Articles Posted in Divorce litigation & appeals

Free speech doesn't mean careless talk^ - NARA - 535383Family courts, when dealing with disputes involving children, must consider a child’s best interests and rule in a way that protects the child. This can, at times, include orders restraining the parents and possibly other adults from making certain statements while litigation is ongoing. For example, a court may order parents not to discuss ongoing litigation with the children. The First Amendment to the U.S. Constitution sets very strict limits on a court’s power to prevent people from speaking on particular issues. A 2016 appellate court decision from Georgia examined this issue. The court overturned an injunction barring the parents from making any public statements about the case, including on social media, until the youngest child turned 18—i.e., after 10 years.

The First Amendment is very often misunderstood in public discourse. It only restrains the actions of the government with regard to private individuals’ speech. The U.S. Supreme Court summarized the First Amendment’s free speech protections in its 1972 decision in Grayned v. City of RockfordWhile the “government has no power to restrict [speech] because of its message,” the court noted “that reasonable ‘time, place and manner’ regulations…are permitted.” This means that government officials cannot prevent a person from saying something solely because they do not like what the person has to say, but they can prevent the person from shouting it through a megaphone outside someone’s house in the middle of the night.

Since the First Amendment generally only allows the government to restrain speech based on “time, place, and manner,” most efforts to prevent a person from saying something in advance—often known as prior restraint—are unconstitutional. In 1963’s Bantam Books, Inc. v. Sullivan, the Supreme Court stated that “[a]ny system of prior restraints of expression…bear[s] a heavy presumption against its constitutional validity.” The injunction at issue in the Georgia case was arguably a form of prior restraint.

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tombTo the State of New York, a marriage is a civil arrangement between two people to live together, support one another, share property, and possibly raise children. This view of marriage may lack romance, but it effectively addresses the needs of a diverse population. Marriage remains deeply connected to religious faith and practice for many people, and a particular religious tradition may have rules regarding marriage and divorce that differ from state law. This raises the question of how New York courts might address disputes of a religious nature. The short answer is that they do not adjudicate these disputes, except to the extent that participation in a religious procedure is part of a pre- or post-marital agreement, or that one or more elements of a religious procedure violate the law or public policy.

New York expressly defines marriage as a “civil contract” in the Domestic Relations Law (DRL). Both parties to a marriage must be “capable in law of making a contract,” and they must give their consent. The DRL does not prescribe any particular procedure for solemnizing a marriage, so couples are largely free to use whichever religious practice, secular procedure, or completely-made-up ceremony they want. The law mostly does not concern itself with the exact manner in which a couple gets married, as long as they meet the basic requirements.

Divorce in New York is also a civil matter, at least as far as the courts are concerned. The DRL requires parties to resolve issues related to property distribution, support and maintenance, and child custody. A spouse who wants to follow religious procedures during their divorce can get some support from the court, but only if the spouses signed a marital agreement stating that they would use those procedures. The court can enforce the agreement by ordering the other spouse to participate. These procedures often involve arbitration based on religious law, and the civil courts can also confirm—or reject—arbitration awards.

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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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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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jarmoluk [Public domain, CC0 1.0 (https://creativecommons.org/publicdomain/zero/1.0/deed.en)], via PixabayObtaining a divorce in New York City requires filing a lawsuit, of sorts, and obtaining a judge’s approval on a final judgment. Even if the parties are able to agree the terms of the divorce, the judge must sign a final judgment. Parties to a divorce may choose to reconcile, and therefore to discontinue the court proceeding. New York law and court rules set certain limits, however, on when a plaintiff can discontinue a divorce suit without the court’s permission. A Manhattan court recently considered a husband’s effort to unilaterally discontinue a divorce case in Marcilio v. Hennessy, ruling that his notice was untimely and barred by equitable principles.

Divorce cases in New York may proceed in much the same way as other lawsuits. One of the spouses, as plaintiff, files a complaint with the Supreme Court of their county. The plaintiff must provide notice to the other party, i.e. their spouse. In many divorce cases, the plaintiff does not formally serve their spouse with papers, in the interest of maintaining a relatively civil atmosphere.

New York recently enacted a “no-fault” divorce law, meaning that a plaintiff in a divorce case is no longer required to allege fault in the breakdown of the marriage. This has, at least somewhat, helped keep more amicable divorce cases from becoming contentious. It also allows parties to focus on resolving issues like property division and child support. Once this process is underway, New York court rules set limits on when a plaintiff can discontinue a case.
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PAR~commonswiki [Public domain], via Wikimedia CommonsIn order to file for divorce in New York, a person must establish that they, their spouse, or the circumstances of the divorce meet the state’s residency requirements. Section 230 of New York’s Domestic Relations Law identifies five scenarios in which a person may file for divorce in this state, usually based on where one or both parties reside. In some circumstances, a New York court may hear a divorce case, with a much reduced residency requirement, if a cause of action related to the divorce occurred within the state. A Manhattan court considered a claim last year in Stancil v. Stancil that “the irretrievable breakdown of the marriage,” the condition for a “no-fault” divorce, occurred in this state, even if the parties did not otherwise meet the residency requirements. The court disagreed.

The issue of residency is based on the legal doctrine of personal jurisdiction, a court’s authority to exercise power over a party. The legal issues surrounding personal jurisdiction are quite complex, but a simple way to summarize them is to say that a court cannot exercise personal jurisdiction over someone who has no connection to the state in which the court sits. A person attempting to sue a resident of Hawaii in a New York court, for example, must be able to show some connection to New York. The type of connection depends on the type of case.

