A Deeper Dive in the Recognition of Islamic Marriages in New York
Whether to recognize a marriage is a matter of state law, not federal. A marriage might not be legal in one state but could be legal in another. Since this is a New York legal blog, I will address New York Law.
New York will recognize a marriage if properly “solemnized.”
Understanding ‘Solemnization’:
In New York, a marriage is ‘solemnized’ when the parties declare in the presence of a clergyman or magistrate and witnesses that they take each other as husband and wife. If the person who performed the wedding was a recognized member of the clergy and there were witnesses present, the court would view this as a valid wedding.
Respect for Islamic Marriages
This law and policy of the state of New York values the intentions and cultural practices of its residents. By acknowledging the Islamic marriage ceremony as valid solemnization, New York law demonstrates respect for cultural and religious practices.
Impact on Islamic Marriages:
For the Muslim community, this is significant. It validates the religious ceremonies conducted in accordance with Islamic law, even when a civil marriage license is not obtained. This acknowledgment ensures that Islamic marriages are given equal respect and legal standing under New York law.
Proving the Islamic Marriage
In recent years there have been a number of divorces between Muslim couples where one party or the other tries to deny the validity of the marriage. Whether this is an attempt to avoid enforcing the Mahr or for other reasons. Typically, one party seeks for the court to dismiss the divorce action because no marriage license was ever filed.
The New York Domestic Relations law will recognize a marriage as long is it solemnized, as we discussed above. As a practical matter, the parties in this dispute will need to fight it out in a trial. Trials are very expensive and time-consuming.
A party who thinks they can win this argument merely because there is no marriage license is generally wrong. First, the court will consider the Mahr (more on that here). If a Mahr doesn’t exist, the party trying to prove the marriage can call as a witness the person who officiated at the wedding and the wedding guests. People have also produced receipts from the catering hall, and shown the court wedding pictures and videos. Further, living together afterward and declaring to the world that they are married are all proofs that the marriage occurred.
New York Courts Have Preference for Marriages
The New York courts have a preference to find a marriage if taking into account all the surrounding facts, the parties intended to be married.
Foreign County Marriages
If the wedding was legally recognized in the country where the ceremony was held, then New York will recognize the marriage.
Other States
There is a fairly recent decision from one of the New York Appellate Court which found that a marriage which was not valid under New Jersey law, was valid under New York law. New Jersey will not recognize a marriage without a property marriage license. However, if the parties marry in New Jersey and then live in New York, without ever getting a marriage license, New York may still recognize the marriage.
Key Takeaways:
Cultural Sensitivity: New York law shows a willingness to respect and incorporate cultural and religious marriage practices.
Legal Recognition: Islamic marriages without a civil license can be legally recognized in New York.
Jurisdiction Matters: The state where the couple resides and holds their matrimonial home plays a crucial role in determining the legality of the marriage.
Conclusion:
The general recognition of Islamic marriages without a civil license in New York is a testament to the state’s commitment to cultural inclusivity and legal flexibility. However, that does not mean that they will always recognize the marriage. The rules need to be followed and if a party cannot prove the property solemnization of the wedding, the court might not find a valid marriage.
Call Port and Sava for a Free 15 Minute Telephone Consultation, (516) 352-2999
As the number of followers of Islam increases in New York the courts are often being tasked with determining the question of enforcing a mahr. The New York courts have often had to address the intersection between civil divorce and religious marriage. While the courts have had extensive experience with Catholic divorces, the law involving Islamic marriages is still relatively new. Many lawyers and judges are still learning how to bridge this civil-religious divide when enforcing the New York equitable distribution laws.
The Essence of Islamic Divorce
Islamic divorces, like their counterparts in other faiths, are shaped by religious teachings and cultural traditions. At the heart of Islamic divorce law is the concept of the “Mahr” (or “Mehr”), also known as “Mehrieh.”
This religious agreement entails an agreed-upon sum, which could be money, property, or gold coins, to be given to the wife in the event of a divorce. This agreement serves as a financial safety net for the wife, ensuring her economic stability post-divorce.
Mahr Agreements: Their Legal Standing in New York
In New York, these agreements can be legally binding contracts, often catching those involved in Islamic divorces by surprise. These agreements often become central to divorce negotiations, with parties sometimes seeking guidance from religious leaders in their mosque.
When and how they are binding in a New York divorce depends on when, where, and how the agreement was created.
If the agreement was executed in New York, it must be signed and notarized by the parties in the same manner as a deed for real property.
In a case where a New York court upheld an Abu Dhabi Mehr agreement. The court stated that Mehr agreements if in line with neutral legal principles, are constitutionally sound and enforceable as contractual obligations. This ruling set a precedent for recognizing Mehr agreements, even those made outside the United States.
The Agreements and New York Law: A Complex Mix
New York courts recognize the enforceability of Mehr agreements, but not without complications. One court faced the challenge of an agreement executed in Iraq but not formally recognized under New York law and hence was initially unenforceable. However, the court applied comity, a principle of extending respect to foreign agreements unless they conflict with New York’s strong public policies.
Let’s break this down. Since the agreement was not signed and notarized by New York law, the court found it unenforceable under New York law. However, because it was properly signed and executed in Iraq, under Iraqi law, the court found that it could enforce the agreement under this principle of recognizing valid foreign agreements (“comity.”)
Interpreting The Agreements
The interpretation and application of these agreements in court can be intricate, especially given the varying interpretations of Islamic law. Some courts have had to consider the religious and cultural contexts of the Mehrieh to reach a fair decision, treating it as a distinct legal entity separate from typical prenuptial or postnuptial agreements.
Neutral Principles of Law
The “neutral principles of law” doctrine has been key in resolving disputes involving these agreements. This approach enables courts to apply established secular laws without delving into religious doctrines. This can be a tricky area for the courts. They are not allowed to issue religious decisions, yet, they must still be mindful of the cultural implications.
Controversies Surrounding Mehrieh Agreements
Despite legal recognition, these agreements remain controversial and sometimes difficult to enforce. Critics argue they may inadvertently encourage divorce or separation by providing a settlement only in such events. However, this view overlooks Mehr’s protective role for the wife’s financial interests.
Further, the laws regarding prenuptial agreements may also apply. As I explain in this article, prenuptial agreements are not always enforceable. The agreement cannot be enforced if obtained under duress, if manifestly unfair, or if fraud is involved. For a more in-depth treatment, please read the article on prenuptial agreements.
The Challenge of Duress
Allegations of duress are common in disputes over the agreements. Courts have ruled that duress exists if the party was unaware of the Mehr or its specifics until the signing, or if he could not comprehend the negotiations due to language barriers.
Civil vs. Religious Marriages: Legal Puzzles
The distinction between civil and religious marriages adds complexity to enforcing the agreements. If a civil marriage precedes the religious ceremony where the Mahr is typically signed, this sequence can affect the agreement’s enforceability.
