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 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
Free Telephone Consultation
Call Port and Sava at (516) 352-2999 for a free telephone consultation.
Abandonment in a Divorce: Do You Get the House in New York?
One of the most common questions I get asked is “If my spouse abandoned me do I get the house?” The short answer is no—New York is a no-fault divorce state, meaning abandonment alone does not automatically grant one spouse full ownership of the house. However, the longer answer is more nuanced. Courts do take it into consideration when deciding equitable distribution, particularly when one spouse’s absence significantly impacts the financial well-being of the other.
A key case that highlights this issue is Pritchett v. Pritchett, twenty year old case where Justice Darrell Gavrin of Queens County found that a husband who abandoned his wife for a substantial period effectively forfeited some of his property rights. This case serves as an example of how this can influence property division, even if it doesn’t guarantee sole ownership of the marital home outright.
Understanding Abandonment in New York Divorce Law
In New York, abandonment is one of the fault-based grounds for divorce, but fault rarely affects property distribution in modern divorce cases. It occurs when one spouse leaves voluntarily, without the other’s consent, and without intent to return. It must last for at least one year and be unjustified—meaning there was no legitimate reason (such as abuse or a court order) for leaving.
Realistically, we don’t use this any more, as we now have No Fault Divorce, which is so much easier to prove. I personally, haven’t done fault based divorce in 15 years, since No Fault divorce was adopted in New York. Here’s an article on the New York No Fault Law.
While abandonment can be grounds for a divorce, it does not automatically mean the remaining spouse will be awarded all marital assets, including the home. Instead, the court follows equitable distribution laws, which means assets are divided fairly—not necessarily equally. This is because, marital fault by itself is not a basis to change equitable distribution. (I get asked about adultery a lot too, here’s an article on that.)
However, a long-term abandonment coupled with financial neglect—such as failure to contribute to household expenses or child support—can weigh heavily in favor of the spouse who was left behind.
The Case of Pritchett v. Pritchett: How Abandonment Affected Property Division
Background of the Case
The Pritchetts married in 1971 and had three children. Their youngest child was born in 1992.
In 1996, the husband left the marital home in Rosedale, Queens, without leaving contact information.
The marital home was purchased in 1984 for $85,000 and refinanced in 1994 for $107,000.
The wife alleged that her husband took $30,000 from the refinanced sum without her consent to pay his personal debts.
Additionally, when he left, he took another $20,000 in marital assets.
Despite being employed by the New York City Transit Authority, the husband ceased all financial contributions, including child support and mortgage payments.
The Husband’s Sudden Reappearance
A decade later, in 2006, the husband unexpectedly returned to the marital home. His arrival was dramatic—one of the children called the wife, saying, “Ma, there is someone at the door, I think it is our father.” The husband had left behind a list of addresses but made no attempt to reconcile or contribute financially.
The Court’s Decision
Justice Darrell Gavrin ruled in favor of the wife, granting her exclusive ownership of the home. The decision was based on:
Financial Abandonment: The husband’s failure to pay child support or contribute to household expenses for over a decade.
Burden on the Wife: The wife had solely shouldered the financial responsibilities of raising their child and maintaining the home.
Diminished Contribution of the Husband: The court reasoned that the amount the wife paid in mortgage and child-related expenses exceeded any financial interest the husband had in the home.
The judge explicitly stated: “The husband’s lack of contribution of any monies for maintenance or child support from March 1996 to the present time is a factor which warrants consideration by this court in determining equitable distribution of the marital residence.”
Since the husband’s financial neglect over the years outweighed his claim to the property, the court awarded the house entirely to the wife.
Lessons from Pritchett v. Pritchett: When Abandonment Affects Property Rights
The key takeaway from this case is that while abandonment alone does not result in one spouse receiving the house, financial abandonment can significantly impact equitable distribution. If a spouse leaves for an extended period without financial support, the court may decide that their lack of contribution outweighs their claim to marital assets.
