Articles Posted in Divorce litigation & appeals

parental separation

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A mother appealed an order restricting her access to her two teenage children to supervised visits, arguing that the court failed to follow proper procedure and therefore deprived her of due process. The Appellate Division ruled in her favor in Matter of Damian D., et al., based largely on the fact that the mother already had an order for unsupervised visitation, issued under Article 6 of the New York Family Court Act (FCA). The family court issued the supervised visitation order during an Article 10 proceeding brought by the Department of Social Services (DSS), in which the mother was not a party and therefore did not have authority to modify the Article 6 order. The appellate court reversed that portion of the family court’s order and remanded the case.

The case involves a complicated set of family relationships and court orders. The mother had two children with the father: a son, Damian, and a daughter, Dayinara, who were 16 and 15 years old, respectively, at the time of the hearing at issue in the appeal. The mother had three younger children, and the father had one child, born in 2008, with his spouse. In 2011, a court awarded sole custody of the teenagers to the father in an Article 6 proceeding. It awarded the mother visitation on two consecutive weekends out of every three-week period, as well as holiday and vacation visitation. The mother testified that she exercised visitation consistently until November 2012, when DSS removed her three younger children from her home. She continued unsupervised visitation with Damian after that, but Dayinara declined to participate.

In April 2013, DSS commenced Article 10 proceedings against the father and his wife. They removed Damian, Dayinara, and the youngest child from the home and placed them with the youngest child’s maternal grandparents. The court sent notice of a placement hearing to the mother as a “non-respondent parent” under § 1035(d) of the FCA. The hearing took place shortly after the same court had conducted a hearing in the Article 10 case involving the mother and her three children, at which point it restricted her to supervised visitation. At the hearing involving the teenagers, DSS did not request supervised visitation for the mother with Damian and Dayinara, noting that the mother was already subject to an Article 6 order. Counsel for the children stated that the teenagers were old enough for unsupervised visits. Nevertheless, the family court issued a temporary protective order against the mother and limited her to visits supervised by DSS.

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financial dispute

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A New York appellate court recently considered three appeals brought by the husband/plaintiff while his divorce case, Trbovich v. Trbovich, was still pending in the Supreme Court of Erie County. Each appeal arose from a different order, and the appellate court dealt with each one in separate orders (“Trbovich I,” “Trbovich II,” and “Trbovich III”). The court vacated an order awarding temporary maintenance to the wife because of a pre-nuptial agreement, but it affirmed an order denying summary judgment on the divorce itself. The husband had filed a sworn statement establishing the basis for a “no-fault” divorce, but the court held that state law requires the parties to address additional issues before a divorce may be granted.

The husband initiated the divorce proceeding, and filed a sworn statement that his relationship with the wife had “broken down irretrievably for a period of at least six months,” as required by § 170(7) of the New York Domestic Relations Law. In a preliminary order, the Supreme Court ordered the husband to pay temporary maintenance to the wife in the form of weekly payments for general support and to cover housing expenses.

The husband filed motions seeking summary judgment on the divorce and asking the court to vacate the temporary maintenance award. The court denied these motions, but granted the wife’s motion for over $56,000 in attorney’s fees. It also directed the husband to comply with various discovery requests from the wife.

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divorce court

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A court in Nassau County, New York ruled on multiple issues in a nonjury divorce trial, including child support, maintenance, and distribution of the marital estate. Both the wife, who was the plaintiff in the original proceeding, and the husband raised issues on appeal. The Appellate Division’s ruling in Turco v. Turco demonstrates one way in which appellate courts’ review of a divorce judgment is significantly limited, and one way in which trial courts have expansive discretion over a the conduct of a divorce proceeding.

The parties had been married for about 15 years when the divorce was finalized. According to the appellate court’s ruling, the plaintiff was at least partly responsible for “numerous prior adjournments and…extensive delays” in the case. The parties consented to the entry of judgment on some issues, including constructive abandonment as the grounds for divorce. The court denied a motion made by the plaintiff on the first day of trial to voluntarily discontinue the case. It issued a decision in November 2010 and a final judgment in March 2011.