The Future of Mahr Agreements in New York
The evolving recognition of Mahr agreements in New York reflects an ongoing effort to balance religious freedom, contractual obligations, and public policy. Future legal developments and societal shifts will likely continue to shape the role of Mahr agreements in New York.
Conclusion: Charting the Complexities of Islamic Divorce
Understanding Islamic divorce in New York requires a nuanced grasp of Islamic law, cultural practices, and New York’s legal framework for contract enforcement and matrimonial law. The varied cases discussed underscore the critical role of the agreements in resolving Islamic divorces.
Call Port and Sava for a Free 15 Minute Telephone Consultation (516) 352-2999
There is a lot of misunderstanding about what an Annulment, or marriage annulment is, and when it should be used. It is a legal holdover from a time when no-fault divorce was not available in New York. It is a process that significantly impacts a person’s marital status. Equitable distribution and maintenance (alimony) are still available to be awarded in an action for annulment. In this blog, I will discuss the pros and cons of annulment v. divorce. Spoiler alert: divorces are generally the better option.
What is Annulment?
Let’s start by describing exactly what an annulment is. It is a legal procedure that renders a marriage null and void. Unlike a divorce, which dissolves a legal marriage, it treats the marriage as if it never occurred. This can be crucial for individuals who wish to sidestep the societal stigma associated with divorce. But, I will repeat this several times, an action for annulment does not get rid of maintenance, equitable distribution, or issues of child custody and child support.
Grounds in New York
New York law provides several grounds to annul a marriage. Understanding these requirements is key in determining if getting one is possible in your case.
Age at the Time of Marriage
If one or both parties were under 18 at the time of marriage. However, this ground is waived if the parties continue to live together after turning 18, answering the question of how long can you be married and still get an annulment.
Mental Incapacity
A marriage can be annulled if one or both spouses lack the mental capacity to consent to the marriage. This ground can be invoked while the mentally incapacitated spouse is alive.
Physical Incapacity
If either spouse is physically incapable of consummating the marriage and this was unknown at the time of marriage. This request must be made within the first five years of marriage.
Consent Obtained by Force or Fraud
A marriage can be nullified if consent is obtained through force, duress, or fraud, or in cases of bigamy. Examples of fraudulent practices include marrying for immigration status or lying about the desire to have children.
Incurable Mental Illness
If a spouse has been mentally ill for over five years and the illness is incurable, an annulment can be sought.
The Legal Process
Annulling a marriage in New York requires a trial. This is unlike a divorce. New York is a no-fault divorce state, and the judge MUST always grant the divorce. The person filing must prove at least one of the grounds in court. A judge does not have to grant annul the marriage. In fact, if the person filing does not prove the case, then the judge won’t.
Notice, I use the term “person filing” and not “spouse”? That’s because an interested third party can file. Most frequently this is seen when an elderly relative marries a person whom it is alleged is taking advantage of them. In these cases, a child, or other relation will ask the court to declare the relative incompetent and void the newly entered marriage.
Submit the Necessary Paperwork
The process starts by filing an action in the Supreme Court. The other party is served and is given 20 days to answer. From there, unless one or the other party asks for a court conference, the matter will languish until that does happen. At the first conference, called the “preliminary conference” the court will set dates to exchange discovery. The conference will occur within 60 to 90 days of the request for it. This puts you around 100 days from the filing of the action.
The discovery will include the exchange of documents, perhaps depositions and motion practice. In addition to providing documents relating to the annulment, the court will also want disclosure on financial records to include, tax returns, bank records, pay stubs, business records, retirement accounts, etc. In other words, an exchange of all the financial documents required in a divorce. Again, in an annulment, the court will issue orders for equitable distribution of property and post-divorce maintenance (alimony).
Prove Your Grounds
The next step involves gathering evidence to support your grounds. This can include documents, witnesses, or medical reports.
Discovery can be very expensive as you will have to pay your lawyer to conduct it. There may also be motion practice as the other side may not be willing to voluntarily turn over documents.
Attend a Hearing
Finally, a hearing before a judge is mandatory. The judge will review the evidence and decide whether an annulment should be granted.
The trial will be expensive. Anytime your lawyer enters a courtroom to try a case, it will be expensive. If it is granted, then you will still need to deal with equitable distribution, maintenance, as well as custody and child support.
Effects of an Annulment
An annulled marriage is considered void, as if it never happened. This is what is meant by an annulled marriage. However, this does not affect the legitimacy of children born during the marriage. Both parents are presumed to be the biological parents of any children born during the marriage.
Additionally, the court can make orders for custody, visitation, and financial support of minor children.
Why Annulment is Difficult: Considering No-Fault Divorce
While the annulment, process may seem like a clean way to end a marriage, it’s not always the best option. Proving the grounds for an annulled marriage can be complex and requires a trial, making it a lengthy and potentially expensive process.
In contrast, a no-fault divorce allows spouses to dissolve their marriage without assigning blame. This can make the divorce process smoother and less contentious.
The Recurring Myths
There are two recurring myths about annulment. One is that the winning spouse will be vindicated. While I realize that a person may be hurt if deception was practiced, under the law, there is no “vindication.” There is only a legal result and a hefty legal bill. My advice is do not unnecessarily increase your legal bills, and the time to resolve the litigation merely because you want emotional satisfaction. Emotional satisfaction is moving on with your life, not paying for your lawyer’s new car.
The second is that with an annulment there is no equitable distribution, post-divorce maintenance, or other orders. The false belief is that an annulment is like an eraser. This, as I have pointed out many times is utterly false.
When is an Annulment a Necessity?
As I have discussed above, there are times when a third party will intervene. One example is when underage children marry. In that case, the parents can file to annul the marriage.
The second, and more common situation, is the mentally incapacitated person who gets married. Here, if a guardian has already been appointed, the guardian will apply for the annulment. If no guardian has been appointed, the relatives will move to get a guardian appointed
Conclusion
Understanding the annulment process and the annulment laws in New York, including both religious annulment and legal annulment, is crucial when deciding how to end a marriage. While it may appear that an annulment can provide a fresh start, it’s not always the easiest or most practical solution.
Call Port and Sava (516) 352-2999 for a free 15-minute consultation.
Not Married But Living Together: Breaking up is Hard to Do
People think it is easier when they are not married but living together. Unfortunately, that is not always the case. Sometimes it is harder and more expensive to break up when unmarried but living together than to get a divorce. In fact, there may be greater pitfalls to not getting married, than when an unmarried couple breaks up. When unmarried couples in New York face a breakup, understanding the legal landscape regarding property rights, especially for shared real estate, is crucial.
To be very clear, New York DOES NOT RECOGNIZE COMMON LAW MARRIAGES. You are either married by a person authorized to perform a marriage, or you are not married. When you are unmarried and living together, you are NOT married and do not get any of the protections afforded to a married couple.wl
This article aims to provide a friendly yet professional overview of these rights under New York law, focusing on scenarios where both parties are on the deed and when only one party is on the deed.
