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Brooklyn Family Court recently played host to a mother’s nightmare when questionable family photos became the subject of a child abuse case brought against her and her husband.  Luckily for this “loving and attentive mother” in Matter of CW v. CYR the Court ultimately dismissed the petition and found only that Mrs. R “uses technology to obsessively record her children’s lives and did not realize that not everything needs to be memorialized.”  It could have been far worse.  Had the Court found, among the thousands of family photos that had been stored in the husband’s blackberry (lost, then found by a passerby who turned it in to the police), that the few nude photos of the youngest child were obscene, the couple could have lost custody of their four children and faced criminal charges, to boot. What was she thinking(?) is easy to say in hindsight, of course.  As many people today are prone, Mom used her camera phone to record her everyday life, and to convey information in text messaging.  So, when her 4 year old daughter confounded her one night by ending up without clothes after having been put to bed in a nightgown and underwear, Mom took a photo of her while sleeping and posted it with a text to her sister and husband, asking them if they thought this was normal.  Other photos of this child with other children in and out of the bath were no doubt meant to record innocent moments. Predictably, “innocent” was not how the Administration for Children’s Services saw things.  A police search was conducted of their home, their home computer was seized, and the children were removed from their custody pending a hearing. Children are deemed neglected if placed in imminent risk of harm to their physical or emotional well being.   Child abuse is worse, and is not limited to situations in which actual physical harm is inflicted. Under New York law, parents who commit a crime aimed at their children are deemed to have abused the child, even where physical harm did not occur. The parents in Matter of CW were charged with abusing their children based on alleged violations of Penal Law section 263 which prohibit obscene sexual performance by a child.  For the depiction of the child to be an obscene sexual performance, it must, at a minimum, involve a “lewd exhibition of the genitals.”  Given what the photos displayed, the only question for the court was whether the photos were “lewd.” Thankfully, no.  A careful review of the caselaw led the Court to conclude that, because the children had not been posed, and there was evidently no intent to elicit a sexual response in the viewer, the photos were not lewd.  It helped that a physical examination of the children showed no signs of trauma, and that the children were well-adjusted, happy kids.  Their pediatrician even remarked that the family was “one of the most normal, high functioning families in his practice.” Which begs the question, again --- what was she thinking?  In Court, Mom testified that the photos “were in bad taste.”  Bad judgment, more like.  But the Court remained charitable in its assessment, concluding that “any parent knows that you cannot raise a child without making mistakes in judgment from time to time.  And unless that mistake endangers your child or you violate a statute you have the right to correct your mistake without government interference in your family life.” If nothing else, this case points out the dangers of sharing too much.  There is no getting around the fact that children will do the damnedest things, but not everything needs to be compulsively recorded and shared.

Just as not every marriage ends in divorce, not every relationship ends in marriage.  For those unrestrained by a state contract but left empty-handed, there is some consolation if an alternative agreement was made.  As the recent decision of the Appellate Division of the New York State Supreme Court in Dee v. Rakower (11/13/13) shows, even an oral contract can suffice to entitle a cohabitant to share in the value of retirement benefits earned during the relationship. In the Dee case, the parties cohabitated as an unmarried same-sex couple for 18 years and had two children, each adopting a child born to the other. Because they were unmarried, plaintiff Dee, who had stayed home to raise their children and had no retirement benefits, could not proceed under the equitable distribution law (which serves to grant the non-titled spouse an interest in the other’s assets) to claim a portion of her former partner’s pension. Fortunately, she was not without a remedy.  When they broke up, Dee sued for breach of contract, alleging that she had quit her full time job that offered a retirement plan when the parties agreed that she would work part time and stay home with their children.  She further alleged that defendant Rakower agreed to contribute financially, supporting the household and sharing the retirement contributions she accumulated during the time that the plaintiff lacked a retirement plan of her own. Despite the favorable decision from the Appellate Division, the Dee case does not yet represent a victory for the plaintiff, since the appellate ruling was not a final order.  It reversed the lower court’s dismissal order, and sent the case back down to the trial court with instructions for it to go to trial.  Of course, Dee could yet lose at trial, which is a significant risk, since the alleged agreement is an oral agreement, the proof of which will largely depend on the parties’ credibility at trial. But regardless of the ultimate outcome for plaintiff Dee, the case represents a huge victory for all unmarried individuals who dedicate their lives to raising a family.  Straight or gay, a couple that embarks upon an economic partnership where one of the partners promises a benefit to the other (i.e. raising his/her children) and/or, based on a promise, suffers some detriment (i.e., quits a job with a pension) has entered into a legally binding contract even if it was never written down.  It should go without saying that a written contract is preferred, but at least there is some remedy in cases without one.  This is particularly important for gay and lesbian couples who now, in the wake of the Marriage Equality Act, are able to get married, but who may have lived together for many years with nothing more than a promise to “share and share alike.”  At least now those years are not lost, and promises made can be enforced.

