TeamworkIn any lawsuit, a plaintiff must be able to demonstrate that they have the legal capacity to file suit against the defendant. In the context of a New York divorce case, this can mean the plaintiff’s standing to sue or their competence to bring a legal claim. A recent decision by the Supreme Court in Westchester County, New York considered a defendant wife’s claim that the plaintiff husband lacked capacity to sue because of a debilitating illness and that certain of the husband’s family members were seeking a conservatorship over him. The court’s ruling in D.E. v. P.A. dealt with questions of both competence and standing. It found that the wife’s objection regarding the husband’s capacity was not timely, but it also noted that the husband’s family would lack legal capacity to pursue the divorce case if they succeeded in the conservatorship case.

Standing” refers to a person’s legal authority to file suit in a particular jurisdiction and venue against a particular defendant for a particular claim. In general, a person must be able to show direct and tangible harm allegedly caused by the defendant. In New York divorce cases, § 170 of New York’s Domestic Relations Law (DRL) establishes the basic procedure for initiating a divorce action. It specifically states that “a husband or wife” may pursue a divorce action.

Rule 3211(a)(3) of the New York Civil Practice Law & Rules (CPLR) allows a court to dismiss a lawsuit on the motion of a defendant or another party to the case if it finds that “the party asserting the cause of action has not legal capacity to sue.” This can include a lack of standing or a lack of legal competence. “Competence” derives from the principle that a person cannot take certain binding actions if they are not capable of understanding the full implications and consequences.

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agreementCertain types of contracts can have a significant impact extending beyond the individual parties who signed the actual document. New York law therefore requires certain procedures to ensure not only that a signature is authentic but also that the signer is acting with some minimal amount of forethought. State law establishes multiple requirements for documents that convey interests in real property, such as deeds. New York’s Domestic Relations Law (DRL) has adopted these requirements for pre- and post-marital agreements. A court in Westchester County considered a challenge to the validity of a premarital agreement this summer. Its ruling in BW v. RF reviews the DRL’s requirements regarding the signatures on a marital agreement and the reasons for those requirements.

Section 236B(3) of the DRL states that marital agreements are “valid and enforceable in a matrimonial action” if they meet two essential requirements. First, the agreement must be in writing. That is the easy part. Second, the agreement must be “acknowledged or proven” in the same manner required for a recorded deed. This is where complications can occur.

Before being recorded, a deed must be “duly acknowledged” by the person signing it. This requires signing the document before a notary public or another authorized official, as well as orally stating that they have signed it. The notary or other official must have “satisfactory evidence” that the person signing the document is the same person described in the document, and they must sign a “certificate of acknowledgment” stating that they have complied with all of the statutory requirements. State law provides a uniform certificate of acknowledgment for this purpose.

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NYS Notary SealContract law in the U.S. requires the parties to an agreement to follow certain formalities. This helps ensure that others, including judges and arbitrators, can understand the key elements of the agreement in the event of a dispute. Family law disputes in New York often involve principles of contract law, particularly when the parties to a divorce disagree over a pre- or post-nuptial agreement, also known as a marital agreement. The New York Domestic Relations Law (DRL) requires marital agreements to meet certain criteria in order to be enforceable by a court. A New York appellate court recently reviewed the criteria for a post-nuptial agreement in Ballesteros v. Ballesteros, ultimately finding that the agreement in question did not comply with the DRL’s requirements and was therefore unenforceable.

As a very general rule, a contract does not need to be in writing to be enforceable. Numerous exceptions to this rule exist, including the DRL’s requirements for marital agreements. Section 236(B)(3) of the DRL establishes two basic criteria for an enforceable marital agreement. It must be (1) in writing and (2) “subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.” In plain English, this means that a written marital agreement must follow the same procedures as a deed conveying real property. The parties must sign the document in front of a notary public, and it must bear the notary public’s signature and seal, as well as a “certificate of acknowledgement” in a form prescribed by state law.

The court’s recital of the facts in Ballesteros shows a complicated factual situation surrounding a relatively straightforward legal question:  whether or not the agreement signed by the parties after their marriage, but before the wife filed for divorce, was enforceable. The parties were married in 2008, several days after signing a pre-nuptial agreement “‘opting out’ of New York’s statutory scheme governing maintenance and equitable distribution.” About a year later, the husband said he wanted a divorce and told the wife to move out. He reportedly changed his mind about the divorce shortly afterwards.

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mistakeIn a New York divorce case, the law of contracts governs many disputes over the enforceability or even the validity of prenuptial, postnuptial, and other agreements between spouses. People often ask a court to rescind an agreement in whole or in part, effectively eliminating some or all of its obligations. A person may also ask a court to reform a contract, modifying its terms to repair a defect or deficiency. The wife in a divorce case in Monroe County, New York recently sought to rescind or reform a prenuptial agreement based on the “mutual mistake” doctrine, which allows a court to invalidate a contract if it finds that neither party made a fully informed decision. The burden of proving a “mutual mistake” is very high, and the court’s ruling in Hosmer v. Hosmer held that the wife did not satisfy it.