Buckle up, this is unfortunately a long article.
1. Joint Ownership: Both Parties on the Deed
Not Married but Living Together: Less Rights than Marriage
In New York, if people are not married but living together buy a house together and both names appear on the deed, they are considered joint tenants or tenants in common. This distinction is vital in understanding each party’s rights upon separation. A married couple automatically buys a house as “Tenants by the Entirety.” This is similar to Joint Tenants.
Unlike Tenants by the Entirety, whether to be joint tenants or tenants in common is not automatic. You have to tell your lawyer before the deed is drafted and signed.
Joint Tenancy vs. Tenants in Common
Joint Tenancy: In this arrangement, both parties own the entire property together. If one party passes away, the other automatically inherits the entire property, a right known as the right of survivorship.
Tenants in Common: Here, each party owns a specific share of the property (not necessarily 50/50). There is no right of survivorship, meaning if one party dies, their share passes according to their will or state law if there is no will.
Resolving Disputes When Unmarried but living together
When parties are not married but living together, the issue of a house is very complex. The way the law treats a house owned by parties unmarried but living together is fundamentally different from how it treats it with a married couple.
By the way, the rules I’m setting out below work for any group of people who jointly own property, including siblings, parents and children, business partners, etc.
When a couple is married and gets divorced, the Divorce Court has more flexibility. The Judge can sell the property by hiring a realtor to get the best and highest price. The judge can also trade assets. For example, let’s say the Husband’s share of the house is $150,000 and the Wife’s share of his pension is $150,000. The court can trade the two so that the Husband walks away with his pension and the Wife walks away with the house.
This type of flexibility is simply not available when the parties are not married but living together.
Upon breakup, the parties can agree to sell the property and divide the proceeds. If they cannot agree, one party may file a partition action in court. The court can order the sale of the property and divide the proceeds according to each party’s contribution or agreement.
The Partition action is not pretty.
The Partition Action: The Cons and the Cons (not really any Pros)
Lawyers hate partition action on residential homes because there are no winners. The idea of a partition action arose from farmland. Unfortunately, the law has not kept pace with the reality of unmarried people buying houses together and then splitting up. The original idea was that, if say you and your business partner had 100 acres of land, but couldn’t work together anymore, the court would give each of you 50 acres.
Clearly, this doesn’t work for a residential home bought by a couple who is not married but living together, or as I said above, any group of people owning property. The house has to be sold.
Any co-owner of real property can file a partition action, regardless of the type of property (residential, commercial, or undeveloped land). As mentioned above Co-ownership can arise from a variety of sources not just with people who are not married but living together, such as:
Inheritance
Joint purchase
Business partnership
Dissolution of a partnership or limited liability company
Filing a Partition Complaint
To file a partition action, the plaintiff must file a complaint in the Supreme Court of the county where the property is located. The complaint must identify the property and all of the co-owners. The plaintiff must also serve the complaint on all of the other co-owners.
Court Appointment of a Referee
Once the complaint is served, the court will appoint a neutral third party, known as a referee, to evaluate the property and make recommendations on the most appropriate partition method. The referee will typically visit the property and inspect it. The referee may also order an appraisal of the property. The referee is paid for by the parties. So, in addition to paying for your lawyer, you will have to split the cost of the referee.
Referee’s Report
The referee will submit a report to the court detailing their findings and recommendations. The report will typically address the following issues:
Whether the property can be physically divided
If the property can be divided, how the property should be divided
If the property cannot be divided, whether the property should be sold and the proceeds divided among the co-owners
Court Decision
Based on the referee’s report, the court will issue a judgment determining the appropriate method of partition and outlining any necessary steps to complete the process.
Partition by Sale
If the court determines that the property cannot be physically divided, or if the parties cannot agree on a physical division, the court will order a partition by sale. In a partition by sale, the property is sold and the proceeds are divided among the co-owners in proportion to their ownership interests.
The sale is an auction on the courthouse steps. When a realtor sells the property, s/he is seeking the best and highest price. That doesn’t always happen at an auction.
The house may be sold for undervalue, and in fact, be sold for under the outstanding balance of the mortgage. That means, the parties no longer own the house, but are still liable for the mortgage.
As I said, when there is a partition, there may not be any winners.
2. Single Ownership: One Party on the Deed
Legal Considerations
Situations where only one party is on the deed are more complex. The non-titled partner may still have rights based on contributions to the property’s purchase or maintenance.
When parties are married, all property acquired during marriage is marital property regardless of whose name is on the deed.
But, when the parties are not married but living together, the person whose name is on the deed is the owner. Period.
Establishing a Claim
The non-titled partner must prove their contributions to have a claim. This can include financial contributions towards the mortgage or significant contributions to the property’s upkeep and improvement. This is not easy and does not always work.
Legal Remedies
Constructive Trust: A court may impose a constructive trust if it finds that the non-titled partner made contributions with the expectation of a shared interest in the property. This is very complex and very difficult to establish. You really need to consult with an attorney who knows this area of the law, and not hire someone who will wing it.
Partition Action: While typically used for joint owners, a non-titled partner who establishes a claim may seek a partition action to receive a portion of the property’s value. This is also tough. You will have to convince the judge that you have an “equitable ownership” in the property, mainly but creating a constructive trust. Again, this is very tough
3. Legal Agreements
The Role of Cohabitation Agreements
Unmarried couples are encouraged to have a cohabitation agreement. This contract outlines each party’s rights and responsibilities regarding property and can be crucial in resolving disputes efficiently.
If you really, really don’t want to get married, and really want to buy a house together, go to a lawyer and get a cohabitation agreement. Yes, you can save money and pull a blank from the interest. But, do you really want to take a chance when hundreds of thousands of dollars are on the line?
Enforceability and Requirements
A cohabitation agreement must be in writing, signed by both parties and executed voluntarily. It should be clear, specific, and fair to be enforceable. Courts are very strict when examining and applying contracts to real property. Again, you are strongly advised to get an attorney to draft the agreement.
4. Protecting Your Rights
Legal Representation
Considering the complexities of New York property law, seeking legal counsel is advisable. An attorney can provide tailored advice and represent your interests, whether in negotiating an agreement or litigating a dispute. Yeah, I keep beating this drum. But, when a client walks into my office with an internet document one of two things happens:one, I can’t help them because the matter is totally screwed up or two, I can help but the cost is greater than if they’d used a lawyer in the first place.
Documentation
Maintain thorough records of all contributions towards the property, including mortgage payments, renovations, and major repairs. This documentation can be pivotal in establishing your claim.
5. Conclusion
Navigating property rights in the context of a breakup for unmarried couples in New York requires an understanding of the legal framework and the different scenarios that can arise. Whether both parties are on the deed or only one, there are legal avenues to protect your interests. Having a cohabitation agreement and seeking legal advice are key steps in ensuring a fair resolution.
