No-Fault Divorce Enacted in New York

Posted by Daniel Clement on August 15, 2010

New York now has no-fault divorce. 

While signing the legislation into law,  the governor noted:

Finally, New York has brought its divorce laws into the 21st century. . .  These bills fix a broken process that produced extended and contentious litigation, poisoned feelings between the parties and harmed the interests of those persons -- too often women -- who did not have sufficient financial wherewithal to protect their legal right.

New Yorkers  can now divorce provided that their marriage has irretrievably broken down for six months or more.   New York was the last state to allow no fault divorce.

Simultaneous with enactment of no fault divorce, laws for providing guidelines for fixing temporary spousal maintenance and attorney’s fees were enacted.    The legislation created a formula and list of factors to govern such awards   The purpose of which, according to the Governor, would be to. . .

. . . allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order.

The other piece of legislation enacted today would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys' fees.

We will take in depth looks at the new laws regarding spousal maintenance and attorneys’ fees in the very near future.  

Relocating Parent Ordered to Provide Visitation by Skype

Posted by Daniel Clement on August 13, 2010

iStock_000013160353XSmall.jpgOne parent’s post divorce desire to relocate with children creates a practical and legal dilemma; if the non custodial parent has a close relationship with the children, and the children are permitted to relocate, their relationship will certainly suffer.    

The reasons for the move, which are generally described as benefiting the custodial parent and the children, must be carefully weighed against the negative effect the move will have on the non-custodial parent’s relationship with the children. 

One judge came up with a clever solution- video or tele-conference visitation. 

In Baker v. Baker, the Judge permitted a mother, who was about to lose her home to foreclosure to relocate to Florida, where she could live with her parents, provided that father could video chat with the children, via skype, several times a week.;

In considering the relocation, the Court cited the standard announced in the Court of Appeals in the Tropea v. Tropea:

 . . . we hold that, in all cases, the courts should be free to consider and give appropriate weight to all of the factors that may be relevant to the determination. These factors include, but are certainly not limited to each parent's reasons for seeking or opposing the move, the quality of the relationships between the child and the custodial and noncustodial parents, the impact of the move on the quantity and quality of the child's future contact with the noncustodial parent, the degree to which the custodial parent's and child's life may be enhanced economically, emotionally and educationally by the move, and the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. In the end, it is for the court to determine, based on all of the proof, whether it has been established by a preponderance of the evidence that a proposed relocation would serve the child's best interests

While scheduled video conference is not a substitute for sharing a meal, tossing a ball, or enjoining a hug with a child, it does provide a way of maintaining regular and meaningful communication.  

Visitation via video conference may not be the solution in all cases, but it offered a fair resolution in this case where the mother and children had to move because their home was in foreclosure. 

 

 

 

Same Sex Couple Ordered To Pay Child Support

Posted by Daniel Clement on August 06, 2010

As Above the Law points out,  it is ironic that on the day a federal judge in struck down California’s ban on same sex marriage, a New York appeals court ruled that a same-sex partner may be liable for child support.

In the case H.M. v. E.T, the Court ruled that the when the

 partner of a child’s biological mother consciously chooses, together with the biological mother, to bring that child into the world through [artificial insemination,] and where the child is conceived in reliance upon the partner’s implied promise to support the child, a cause of action for child support . . .has been sufficiently alleged . . .

As Linda McClain, a Boston University law professor who specializes in family law, noted in the WSJ Law Blog, the ruling “is very much in keeping with the notion that it’s better for children to have two parents, than one, and why deprive a child of a source of parental funds?”

This decision also serves as reminder that marriage is more than a celebratory party; it is a relationship that creates legal obligations and responsibilities.

 In New York same sex couples can now divorce and be ordered to pay child support; they just can’t wed.   

Eliminating the Risks of Separation for the "Un-Divorced"

Posted by Daniel Clement on August 03, 2010

Pamela Paul, in her New York Times article, The Un-Divorced, discusses the trend of couples separating, but not divorcing.   The primary reasons that parties remain married, but separated are the practical and financial, not familial. The effect of endless separations on the children rarely seems a priority.

Perhaps the principle reason couples remain legally wed is to maintain or continue health care coverage.    When a couple divorces, the ex-spouse is no longer to eligible to be covered through the other’s medical coverage.   The former spouse either may maintain the existing policy under COBRA or purchase a policy on his/her own. 

