such marriages could not be performed in New York.
While proponents of same-sex marriages may view this decision as a victory, it raises as many questions as it settles. Since the Court of Appeals decided Hernandez v. Robles 7 NY3d 338 (2006), the rule in New York has been that same-sex marriages are not permissible.
Judge McNamara’s decision does not necessarily provide a loophole. The problem lay in difference between laws passed by a sister state and laws passed by a foreign county.
The starting point is the United States Constitution’s Full Faith and Credit Clause. This constitutional provision states that one state must give full faith and credit to a judicial ruling of another state. (There are some exceptions, but it is beyond this scope of this posting to get into them.) Similarly, there is a rule known as “comity”. Under comity, a state judge can enforce a foreign county decision if the requirements of due process are met. Unlike the Full Faith and Credit Clause, a court is not required to recognize a foreign nation’s actions.
Now, that brings us back to Judge McNamara’s decision. Two other judges have refused to recognize same-sex unions performed in Canada. In the cases of Funderburk v. New York State and Martinez v. Monroe Community College,two other trial judges decided contrary to Judge McNamara. The Appellate Divisions have not spoken on this issue. But, ultimately, this issue will have to be decided by the New York Court of Appeals. Frankly, I don’t think anyone knows which way the court will decide on this issue.
In an earlier posting, I discussed a legal concept known as “equitable estoppel”. This is a principle that allows a court to declare that a man is a legal father, even though is not the biological father. Let me repeat that: Under New York law a non-biological father can still be responsible to pay child support.
This is a very old legal concept. In fact, back in 2007 Judge Richard Lawrence, Family Court, Nassau County was presented with such an issue. The case, Matter of KJP v. VB was reported in the September 24, 2007 issue of the New York Law Journal.
The mother brought an action for paternity. She further asked that there not be any genetic testing, but instead that the respondent be declared the father by equitable estoppel. She asserted that the respondent is the father, and the child has always known him to be his father. Although there is no father’s name on the birth certificate, the mother explained that she had stopped seeing the father prior to the birth, due to his violence against her. She claimed that the respondent knew about the child and that told informed him that he was the father when the child was two years old. The mother claimed that she never identified any other person as the father, and the child always considered the respondent to be his father.
The Respondent opposed the petition and demanded genetic testing. He only admitted to being the father of the child’s sister. He claims that the first time he learned that the mother was claiming that he was the father was when he was served with paternity papers. He claimed that the child calls him by his first name and that he saw the child only when visiting his daughter. The respondent stated that he never held himself out to be the father.
Judge Lawrence noted that the mother, seeking to enforce the doctrine of equitable estoppel has the burden of proof before the court. The moving party, in this case, the mother, must set forth what is called a “prima facie” case. A prima facie showing is more than a mere allegation. In this instance, the law requires that the mother show that the child considers the respondent to be his father and that the child could face some harm if the motion is denied.
Judge Lawrence noted that a hearing should be held to determine the credibility of the witnesses. Further, “the evidence should be construed from the child’s perspective and the factors to be considered in determining whether the best interests of a child would be served by paternity testing includes the child’s interest in knowing with certainty the identity of his or her biological father, whether the identity of others who may be proven to be his or her father is known or likely to be discovered, the traumatic effect of testing may have on the child, and the impact, if any, that the uncertainty as to paternity might have on the father-child relationship if testing were not ordered. Importantly, the paramount concern in an equitable estoppel case is the best interests of the children.”
Faced with such conflicting stories from the parties, Judge Lawrence ordered that a hearing be held to decide whether or not to order genetic testing. “Ultimately, a court shall not order genetic testing in a paternity matter without first issuing a written finding that it is not in the best interests of the child on the basis of equitable estoppel.”
This case merely restates the position that a biological stranger could be found to be the legal father if it is in the bests interests of the child. As more children are born out of wedlock, and couples co-habitat without being married, the doctrine of equitable estoppel will be applied with greater frequency.