Not married and living together may seem like an easier option, but as seen above it can lead to greater complications. My advice? Don’t buy a house together and if you are going to do that, then get a cohabitation agreement
If you have questions, call us at Port and Sava at (516) 352-2999 For a free 15 minute telephone consultation.
Understanding Grandparents’ Rights to Visitation: A Legal Blog
The issue of Grandparent’s rights, and more specifically what are the rights of grandparents to see their grandchildren is asked a lot. The short answer is that the right of a grandparent to see or get custody of their grandchild depends. I’ve addressed some issues in a previous article https://nydivorcefacts.com/grandparents-rights/. Legal Zoom also has a good basic article on the topic
However, since the questions still come up, I thought I’d take another look at the issues. Also, I will solely focus on New York law. Different states have different rules.
The Bedrock of Grandparents’ Visitation Rights
Starting at the beginning, originally, grandparents did not have an inherent right to visitation with their grandchildren. But, over the years the law has evolved as people have pushed for grandparent’s rights. The question of “what are the rights of grandparents to see their grandchildren” has gone from “none” to “possibly visitation or even custody.”
At the heart of the legal system’s approach to grandparents seeking visitation rights is a principle of equity – fairness, in common parlance. Courts are guided by what is fair and just under the circumstances. For grandparents, this means they must demonstrate a meaningful existing relationship with their grandchildren or show they have made substantial efforts to establish one when such efforts have been thwarted by the parents.
The Two-Pronged Test for Grandparent’s Rights to Visitation
Sufficient Existing Relationship: If grandparents can prove a significant ongoing relationship with their grandchildren, they lay the groundwork for the court to intervene. Such relationships are often demonstrated through a history of regular visits, caregiving, or consistent communication.
Sufficient Effort to Establish a Relationship: When parents impede the relationship between grandparents and grandchildren, the law requires grandparents to show they have done everything reasonably possible under the circumstances to maintain that connection. This could include frequent attempts to reach out to the grandchildren through calls, messages, or other means of communication.
Grandparent’s Rights Case Scenarios: From Standing to the Child’s Best Interests
In legal terms, ‘standing’ refers to the right to bring a case to court. To gain standing, grandparents must pass the two-pronged test mentioned above. Once standing is established, the court will then consider what serves the child’s best interests.
Consider a grandmother who has been part of the child’s life from birth until a falling out with the parents. If she then makes regular attempts to maintain contact, the court is likely to find she has standing for visitation rights. The grandmother’s actions reflect a clear intention to remain part of the child’s life, showcasing the law’s preference for maintaining existing familial bonds when it’s feasible and reasonable.
However, a grandfather who has had little contact over several years with his grandchildren is unlikely to meet the threshold required for standing. The law expects proactive and consistent efforts to maintain a relationship, not sporadic or minimal attempts.
Grandparent’s Rights: Equity, Efforts, and Existing Bonds
The concept of equity remains a central theme in the discussion of grandparents’ rights. Courts look for fair and equitable circumstances to justify their intervention. When a grandparent demonstrates ongoing, loving involvement in a grandchild’s life, equity tends to favor allowing that relationship to continue, barring any countervailing concerns about the child’s welfare.
When Efforts Are Met With Resistance
It is particularly challenging when grandparents have to prove their efforts in the face of parental opposition. The law understands that there can be genuine cases where parents may unjustifiably prevent a healthy grandparent-grandchild relationship. In such instances, the grandparent’s persistence is key. The court examines whether the grandparents have consistently attempted to overcome the barriers erected by the parents.
Best Interests of the Child: The Ultimate Decider
Once standing is established, the focus shifts to the best interests of the child. This involves a holistic look at the child’s needs, including emotional and psychological well-being. Regular contact with a loving grandparent can be beneficial, but each case is assessed on its merits. Sometimes, despite a grandparent’s best efforts and intentions, the court might conclude that visitation is not in the child’s best interests, especially if it disrupts the child’s stability or involves conflicting familial dynamics.
The Grandparent’s Burden of Proof
When trying to establish Grandparent’s rights to visitation the onus to prove they deserve the court’s intervention lies with the grandparents. This isn’t a mere assertion of affection or a generic claim of attachment. It’s a substantive demonstration of an ongoing, meaningful relationship or significant efforts to create one. The grandparents must present concrete evidence of their involvement or attempts at involvement in their grandchild’s life.
The Court’s Discretion in Granting Visitation Rights
It’s important to recognize that the court has broad discretion in determining whether the equitable circumstances necessary for granting visitation rights exist. This discretion allows the court to tailor its decisions to the specific facts of each case, considering the unique dynamics and history of the family involved.
Conclusion
As can be seen from this article, when both parents are still alive, the answer to the question of “What are the grandparent’s rights to visitation” is not easy or clear. The law, while complex, strives to honor and protect these relationships, balancing the need for family continuity with the paramount importance of a child’s welfare.
The grandparent fighting for custody must be able to demonstrate they have and have had a relationship with the grandchild. That is critical. And the grandparent must show that the relationship is beneficial to the children.
Keep in mind that the Judge has broad discretion in this area. Being able to convince the judge is the key to winning the case.
Understanding these legal principles empowers grandparents to navigate their rights and responsibilities and enables parents to understand the scenarios under which the courts may intervene.
For grandparents, the path to securing visitation rights is paved with evidence of love, effort, and persistence. It’s a journey that requires demonstrating not only a desire to be part of a grandchild’s life but also taking concrete steps to make that a reality. For those grandparents faced with legal hurdles, knowing the foundational principles can be the first step towards maintaining that precious bond with their grandchildren.
If you have questions, please call Port and Sava for a free 15 minute telephone consultation at (516) 352-2999
During the course of the day, I get a lot of phone calls asking about the divorce process. Most of the call is spent debunking divorce myths. The divorce process is not as mysterious or as unfair as the media shows. Let’s be honest, TV and movies demand drama, and the divorce process, often, is very undramatic. People can be dramatic but the law is pretty straightforward. It is because of these divorce myths that people get afraid, bullied or fight for things for which they simply are not entitled to receive.
There are 11 basic myths about the divorce process. These myths have about as much basis in reality as a unicorn. Hopefully, after reading this article (hey, also look at the great video our team made as well), you can breathe a little easier and realize that divorce is not the end but is a new beginning.
Myth #1: The Non-Working Partner Gets Nothing
A widespread myth suggests that if you aren’t working during the marriage, you’ll walk away empty-handed after a divorce. A lawyerly way of describing this myth is that is a “misconception.” Another way to put this is “a lie.”
I often hear this one from women who have stayed home to raise the children. The husband has threatened that in the divorce “you will get nothing because you didn’t work.” This threat is used to bully and harass the spouse. First, thing, this is a lie. Period. It is merely bullying and is not the law. Let me repeat, in the divorce process, the nonworking spouse will NOT be denied equitable distribution of the marital property.