 As pointed out:

 If one person has an existing condition, obtaining affordable health care coverage is often difficulty or impossible. The recession, with its real estate lows and health care expense highs, adds incentives to separate indefinitely.

A second reason to separate instead of  divorce is to obtain lock-in social security benefits.

According to federal law, an ex qualifies for a share of a spouse’s Social Security payment if the marriage lasts a decade. In the case of more amicable divorces, financial advisers and lawyers may urge a couple who have been married eight years to wait until the dependent spouse qualifies.

However, a separation without an agreement memorializing the parties understanding of their rights and liabilities leaves the parties at risk.  

Property acquired or debts incurred by the other are technically marital and subject to equitable distribution.  

Absent a maintenance waiver, if one spouse becomes disabled, unemployed or unemployable, the other may become responsible for paying spousal maintenance.

Finally, if you pre-decease your spouse, your spouse can make a claim against your estate; by virtue of marriage, your spouse has a right of election which prevents you from disinheriting hi/her.    The right of election could be waived in a separation agreement. 

By entering into a separation agreement, you could get all of the benefits of a separation and limit your exposure to risk.

Engagement Rings: What Happens When the Bride Is Already Married?

Posted by Daniel Clement on July 19, 2010

iStock_000003249284XSmall.jpgIt is well established in New York, that when an engagement is broken, the engagement ring must be returned to the groom.  The exception to this rule is when the man is already married, the intended bride gets to keep the ring.   

Recently, a New York court answered the question what happens to an engagement ring when it is the woman who is already married and the “engagement” is broken.

In the case Lipschutz v. Kiderman, the appellate court explained that:

 where a party gives an engagement gift to another with knowledge that an impediment to a lawful marriage exists, whether the impediment is on the part of the donor or the recipient, no action will lie to compel a return of the property on the ground that the marriage did not take place

So, if a man gives a woman a ring, knowing that she is married, and the parties fail to wed, then the woman may keep the ring.

An engagement ring is a conditional gift, made in contemplation of marriage.  If the marriage occurs, the condition has been satisfied and the gift is complete; the recipient, generally the woman, gets to keep the ring.   If the marriage does not take place, the condition has not been satisfied, and the ring need be returned. 

However, if someone is already married at the time of the engagement, they cannot legally enter into a contract to marry.   In many of the reported cases, it is the prospective groom who gives an engagement ring while married to another woman.  Whether or not the marriage takes place, his fiancé is legally entitled to keep the engagement ring. 

In the Lischutz case, it was the woman who was married at the time of the engagement.  The Court said that if the prospective groom actually knew this his fiancé was married and could not contract to marry, when he gave her the ring, she would get to keep it.   If he did not know she was married, he would be entitled to the return of the ring.

The bar against a recovery of the engagement ring “is intended to protect an innocent party, not one aware of the other’s disability to contract a marriage at the time of the engagement.” 

WARNING- SCAM USING FIRM NAME TO COLLECT PHONY DEBTS

Posted by Daniel Clement on July 15, 2010

I have learned that someone is mis-representing himself as working for me and is calling people throughout the country to collect a debt.  The person will call multiple times and threaten and harass the people he calls.

The call is a scam.   This caller does not work for me and is in no way associated with me or my law firm.

Do not give this caller any information or send him any money.  

The matter is being investigated.  

If you are contacted by this person, please contact me (email or phone)  providing your name and contact information as well as all the details of the calls.   If you receive any papers, faxes or emails from the caller please send them to me as well.   The callers are using letterhead with my name on it.

Do not fall for this scam.

Pre-Nuptial Agreements: Why To Consider One

Posted by Daniel Clement on July 06, 2010

The Wall Street Journal in an article written by Mary Pilon detailed some of the reasons couples enter into prenuptial agreements.

In the article, I was quoted for having noticed a trend in my practice. In conversations with many of my younger clients, I observed that often they did not want a pre-nuptial agreement to protect assets they had already acquired-often they had yet to acquire anything of value, but instead, to protect their prospective inheritance. In many cases they were being dictated to by their parents and told that they had to obtain a pre-nuptial agreement.

In its most basic form, a pre-nuptial agreements identifies what is marital property, which would be subject to equitable distribution if the parties later divorce, and what is separate property, which would be immune from their spouse’s claims.

Property inherited or acquired by gift is separate property. However, money is fungible and memories of the source of the funds are conveniently fleeting.