The constitutional right to travel freely, like all rights, exists in a balance with other rights.  For instance, courts have long held that a custodial parent is not free to relocate to a distant locale without court permission, since the move may be contrary to the children’s best interests.  But what if a woman is pregnant with a couple’s only child – is she free to relocate to a different state against the wishes of the putative father? In a recent decision, a unanimous panel of the Appellate Division of the New York Supreme Court answered resoundingly “yes,” holding that “putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty.” The mother, Sara McKenna, is the former girlfriend of Olympic skier Samuel Bode Miller, the putative father, who had filed a paternity petition in California before the child was born.  Two days after the child was born in February, the mother filed a custody petition in New York, where she had moved during her pregnancy to attend Columbia University. Finding that her conduct in moving from California to New York was “unjustifiable” and “reprehensible” the New York Family Court attorney referee had dismissed the mother’s case on jurisdictional grounds, even though New York clearly had “home state” jurisdiction to determine the case.  Once California got the case, it granted the father physical custody, separating the mother from her infant son. On appeal, the Appellate Division reversed the Family Court referee, reinstating the mother’s petition.  Significantly, the appeals court held that the California court had no jurisdiction to determine custody because the father’s petition was not a custody petition, which can only be filed after the birth of a child.  It also disagreed with the referee’s opinion of the mother’s conduct, finding there was nothing wrong with moving.

The thousands of comments to the recent report of attorney David Schorr’s defamation suit filed against court psychologist Marilyn Schiller are mostly incredulous, along the lines of how can a father be penalized for what most agreed is good parenting.  Schiller had recommended that Schorr’s visitation be curtailed when he refused to take his son to McDonald’s for dinner. After all, any five year old who throws a tantrum when told what’s for dinner and is given the choice of “no McDonald’s” or “no dinner,” should learn a lesson in consequences.  Although it is unclear whether the father brought the child home early from his scheduled visitation (possibly indicating that he could not handle his son after all), or whether he has a history of poor conflict resolution with his son, it is hard to dismiss the possibility that the psychologist may have a bias against the father. Bad as that might be, the bigger problem is having the fate of your family decided by a stranger.  It’s bad enough, in a divorce case when the parties are unable to agree, that the court must make custody and visitation determinations.  At least there are procedural guarantees including, if necessary, a trial at which witnesses can be called and cross examined, to help ensure that the court’s decision will be an informed and impartial one. But the consolation of due process often falls flat when the court relies on a forensic psychologist.  The purpose of a forensic psychologist is to assist the court with a recommendation concerning custody and/or visitation.  That recommendation usually appears in a written report (sometimes a series of reports) issued after interviewing the parties and the children, administering psychometric tests and reviewing collateral source material.  Since the psychologist’s conclusions can weigh heavily on the court, this places the “losing” parent in the position of having to explain, at trial and even sometimes at a conference, why the court should not adopt the psychologist’s recommendations.  This would be less of a problem if there were at least a fair hearing in store.  However, instead of a hearing at which the conclusions of the psychologist can be vetted against the underlying data, the trend in New York courts has been to limit cross examination severely.  This leaves the parties at the mercy of the psychologist’s conclusions because they cannot be effectively challenged. Several cases have rejected attorney efforts to get a psychologist’s records — the notes, test data, and other records, including collateral source materials relied upon — that are needed to show whether the psychologist’s conclusions were reasonably based, or were instead the product of bias or incompetence.  In his 10/31/13 article in the New York Law Journal, attorney Alton Abromowitz discussed this trend, summarizing four reported cases that rejected or limited disclosure demands.  The most recent of the cases, CP v. AP, 32 Misc. 3d 1210(A); 932 NYS2d 759, is a 2011 Manhattan divorce case in which the judge denied the mother’s application for an order directing the forensic psychologist to produce his notes and test data.  The court held that the mother had not shown “special circumstances” such as bias or a deficiency in the report, that would justify “the potential harm of disclosure to the parties’ relationships and on the evaluation process.”  Instead, the court held, the mother could ask again for the notes and test data at trial if a showing of bias or other reason to doubt the credibility of the report arose at that time. The reasoning in CP v. AP is based on the earlier cases cited by Abramowitz, and is particularly alarming because this case comes after the 2006 release of the New York State Matrimonial Commission Report which strongly recommended that forensic psychologist testimony should not be handled any differently by the courts than other kinds of expert testimony.  In other words, the party opposing the expert’s conclusion should have free access to the “underlying notes and test data, including raw test material,” that (hopefully) formed the basis of the psychologist’s conclusions.  Really, this is the only way effective cross examination of an expert can be conducted.  Unless the information and material the expert relied upon can be compared to the conclusions he/she reached from that material, there is no way of knowing if the expert was justified in reaching his/her conclusion.  There could be any number of reasons that the conclusions are unsupported — oversight (perhaps unintentional), untested assumptions, incompetence, bias or hostility, to name a few — but only a review of the data can disclose this.  Disclosure of the underlying records is not something that can await the day of trial when the expert is already on the stand, since it is unlikely that there will be any reason to doubt the opinion when the lack of underlying data makes the examination superficial.  Although most forensic reports reiterate the data that support the psychologist’s conclusions, the report will usually not disclose notes and raw test data that would contradict the conclusions. The Matrimonial Commission was correct to recommend access to records without needing to show “special circumstances” because not every case of bias is immediately obvious just from hearing the psychologist’s conclusions.  To argue otherwise is circular: If a showing of bias is needed to get the underlying records needed to show bias, it is unlikely that any bias or other underlying problem will be exposed at trial. The potential consequence of protecting a psychologist’s notes and raw test data from disclosure is poor court decisions based on poor information.  When it’s your child’s well-being at stake, you have a right to true due process, including the right to meaningful cross examination.  Nobody should have to be told what is best for his kids by an unquestioned stranger dictating unsupported conclusions.