Factors that courts consider include:
1. Duration of the abandonment – The longer the absence, the stronger the argument for financial abandonment. 2. Financial support – If the abandoning spouse fails to contribute to child support, mortgage payments, or household expenses, it may be used against them. 3. Marital debts – If the abandoning spouse took marital assets or incurred debts without consent, courts may adjust property division accordingly. 4. Impact on the remaining spouse – If one spouse is left to shoulder all financial burdens, the court may compensate them by awarding them a larger share of marital property.
Does This Mean You Automatically Get the House If Your Spouse Abandons You?
No, abandonment does not guarantee sole ownership of the marital home. New York follows equitable distribution laws, meaning courts divide assets fairly based on each party’s financial and non-financial contributions. However, abandonment can be a significant factor if it causes financial hardship to the remaining spouse.
My experience as a lawyer? In almost 38 years of practice, I’ve had one case similar to Pritchett. In my case, the husband left the wife with 5 kids. She had to chase him for child support in the Family Court. Even then, she had to file enforcement actions. She suffered a heart attack, a foreclosure and a bankruptcy, but somehow managed to keep the house, and raise the kids.
Twenty years later, Mr. Wonderful resurfaces because he wanted his share of the house. I was prepared for a two day trial. Just before the trial started, the late Judge Blydenburgh called the attorneys into the chambers. He asked me what my case was about, and I told him. He then gave me explicit directions on what he was looking for. The trial last 30 minutes and my client got the house.
The take away from the Pritchett case and my case is that bar on abandonment is really high.
If you find yourself in a situation where your spouse has abandoned you, here’s what you should do:
Document Everything – Keep records of any financial hardships caused by your spouse’s absence, including mortgage payments, child expenses, and utility bills.
File for Child Support – Even if your spouse is absent, they are still legally obligated to support their children.
Consult an Attorney – A family law attorney can help determine if abandonment can be used as a factor in property division.
Request Exclusive Possession of the Marital Home – If your spouse has been absent for a significant period and has failed to contribute financially, you may have grounds to seek full ownership.
Conclusion: Abandonment and Property Division in New York Divorce
While abandonment does not automatically entitle one spouse to the house, it can impact equitable distribution, particularly when financial abandonment is involved. The case of Pritchett v. Pritchett as well as my experience illustrates that when a spouse disappears for a prolonged period, refuses to provide financial support, and leaves the other spouse to bear the full financial burden, courts may award a greater share—or even full ownership—of the marital home to the spouse who remained.
If you believe abandonment is a factor in your divorce, please call Port and Sava, (516) 352-2999, ask for me, Gary Port, and I’ll give you a free 15 minute telephone consultation.
Take a deep breath: Divorcing a missing spouse can be done. I often get asked if it is possible to get a divorce when you don’t know where your husband or wife is located. Sometimes the person has been missing for a handful of years, and sometimes the husband or wife has been missing for more than 20.
The short answer is that you can get a divorce even if you can’t find your husband or wife. It is, unfortunately, a bit more complicated than an uncontested divorce.
Understanding Divorce Laws in New York
Let’s start with the basics. If you were married you need to have a court dissolve the marriage. I know this seems basic, but I have literally run into people who think that they can end the marriage by either tearing up the marriage license or just walking away from the marriage. No, that doesn’t end the marriage.
Not getting a divorce has severe property and support implications which I will address at length below. This is why it is oftentimes very important to get to considering divorcing your missing spouse, whether husband or wife.
Divorcing a Missing Spouse- The “No Fault” Divorce
New York’s adoption of “no-fault” divorces allows the dissolution of marriage without assigning blame. An irretrievable breakdown of the marriage for at least six months is a common ground for such divorces. All you need to do is swear that the marital relations have broken down for six months or more.
There is nothing to prove. It is just a flat statement.
On the other hand, a fault-based divorce requires proving that one’s spouse committed an act that legally justifies the divorce. This could include cruel treatment, abandonment, imprisonment, or adultery.
Before 2010, when divorcing a missing spouse we actually had to prove at a trial or hearing that the husband or wife was in fact missing, and had abandoned the marriage.
