Empire State BuildingThe past few years have brought considerable changes in family law. New York enacted marriage equality statewide through legislation in 2011, while same-sex couples in many states gained the right to marry through state or federal court decisions. A 2013 Supreme Court decision paved the way for a 2015 decision that struck down laws across the country that limited the definition of marriage. As of late January 2017, a new administration has moved into the White House, and many in the federal government have bluntly stated their opposition to marriage equality. The law in New York seems unlikely to change without major political upheavals, since it was the result of legislation. In other parts of the country, however, people have already begun asking courts to review marriage rights.

In June 2011, the Marriage Equality Act became law in New York. The bill amended the Domestic Relations Law by adding two sections. Section 10-a states that a marriage cannot be found to be invalid solely because the two spouses are of the same sex. It further states that all laws, regulations, court decisions, and public policies related to marriage have the same legal effect for same-sex couples as for opposite-sex couples. Section 10-b grants exemptions to religious organizations and certain other private entities, stating that they are not legally obligated to accommodate events related to same-sex marriage.

The U.S. Supreme Court’s 2013 decision in United States v. Windsor was its first major decision regarding marriage equality. The plaintiffs were married in Canada and lived in New York. Their marriage was legally recognized in both locations, but after one spouse died, the other was denied federal estate tax exemptions under the Defense of Marriage Act (DOMA). This 1996 law excluded same-sex spouses from the federal definition of “marriage.” The court struck down DOMA as a violation of due process. This opened up the possibility of federal benefits for same-sex married couples around the country. Two years later, the court’s decision in Obergefell v. Hodges cited the Fourteenth Amendment in striking down state laws excluding same-sex couples from the right to marry.

Continue reading

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.

Continue reading

Silhouettes of ChildrenDisputes over child custody can create significant complications in a family law case. Unlike financial issues, such as child support, the legal standard for determining custody arrangements depends entirely on subjective factors that are unique to each case. No formulas or calculations can determine the best interest of a child. New York City family courts therefore have a certain amount of discretion to make decisions about child custody based on the available facts. In emergency situations, this requires a quick response. A pending judicial ethics complaint against a New Jersey judge, who ordered the transfer of a child from one parent to another based on what allegedly turned out to be incorrect information, shows just how complex these disputes can become. Matter of DeAvila-Silebi, Docket No. ACJC 2016-001, complaint (N.J. ACJC, Oct. 20, 2016).

Most states use the “best interest of the child” standard in child custody decisions. N.Y. Dom. Rel. L. § 240(1)(a). This means that the paramount concern for the courts is finding an arrangement that is most beneficial to the child or children. In a custody dispute between parents, each parent can present evidence to support their claims, but the final decision should not be based solely on whether either parent has somehow earned the right to custody. Under New York law, custody by a parent or another individual who has been convicted of an offense involving domestic violence or certain other offenses is presumed not to be in a child’s best interest.

The complaint in DeAvila-Silebi addresses the use of police by a judge to transfer a child from one parent to the other, based on what she claimed was an emergency situation. The respondent judge reportedly received a phone call early on a Saturday morning in May 2015. The caller claimed to be an attorney for the mother in an ongoing custody dispute in Essex County, New Jersey, and she told the judge that the child’s father was keeping the child in Fort Lee, a borough in Bergen County, despite the mother having the right of custody at that time. She reportedly called the Fort Lee Police Department and asked them to have an officer accompany the mother while she retrieved the child. The police did so, and the child was returned to the mother’s custody.

Continue reading

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.

Continue reading

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.

Continue reading

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.

Continue reading

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.”

Continue reading

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.

Continue reading

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.

Continue reading

https://www.newyorkdivorceattorney-blog.com/files/2016/05/Screen-Shot-2017-01-05-at-1.02.37-PM-300x234.pngNew 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).

Continue reading