Often in marriages, one partner opts to stay at home, usually to manage the household, potentially raising children or other relatives, and providing crucial family support. In New York law, this personal contribution to the marriage’s welfare has long been recognized both by statute and case law. It plays an essential role in equitable distribution and maintenance.
In the Divorce Process, the nonworking Spouse’s essential role as a homemaker is recognized.
New York law ensures that the non-working spouse’s essential role in the partnership is not overlooked and that they receive a fair share of marital assets and maintenance, paving a path towards securing their financial future in the divorce process. The critical role of a non-working spouse in a marriage is intrinsically valuable and the New York legal framework ensures that it is rightly acknowledged.
Courts often strive to ensure both partners can maintain a standard of living close to what they experienced during the marriage. This principle is executed through the concept of maintenance or spousal support. Factors like why one spouse wasn’t working, their education, and potential to earn in the future are all considered. Remember, each case is unique, and there’s no one-size-fits-all approach.
Myth #2: Mothers Always Get Child Custody
I’ve devoted an article to child custody in the divorce process as well as when the parties were never married. Whether the parties were married or not, the law is the same.
Mothers do not always get custody. Mothers do not automatically get custody. A mother does not have superior rights to the father.
I’ve seen mothers get their heads ripped off by judges when claiming that they have greater rights than the fathers. And that’s by women judges.
In the New York divorce process, child custody decisions are based on what is believed to be in the best interest of the child. This principle manifests in a detailed evaluation of various factors.
The “best interest of the child” standard aims to ensure the child’s safety, happiness, mental well-being, and moral and intellectual development. This standard recognizes that every child is unique and each family situation is distinct, thus, what may be in the best interest of one child may not apply identically to another.
When deciding on child custody, New York courts usually take into consideration the following factors:
The physical and mental health of both parents.
The ability of each parent to provide for the child’s emotional and physical needs.
The willingness of each parent to encourage and allow frequent and continued contact between the child and the other parent.
Any history of domestic violence.
The child’s established living pattern and quality of home environment.
Depending on the child’s age and maturity level, the child’s preference might also be considered.
Joint vs Sole Custody: New York law expresses a preference for parents to share as equally as practically possible in the custody of a child in a divorce case. However, in some situations, the court might grant sole custody to one parent if it is determined that it would be in the best interest of the child.
Times have changed, and so have the norms. Custody decisions are based on the child’s best interest, not gender. Factors like the ability of parents to provide stability, their parenting skills, and even their working hours can influence the decision. Today, joint custody, where both parents share responsibilities, is gaining traction.
Myth #3: Once You File, There’s No Turning Back
Deciding to file and going through the divorce process doesn’t mean reconciliation is off-limits. Many couples attempt to mend their relationship even after initiating the divorce process. Counseling or therapy can often help couples communicate better and decide on their future course.
There was a non-retired judge in Brooklyn who was famous for convincing couples to reconcile right in his courtroom! I’ve even had clients get remarried about the divorce.
Myth #4: Someone Has to be at Fault
Previously, to go through the divorce process one needed to prove reasons like infidelity or cruelty to get a divorce.
New York once required proof of fault for a party to be granted a divorce. However, as of October 2010, New York law has allowed for “no-fault” divorce, simplifying the divorce process and reducing potential acrimony or distress caused due to attributing blame for the marital dissolution.
The introduction of the no-fault into the divorce process means that you no longer need to prove any allegation of wrongdoing by your spouse to file for divorce. Instead, one party just needs to state under oath that the relationship has irretrievably broken down for at least six months. In the divorce process, this is done in the complaint, and later in the Affidavit of the Plaintiff.
Crucially, under the no-fault divorce law, the misconduct of a party does not play a role in maintenance (formerly known as alimony) or equitable distribution (the division of marital assets). The court is directed to consider a list of other factors to determine a fair allocation of assets and setting of maintenance. These considerations include the length of the marriage, the income and property of each party, the parties’ ages and health, and the present and future earning potential of both parties, among others. Past misconduct, however, is not on the list.
However, domestic violence may play a role. I’ve got an article on that here. This is a recent change to the law, and its effect on the divorce process is still uncertain. As more judges publish decisions on this new law, it should become a little clearer.
Myth #5: Assets are Always Split Down the Middle
This myth is a little murkier. In the divorce process, the court tries to be fair, but fair doesn’t always mean equal. It’s important to note that equitable distribution doesn’t necessarily mean equal distribution. The court aims for a result that’s fair and just, recognizing that each party’s contributions to the marriage can’t always be measured qualitatively. Similarly, maintenance orders are designed to provide financial assistance based on need, rather than punishment or reward for marital conduct.
Asset division isn’t always a straightforward 50/50 split. The court considers various factors, like each partner’s financial stability, marriage duration, and child custody outcomes, to name a few. It’s about fairness, not necessarily equality.
Let’s take some basics: most marriages involve a house and some type of retirement, like a pension or 401(k). Any house bought during the marriage will generally be considered marital and pretty much split equally. There may be modifications for your individual case depending on where the down payment came from. You need to talk to a lawyer to nail this down.
The pensions and retirement assets earned during marriage will be split. Money earned before or after is separate property under the divorce process and not subject to division.
Sometimes we split everything down the middle, other times we swap items of similar value. May times, particularly in my cop divorces, the cop will take his/her pension and waive off an equal share in the house. The practical effect is that the cop gets the pension and the spouse gets the house. We can do all sorts of mixing and swapping of assets.
Myth #6: All Divorces are Warzones
While some divorces can be challenging, many couples manage to find common ground. Methods like mediation and collaborative law are helping couples approach divorce in a more amicable manner.
Most of my divorce colleagues will tell you this simple fact: “I know how the divorce process works. I can settle your case for X dollar or we can litigate this and you will spend 10 or 20 times that amount to get a similar result.” For example, an uncontested divorce can range between $5,000 to $10,000 on average. (Depending on your facts it could be more or less.) However, that same $5,000 uncontested can be $100,000 if it becomes contested, and the result will be nearly the same.
Recently, I settled a divorce on the identical terms that I proposed three years ago. The difference is that the spouse caused my client to incur close to $100,000 in legal fees, and for her to incur the same. That was almost $200,000 wasted for no good reason.
Myth #7: Divorcees Can’t Grieve
Ending a marriage can be emotionally taxing. It’s essential to understand that grieving post-divorce is natural and part of the healing process. There’s no shame in seeking support during these times. I often advise my clients to seek support groups. You’d be surprised how much better you’ll feel when sharing and being supported by people who’ve been where you are now.
Myth #8: Divorce Equals Failure
Choosing to end a marriage doesn’t mark one as a failure. Often, it’s a brave decision, signaling self-awareness and prioritizing well-being. Mistakes happen. People change. Being miserable is no solution.
Myth #9: One Spouse Can Stall the Divorce
A common belief is that if one partner isn’t on board, the divorce can’t proceed. This isn’t true. While one spouse might contest some elements, they can’t block the entire process.