Again, under the 2010 law, when divorcing a missing spouse, we no longer have to prove anything. Merely desiring a divorce is enough for the court.
Serving the Divorce Papers
Whether divorcing a missing spouse, or someone who is not missing, the first step is serving them with the Summons and Complaint (“the divorce papers”).
When we know where the find the husband or wife, we use a process server. Sometimes the husband or wife, or even their lawyer, will accept service. This saves the cost of a process server.
Serving Papers on a Missing Husband or Wife
Divorcing a missing spouse complicates the process. If your husband or wife can’t be found, the law gives us several tools to solve the problem.
Procedure for Divorces Involving a Missing Spouse
In cases where the spouse’s whereabouts are unknown, one can request the court’s permission to serve them in other ways, that are going to reasonably give them notice.
Before being able to serve a missing spouse you have to ask permission from the Judge for “alternate service.” Under New York divorce law, only in-person service is allowed without a court order for some other form of service.
Efforts to Locate a Missing Spouse
Before the court allows any form of alternate service, you must prove that you exhaust all reasonable avenues, including contacting the spouse’s last known employer, relatives, local hospitals, shelters, and utilizing the internet. I will sometimes advise the client to hire a private investigator.
I have been successful in finding brothers, sisters, mothers, and fathers. In these cases, the courts have allowed me to serve these relatives when we can’t find the spouse.
This is where the process of divorcing a missing spouse can get a bit more complicated. Once we have made our “diligent” service you have to make a special motion to the court seeking alternate service. As discussed above, that can be served on a relative, by social media, email, or by publication in a local newspaper.
The courts are very careful about alternate services and many times will reject the papers on the first submission, and require that you do more searching. Many times additional searches will turn up nothing. Recently, however, a further, deeper, and a bit more expensive search did locate the wife.
Service by Publication
The most common method of serving a missing spouse is by publication in a local paper. You ask permission from the court to allow you to publish the divorce papers in a local newspaper. The cost for this is generally between $1,000 to $2,000. Now, I’m not talking about the Daily News, the Post or Newsday.No, I’m talking more about the Long Island Herald.
The paper will publish the notice 3 times and then provide an affidavit of publication. With the affidavit in hand, you can now go back to the judge and seek a divorce on default.
Handling Spouses Evading Service
What if your spouse is not missing but is intentionally avoiding service? I think too many people believe the nonsense they see on TV and movies about service of papers. Realistically, there is no way to avoid service.
If your husband or wife is avoiding service, we can get an order from the court to nail the papers to their door. It is literally called “nail and mail” service. And yes, I have gotten judges to order that.
Some people are even foolish enough to believe that if they refuse to take the papers that they can avoid service. Not true. If the process server comes up and says “I have papers for you” and drops them at your feet, then you have been served.
Remember, one way or another service will happen.
The Default Judgment
Once the court is satisfied that service has been done, and the missing spouse has not appeared, it will order a default judgment.
However, if there are children involved or marital property, like a house or retirement assets, then the court may order an inquest. This is an in-person hearing before the court. It looks like a trial, except that the other side is not there.
Why Get a Divorce from a Missing Spouse?
Why should get a divorce from a missing spouse? Out of sight, out of mind, right? Well, there are several good reasons.
You want to get remarried. You can’t remarry if you are still married.
You are still legally tied to someone who has abandoned you.
Your missing spouse is on the deed to the house. This is a big one. I’ve had clients who bought the house 20 or 30 years ago, and the spouse has been missing that long. They can’t do anything with the house because the missing spouse is still on the deed.
Inheritance rights. You can’t disinherit a spouse. A missing spouse can walk in after your death and try to get the assets you left the truly important people in your life.
Final Thoughts
While getting a divorce in New York when your spouse is missing is challenging, it is achievable with persistence and the right legal guidance. As an experienced attorney in this field, I recommend seeking professional assistance to navigate this process.
Remember, each case is unique. This guide provides a general overview, and I urge you to consult with a knowledgeable attorney for advice tailored to your specific situation.