In divorce and family law, more than any other area of law, much of what needs to be proved is undocumented. Especially where custody and domestic violence are involved, there may be nothing other than a witness’ testimony, and that may not be enough to convince a judge. Audio recordings get at the truth — fast — and can spell the difference between the Court believing you, or dismissing your case. The best recordings capture unguarded moments. To make such a recording, your spouse must be completely unsuspecting. Fortunately, it is entirely legal in New York to record a conversation with somebody without his or her knowledge. Although your attorney may need to give opposing counsel a copy of the recording before the trial, the adversary cannot object to the recording simply because your spouse did not consent to being recorded. If the recording is properly made and handled, it will come into evidence and be played in the courtroom. In fact, if a recording "puts the lie" to your spouse’s case, sometimes you can avoid a trial altogether and be in position to dictate the terms of a good settlement. While audio recordings can be valuable evidence, they can also be harmful to you and your case if not handled properly. The first rule is that the person making the recording must actually be present at the place where the recording is being made. If not, the recording is illegal. Not only will the recording not come into evidence (and not get played in the courtroom), but it may subject you to criminal (felony) charges as an illegal "wiretap." Helpful hint: Only record conversations in which you are participating. Never leave your recording device in record mode and walk away. Even if you are in the room recording somebody who is talking to somebody else, you may have difficulty proving you were actually there, and subject yourself to possible criminal charges. Equally important is quality. The recording must be substantially audible throughout, or the Court will not listen to it. Numerous reported cases have rejected audio recordings that are partially inaudible. As a practical matter, this can be challenging. Audibility is always at odds with the need to conceal the device. Fortunately, iPhones and other smartphones have recording apps that work well, and the phone looks innocent enough to escape detection. However, if the phone or other recording device is concealed in your pocket, or you are standing in the wind or where there is background or street noise, the recording may be muffled. The best advice is to practice recording before you get into a situation where it matters. Make sure your practice run is under similar circumstances to the situation you expect to encounter. Try different ways of holding or carrying the device. Remember, it must pick up everybody’s voice equally well — both yours and the target person — so be sure to speak up and not to mumble or speak too quickly. And, if possible, act naturally... But not too naturally. Avoid sarcasm, swearing, and derogatory comments. Avoid sounding happy or arrogant at the "gotcha" moment when your spouse is finally caught on tape. And, whenever possible, be sure that your children are not present and are not audible on the recording. If the judge can hear the children on the recording, he will assume they heard you and your spouse arguing. This could reflect poorly on you for not removing the children from the situation. Finally, keep the conversation short. If your recording goes for more than three or four minutes, it will annoy the judge. At a minimum, it will bore the judge, and s/he may not be listening well enough to really hear the good parts. To avoid being accused of tampering with the recording, all entrances and exits should be natural. To end the conversation, don’t simply turn off the recording device. Try walking away, saying good-bye, or another natural end to the conversation. Once you have made a recording, listen to it as soon as possible, while the conversation is still fresh in your mind. That way, in court you can attest that the recording is a true and accurate depiction of the conversation. This may sound self-evident, but it is an important part of what you must say in court before the judge will even consider listening to your recording. After you have listened, copy it to disc so that there will be a handy way of presenting the recording in court. Here again, in court you will need to say that the CD is a true and accurate copy, so be sure to listen to the CD as soon as the copy has been made. Without a CD, you will need to put your iPhone into the evidence locker. It could be months before you see it again. Of equal importance is something called "chain of custody." Once you have burned a disc, you must keep it someplace only you have access, then personally carry it to court on the day of your hearing. That way you can attest that the recording has not been tampered with since only you had it at all times. Of course, it should go without saying that you should never tamper with a recording. Do not add, delete or enhance any recorded material. It is always a good idea to have a transcript of a recording made, with a copy provided to your spouse’s attorney before the hearing. One more thing, never record conversations with your children. Although it may be tempting, especially in a custody dispute, the courts take a dim view of it because of the "potential to undermine the trust and confidences that should exist between parent and child." Should you come to court with such a recording, it may undermine your case. Done properly, a good recording is like a good picture — it’s worth a 1000 words. But like anything else, your success will depend on good preparation. It’s good to have a plan of what you will say, and practice using the equipment beforehand. If you have any questions, your attorney should be able to walk you through it.