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By jaredjennings [CC BY-SA 2.0 (http://creativecommons.org/licenses/by-sa/2.0)], via Wikimedia CommonsIn a New York divorce matter, a court cannot grant a final divorce until the parties have resolved a wide range of issues, including an equitable distribution of marital property. If the parties can agree on a resolution, they may ask the court to approve their agreement as the final judgment of divorce. If they cannot agree on one or more issues, however, the court must decide for them. The husband in a divorce case in Erie County sought to vacate the judgment of divorce, claiming that it did not represent his agreement on property division and therefore left certain issues unresolved. The New York Appellate Division, Fourth Department ruled in his favor earlier this year in Marshall v. Marshall, finding that he had a valid challenge to part of the divorce judgment. It vacated that part of the judgment and remanded the case to the trial court to resolve those issues.

During the divorce proceeding, according to the appellate court’s order, the wife/plaintiff’s attorney recited an oral stipulation of settlement into the record in court, stating that the parties were waiting on a proposal from a third party regarding valuation of their retirement accounts. The husband/defendant stated in court that he agreed with the oral stipulation, except for three unresolved issues relating to offsets in the valuation of the marital residence, payments on a home equity loan, and the allocation of the pension and retirement accounts. Resolving these issues depended on the valuation of the retirement accounts.

The parties agreed that they would amend their stipulation if they resolved the remaining issues, or return to court if they could not. They signed a written agreement adopting the oral stipulation. The husband then withdrew his appearance and allowed the wife to proceed by default. The parties’ attorneys reportedly received the report containing the proposal for the retirement accounts in January 2011. The husband stated that he “adamantly disagreed” with the proposal. The court, however, entered a final judgment of divorce that June.

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carl dwyer [FreeImages.com Content License (http://www.freeimages.com/license)], via FreeimagesA divorce under the laws of the state of New York requires the parties to resolve multiple issues, either by mutual agreement or by submitting the matter to the court to decide, before the court can enter a final judgment of divorce. Many parties are able to agree to the terms of their divorce, including equitable distribution of property and matters pertaining to any minor children. They can present this agreement to the court as a “stipulation of settlement” (SOS). Two recent decisions, Defilippi v. Defilippi and Jon v. Jon, address motions brought by a former spouse, after the entry of a final judgment of divorce, to rescind an SOS.

The parties in Defilippi negotiated a settlement and signed a written SOS in December 2013. They submitted it to the court in March 2014. The husband did not raise any objections at the time, and the judge signed it. The SOS distributed the parties’ property and debts, provided joint legal custody of the parties’ three minor children, and established the husband’s child support obligation.

According to the court, the husband complied with the provisions of the SOS, with some arrearages, for almost a year. He did not file an appeal or move to vacate the judgment of divorce, but in March 2015, he filed suit seeking to set aside the SOS as void. He claimed that the SOS did not meet the requirements for the correct form of an agreement under § 236(B)(3) of the New York Domestic Relations Law because it did not include acknowledgments “in the manner required to entitle a deed to be recorded.”

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By Terra3 (Own work) [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)], via Wikimedia CommonsAn New York appellate court sanctioned the plaintiff in a post-divorce lawsuit, finding the suit to be frivolous. The ex-husband (plaintiff) filed suit against the ex-wife (defendant), after the entry of their divorce, seeking to recover a sum of money that had been claimed by the plaintiff as a credit against the property division in the divorce case. The New York County Supreme Court found the lawsuit to be barred by the doctrine of res judicata, but it denied the defendant’s motion for sanctions and attorney’s fees. The Appellate Division, First Department reversed this part of the lower court’s ruling and remanded the case with instructions to impose sanctions and order the plaintiff to pay the defendant’s attorney’s fees and costs. Borstein v. Henneberry, 2015 NY Slip Op 05390.

The parties’ lengthy divorce was finalized in December 2009. The plaintiff, an attorney who represented himself during the proceeding, claimed that he had loaned $27,000 to the defendant for a business venture after the divorce had been filed. He included this amount in a list of credits in his proposed distribution of assets. The court addressed the property distribution in a 51-page order following a six-day trial. The order did not specifically mention the $27,000 loan, but it included a clause stating that “any arguments raised by the parties which have not been expressly addressed in this decision are rejected.” The plaintiff’s appeal of the court’s order, according to the appellate court’s ruling, did not mention the loan.

In 2010, the plaintiff filed suit against the defendant to recover the $27,000 loan. The complaint made no reference to the divorce action or the final judgment of divorce. The defendant filed a motion for summary judgment, which the New York County Supreme Court granted in June 2013. Res judicata prohibits the relitigation of claims that have already been subject to a final adjudication. Even though the divorce judgment did not specifically mention the loan, the court held that the clause in the judgment rejecting any unaddressed arguments constituted a final adjudication.

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By OptimumPx (Own work) [Public domain], via Wikimedia CommonsA New York appellate court in Brooklyn recently ruled that a woman could substitute the estate of her deceased ex-husband in a post-divorce proceeding to determine an equitable distribution of property. The executor of the estate objected, claiming that the court actions ended with the husband’s death. The trial court disagreed and granted the wife’s motion. The appellate court affirmed that order in May 2015 in Charasz v. Rozenblum.

The unusual case essentially began when the husband filed for divorce in July 2010. The wife counterclaimed for divorce soon afterwards. The parties had three children, who were approximately 13, 10, and seven at the time the divorce case started. While the case was pending, the husband was diagnosed with advanced stage brain cancer in May 2012. The court granted a divorce for the husband on the ground of constructive abandonment several months later, but it reserved the division of property and other economic issues. A lengthy trial followed, beginning in late 2012 and ending in about February 2013.

After the trial ended, the husband removed the wife and children as beneficiaries on a life insurance policy and several investment accounts, reportedly worth a total of about $5 million. He designated his mother, sister, and the executor of his estate as beneficiaries, in violation of the court’s order. On March 21, 2013, before the court entered a judgment in the case, the husband committed suicide.

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