One of the fundamental elements of a binding contract is mutual assent. Both parties to a contract must have reached an informed agreement, with full knowledge and understanding of any obligations they are undertaking and any benefits they expect to receive. This is commonly known as a “meeting of the minds.” The doctrine of “mutual mistake” states that a contract is not valid if both parties made an error regarding some key aspect of their agreement.

Rescission or reformation of a contract due to a mutual mistake is an “exceptional remedy,” according to the court in Hosmer. The court quoted a 2012 New York Court of Appeals decision, Simkin v. Blank, which held that the mistake in question “must be so material that it goes to the foundation of the agreement” and that, as a result, the contract “does not represent the meeting of the minds of the parties.”

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mansionSometimes, albeit rarely, a family law dispute in New York does not center on the dissolution of a marriage but on a disagreement over whether a marriage exists at all. A Manhattan court recently considered a plaintiff’s request for a declaration that his marriage was valid. Alternatively, he asserted several fraud-based claims against the woman he claimed he had married, who denied being his wife. In a ruling earlier this year in Jackson K. v. Parisa G., the court denied the alleged wife’s motion to dismiss, allowing the case to move toward trial.

Some states, not including New York, allow people to get married without a marriage license, commonly known as “common-law marriage.” Under New York’s Domestic Relations Law, a couple must obtain a marriage license from a town or city clerk and provide it to the “clergyman or magistrate” who will perform the marriage ceremony. A marriage without a license is valid, however, if it was “solemnized between persons of full age.” A “clergyman or minister,” as defined by state law, may solemnize a marriage, as may a judge or various other public officials. The marriage ceremony is not required to follow any particular form, as long as the spouses-to-be “solemnly declare” their intention to marry in front of the officiant and witnesses.

The Jackson K. case, as presented by the court, shows numerous features commonly associated with a wedding but fewer features of a marriage. The plaintiff and the defendant “entered into a romantic relationship” in 2006, having known each other since they were children. They moved in together in 2007, and in 2009 the plaintiff asked her parents’ permission to marry her. He purchased a $25,000 engagement ring with the help of the defendant’s mother.

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calculatorIdentifying marital property and determining how to equitably distribute that property is very often made far more difficult when one spouse is financially dependent on the other. In order to prevent the “breadwinning” spouse from leaving the other spouse without a source of support, New York authorizes courts to award temporary maintenance while a divorce is pending. A court in the Rochester area recently considered a wife’s request for temporary maintenance in an ongoing divorce matter. The court’s April 2016 ruling in Cooper v. Cooper reviews the temporary maintenance guidelines, analyzes the parties’ assets, and assesses whether the payment of maintenance would even be possible at that particular point in time.

The guidelines for temporary maintenance are set forth in § 236(B)(5-a) of the New York Domestic Relations Law. Prior to January 1, 2016, the “income cap” for temporary maintenance calculations was $175,000 per year. If the payor’s income is less than or equal to that amount, and the payor is also paying child support to the payee, the guideline amount of temporary maintenance (TM) is the lesser of 20 percent of the payor’s income (Pr) minus 25 percent of the payee’s income (Pe), which could be written as TM = (Pr × 20%) – (Pe × 25%), or the difference between 40 percent of the sum of the parties’ income and the payee’s income, or TM = ((Pr + Pe) × 40%) – Pe. Child support is deducted from the payor’s income and included in the payee’s. If the lesser of the two amounts is less than zero, the guideline amount is zero dollars.

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heartbreakNew York state law allows courts to award spousal maintenance, also known as “spousal support,” “alimony,” or simply “maintenance,” to a spouse in a divorce proceeding. Maintenance orders vary widely in duration and amount, depending on the circumstances of the parties. Calculating the amount of maintenance payments has been the subject of much controversy, resulting in reforms by the New York State Legislature in the summer of 2015. A New York appellate court addressed a common ground for disputing a maintenance order, which was that the amount of the order “is excessive and should be reduced,” in its March 2016 ruling in Stuart v. Stuart.

Two types of maintenance are available in New York divorce cases. Temporary maintenance must be paid while the divorce case is pending, but it terminates once the court grants the divorce. Post-divorce maintenance, as the name suggests, is payable after the parties are divorced. The duration may be for a defined period of time, as agreed by the parties or ordered by the court. Otherwise, it could be payable until either spouse dies or the recipient spouse remarries.