Before the Court can issue a custody determination based upon the child’s best interest, the Court must have the authority to intervene. This legal principle is referred to as jurisdiction. In custody determinations, the Court must possess jurisdiction in order to make a permanent, temporary, initial, or modification order of custody. The jurisdiction requirement changes depending on whether a party seeks to establish an initial custody determination, modify a previous Order of custody of a New York Court, or modify a previous Order of custody of another state. ​Initial Custody Determinations (where no prior Court Order pertaining to custody of the child exists): New York does not automatically have jurisdiction to make an initial custody determination. In 2002, New York adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The UCCJEA, which has been adopted by every state but Massachusetts, provides four bases upon which a New York court may exercise jurisdiction to make an initial custody determination. At least one basis must apply for a New York court to act. They are as follows: New York is the home state of the child on the date of the commencement of proceedings or was the home state of the child within six months before the commencement of the proceeding and the child is absent from New York but a parent or person acting as a parent continues to live in New York; a court of another state does not have home state jurisdiction or a court which has home state jurisdiction has declined it on the ground that New York is the more appropriate forum and the child and the child's parents, or the child and at least one parent or person acting as a parent, have a significant connection with this state other than mere physical presence and substantial evidence is available in New York concerning the child's care, protection, training, and personal relationships; all courts which would have jurisdiction under grounds (1) and (2) have declined to exercise it on the ground that New York is the more appropriate forum; and no court of any other state would have jurisdiction under grounds (1), (2), or (3).   Domestic Relations Law §76(1)  Importantly, the statute defines "home state" as "the state in which a child lived with a parent or a person acting as a parent at least six consecutive months immediately before the commencement of a child-custody proceeding. In a case of a child less than six months of age, the term means the state in which the child lived from birth with any of the person mentioned." Domestic Relations Law §75-a(7). Therefore, New York gains jurisdiction only if your child has resided in the state for at least six consecutive months immediately prior to the date you apply for custody. If your child has resided in more than one state during that six month period, the Court may only gain jurisdiction under subdivisions (2) (3) or (4). There are exceptions to this rule. Notably, New York may gain temporary emergency jurisdiction if the child is present in New York and the child has been abandoned, or if the Court’s intervention is necessary to protect the child, a sibling, or a parent of the child. Domestic Relations Law §76-c

The resolution of a divorce action, whether by trial or settlement, can take months or sometimes years. Understandably, after receiving the judgment of divorce, many people are less than eager to seek yet another order from the Court. However, if you are entitled to share in your (former) spouse’s retirement benefits you will have to get a separate order at the conclusion of the divorce called a Qualified Domestic Relations Order (QDRO)(or just plain Domestic Relations Order if it’s a government plan) before you can receive anything from the pension or retirement account. The judgment of divorce by itself does nothing to get you paid. Even if your settlement agreement, trial decision, and/or Judgment of Divorce states that a pension or 401k is to be divided between the parties, most pension administrators will not actually split the pension without a QDRO. The QDRO is a special order that identifies the exact name of the plan, the Participant (also sometimes referred to as the Member or employee spouse), the Alternate Payee (also sometimes referred to as the Former Spouse or non-employee spouse), the exact amount or percentage to be awarded, or a formula to be used to calculate the award, and other terms required by law. Unappealing as it may seem, there are numerous reasons why you do not want to wait to apply for a QDRO. The Participant May Retire: If the Participant spouse is close to retirement age at the time of the divorce, it is especially important to begin the QDRO process immediately. If there is no QDRO in his employee file when he retires and begins collecting benefits, the non-employee spouse will get nothing and may not be able to recover her share retroactively. At a minimum, it will be a costly fight if the non-employee spouse must go to court to enforce a retroactive pension claim.  Also, the Participant may be required, under the terms of the divorce judgment, to elect a specific option at retirement with a death benefit for the non-employee spouse. However, if there is no QDRO on file, the plan administrator will not be aware of this requirement, and the Participant may elect a different option without a survivor option, or even put his new spouse as the surviving "spouse." This can be a disaster — it may not be possible to reverse the wrong designation, leaving the non-employee spouse penniless if her former spouse dies first. Of course, this can be avoided if the proper QDRO is on file with the plan administrator well in advance of the Participant reaching retirement age. The Participant May Die Prior to Retirement: Even if the Participant is not close to retirement age, the non-employee spouse risks losing a pre-retirement death benefit if the QDRO is not on file at the time of the Participant’s death. The Participant May Take a Loan: Many plans allow Participants to borrow against their benefits. In this case, it is best to have a QDRO in the employee file that forbids any borrowing that might effect the non-employee spouse’s interest, until it can be paid out. The Parties May Relocate: The party who applies to the Court for a QDRO is required to provide notice to the other party. If many years have passed, and the party applying for the QDRO is unable to locate his former spouse, it may delay the process. The Participant May Withdraw Funds: If the Participant has liquidated a 401k or other deferred compensation account prior to the entry of a QDRO, the QDRO is meaningless. The other spouse would then be limited to further litigation to obtain a money judgment equal to the amount lost, but this is costly and uncertain litigation. If the Participant has already spent the money and does not have other non-exempt assets, there may be no remedy. The Participant May Roll Over Funds to Another Account or the Plan May Change Recordkeepers: Even if the account is not liquidated but is simply moved to another financial institution, this can cause huge problems and delays. First, this transfer (or rollover) may not be discovered until after the non-employee spouse gets a QDRO for the first