As pointed out in the Divorce Analysis Blog:

A prenuptial agreement is useful in establishing the parties individual pre-marital wealth levels. While this may seem mundane ( I mean, who doesn’t know their net worth when they say “I do”?), you would be how surprised how time colors the memory of wealth. Like the old “fishing story” beliefs about net worth can change dramatically with time.

One of the most useful aspects of the prenuptial agreement is that it clearly defines what is separate property, where appropriate, values the separate property and delineates the circumstances where separate property can be converted to marital property.

Parents leaving sizeable estates to their children may require the children to obtain pre-nups to ensure that however their children use their estates, the funds will for all purposes remain a separate asset and otherwise immune from a spouse’s claim in the event the marriage ends in divorce.
 

Daniel Clement Wins Award

Posted by Daniel Clement on June 30, 2010

 

 It is always a pleasure to share good news.

I was selected by the  New York Enterprise Report  as one of the Best Attorneys for Growing Businesses in the category of Professional Services.   I am honored to have won this award.  

I have been, and will continue to be, dedicated to professionally serving the needs of my clients.  

Divorce Spreads Through Social Networks

Posted by Daniel Clement on June 23, 2010

In a fascinating study, divorce was found to be contagious. According to a study at the Framington Heart Study, a person whose friend or sibling gets a divorce is more likely to get divorced

As detailed in the study , the researchers found that:

Divorce is the dissolution of a social tie, but it is also possible that attitudes about divorce flow across social ties . . . We find that divorce can spread between friends, siblings, and coworkers, and there are clusters of divorcees that extend two degrees of separation in the network. We also find that popular people are less likely to get divorced, divorcees have denser social networks, and they are much more likely to remarry other divorcees.

The "contagious" nature of divorce is unlikely to be caused by shared environmental factors because friends who live far away are just as influential as those who live close by. But, having children mitigates the susceptibility to being influenced by peers who get divorced

The study concludes that attending to the health of one’s friends’ marriages serves to support and enhance the durability of one’s own relationship, and that divorce should be understood as a collective phenomenon that extends far beyond those directly affected.
 

Why No Fault Divorce Should Be Enacted in New York

Posted by Daniel Clement on June 16, 2010

In view of news reports of the hopeful passage by the New York legislature of a “no fault” divorce law, I have been repeatedly asked, “what is no fault divorce” and “why is this no fault divorce so important.

A no fault divorce essentially allows a couple to dissolve a marriage without assigning fault; typically the parties would only have to allege that the marriage has irretrievably broken down and there is no likelihood of reconciliation.

The present law in New York, (the only state that does not have provision for a no fault divorce) requires one of the parties to allege that the other has committed marital fault –adultery, cruel and inhuman treatment, abandonment (actual or constructive) or imprisonment for a term of three years or more. The only non fault ground requires the parties to live separate and apart for at least one year pursuant to a separation agreement or judgment of separation.

Requiring a litigant to allege grounds for a divorce requires an assignment of blame. Even in the most amicable of divorces one of the parties has to accuse the other for causing the break up of the marriage. In a high conflict divorce, accusations of fault only fuel the fire.

In cases where grounds do not exist, the necessity of pleading fault requires a party to perjure him or herself by making sworn statements he or she knows to be false simply to obtain the divorce.

In the most contentious divorces, grounds can be used as a weapon. An all to common scenario is where one spouse, in this example the wife, wants a divorce simply because the relationship has, for no particular reason soured, but where the husband is not guilty of marital fault (i.e., there has been no abandonment, cruel and inhuman treatment or adultery). In the absence of the husband consenting to the divorce, the wife has to prove her grounds at trial Knowing that the wife would be unable to prove grounds, the husband could contest the grounds for divorce to legally extort other concessions from the wife. In this scenario, the husband would make it clear that grounds would not be an issue if he got, for instance, a sum of money or sum asset that was in dispute.

This legalized extortion is a common occurrence under the existing fault based law.

The other problem is cost. Grounds trials force litigants to needlessly incur legal fees, tapping into the very pool of marital funds that could be used to support the parties’ post divorce lives.

Moreover, grounds trials waste time and judicial resources.

There is no benefit to locking people into dead marriages. If the defendant prevails at a grounds trial and the divorce is denied, the parties do not resume a life of marital bliss. To the contrary, the parties are probably even bitterer towards each other, having hurled accusations at each other at a trial; the marriage is over in every way but legally.

The enactment of no fault divorce will not open the floodgates to divorce litigation. Couples who are unhappy in their marriage have and always will find away out of their marriages. No fault divorce will simply make the process more civil.