You have to understand that one of the most important players in the divorce process is the judge. The divorce judges work hard. They work very hard. In my personal opinion, I think divorce and family court judges have the hardest jobs and they are all incredibly dedicated.
That being said, they also have enormous caseloads. They don’t have time for nonsense and game-playing. The judge is always looking for a way to resolve or settle the divorce. In fact, most divorces do end in settlement. I’ve have settled a lot of divorces in the courthouse under the eye of the judge.
Myth #10: You Must Divorce in Your Marriage State
You don’t need to get divorced where you got married. Typically, you can file for divorce where you or your spouse resides. New York requires that at least one party have lived in New York for at least one year.
Myth #11: Divorce Lawyers are Out to “Win”
Contrary to popular belief, divorce attorneys aim to guide their clients toward a fair resolution, not just a “victory.” Their role is to ensure client’s rights are protected and respected.
Most of my colleagues are decent and honorable people who work hard to achieve a fair resolution. However, there are lawyers who deliberately spin up a client with the goal of jacking up the attorney’s fees. They are easily spotted. A lawyer tells you that they are seeking a quick and fair resolution for you under the law and is probably not seeking to jack up the fees. But, if the lawyer stokes your anger, and promises to take your spouse for “everything they have” then you may want to look for a new lawyer.
In Conclusion
The divorce process can be painful and bewildering. But, being able to separate fact from fiction will arm you in this process. The more you know, the more confident you will be, and then better able to make informed decisions.
If you have questions, please call me at Port and Sava, 516-352-2999 for a free 15-minute telephone consultation.
When a parent is not paying child support a civil contempt charge can significantly impact the situation. A parent who is delinquent in paying child support can be punished by being sent to jail. Let’s repeat that, the punishment for not paying child support can result in being incarcerated.
Which Court Ordered the Child Support?
This issue of not paying child support starts with which court issued the order and in which court is the order being enforced. In New York, divorce is governed by the Domestic Relations Law, and enforced by the Supreme Court. A Family Court Order of Support is governed by the Family Court Act and is enforced by the Family Court. I have an article on the differences between the two. However, a Supreme Court Child Support Order can be enforced in the Family Court, and a Family Court Order can be enforced in the Supreme Court. Yes, I recognize that this is a bit confusing, but I didn’t make the law.
Which court is being used to enforce the child support order will determine both the procedures used and in some cases the punishments.
Leveraging Domestic Relations Law Section 245 for Civil Contempt To Punish Not Paying Child Support
Under Domestic Relations Law Section 245, one spouse can invoke Judiciary Law Section 756 to initiate proceedings against their ex-spouse for failure to meet financial obligations which can include not paying child support. It is also used to enforce non-payment of other non-child-related items under the Judgment of Divorce.
This approach has been widely employed as the threat of fines or imprisonment often compels compliance with divorce-related financial responsibilities. However, it should be emphasized that if the accused spouse’s constitutional rights are compromised during this process, the charge may be subject to reversal.
I like to use this approach if the ex-spouse has failed to pay for a number of things, not just child support. For example, the ex-spouse was ordered to pay money or turn over a deed. Since the Family Court has no power over these items, I will include the nonpayment of child support as just one more thing.
Using the Family Court to Collection for Not Paying Child Support
If you are just seeking unpaid child support, then the Family Court route is the best, and fastest option. The Family Court is designed to deal with support and has streamlined tools to deal with a failure to pay child support.
To enforce child support in Family Court, the custodial parent merely files a violation petition seeking contempt. You will need a copy of the child support order.
The Burden of Proof to Show Delinquent Child Support Payments
The initial burden of proof is on the custodial parent. That parent must show that there is a valid court order of support. Then they have not received support from the noncustodial parent.
The burden shifts to the custodial parent to show payment. If that parent cannot show payment then they are in serious jeopardy of being found in contempt.
The court can determine that non-payment is willful. Once the court determines that the nonpayment is willful, the court can send the noncustodial parent to jail for 90 days.
Many people mistakenly believe that if they are sent to jail the child support obligation is erased. It is not. Going to jail does not zero out the balance. If the noncustodial parent owes $10,000 and is sent to jail, not only will that $10,000 bill be waiting for them when they are released, but they will also face an additional 3 months of child support arrears.
Crafting a Defense in Nonpayment of Child Support
Individuals facing a contempt charge have several options for mounting a defense. It is imperative to be aware of the available strategies to safeguard one’s rights. Here are some common defenses:
Inability to Pay: Demonstrating genuine financial hardship may serve as a valid defense. However, substantial evidence of financial difficulties is required. This is very tough, and absent serious medical conditions, it rarely works. Even loss of employment is generally not enough. If the noncustodial parent loses a job the court expects them to immediately go to court to file for a downward modification.
Significant Life Changes: If significant life events, such as a substantial income reduction or unforeseen expenses, have occurred, they may be used as a legitimate defense. Nevertheless, strong supporting evidence of these changes is essential. Again, this is very tough.
Lack of Notification: Proving that one was not properly informed about the court order or the consequences of non-compliance can be a valid defense. However, it is crucial to establish a genuine lack of awareness rather than mere neglect or disregard. This is almost always a loser as the noncustodial parent is generally in court when the order is issued.
Conclusion
Civil contempt proceedings are a potent tool for enforcing financial obligations in divorce cases. Understanding the distinctions between the Domestic Relations Law and the Family Court Act is essential when navigating these legal processes. Familiarizing oneself with the burden of proof, available defenses, and the potential avenues for challenging a contempt charge is crucial to protecting one’s rights and ensuring fair treatment.
It is advisable to seek guidance from a qualified legal professional in any contempt case to secure the best possible outcome. If you are seeking contempt against a nonpaying parent or subject to a contempt proceeding you need to consult with an attorney. Call Port and Sava at (516) 352-2999 for a free 15 minute consultation.
Tri-Party Custody in New York: A Glimpse into the Future of Family Law
Tri-party custody, an emerging legal construct where three parties typically encompassing a man, a woman, and another individual collaboratively conceive and raise a child, has increasingly become a focal point in New York’s legal landscape. This arrangement doesn’t just split responsibilities between three people; it demands a rethinking of traditional custody rights, especially when the triad’s dynamics are challenged legally.
To understand the current confusing area of the law, we need to briefly look into the past, as people seeking this article want practical facts rather than abstract thoughts.
In the not-so-distant past, the legal landscape was quite different concerning the rights of same-sex couples. Specifically, until the Marriage Equality Act, the law in this state did not permit same-sex marriages. Moreover, within this context, if a child was biologically related to one partner, the other partner, if unmarried, was not granted the legal right to adopt the child. Consequently, any individual in a same-sex relationship who wasn’t biologically related to a child had no standing to petition for custody or visitation rights, adhering strictly to the New York Court’s definition of “parent” as outlined in the Alison D. decision.
Same-Sex Parents Recognized
This changed with the 2016 decision by the Court of Appeals, in the Matter of Brooke S.B v. Elizabeth, A.C.C. The gist of this decision was that a non-biological woman could be considered the mother of her partner’s child.