account, which no longer contains the funds. The QDRO would not suffice for the new account, so a new QDRO would be needed. Second, most non-employee shares in retirement accounts include interest and dividends from the date of the original divorce settlement agreement (or from the date of the original judgment of divorce). If the funds have been transferred to a new financial institution, the new financial institution will often not possess the records from the old 401k that are needed to add interest and dividends from the date of the original agreement. In that case, attorneys (or their paralegals) must review years of account statements (assuming the statements can be obtained) to manually calculate the gains (and possibly losses) on the non-employee’s share. This assumes that the Participant spouse is persuaded to cooperate. Often cooperation is lacking, and a court application is needed as well. Records Necessary to Prove a Separate Property Credit May No Longer Exist: If the Participant spouse had funds in a deferred compensation account at the time of the marriage, those funds are her separate property, and the non-employee should not share in those funds. However, it is the burden of the Participant to prove the amount of the pre-marital funds. Most financial institutions maintain account records for a limited period of time, often seven years. If the account records from the date of marriage are no longer available when the QDRO is being prepared, the Participant may have to forfeit a portion of her separate property to the other party. It Takes Time for the QDRO to be Signed by a Judge: Even under the best scenario, where the other party has no objections, in Suffolk County it takes up to nine months from the date that the proposed QDRO is submitted to the Court for it to be processed by the clerk’s office and signed by a judge. The QDRO May Need to be Amended: While many plan administrators will review a draft QDRO before it is signed by a judge, some will not. In those cases, the parties may not know until after the QDRO is granted by the Court and served on the plan, that it violates technical plan provisions and will not be honored (i.e. "qualified"). For example, the plan may prohibit the calculation of an award between two dates, may not allow for a pro rata survivor benefit, or may not calculate awards prior to a certain valuation date. If the QDRO contains a prohibited term, it will have to be amended and re-submitted to the Court in order for the distribution to be effectuated. While this situation is rare, additional time should be allotted for such a possibility. In practice, the task of submitting a proposed QDRO to the Court usually falls on the non-employee spouse, since he/she is the party who benefits from the QDRO. However, sometimes it makes sense for the employee spouse to take the initiative. For example, if you want to take a loan from your 401k and are restrained from doing so until your former spouse receives his/her share of the account, you may want to have the award paid out quickly. In the case of a defined benefit pension, it is best to have the QDRO on file well before you submit your retirement application, to avoid any efforts by your former spouse to delay your retirement while he/she tries to obtain a last minute QDRO from the Court. The bottom line is that you may think you are giving yourself a much needed break at the end of your divorce, both financially and emotionally, by putting off the task of obtaining a QDRO. However, if you procrastinate on this important task, you may find yourself involved in costly litigation with your former spouse again one day, perhaps even ten or twenty years in the future. It is best to get it out of the way now, so you can move forward in your post-divorce life with one less thing to worry about.

A slate of new domestic relations laws were signed into law by Governor Paterson on August 15, 2010. The amendments to the state Domestic Relations Law make it easier to get a divorce, and make it easier for a less monied spouse to obtain temporary maintenance and payment of attorney’s fees. The new laws go into effect sixty days from signing, on October 14, 2010. The most significant change is the addition of a true no-fault divorce ground. Under existing law, a spouse wishing to be divorced was required to prove that the other spouse had committed a serious marital transgression, such as cruel and inhuman treatment or adultery. This presented a problem for many people who, without the "good" fortune of having been beaten or cheated on, were unable to get a divorce from a reluctant spouse. As the appellate courts often admonished, New York law provided no means to dissolve a "dead" marriage. As a result, extortion was widespread, as reluctant spouses played the "grounds card" to gain the upper hand in the negotiation of financial issues, knowing that the court could not divide marital assets where the other spouse could not prove one of the pre-set fault grounds. And, when not encouraging extortion, the old law promoted perjury, since an uncontested divorce was almost always based on allegations of sexual abandonment (called constructive abandonment) lasting a year or more, with scant regard for whether these allegations could actually be proved. Under the new law, a spouse need only show that "the relationship between husband and wife has broken down irretrievably for a period of at least six months." The new law will only apply to cases filed after the effective date. Although there is no way to say what "broken down irretrievably" will mean, the intent in passage of the statute was to create a true no-fault divorce in New York, where neither spouse would have to suffer extortion, or be forced to commit perjury, to get a divorce. The provisions concerning temporary maintenance have also been revised. This represents a major change in both practice and procedure. When contemplating a divorce, a dependent spouse often worries that she will not be able support him or herself (and the children) unless a court order directs the monied spouse to pay the bills. In addition to payment of carrying charges and child support, a dependent spouse may need money for his or her own support, called maintenance. When a court orders the monied spouse to pay maintenance while the case is pending, this is called temporary maintenance. To get it, the attorney for the dependent spouse makes an application for a "pendente lite" order, which typically contains provisions for temporary child support, temporary maintenance, payment of attorney’s fees, exclusive occupancy of a home, continuation of medical insurance during the case, and other such relief. Under existing law, an award of temporary maintenance is a matter of court discretion, and could be denied entirely. The amount of temporary maintenance has always varied from case to case and depended upon a multitude of factors, including the demonstrated financial need of the dependent spouse and the "standard of living of the parties established during the marriage," as well as the monied spouse’s (perceived) ability to pay. The statute governing maintenance is now amended to provide a formula for determining the "presumptively correct" amount