New York has modified its provisions for calculating maintenance twice in the past six years. In 2010, the Legislature passed a bill applying a formula to temporary maintenance calculations, but it left a less structured system in place for calculating post-divorce maintenance. These provisions reportedly resulted in some situations that were not only unjust but also unrealistic, with people being ordered to pay maintenance amounts greater than their actual income. A bill passed by the Legislature in June 2015, and signed by the Governor in September, applies a formula to post-divorce maintenance calculations. The rather complicated series of formulas is codified in § 236(B)(6) of the New York Domestic Relations Law (DRL).

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beachNew York child support law establishes guidelines that base the amount of a child support obligation on a percentage of the parents’ combined income. The percentage used in this calculation depends on the number of children who are to be the beneficiaries of the support. The guidelines only apply, however, to the parents’ combined income up to a certain amount. The state is required to adjust this statutory cap every two years, beginning in 2016, based on changes in the consumer price index. New York courts have held that, in order to apply the guideline percentages to income above this upper limit, a court must make specific findings regarding a child’s need for additional support. A New York appellate court addressed this issue last year in a divorce case, Antinora v. Antinora.

New York’s Child Support Standards Act (CSSA) created general guidelines for calculating child support, found in § 240(1-b) of the New York Domestic Relations Law. For one child, the guideline amount of child support is 17 percent of the combined parental income (CPI). This amount is then prorated based on each parent’s share of CPI. Typically, the noncustodial parent will then be obligated to pay their prorated amount to the custodial parent as child support. The percentage increases for each child up to five children. The minimum guideline percentage for five or more children is 35 percent. Courts may set child support in different amounts based on various factors, but the CSSA provides a standard to apply to all cases.

The Domestic Relations Law states that the guideline percentages only apply to CPI up to a certain amount, which is determined by the state based on standards set forth in § 111-I of the Social Services Law. As of April 1, 2016, the CPI amount is $143,000. A court cannot apply the guideline percentages to CPI above that amount without making specific findings regarding certain factors.

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FireworksWhen the parents of one or more minor children file for divorce in New York, a court must make or approve arrangements for the support of the child or children. The child support obligation becomes part of the final judgment of divorce, and it is enforceable like any other court order. Since child support enforcement can involve prosecution in the court system by a state agency, various constitutional concerns can potentially come into play. A New York federal court recently ruled that it lacked jurisdiction to hear a child support obligor’s civil rights claim against the family court officials. The court dismissed the obligor’s claim in Kneitel v. Palos, et al. with prejudice, meaning he is barred from filing it again.

Federal law allows individuals to file suit against federal, state, or local government officials for depriving them “of any rights, privileges, or immunities” while acting in an official capacity. A claim filed under this law is known as a “1983 claim,” after the law’s codification in 42 U.S.C. § 1983. It allows claims for violations of due process, equal protection, and other constitutional rights. Certain public officials may be protected from liability for certain acts, however, and federal courts lack jurisdiction over certain matters.

The Constitution and a wide range of statutes and court decisions have established that the federal government has exclusive jurisdiction over certain matters, the states have exclusive jurisdiction over others, and on many other matters they share jurisdiction. Domestic relations, including divorce, alimony, and child support, have generally remained under the jurisdiction of state governments and state laws. The U.S. Supreme Court has repeatedly affirmed this view, beginning in 1859 in Barber v. Barber, in 1890’s In re Burrus ruling, and in 2004 in Elk Grove Unif. Sch. Dist. v. Newdow.

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balance-154516_640Future trips to court may be necessary to enforce maintenance or support obligations after a divorce in New York. Even if a court enters a judgment for unpaid obligations, the judgment creditor may have to go to court again to enforce the judgment. An order issued by the Supreme Court of Monroe County last summer in M.M. v. T.M. addresses this type of situation. The court described “a seemingly interminable battle” between the parties, with the most recent order enforcing a judgment against the judgment debtor’s retirement plan and a retainer paid to his attorney. Quoting Robert Frost about “a road not taken,” the court ventured away from New York family law and into laws dealing with retirement plans and the attorney-client relationship.

The federal Employee Retirement Income Security Act (ERISA) establishes standards for the administration of various types of retirement plans. It generally prohibits the assignment of retirement benefits, unless the assignment is made in accordance with state family law in an order known as a “qualified domestic relations order” (QDRO). The division or assignment of retirement benefits in a divorce case therefore typically requires a QDRO signed separately by the court.

The dispute in M.M. also involved a retainer paid by the ex-husband/judgment debtor to his attorney. The status of a retainer paid to an attorney, under New York law, depends to some extent on the agreement between the attorney and the client. The general rule is that, in the absence of a specific written agreement stating otherwise, the attorney holds the retainer funds in escrow, and the client maintains an interest in any funds not earned by the attorney. State law requires attorneys to maintain a special bank account for escrowed client funds, and ethics rules require attorneys to take great care in managing these funds.

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