Prior to January 2016, Professional Degrees were subject to Equitable Distribution. However, that law was changed by Statute for all divorces filed after December 31, 2015. If your divorce was filed in 2016 or after, the below DOES NOT Apply to you. If your divorce was filed in 2015 or earlier then it does. Here is a link to the new and current law:https://nydivorcefacts.com/professional-degrees-and-licenses-are-no-longer-marital-property/
Doctors, lawyers, dentists and other professionals face unique challenges under New York Divorce law. Under the New York equitable distribution law, all property acquired during marriage is subject to division. The courts have interpreted that to mean that degrees, licenses and practices are subject to division.
In 1985 the Court of Appeals in New York, in the landmark case of O’Brien v. O’Brien, 66 N.Y.2d 576, held that the husband’s “medical license constitutes ‘marital property’ within the meaning of [ New York ] Domestic Relations Law.”
As the Court explained the facts:
Plaintiff and defendant married on April 3, 1971. At the time both were employed as teachers at the same private school. Defendant had a bachelor’s degree and a temporary teaching certificate but required 18 months of postgraduate classes at an approximate cost of $ 3,000, excluding living expenses, to obtain permanent certification in New York. She claimed, and the trial court found, that she had relinquished the opportunity to obtain permanent certification while plaintiff pursued his education. At the time of the marriage, plaintiff had completed only three and one-half years of college but shortly afterward he returned to school at night to earn his bachelor’s degree and to complete sufficient premedical courses to enter medical school. In September 1973 the parties moved to Guadalajara, Mexico, where plaintiff became a full-time medical student. While he pursued his studies defendant held several teaching and tutorial positions and contributed her earnings to their joint expenses. The parties returned to New York in December 1976 so that plaintiff could complete the last two semesters of medical school and internship training here. After they returned, defendant resumed her former teaching position and she remained in it at the time this action was commenced. Plaintiff was licensed to practice medicine in October 1980. He commenced this action for divorce two months later. At the time of trial, he was a resident in general surgery.
During the marriage both parties contributed to paying the living and educational expenses and they received additional help from both of their families. They disagreed on the amounts of their respective contributions but it is undisputed that in addition to performing household work and managing the family finances defendant was gainfully employed throughout the marriage, that she contributed all of her earnings to their living and educational expenses and that her financial contributions exceeded those of plaintiff. The trial court found that she had contributed 76% of the parties’ income exclusive of a $ 10,000 student loan obtained by defendant. Finding that plaintiff’s medical degree and license are marital property, the court received evidence of its value and ordered a distributive award to defendant.
Defendant presented expert testimony that the present value of plaintiff’s medical license was $ 472,000. Her expert testified that he arrived at this figure by comparing the average income of a college graduate and that of a general surgeon between 1985, when plaintiff’s residency would end, and 2012, when he would reach age 65. After considering Federal income taxes, an inflation rate of 10% and a real interest rate of 3% he capitalized the difference in average earnings and reduced the amount to present value. He also gave his opinion that the present value of defendant’s contribution to plaintiff’s medical education was $ 103,390. Plaintiff offered no expert testimony on the subject.
The Plaintiff argued that the license was “not property at all but represents a personal attainment in acquiring knowledge.” The New York Court of Appeals, did not accept this argument. The Court held that the New York equitable distribution law radically changed the concept of property. “[T]he New York Legislature deliberately went beyond traditional property concepts when it formulated the Equitable Distribution Law Instead, our statute recognizes that spouses have an equitable claim to things of value arising out of the marital relationship and classifies them as subject to distribution by focusing on the marital status of the parties at the time of acquisition. Those things acquired during marriage and subject to distribution have been classified as ‘marital property’ although, as one commentator has observed, they hardly fall within the traditional property concepts because there is no common-law property interest remotely resembling marital property.”
The practical effect of the O’Brien decision is that any degree or license earned during the marriage is subject to distribution. Therefore, an appraiser will have to be employed to determine the value of the degree or license, and then the court will determine how much money will flow from the spouse who earned the degree or license. For a professional, the value of the degree could be quite high.
Under New York Family law, it is possible for a non-biological father to be declared the parent. This is called equitable estoppel. The purpose of this rule to is to protect a child who has been raised to believe that a certain person is his father.
The rationale is that a child would be traumatized to discover that the person he considered his father is in fact not. In order to protect the child, the court can declare a person to be a father when he is not the biological father.
