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Archive for October, 2009
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Thursday, October 29th, 2009
A not uncommon tactic of matrimonial litigants is to consult with a number of prominent local attorneys with the express purpose of narrowing the availability of those attorneys to represent their spouses due to conflict of interest. This practice is called “attorney shopping” and is engaged in to prevent the other spouse from retaining a top divorce attorney or to narrow the availability of matrimonial attorneys to the other spouse.
The new Rules of Professional Conduct became effective in New York State on April 1, 2009. Rule 1.18(a), entitled “Duties to Prospective Clients”, states that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a ‘prospective client’”. Section (b) of this Rule states that “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation”.
However, Rule 1.9 (e) states that “a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client…” Thus, the new rules provide protection to a party whose spouse has purposefully attempted to disqualify representation by an attorney.
Posted in Divorce Laws/ Issues, Divorce News | Comments Off
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Saturday, October 24th, 2009
An “Automatic Orders” bill was signed by Governor Patterson and effective on September 1, 2009 in New York.
The Automatic Orders bill amends the Domestic Relations Law and requires that specific automatic orders be served upon the Defendant along with the Summons. The automatic orders are binding upon the Plaintiff when the action for divorce is commenced, i.e., when the Summons is filed in the County Clerk’s office, and binding upon the Defendant when he is served with the orders. The orders remain in effect during the matrimonial action unless terminated or modified by court order or stipulation of the parties. There are five automatic orders as follows:
1. Neither party can sell, transfer, encumber, conceal, assign, remove or dispose of any property (including real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with the matrimonial action.
2. Neither party can transfer, encumber, assign, remove withdraw or in any way dispose of any tax deferred funds, stocks or any other assets held in any individual retirement accounts, 401(k) accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties can further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party or order of the court.
3. Neither party can incur unreasonable debts, such as by borrowing against any credit line secured by the family residence, further encumbering any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with the matrimonial action.
4. Neither party can cause the other or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage and each party must maintain the insurance coverage in full force and effect.
5. Neither party can change the beneficiaries of any existing life insurance policies and each party must maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Posted in Divorce Laws/ Issues, Divorce News, Pre-Trial Motions | Comments Off
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Wednesday, October 21st, 2009
In 2008, a new statute was passed in New York State that required that language pertaining to health insurance coverage and a spouse’s ability to obtain COBRA coverage be contained in all Separation Agreements. That statute, Domestic Relations Law §177, has since been repealed and Domestic Relations Law §255 was passed in its stead, effective October 1, 2009.
The new DRL §255 provides that, prior to signing a judgment of divorce or separation, the Court must ensure that both parties have been notified that eligibility to be covered under a spouse’s health insurance plan may terminate. Notice is sufficient if a party has received service of a Summons with Notice stating that once the Judgment is signed by the judge, heath coverage may be terminated.
If the parties have entered into a settlement agreement, the agreement must contain a provision that the spouse will be provided with health coverage under the other spouse’s policy or the agreement must state that each party is aware that he or she will no longer be covered by the other party’s health insurance plan and that each party shall be responsible for his or her own heath coverage, and may be entitled to insurance through a COBRA option.
Posted in Divorce News, Spousal Maintenance | Comments Off
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Saturday, October 17th, 2009
In a matrimonial action out of the Nassau County Supreme Court, a husband filed a motion to call a physician as an expert witness to testify regarding the “measurable monetary value” of a kidney he had donated to his Wife in 2001. The husband claimed that his donation of a kidney to his wife constituted a gift worth $1.5 million, subject to equitable distribution. The Court held that, though gifts between spouses are normally deemed marital property subject to equitable distribution, a human organ donated to a spouse does not constitute a “gift” for public policy reasons. Specifically, New York Public Health Law §4307 prohibits the purchase and sale of human organs. The Court denied the husband’s motion after determining that his attempt to violate this statute may expose him to felony criminal prosecution.
Posted in Divorce News, Property Division | Comments Off
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Wednesday, October 14th, 2009
Earning a degree or attaining a license during a marriage results in the creation of a property interest that will be valued and divided at the time of divorce.
Pursuant to Domestic Relations Law § 236(B)(1)(c), marital property is defined as “property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.”
In an action for divorce, the Supreme Court has the power to “equitably distribute” the value of educational degrees and professional licenses that are obtained during the course of the marriage. Although in some cases and educational degree that not grant a spouse the right to engage in a particular profession, it may still constitute a marital property subject to equitable distribution. In O’Brien v. O’Brien, 66 N.Y.2d 576 (1985), the Court of Appeals determined that a professional license can constitute marital property subject to equitable distribution to the extent that it is acquired during the marriage.