of temporary maintenance to be paid during the pendency of a divorce case. A dual formula approach is prescribed, in which the court calculates the amount of temporary maintenance in two different ways, and then directs the monied spouse to pay the lesser of the two amounts, as the presumptively correct amount. The new law bears some resemblance to the Child Support Standards Act (CSSA), enacted in 1989, which replaced the old needs-based system for setting child support with a mathematical formula approach. Like the CSSA, the new maintenance law sets forth numerous factors that operate like equitable escape hatches to be employed only when the formula-based "presumptively correct." temporary maintenance is found to be unjust or inappropriate. The old maintenance statute has factors as well, but only eleven factors are listed (including "any other factor which the court shall expressly find to be just and proper") and those factors are not designed to be used to justify a deviation from a presumptively correct amount, as under the new law. The factors under the old statute are simply guideposts for a court to consider in determining how much maintenance should be paid. If experience with the CSSA is any guide, the courts will rarely resort to a factor analysis under the new law to deviate from the formula approach to setting temporary maintenance. Like the CSSA, the use of a formula to determine the presumptively correct amount of maintenance is subject to an income cap. The new statute sets the cap at $500,000 per annum of payor income, a figure which is far greater than the $130,000 cap on combined (payor and payee) income under the CSSA. An earlier version of the new maintenance law that did not survive legislative committee also provided a formula for permanent maintenance. Permanent maintenance is the term used to describe maintenance set forth in the judgment of divorce that continues into the future after the parties are divorced, regardless of whether it terminates after a period or years or is truly permanent and expires only on the death (or remarriage) of the payor or payee. That proposed but unpassed statute also charted set time periods for each permanent maintenance award based on the length of the marriage (called "post marital income"). These (proposed) time periods went way beyond the duration of maintenance awards that have typically been granted by courts under existing law. Fortunately (or unfortunately) there is no duration of permanent maintenance prescribed under the legislation that the Governor recently signed into law, so courts will remain free to exercise discretion in setting the length of time that permanent maintenance must be paid. The courts will also be free to set the amount of permanent maintenance under the new law without reference to a formula, since (oddly) the formula approach only applies to awards of temporary maintenance. With one exception, the portion of the original statute that deals with setting permanent maintenance has not been modified. In fact, it is the same portion of the statute that, in the past, has been used to set both temporary and permanent maintenance awards (with the words "temporary maintenance" taken out). In other words, when it comes to permanent maintenance, the court will continue to issue awards based largely on three main factors: The demonstrated financial need of the dependent spouse, the standard of living of the parties established during the marriage, and the monied spouse’s ability to pay. There is, however, one notable modification of the statute that may effect the way that courts grant permanent maintenance. Added to the host of factors that the court is directed to consider (beyond lifestyle and ability to pay) in setting the amount and duration of permanent maintenance, are numerous new factors that may actually serve to increase the amount and lengthen the duration of permanent maintenance awards. These include "the existence and duration of a pre-marital joint household or a pre-divorce separate household." Presumably, employing this factor, counsel could argue that a dependent spouse in a monogamous relationship spanning many (say, 25) years, only the last five of which were married, should be entitled to a longer and larger permanent maintenance award than a woman married (and together with) her spouse a mere five years. Other new factors that may serve to enhance maintenance include "acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity...[including] acts of domestic violence," and "care of children, or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited ... a party’s earning capacity." Other factors that may serve to enhance maintenance include "inability to obtain meaningful employment due to age or absence from the workforce," and "the need to pay for exceptional additional expenses for the child/children, including but not limited to schooling, day care and medical treatment." Finally, the legislature added "the availability and cost of medical insurance for the parties" as a factor to be considered in setting permanent maintenance. Of course, the exorbitant cost of medical insurance has long worked its way into permanent maintenance awards, since this is clearly a component cost of the dependent spouse’s "reasonable needs" under the prior law. Spelling this out as an individual factor helps to underscore the importance of the cost of insurance to the dependent spouse. One final observation — the additional factors added to the permanent maintenance section of the statute are also the factors added to the temporary maintenance section. As described above, in the temporary maintenance section these factors perform a different function, since they are only employed when a formula-based (and presumptively correct) temporary maintenance award would be unjust or inappropriate. In short, in the context of a temporary maintenance award, the factors are "plan B." However, because the new factors are, if employed, likely to increase the amount of temporary maintenance, the possibility exists that courts will deviate upward from a presumptively correct formula-based temporary maintenance award. This would represent a huge departure from the typical application of the Child Support Standards Act, on which the new temporary maintenance provision was modeled, since virtually all cases in which there have been deviations from the CSSA percentage-of-income support calculation, have been downward deviations. Of course, we can only speculate what the courts will do, since the statute is so new. An additional amendment to the Domestic Relations Law will make it easier for less-monied spouses to get their attorney’s fees paid in a divorce. The statute dealing with attorney’s fees will now provide for a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse." A fee award will not be automatic, but should be easier to obtain than in the past, where often an attorney representing a dependent spouse had to await the final judgment for an order directing payment of fees. In addition to the rebuttable presumption, the amendment to the statute directs that fees be paid quickly, at the outset of the case: "where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding."