The factors that the court considers in deciding this issue are: (1) the child’s knowledge of the identity of the biological father; (2) whether the biological father’s identity is likely to be discovered; (3) whether the DNA testing would have a traumatic effect upon the child; and (4) whether uncertainty as to paternity would impact the parent-child relationship.
As a practical example, let me describe a case that occurred a few years ago. Mr. X had married Mrs. X. During the course of the marriage, a child was born, Y. Unbeknownst to Mr. X and Y, the biological father was Mr. Z. Mr. Z was a social friend of the couple. Eventually, Mr. X found out about Mr. Z’s role but continued to treat the child as his own. After the child turned 10, Mr. Z decided to petition to the court for paternity. Mr. and Mrs. X opposed the petition, claiming that such an order would devastate the child. The court agreed. It found that as the child has been raised to believe that Mr. X was his father, it would not be in the child’s best interests to learn otherwise.
This rule has a great impact on support cases. Typically, Ms. A seeks child support from Mr. B. He objects and demands a paternity test. If the child has been raised to believe that Mr. B. is his father, then the court could decline to order a test, and instead, find parenthood by estoppel.
This is similar to what was reported in a recent Nassau County Family Court case.
In the matter of Davis v. White, reported in the September 14, 2007 New York Law Journal, Nassau Family Court Judge Conrad Singer, found to fatherhood by estoppels doctrine to deny a request for a paternity test. The Nassau county department of social services, on behalf of the mother, brought an action for paternity against Mr. White. Both the child’s law guardian and Mr. White asked for the court to conclude that the mother’s live-in boyfriend, with whom she has a child, is the father by estoppel.
The law guardian claimed that the child considers the boyfriend, Jesse, to be his father. The law guardian asserted that the child calls Jesse daddy and that they have lived together for the past year.
The judge denied the application and ordered the paternity testing of Mr. White. The court stated that the assertions of the law guardian alone did not establish that there was a parent-child relationship between Jesse and the child. The judge further stated that the Court’s overriding concern when determining whether to invoke equitable estoppels is the best interest of the child.
The point that troubled the judge, and in my opinion, led to his decision, was that if he allowed Mr. White to walk away from his responsibilities, the child could suffer financial harm. The judge envisioned a situation where Jesse would leave the mother and the child would be without a means of support.
But, if the court granted Mr. White’s motion to declare that under the doctrine of equitable estoppel, he was not the parent, doesn’t it follow that Jesse would be declared the father? No. Only Mr. White was before the court. If the court rendered a ruling in his favor, it would not affect Jesse, who was not a party to the action. Thus, of Judge Singer found Mr. White was not the parent, he would not, at least in the petition before, be able to find Jesse to be the parent. Such a decision would leave the child would anyone the court could order child support from.
Now, if Jesse was also before the court, then perhaps the Judge would have arrived at a different decision.
Therefore, in order to ensure that the child did not become a public charge, the Judge decided that it was in the best interests of the child not to grant Mr. White’s motion.
In cases of Domestic Violence, often the first place people go is the Family Court to get an order of protection. It is also referred to as a restraining order.
The New York Family Court is the prime dispenser of restraining orders also known as Orders of Protection, within families; although, the criminal, county and Supreme Courts also have the authority to issue them.
What is an Order of Protection?
An order of protection or restraining order is a court order issued by a judge that prohibits someone from participating in certain activities. Restraining orders can be issued to protect a person from being the victim of domestic violence, harassment, stalking, or other forms of abuse. Lawyers and Judges referred to them as “OPs”.
The purpose of an OP is to provide the victim with a way to protect themselves from further harm. An order of Protection is legally binding and must be followed or the abuser can face legal consequences. It is important to note that restraining orders are not a form of punishment, but rather a way to protect the victim.
Types of OPs
Three main types of orders can be issued in New York:
Temporary restraining order: This type of restraining order is usually issued when the victim is in immediate danger and the court believes that the abuser must be stopped immediately.
Permanent Order of Protection: This type of restraining order is issued after a hearing in which both parties present their cases. It is usually issued for a longer period of time than a temporary restraining order.
Emergency restraining order: This type of restraining order is issued when the victim is in immediate danger and the court does not have time to hold a hearing.
What is a stay-away order?
