Judge Declines to Apply Marital Property Rules in Same-Sex Divorce

November 10, 2015 in Uncategorized

pic12In the last week, the New York Law Journal’s Andrew Keshner reported that a New York judge handling the dissolution of a same-sex couple’s Vermont civil union could not apply New York’s equitable distrubtion rules on marital property to assets acquired during the civisl union and prior to their marriage. Given the language of the current law, the judge believed that any ‘civil union’ property stayed titld in the name of the current title holder. Marital properly acquired after the 2006 civil union would therefore be reserved for trial.

The depth and uniqueness of this case spans multiple countries, states, years and unions. To read Keshner’s article in full, visit: http://www.newyorklawjournal.com/id=1202741076956/Judge-Declines-to-Apply-Marital-Property-Rules-to-Dissolved-Union 

Father prevented from seeing his child gets support payments suspended

September 11, 2015 in Uncategorized

20573037The New York Law Journal this week reported a Brooklyn appeals court decision finding that a father, who had been prevented from seeing his son by the child’s mother, should not be obligated to pay child support.

 

The September 2, 2015 ruling from a panel of the Appellate Division, Second Department, in Matter of Coull v. Rottman, reverses a 2014 ruling by Westchester County Family Court Judge Hal Greenwald denying Robert Coull’s petition to suspend his child support payment obligation.

 

To support its finding, the panel cited Matter of Thompson v. Thompson, 2010 NY Slip Op 08120 (78 AD3d 845), in which the Second Department affirmed a Westchester County Family Court ruling to suspend James Thompson’s child support obligation because the mother of his son “deliberately frustrated visitation by manipulating the child’s loyalty and orchestrating and encouraging the estrangement of father and son.”   Parents have a duty to continually support their children until they are 21 years old, the court wrote in Thompson. “However, where the noncustodial parent establishes that his or her right of reasonable access to the child has been unjustifiably frustrated by the custodial parent, child support payments may be suspended,” the court said, citing the Appellate Division, Third Department’s 2008 decision in Matter of Crouse v. Crouse, 53 AD3d 750.

 

Given the circumstances, the panel—composed of Justices John Leventhal, Robert Miller, Sylvia Hinds-Radix and Joseph Maltese—ultimately concluded that Coull’s requirement to pay child support should be suspended.

 

For the complete story, visit: http://www.newyorklawjournal.com/id=1202736637831/Father-Not-Obligated-to-Pay-Child-Support-Panel-Finds#ixzz3lMLb6WHH

Does Marriage in New York State Hinge on a License?

July 29, 2015 in Uncategorized

In a recent New York Supreme Court decision, Justice Matthew Cooper cited the case Ponosovskaya v Stecklow calling New York Domestic Relations Law § 25 a “forgotten relic” from a time when marriage was still primarily a religious institution.  Justice Cooper’s decision in Devorah H. v. Steven S. centered on a discussion of the relevance of § 25 and the importance of obtaining a marriage license today.

 

Devorah H. and Steven S. participated in an on-the-spot Jewish wedding ceremony in December 2004 when their rabbi insisted that they be married after helping them find an apartment for their families to live together.  The ceremony lacked most of the traditional components and consisted of only the bare-boned necessities for a valid Jewish marriage.  Despite being urged to do so by the rabbi, the couple failed to obtain a marriage license thereafter.  DRL § 25 states “Nothing in this article contained shall be construed to render void by reason of a failure to procure a marriage license any marriage solemnized between persons of full age nor to render void any marriage between minors or with a minor under the legal age of consent where the consent of parent or guardian has been given and such marriage shall be for such cause voidable only as to minors or a minor upon complaint of such minors or minor or of the parent or guardian thereof.”  Under this statute, any marriage would be valid if the partners participated in a formal ceremony, regardless of whether they obtained a marriage license.

 

The court ultimately found that the marriage between Devorah H. and Steven S. was void.  Though the couple had technically been wed in a formal ceremony, both of them had entered the ceremony with the intent of securing a new apartment and not of being wed.  After the ceremony, each of the parties continued to conduct themselves as though they were single.  Devorah H. filed her tax returns as “single,” continued to receive benefits as a single mother, and never referred to Steven S. as her husband in any court documents in the time that they were “married.”  Steven S. only claimed that they were married once, when they applied to join a new synagogue and sought a discounted membership fee.

 

In the words of Justice Cooper, “DRL § 25 can only serve to subvert the important governmental interest in regulating the method by which citizens of this state marry.”  The language of § 25 runs inconsistent with the requirement in § 13 that “It shall be necessary for all persons intended to be married in New York state to obtain a marriage license from a town or city clerk in New York state.”  The language of § 13 was also amended after the Supreme Court decision in Obergefell v. Hodges to mandate that marriage licenses could not be denied to same-sex couples on the basis of being same-sex when other statutes had not been modified, something Justice Cooper referred to in his footnotes as “further indication of the legislature’s focus on the marriage licensing process — as opposed to the solemnization process — as the essential component of the method by which two people marry.”

 

Justice Cooper clearly urged that the Legislature should repeal or reform § 25 to fit within the mold of today’s laws and society, and to ease the burden on courts where parties claim false marriages in an attempt to claim remedies only available through divorce.*

 

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.

New York State Alimony Laws in Flux

July 5, 2015 in Uncategorized

Governor Cuomo’s administration is currently reviewing a bill recently passed in the state Senate that would create major changes to New York’s current alimony laws.  The current legislation created a formula for calculating temporary maintenance awards, but it applied the same formula to all income levels below $543,000 without considering complicated financial situations and didn’t extend application of the formula to post-divorce maintenance.  It also included an enhanced earning capacity calculation based on degree/license earned, even if the spouse was no longer working in that career.

 

The new bill reserves the formula for application to income up to $175,000 and extends its application to post-divorce awards, while offering suggested guidelines for judges deciding the lengths and amounts of awards.  Additionally, it removes the award of a percentage of the enhanced earning capacity calculation based on degree.  The bill first passed in the Assembly 146-1, and many matrimonial associations have voiced support for the changes.

 

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.