The value of a spouse’s educational degree and/or professional license can be determined through the use of expert testimony. If the parties proceed to trial and one must prove the value of the other spouse’s educational degree or professional license, the expert witness must submit a written report to the Supreme Court detailing his or her opinion at least sixty (60) days prior to trial.
Posted in Property Division | Comments Off
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Saturday, October 10th, 2009
In New York State, parents have a duty to financially support their children and can be directed by the Supreme Court or Family Court to pay child support in a fair and reasonable sum, if found to possess sufficient means or to have the ability to earn such means. The parents’ obligation to financially support a child continues until the child’s 21st birthday, unless the child emancipates earlier. A child’s emancipation may occur under the following six scenarios:
1. The child marries, regardless of whether the marriage is later determined to be void or voidable or terminates by death, divorce, annulment, dissolution or in any other manner;
2. The child enters the armed forces of the United States or of any other country or political entity;
3. The child dies;
4. The child ceases to permanently reside with either parent. However, a child is not emancipated if he or she resides away from both parents’ homes to attend college, reside at a boarding school or camp, or in conjunction with summer employment between college semesters while the child remains a full-time student;
5. The child attains the age of 18 years and becomes employed on a full-time basis. However, the child is not emancipated if he or she obtains full-time summer employment while attending college as a full-time student; and
6. The child constructively emancipates by unreasonably refusing all contact and visitation with the non-custodial parent who was paying child support on his or her behalf, thereby forfeiting his or her right to such financial support.
A parent’s duty to support a child under 21 years old may resume even if the child was previously deemed emancipated. For instance, if a child under 21 years old had previously resided away from both parents’ homes but later returned to reside with one parent, that parent has the right to petition for and receive child support in a fair and reasonable sum from the other parent, even though the child was previously emancipated. Similarly, if a child between the ages of 18 and 21 years was working full time but later decided to instead attend college on a full-time basis, the parents would be responsible for his or her financial support until he or she turned 21 years old.
Parents may agree to extend their duty of support for their children past the child’s 21st birthday. For instance, most children attending college do not graduate until they have reached the age of 22 or 23 years old, or even older. In the interim, they still require financial assistance to pay for shelter, food and clothing. Parents have the ability to agree that child support obligations continue until the child graduates from college, graduate school or until some other event or time period.
Posted in Child Support | Comments Off
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Wednesday, October 7th, 2009
A biological parent has a superior right to custody over the rights of a non-parent. The State may not deprive a parent of custody absent surrender, abandonment, persisting neglect, unfitness or other extraordinary circumstances. The non-parent has the burden of proving extraordinary circumstances. The existence of a prior consent order awarding custody to the non-parent is not enough to demonstrate extraordinary circumstances.
In the case of In re Mercado, 2009 NY Slip Op 05718, a mother suffered from postpartum depression and checked herself into a mental health facility. The child’s maternal grandmother filed a petition in Family Court for custody of the child. A final order was granted on stipulation of the parties, awarding the grandmother sole custody of the child, with visitation to the mother at the grandmother’s discretion.
Thereafter, the mother moved, became engaged and had another child. The mother sought to modify the custody order, requesting sole custody of the child. The Family Court dismissed the mother’s petition.
In this case, the Family Court failed to determine whether the grandmother had demonstrated extraordinary circumstances. The Court incorrectly placed the burden on the mother to demonstrate a change in circumstances since the final order was issued. The matter was remanded to Family Court for further proceedings.
Posted in Custody and Visitation | Comments Off
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Friday, October 2nd, 2009
A bill proposed to extend the statute of limitations for victims of sexual abuse was pulled from the calendar after the NYS Assembly decided it did not have enough votes to pass. The current version of the Child Victims Act provides victims of child sexual abuse to report the crime and/or file a civil action for damagers against the abusers five years from their 18th birthdays. The proposed bill attempted to extend the statute of limitations such that the five year period began to run on victims’ 23rd birthdays, allowing them to press charges or file a civil action until age 28. The bill also offered a one-year period of time during which any victim of childhood sexual abuse could press charges and/or file civil actions against their abusers, no matter when the alleged act occurred, with this time period to expire one year after the law became effective.
The bill was also proposed during the 2006, 2007 and 2008 legislative sessions, having passed the NYS Assembly but failing to receive the necessary votes from the Senate.
The Catholic Church has been one of the most vocal opponents of the Child Victims Act, fearing that a significant number of lawsuits would be filed during the one year suspension on the statute of limitations, and thus bankrupting the church.
Posted in Divorce News | Comments Off
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