I recently reread the Brooke S.B. v. Elizabeth A.C.C. case. As someone who strongly believes in the importance of recognizing the diverse forms of families in today’s world, I remember very distinctly how this case particularly struck a chord with me. It recognized the reality and importance of a non-biological parent.
The case essentially revolved around the definition of a ‘parent’ and the rights associated with that title, especially in non-traditional family structures. As families evolve and change, so should our legal understanding and acknowledgment of them.
The Definition of “Parent” and its Impact on Tri-Party Custody
This concept of “parent” under the law is critical to understanding tri-parent custody. In the Brooke S.B. case, the Court of Appeals looked at the statutory definition of “parent.” Under the law, only a “Parent” can go to court to seek parental rights, such as custody and visitation. This is the concept of “standing.” Now, you can see the impact on tri-party custody. Only a “parent” has “standing” to go to court to get custody or visitation.
The Court made it clear when it determined that a non-biological mother could be a parent, it was not creating a free-for-all, where any non-biologically related person could assert a right to custody or visitation. Instead, the Court recognized that a child may not be best served by restricting the definition of “parent” to traditional heterosexual relationships.
In a significant ruling, the court has expanded the interpretation of the Domestic Relations Law § 70. It now allows non-biological and non-adoptive parents the right to petition for custody and visitation of a child. However, this change comes with a caveat. The court emphasizes that only under specific circumstances can someone be recognized as a “parent” under this law. This is essential, given the inherent rights that biological and adoptive parents hold.
It’s crucial to highlight that while this ruling broadens the definition of a parent, it does so cautiously. The court wants to ensure they aren’t undermining the rights of biological and adoptive parents. As Judge Kaye pointed out in her dissent in the Alison D. case, any expansion to the definition of ‘parent’ should be approached with precision and restraint.
Legal Standing for a non-Biological Parent in a Tri-Party Custody Dispute
Now, that we’ve identified the law and some of our terms, we can discuss where a non-biological parent in a Tri-Party relationship can seek custody or visitation.
Unfortunately, the New York Legislature has not passed any laws on this vitally important topic. And to make matters worse, the top court, the Court of Appeals has not spoken on it. Instead, we have a number of lower court decisions that have taken different positions.
There are a few Tri-Party arrangements but we will focus on the two most common: two mothers and one dad, and two dads with one mother.
If the LGTBQ parties are married there is a presumption of legitimacy. This is a fancy way of saying that a child born to a married couple will be considered the child of both parties in a marriage. In a lesbian marriage where the father is anonymous or has specifically waived his parental rights, both mothers stand on equal footing.
Things are a bit more complicated with a Gay relationship as the biological mother is always known.
A lower court in Suffolk County, on the other hand, found otherwise. In that case a husband and wife formed a triad with another woman. She bore the child and the child was raised by the triad. Then the husband and wife divorced, and the two women moved out and formed a couple. The ex-wife, who was the non-biological mother petitioned for parental rights. This judge found that “Indeed, tri-custody is the logical evolution of the Court of Appeals’ decision in Brooke S.B., and the passage of the Marriage Equality Act and DRL § 10–a which permits same-sex couples to marry in New York.”
If you are in Western New York, there are no tri-party tri-custodial parental rights but it may be recognized in Suffolk.
Conclusion
I think there may be a solution. The parties to the Triad should get a written custodial agreement drafted by a lawyer and signed by the parties. The 4th Department cases discussed that there was no agreement between the parties. I think that they raised the possibility that the decision may have gone differently if there had been such an agreement.
Since this issue of tri-party tri-custodial parenting arrangements in a triad is still in flux, it is best to be cautious. Before or during the pregnancy it would be smart to get a formal agreement. Then if things do break down, you will at least have a written contract to take to the court. Again, and I stress this, while I think an agreement would solve the problem, ultimately it will be up to the judge to determine. We will remain in this flux until the Legislature acts or the Court of Appeals makes a definitive ruling.
Call Port and Sava for a free 15-minute telephone consultation at (516) 352-2999. We can help you discuss the options available and how to deal with this tricky but vitally important topic.
Navigating a military divorce? You’re not alone in finding it a tad complex. Even seasoned divorce attorneys sometimes find military divorces challenging. There’s a lot of misinformation about the military’s role in these divorces, so let’s demystify some of that, especially around topics like military pay, pensions, and VA disability payments.
The Military does not involved itself in divorces
The term “military divorce” is not really accurate. The military does not get involved in divorces. However, military law, regarding pay, retirement and disability does plan a huge role. We will be addressing how that law applies to divorces.
The Military does get involved in domestic violence allegations, by issuing Military Protective Orders (MPO), separating an accused abuser, and sometimes even court-martialing them. The Military will also EROD (Emergency Return of Dependents) family members back to the states from overseas when the domestic violence is particularly severe.
Legal Assistance for Military Members
One of the benefits for military personnel going through a divorce is the availability of legal assistance at their respective bases. The Army, for instance, has a commendable system in place. These legal teams can assist with mediation, child custody advice, and even notary services. If this applies to you, it’s worth reaching out to your base’s legal center.
The Servicemembers Civil Relief Act (SCRA) is a pivotal law for military members during a divorce. It offers protections, such as if you’re deployed and can’t make a court date. However, it’s essential to note that being in the military doesn’t guarantee a pause in your divorce proceedings. With modern technology, participation is possible from almost anywhere.
The service member will have to show that the military service has a direct impact on the ability to participate in the divorce, and inform the court when they will be ready to be able to participate in the future. The courts will not merely accept the service member’s word. They will want a letter or even to talk to the commander.
I’ve only seen one military divorce where the judge temporarily suspended divorce proceedings. The wife was a cook with the 82nd and they were going wheels up to Haiti. The judge got the company commander on the phone, and was told that the wife would be unavailable for one month. The judge adjourned the matter for two months.
The Uniformed Services Former Spouse Protection Act (USFSPA)
Another crucial piece of legislation is the USFSPA. The key point here? The division of your military retirement pay is influenced by the state where the divorce occurs. And while VA disability isn’t directly divided in a divorce, it can factor into child support or alimony calculations.
Prior to the USFSPA military retired pay was not divisible in a divorce. But, in the mid-1980’s Congress changed that to allow military spouses to get a share of the military retirement, just as spouses in the civilian world can.
I’ve a very detailed article on division of military retired pay under New York law. Just click the Hypelink
The Short Story is that a Judge can divide a military retirement in a divorce. The formula is to take the years of marriage divided by years in the service at the time of the divorce. For example, 10 years of marriage, and 20 years of service at the time of divorce gives us 50%. The spouse gets half or 25%. If there are 10 years of marriage and 10 years of service then the spouse gets 50% of the retirement as if the servicemember retired at 10 years.
The law creates a fiction: it assumes the service member retires on the date of the divorce, not when they actually retire.