Give us a call at (516) 352-2999 for a free 15 minute consultation.
Navigating Interstate Child Custody: The Crucial Role of UCCJEA
One parent cannot simply move their child to another state without permission or court order. The UCCJEA prevents that. If such a move happens without this clearance, you have up to six months to take legal action in the child’s original home state. This isn’t just a New York rule—it’s the law in 49 out of 50 states (hey, Massachusetts even Louisana has this law!), thanks to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
Understanding the UCCJEA is essential for anyone navigating the complex waters of parental kidnapping, child custody, and visitation disputes. This Act provides a uniform legal framework across the United States, aiming to prevent “forum shopping”—the practice of seeking a court in another state thought to be more favorable to one’s case—and ensuring that a child’s best interests are at the forefront of any custody decision. It establishes clear guidelines for handling interstate custody disputes, which is increasingly important in today’s mobile society where family dynamics often transcend state lines.
In this blog, I’ll dive into why the UCCJEA matters, particularly focusing on its application within New York’s family law system. We’ll explore how New York courts apply UCCJEA jurisdiction to resolve cases involving child custody and abduction, emphasizing the “home state” principle and the conditions under which emergency jurisdiction may be invoked.
I want to make it clear, that is a very basic overview of a very complex topic. This is not an area of self-help or the University of Google. Judges struggle with this area (here’s a handbook they use). So, use this article as a jumping point in discussions with a lawyer.
Why UCCJEA Matters in Family Law
The UCCJEA, adopted by nearly all states, provides a straightforward mechanism for determining jurisdiction in child custody disputes. It defines “home state” as the state where the child has lived with a parent or guardian for at least six consecutive months prior to the start of custody proceedings. This prevents a parent from suddenly moving to another state to file for custody there.
More importantly, once a state issues a custody order, it generally retains jurisdiction over the case. This continuity prevents the non-prevailing parent from seeking a different venue in hopes of a different outcome, a practice known as forum shopping.
Protecting Children’s Best Interests
The core purpose of the UCCJEA is to protect children by ensuring that custody orders are enforceable across state lines, while prioritizing their safety, particularly in cases involving domestic violence or abuse. The Act ensures that courts recognize and enforce out-of-state custody decisions that comply with UCCJEA standards, promoting consistency and fairness.
In scenarios where a child has not lived in any state long enough to establish a “home state,” or for military families frequently relocated overseas, the UCCJEA permits a state where the child has significant connections and substantial evidence concerning their well-being to assume jurisdiction.
This happens in cases where the parents have lived overseas for an extended period of time. This is particularly the case for military parents. They may get married at West Point, go to Fort Rucker, Alabama and have the children, then move to Fort Bliss for three years, and then off to Germany for three years. The question becomes, where is the children’s home state?
This flexibility is crucial for ensuring that the child’s needs are met based on concrete evidence.
Emergency jurisdiction provisions within the UCCJEA are vital for the immediate protection of children in danger. If a child is present in a state and faces imminent harm, this rule allows for temporary protective measures until a permanent jurisdictional determination can be made.
How New York Applies the UCCJEA
In New York, applying the UCCJEA involves a detailed jurisdictional checklist to ensure compliance with established standards. This checklist aids courts in modifying child custody orders made in other states. For a New York court to make an initial custody ruling, it must determine if New York is the child’s home state or if the child has significant connections with the state.
Communication between New York courts and courts in other states is critical, especially if concurrent custody proceedings are underway. This coordination helps resolve emergencies, protect all parties’ safety, and determine the scope of temporary orders, often through phone or video conferencing.
Real-World Implications and Legal Challenges
Interstate custody cases present various legal challenges, such as when a victim of domestic violence seeks refuge in another state and needs an emergency custody order. The UCCJEA provides the legal framework to address these situations by typically favoring the child’s “home state” but allows for exceptions in urgent circumstances.
Emergency situations, where a child’s immediate safety is at risk, allow courts temporary emergency jurisdiction to act swiftly to protect the child. Courts can consider various forms of evidence to address the urgency of the situation.