A stay away order is a type of OP issued by a court to protect a victim from an abuser. It prohibits the abuser from coming within a certain distance of the victim, their home, their workplace, or any other place that the court designates. In addition, the abuser is also prohibited from making any contact with the victim.
Stay away orders are usually issued for a specific period of time, such as six months or a year. In some cases, the court may extend the stay away order if it believes that the abuser may still be a threat to the victim.
What is a do not harass order of protection?
A do not harass order of protection is a type of restraining order issued by a court to protect a victim from an abuser. It prohibits the abuser from harassing, intimidating, threatening, or otherwise harming the victim. In addition, the abuser is also prohibited from making any contact with the victim.
Do not harass orders of protection are usually issued for a specific period of time, such as six months or a year. In some cases, the court may extend the do not harass order of protection if it believes that the abuser may still be a threat to the victim.
What is the difference between a stay away order and a do not harass order of protection?
The main difference between a stay away order and a do not harass order of protection is the range of activities that are prohibited. A stay away order prohibits the abuser from coming within a certain distance of the victim, their home, their workplace, or any other place that the court designates. A do not harass order of protection, on the other hand, prohibits the abuser from harassing, intimidating, threatening, or otherwise harming the victim.
In addition, stay away orders are usually more restrictive than do not harass orders of protection. This means that the abuser may be prohibited from coming within a certain distance of the victim’s home, workplace, or any other place that the court designates. With a do not harass order of protection, however, the abuser may not be prohibited from coming within a certain distance of the victim, but may still be prohibited from harassing, intimidating, threatening, or otherwise harming the victim.
When filing for a restraining order in New York Family Court, the victim will need to provide the court with evidence of the abuse, such as photos, text messages, or other documents. The court will then review the evidence and decide whether to issue a restraining order.
To obtain a Family Court order of protection, the petitioner must allege that their spouse has engaged in a family offense. Family offenses are defined in section 812 of the New York Family Court act. A family offense is an act:
which would constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, menacing in the second degree, menacing in the third degree, reckless endangerment, assault in the second degree, assault in the third degree or an attempted assault between spouses or former spouses, or between parent and child or between members of the same family or household
When it comes to matters of misconduct, harassment, and assault, the law takes them very seriously. However, it can be confusing to understand the different types and degrees of these crimes. Here’s a breakdown of some common offenses and what they mean: Disorderly Conduct: This refers to behavior that disrupts the peace or causes annoyance to others in a public setting. Examples include shouting obscenities, fighting, or causing a disturbance.
Harassment: There are two degrees of harassment. Harassment in the first degree refers to behavior that is more serious and causes significant alarm or fear, such as threatening physical harm or making repeated unwanted contact. Harassment in the second degree refers to behavior that causes annoyance or alarm, such as repeatedly texting someone despite being told to stop.
Aggravated Harassment in the Second Degree: This refers to harassment in the second degree that is carried out with the intention of intimidating someone because of their race, religion, national origin, or another protected characteristic.
Stalking: Stalking also comes in different degrees, with first-degree stalking being the most serious. This involves repeatedly following or threatening someone with the intent to cause fear. Stalking in the second, third, and fourth-degree refers to less severe forms of the crime, such as repeatedly contacting someone despite being told to stop.
Menacing: There are two degrees of menacing. Menacing in the second degree refers to behavior that causes someone to fear for their safety, such as threatening them with a weapon. Menacing in the third degree refers to behavior that is less serious and doesn’t involve a weapon, such as making threatening gestures.
Reckless Endangerment: This refers to behavior that puts others in danger without intending to do so. For example, recklessly firing a gun into a crowded area.
Assault: There are two degrees of assault. Assault in the second degree involves causing physical injury to someone, while assault in the third degree refers to behavior that creates a fear of injury, such as swinging a fist at someone in a threatening manner.
Attempted Assault: This refers to an attempted but unsuccessful assault.
The court may also require the victim to appear in court for a hearing. At the hearing, the court will listen to both the victim and the abuser and make a decision about whether to issue a restraining order.
Pros and cons of obtaining a restraining order
Obtaining a restraining order can be a difficult decision for a victim of domestic violence. It is important to weigh the pros and cons of obtaining a restraining order before making a decision.
The pros of obtaining a restraining order include:
The victim will be legally protected from the abuser.