The Ten Year Rule: Fact from Fiction
There is a myth that if a service member has been married for 10 years their spouse gets half of the retired pay. This is a simply not true. Anyone who tells you this has no clue what they are talking about.
There is a 10 year rule but is something entirely different. If a service member has to pay a portion of their military pay to a spouse, it is easier if DFAS does it directly. However, DFAS won’t unless the parties were married for at least 10 years with 10 years overlapping with 10 years of military service. When DFAS won’t pay the ex-spouse, then the retiree will have to make monthly direct payments.
The 20/20 Rule
The Military also provides certain benefits, such as medical, commissary, exchange, and theater privileges under the Morale, Welfare, and Recreation program for un-remarried former spouses who meet the requirements of the 20/20/20 rule. The so-called “20/20 Spouse.”
This rule states that the former spouse must have been married to the military member for at least 20 years, the military member must have performed at least 20 years of creditable service, and the marriage must have overlapped with at least 20 years of the member’s retirement-creditable service. The USFSPA also outlines eligibility for TRICARE medical coverage for former spouses under certain conditions.
Impact on Military Benefits
When undergoing a divorce, questions about military benefits often arise. Even if the 20/20/20 rule isn’t met, the military member retains their benefits until the divorce concludes. However, there are other considerations, such as potential changes to base housing or the logistics of a spouse returning from an overseas posting.
VA Disability Payments: A Closer Look
VA disability payments are a significant topic in military divorces. They aren’t taxable and aren’t divided in a divorce. However, they can play a role in determining child support and alimony amounts. So, while VA disability payments remain intact, they can influence other financial aspects of the divorce.
VA Disability and Employment
Having a VA disability rating doesn’t equate to being unfit for work. The rating focuses more on medical conditions than wage replacement. Many veterans, despite having a disability rating, continue to excel in their careers.
In Conclusion
Military divorces come with their unique set of challenges, especially concerning VA disability payments. While these payments aren’t divided, they can impact child support and alimony. If you’re in this situation, seeking legal advice is paramount. With the expertise of professionals like Gary Port and George Sava, both with Army JAG backgrounds, you’ll be well-equipped to navigate the process.
Call us at (516) 352-2999 for a free 15 minute telephone consultation.
Creditable service is an important concept here. It includes all the service you have rendered in roles such as a polcie officer, ambulance medical technician, ambulance medical technician/supervisor, or related services. You may also be eligible for additional credit for service in the New York State Police, fire departments, police forces of any county, city, village, town, district, or in the office of a district attorney, and even certain military service. If you’re unsure about your eligibility, you should reach out to the Nassau County Police Department.
Nassau Police Pension – It’s Created by Statute and Contract.
The meat of your retirement plan, your benefits, are defined by Sections 89-s and 603(o) of the Retirement and Social Security Law (RSSL). Upon completion of 25 years of creditable service, you are entitled to 50 percent of your final average salary (FAS), regardless of age. Each year of service beyond 25 years adds 1/60th (1.66 percent) of your FAS, up to a maximum of 75 percent of your FAS.
Additionally, if you are eligible for benefits under your regular retirement plan, the Nassau County Police Department will compare those benefits with those under Section 89-s or 603(o) and pay you the greater amount.
Other Nassau Police Retirement Benefits
SCAT pay, or Sick, Compensation, Accumulated, and Time pay, is a lump-sum payment you receive at retirement for any unused sick and excess leave time. When an officer retires, they may be eligible for SCAT pay. The amount to be received will, of course, depend on how much SCAT pay was accumulated.
At some point after the retirement, the Nassau County Comptroller’s office will issue a check to the retiree. This check is pay, so there will be withholding on it. If the check is significant, there may be additional state and federal taxes on it. I would strongly suggest talking to an accountant to help minimize any potential tax hit from our friends in Albany and DC.
Police Pensions and Retirement Benefits in a Divorce
Now let’s turn to a less pleasant but equally crucial subject—how a divorce can impact these hard-earned benefits.
Here’s a reality we must address: If you go through a divorce, your pension benefits, accrued during the marriage, could be subject to division. New York operates under the principles of “equitable distribution,” meaning the courts aim to divide marital property in a manner that is fair but not necessarily equal. This includes your pension and SCAT pay.
Dividing the Nassau Police Pension: The Formula.
When determining the division of pension assets, the court applies a formula often referred to as the Majauskas formula (named after the precedent-setting case, Majauskas v. Majauskas). The formula considers two factors: the total amount of time you’ve contributed to the pension and the duration of your marriage during that contribution period.
The Majauskas formula is expressed as:
[1/2 x (Years of Pension Credit accrued during marriage / Total Years of Pension Credit at retirement)] x Pension.
The result of this formula gives the portion of the pension that is considered marital property and is subject to equitable distribution. We call this the “Marital Coveture.”
Now, this doesn’t necessarily mean your ex-spouse will get half of your pension. Rather, it provides a starting point for negotiation or judicial discretion. Other factors, such as each party’s financial situation, earning capacity, age, health, and the existence of other marital assets, can influence the final determination.
However, generally, the court will divide the marital coveture amount in half.
I’ve gone into detail on this in another blog, but let me just give a brief overview of how this is applied. Again, this basic formula is applicable to Nassau County Police Pensions and SCAT pay.
Let’s say the marriage was 20 years and the police officer spouse served for 20 overlapping years. 20 years of marriage/20years of service= 100% Marital coveture. The spouse will probably get 50% of the Nassau Police Pension.
Let’s say the marriage was for 10 years and the police officer spouse served for 20 overlapping years. 10 years of marriage/20 years of service = 50% of Marital coveture. The spouse would probably get 25% of the Nassau Police Pension
Understanding QDROs
Finally, when it comes to actually dividing and distributing a pension, the law requires a Qualified Domestic Relations Order (QDRO). A QDRO is a court order that spells out how much of your pension your ex-spouse is entitled to and how they will receive it. It’s crucial to have a legal professional draft this document to ensure it aligns with state laws and the specific rules of your pension plan.
“I Earned It, Why is My Spouse Getting Part of It?”
Under New York law, marriage is viewed as a partnership. Some people put in money, time or services. The statute was drafted to take into consideration that not all contributions in marriage are money. A stay-at-home spouse takes care of the children, the house and other aspects of the married life.
One point that female officers point out to me, is that they did all of that, while their husbands sat on the couch. As I said above, the court can take other factors into consideration. However, I will point out to fight the math will take more legal costs and could result in a trial. Predicting an outcome of a trial is tricky business and reputable attorneys will only provide odds and probabilities, never a guarantee.
Conclusion
Nassau Police Pensions and SCAT Pay can be subject to division in a divorce. Your particular case depends on your particular facts. Don’t rely on friends or even the internet. Consult with an attorney. Call Port and Sava, a Veteran Owned business. Whether you are the officer or spouse ask about our professional first responder discount. Call (516) 352-2999 for a free 15 minute telephone consultation.