The plaintiff appealed on numerous issues from the trial court’s judgment, including the denial of the motion for voluntary dismissal. Her appeal also addressed the amounts of child support and maintenance, the distribution of the defendant’s interest in a business, and a credit awarded to the defendant against amounts he paid towards the mortgage principle on several marital properties while the divorce case was pending. The defendant appealed the trial court’s failure to order the plaintiff to pay expenses on the marital residence she exclusively occupied.

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financial calculations

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A New York appellate court considered the appeal of a wife in a divorce case, who objected in part to the trial court’s distribution of marital property. This included interests in several business entities. The wife challenged the characterization of two of the business interests as separate property, as well as the amount of the distributions awarded to her. The Appellate Division agreed with some of her arguments and adjusted the lower court’s judgment based on factors like the wife’s contributions as the primary caretaker of the couple’s children.

The couple got married in 1988 and had two children, both of whom were over the age of 21 when the court issued its order. The husband filed for divorce and ancillary relief several years ago, and the case went to trial in the Supreme Court, Nassau County in early 2012. The wife appealed on multiple issues, including the distribution of interests in three business entities:  a one-third interest in a family-owned corporation that operated a hardware store, a one-third interest in a limited liability company (LLC) that acted as a holding company for a piece of real estate in Manhattan, and a 12.9% interest in an LLC that operates an MRI facility located in Westchester County.

The trial court ruled that the interests in the hardware store and the holding company were the husband’s separate property, while the parties stipulated before trial that the interest in the MRI business was marital property. With regard to the hardware store, the trial court awarded the wife $69,900, which represented 15 percent of the increase in value of the husband’s interest in the business. It also awarded her 15 percent of the value of the husband’s interest in the holding company, a total sum of $184,950. Finally, the court awarded the wife 50 percent of the net profit distributions received by the husband from the MRI business until her 66th birthday.
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marriage dissolution

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A New York divorce proceeding can be a difficult and stressful process. While many resources are available to assist the parties with finding an amicable resolution, and to help deal with the emotional difficulties of divorce, the courtroom is not one of those places. Most divorce cases result in some sort of settlement, but if the parties cannot agree, the matter goes to trial for the court to decide. Bringing too much emotion into the courtroom usually only makes judges annoyed or angry. As one party in a proceeding before the Suffolk County Supreme Court, G.T. v. A.T., learned last year, it can also impact the outcome of the case. An experienced family law attorney with knowledge of New York’s laws and legal system can help identify the important issues in a divorce case.

Under New York law, a court may not grant a divorce until the parties have resolved multiple issues, including the “equitable distribution of marital property,” or the court orders a resolution. In G.T. v. A.T., the wife filed for divorce in 2011 with the assistance of counsel, and the husband represented himself as defendant. The court criticized the husband for using his “self-represented status as both a sword and shield” throughout the proceeding.

The case ultimately went to trial over twelve days spread out over a period of several months, from June until September 2013. The court described the evidence presented at trial by the husband as “minimal,” “fueled by his own emotional agenda,” and “oftentimes…devoid of probative value.” His 39-page posttrial memorandum, according to the court, contained only three or four pages’ worth of issues addressed at trial. This caused significant delay in the court’s ability to make a ruling. The only issues addressed by the court in its order were the division of debt and personal property and the apportionment of legal fees.

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prenuptial agreement

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A wife’s decision to sign a prenuptial agreement that named Israel as the exclusive jurisdiction for any divorce between her and her husband proved to be the undoing of her effort to secure a divorce in New York. The Appellate Division upheld a lower court’s dismissal of the wife’s divorce petition, concluding that the wife signed the prenuptial agreement, free of fraud or duress, with full knowledge of the nature of Israeli divorce laws. The fact that Israeli courts might be less favorable to her than New York ones did not mean that enforcing the forum clause in the agreement denied the wife her day in court.

Before Olivia Ofer and Ido Sirota married, they signed a prenuptial agreement. One of the terms of this agreement stated that, if a spouse decided to end the marriage, the divorce case would be litigated in the courts of Israel. Some time later, the wife decided to file for divorce, but she did so in New York County, not Israel.

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