Everyone loves a surprise ending, right? Maybe. Just don’t ask the spouse who owned a home prior to marriage, and expected she would be able to keep the home as her separate property in the divorce, only to find out that her husband has an interest in the value of the home that could force its sale. There are numerous ways in which separate property — for example, property owned prior to the marriage, property that is inherited or received by gift or from the proceeds of a personal injury award — can become marital property. The easiest way for property to lose its separate character is to add the spouse’s name to title. But when nothing was done to "transmutate" separate property, it should stay separate. At least, that’s what many people think. Enter recoupment, an equitable principle by which marital monies that were spent during the marriage are recouped or paid back to a spouse in the divorce. This includes monies spent maintaining separating property. Historically, recoupment had been broadly applied in many contexts, but the recent decision by the New York Court of Appeals in Mahoney-Buntzman v. Buntzman took an ax to the recoupment doctrine and limited its application to cases involving the maintenance of separate property and to cases involving wasteful spending. Removed from the ranks of recoupment cases, are those in which marital monies were spent during the marriage on support and maintenance of prior children and former spouses. When money earned during the marriage by either or both spouses is spent maintaining the separate property of one of the spouses, that money can be reclaimed, and a money judgment awarded for an equitable portion of those funds. This equitable portion is usually one-half of the monies paid. Incredibly, in the case of a long term mortgage that was taken out shortly before the marriage on a residence that was owned prior to the marriage, the total amount of the mortgage payments made during the marriage may be more than double the actual reduction in the principal balance of the mortgage, leading to a recovery by the non-titled spouse of the full reduction in principal mortgage balance during the marriage. The Mahoney-Buntzman case, citing to Micha v. Micha, an appellate division case from the Third Department, made clear that this expenditure of marital funds can still be recouped by the non-separate property owning spouse. Micha involved farm machinery owned by the farmer husband from prior to the marriage. The payment of marital money during the marriage towards secured loans (not unlike a home mortgage) on the farm machinery was recouped by the wife. So there is no confusion, "marital money" is money earned or acquired during the marriage that does not fit into a separate property category. In other words, money earned from employment during the marriage, spent on a separate property mortgage, can be recouped. The same is true of marital money spent on capital gains taxes payable for the sale of separate property, which was the holding in Carney v. Carney, another Third Department case also cited by the Court of Appeals in Mahoney-Buntzman as an example of what survives in the recoupment doctrine. In Carney v. Carney, the parties spent the proceeds of the sale of their jointly owned marital residence to pay the capital gains taxes incurred on the sale of the husband’s separate property building that had housed his separate property business. Although the proceeds from the sale of the separate property building remained the husband’s, he owed the wife one-half of the monies that were paid towards the capital gains taxes. In addition to losing a portion of the value of separate property to recoupment, a portion of the appreciated value of separate property may be marital property that will be divided in a divorce. In such a case, it is the portion of the appreciation that is attributable to any improvements performed on the property that is divided. In other words, if the appreciation is more than the result of an "up" market, but can be specifically attributed to improvements performed on the property, that portion of the appreciation is marital property, and the non-titled spouse is entitled to an equitable portion. But at least the titled spouse, who spent marital money making visible and valuable improvements to her separate property, could see it coming. When she must also pay the recoupment claim of the other spouse, her separate property may not seem so separate any more.