The abuser will not be allowed to come near the victim or make contact with them.
The abuser will be held accountable for their actions.
The cons of obtaining a restraining order include:
The victim may be subject to scrutiny and judgement from family, friends, and the public.
The restraining order may not be effective if the abuser does not follow it.
The restraining order may put the victim in further danger if the abuser becomes angry or violent.
Tips for dealing with a restraining order
If you have been issued a restraining order, it is important to follow the terms of the order. Here are some tips for dealing with a restraining order:
Follow the terms of the order. This includes staying away from the person who is protected by the order and not making any contact with them.
Keep a copy of the order with you at all times.
Tell your family, friends, and co-workers about the order and ask them to help you stay away from the person who is protected by the order.
If you are accused of violating the order, contact an attorney right away.
Seek counseling or therapy if needed.
If You are in Immediate Danger, Call 911
If you are in immediate danger of injury, call 911. Do not call 911 if you are not in serious risk of danger, instead promptly go to the Family Court and file for an Order of Protection. Remember, never compromise your safety
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Call Port and Sava at (516) 352-2999 for a free telephone consultation.
NOTE: This is an old blog, and the law continues to evolve. As I have said elsewhere, this is a quickly changing area of the law. I have new blogs on this. The big problem for Gay and Lesbian married couples is that the statutes do not always protect you in all child custody issues. Basically, if you have not adopted the child and are not the biological parent you may not have rights of custody and visitation. This is particularly true if you move to a state which is hostile to LGBT marriages. Be cautious and get a second parent adoption.
A relatively new area showing up in New York family law is the parental rights of same sex couples. The general rule in New York is that only the biological parent has rights as a parent, and that a third party is a mere stranger. But, be aware that a child born of the marriage is considered a child of the marriage.
There was a decision by Nassau Family Court Judge, Stacey D. Bennett, where a same sex partner was found to have the right to at least be heard by the court on the issue of custody. (The decision was published in the August 10, 2007 edition of the New York Law Journal, on page 29.)
The parties met, fell in love and moved in together. After several months, it was decided that Ms. L. would undergo artificial insemination. The parties agreed that if Ms. L became pregnant, Ms. H would assist in taking care of the child. It was undisputed that Ms. H took Ms. L to all her pre-natal visits and was present during the birth of the child. Ms. H even cut the umbilical cord.She assisted in changing and feeding the baby. Ms. L. testified that Ms. H did what a husband would do for a wife during the pregnancy.
After the birth of the child, Ms. L returned to work and Ms. H stayed at home to care for the child. The situation continued for several months until the relationship ended. Ms. L. then moved into a shelter but left her son with Ms H. It was agreed that Ms. H. would keep the child until Ms. L. found suitable housing. Under that agreement, Ms. H. brought the child to New York City, were Mr. L. was living several times for visits. During a visitation there was an argument over financial support. Ms. L. called the police and claimed that Ms. H. refused to return the child.ACS of New York City removed the child and he was ultimately placed in foster care.
Judge Bennett stated the standard law, that a third person does not have rights superior to the parents. The underlying rationale for this rule is that there is a presumption that it is in the child’s best interests to be raised by at least one parent unless the parents are determined to be unfit.She went on to note that the Court of Appeals has found an exception to this rule when it is in the best interests of the child and extraordinary circumstances exist. In determining whether extraordinary circumstances exist, the court should consider the length of time the child has lived with the non-parent, the quality of the relationship and the length of time the biological parent has allowed such custody to continue without trying to assume the parental role.
Judge Bennett then went on to explain that Ms. L. treated Ms H. as a parent to the child.Therefore, she decided that Ms. H. can at least make the argument for custody.
While the question of whether Ms. H. can get custody remains open, this case is interesting in that the court allowed for that possibility. This decision does not merely have implications for same-sex couples, but also for grandparents seeking to obtain custody of their grandchild. This is still an evolving area of the law. The courts have been cautiously pushing on the notation of what a “parent” is, while the legislature has been silent on the issue. Ultimately, the courts cannot carve out an exception and allow third persons the same rights as biological parents. Rather, that will be for the legislature to decide. In the meantime, we will continue to see these small exceptions created using the extraordinary circumstance rule.