Conclusion
Understanding and correctly applying the UCCJEA is crucial for protecting the best interests of children involved in interstate custody disputes. This Act not only helps streamline legal processes but also significantly contributes to the stability and protection of children’s lives across state boundaries. By establishing clear jurisdictional guidelines and prioritizing the child’s safety and welfare, the UCCJEA stands as a pivotal component of family law, especially in New York.
Call Port and Sava for a free 15 Minute Telephone Consultation at (516) 352-2999
Parental Kidnapping occurs when one parent moves with the child and violates the existing court order for custody and visitation (parental access)
These disputes arise when one parent relocates to another state and attempts to modify an existing custody order, which can lead to complex legal and personal conflicts. The Parental Kidnapping Prevention Act (PKPA), passed by Congress, aims to address these challenges by establishing clear rules for the recognition and enforcement of custody orders across state lines.
In a typical scenario, one parent, who might have been awarded custody in their home state, faces issues when the non-custodial parent moves to another state and seeks a new custody ruling from the courts there. For example, a father who has custody in his home state might send his child to visit the mother in another state. The mother might then attempt to obtain a new custody order in her new state, potentially leading to a situation where the child is unlawfully retained beyond the visitation period, sometimes referred to as “parental abduction.”
Before the enactment of the PKPA, such actions led to what is known as “forum shopping,” where a parent would move to a state with perceived favorable custody laws to seek a new custody determination. This practice not only created legal confusion but also contributed to cases of child abduction, as courts in different states might issue conflicting custody orders based on differing interpretations of the child’s best interests.
The PKPA provides a robust mechanism to prevent these conflicts by ensuring that custody orders issued in one state are recognized and enforced in all other states, provided they comply with the act’s requirements. This federal statute complements the constitutional full faith and credit clause, which generally mandates that judicial decisions made in one state be respected by others. However, custody orders are unique in that they can be modified based on new circumstances or evidence regarding the child’s best interests.
The Parental Kidnapping Prevention Act (PKPA): The Basics
Under the PKPA, the central issue is jurisdiction, which determines which state’s courts have the authority to hear a custody dispute. The act specifies that:
A custody order is valid if it is issued by the child’s home state at the time the legal action is initiated.
If no other state has jurisdiction, a state can assert jurisdiction if it is in the child’s best interest, with the child and at least one parent having significant connections to the state, and substantial evidence exists concerning the child’s well-being.
Additionally, the PKPA stipulates that once a state has properly issued a custody order in accordance with its provisions, no other state may modify that order as long as the original state retains jurisdiction over the case and the child or any contestant continues to reside there.
An Example of the PKPA
To clarify these points, consider a hypothetical situation where a mother and father, originally residing in Nevada, go through a custody dispute. Suppose Nevada courts award custody to the mother, and the father later moves to New Jersey. If the father seeks to modify the custody order in New Jersey, the courts there must first determine if the Nevada order was issued in compliance with the PKPA. If so, and if Nevada still maintains jurisdiction over the custody case (because the mother and child continue to reside there), then New Jersey cannot legally alter the custody arrangement.
Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)
The principles of the PKPA are further supported by the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which all 50 states have adopted. The UCCJEA sets forth the specific conditions under which a state can claim jurisdiction over a child custody case, generally requiring the child to have lived in the state for at least six months before the state can assume jurisdiction. It also covers emergency situations, providing a temporary jurisdiction if the child is present in the state and has been abandoned or needs protection due to threats of harm.
Conclusion
Through these legal mechanisms, the PKPA and UCCJEA provide a structured approach to resolving interstate child custody disputes, aiming to minimize conflicts, prevent forum shopping, and most importantly, serve the best interests of the children involved. These laws help ensure that custody decisions are made by the most appropriate court and that once made, they are respected across state lines, reducing the potential for the traumatic experiences associated with parental abductions and legal uncertainties.
Call Port and Sava, (516) 352-2999 for a free 15 minute telephone consultation.