The settlement of a divorce case, like the settlement of any dispute, usually involves compromises by both parties. Although neither party gets everything they want in the settlement of divorce, it is sometimes preferred to a trial where the cost of further proceedings -- both emotional and financial -- can be prohibitive. Parties to a settlement usually evaluate compromises in terms of the cost and risk of a trial versus the benefit that a trial will likely bestow if successful. Often it is the cost of a trial that most encourages a settlement (i.e., getting possession of a lawn mower is not worth the cost of a trial to get it, when an agreement can be reached on the other important issues), but just as often it is the risk that after a trial the court will rule against a litigant on an important discretionary issue, that encourages settlement (i.e., a court may not award custody favorably). A further and frequently overlooked consideration in the settlement of a divorce case is the control that a settlement agreement provides in setting precise terms. Whether it be distributing assets, allocating and paying debt, modifying support, controlling conduct toward children, or a myriad of other matters, having the opportunity to consider all contingencies in a settlement agreement is a distinct advantage. With some issues, setting precise terms can be extremely important. A common example is the conduct of parents toward the children. Although it is a rare judgment entered after trial that would direct that neither parent is to allow a future step-parent to be called "mommy" or "daddy" or equivalent terms of endearment (unless one of the parties had already done something like cohabit with a third party to make this an issue at trial), a provision prohibiting this is a common feature of settlement agreements because it is readily foreseeable that the parties may re-marry. An area where the benefit of a settlement agreement is often unappreciated, is the sale and distribution of the marital residence. It is not enough that the parties agree to sell their house. Just as parties often agree that they want a divorce, but then cannot agree on any of the terms by which their property will be split or their children raised, just an agreement to sell a house creates more questions than it answers. In agreeing to sell a house or, as often is the case, to sell it after a period of exclusive occupancy, the parties must consider numerous aspects of occupancy and sale of a house — i.e., who pays what bills for how long, what happens if they don’t, who occupies the house before and during the listing, who determines what to sell it for and under what terms, etc. The importance of properly drafting an agreement that anticipates and provides for all of these considerations varies, of course, with the importance of the issues. However, in the current seller’s market where house values have appreciated markedly in part because of the enhanced buying power provided by record-low interest rates, there is no question of the value of incorporating provisions into a settlement agreement that will control in the event of a downturn in the market before the house can be sold. For example, it may be easy for the parties to agree to sell a house worth $250,000 five years ago, and now worth $400,000, three years from now when little Johnny graduates from high school. It might also be relatively easy for the husband to agree to let his wife remain in the house with his son for such a limited period where he has an expectation of getting half of the now-sizable equity once it is sold. However, if the house were to depreciate in the interim, serious problems will arise unless their settlement agreement considered and provided for this contingency properly. Fortunately or unfortunately, the general rule is that once parties to a divorce action settle property issues the Court will not later modify the terms of their settlement agreement. There is no mechanism for the Court to reconstitute the parties’ agreement to make it fair in light of changed circumstances even if the parties did not consider those circumstances. For example, in DaLoia v. Burt, the Second Department of the Appellate Division of the New York Supreme Court recently applied this principle in a case where the plaintiff wife wished to compel the sale of the marital residence by court order. Their agreement had provided a set period of time in which the defendant husband could buy out his wife’s interest in the marital residence, and this option period had expired when the wife requested an order directing the sale of the house. The trial court denied her request, effectively granting an extension of the husband’s option. The Appellate Division reversed the trial court on appeal, holding that the lower court had no authority to modify the parties’ agreement. The effect of failing to properly draft a settlement agreement that considers all reasonable contingencies is that the intentions of one or both of the parties may be frustrated. Taking our hypothetical scenario outlined above, the parties presumably intended when they entered into their settlement agreement that the husband would wait three years for the house to be sold at which time he would finally be able to realize his share of the equity value from the proceeds of the sale of the home. If, however, their agreement merely provided that the house would be sold at a price determined by a listing real estate broker, the house might never sell and the husband might never receive his interest. How can this be? Here, as with most things, the devil is in the details. If the wife is motivated to remain in the house, she might be tempted to take advantage of the poor draftsmanship of their agreement. If the broker (as often happens) listed the sale price too high in order to get the listing, the house could sit on the market for an indefinite period until a buyer is found at that price. The same result would occur if the market went down during the listing, or if the agreement did not require her to accept good faith offers to purchase within a certain range (a set dollar amount or a percentage of the listed price). It is especially important in the current seller’s market to draft an agreement that provides for a downturn in the market, or one of the parties — in our hypothetical, the husband who wants to sell the house — may effectively lose his interest in the house because the house cannot be sold by a strict application of the terms of the agreement. The courts will not compel the wife to do something which is not expressly provided for in the terms of the parties’ agreement, so our hypothetical husband must wait indefinitely for someone to come along and purchase at an unrealistic listing price. The husband will have "lost" his interest in the house because his settlement agreement did not adequately provide for the terms of sale. Of course, what works to one party’s disadvantage, often works to the advantage of the other party, and counsel can sometimes import such an advantage into an agreement by purposefully drafting in general terms. It is usually the attorney for the party in possession or in title to an asset that is to be divided who might employ such a tactic. In one case involving the distribution of the husband’s pension, the parties agreed that the wife would receive one half of the portion of the husband’s teacher’s pension earned during the marriage. No language was inserted into the agreement directing the husband to select a retirement option that included a survivor benefit to the wife, so the husband was free to pick an option that did not include such an option. When the wife’s attorney later proposed a court order (a "QDRO" or qualified domestic relations order) directing the husband to select a retirement option that provided a survivor benefit, and also directing the pension administrator to name the wife as beneficiary, the trial court signed the proposed order. In Janofsky v. Janofsky the Second Department reversed the trial court and held that it was error to require the husband to do something with his pension that was not expressly agreed to by the parties in their settlement agreement. In that case (successfully briefed for the husband by the undersigned), the Second Department’s reversal left the husband free to select a pension option that did not provide a survivor option (and so paid more to him during his life), because there was nothing in the parties’ agreement that required him to do so. By keeping the language of the parties’ agreement in general terms, the husband was able to secure a greater pension payment each month during his life. In conclusion, if a settlement is reached to avoid the risk and/or cost of a trial, the parties are well advised to be careful that their settlement agreement does not create additional risks for which there is no remedy, even on appeal. Careful draftsmanship that anticipates and provides for the unexpected is essential.