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There is no way to split a child in two; and yet, if there was, it would surely be in his/her best interest to become two halves. For many parents faced with being without their child when a former spouse meets "Mr./Ms. Right" or is otherwise compelled to relocate, this may seem like the only solution. Unless, of course, the child is from Ulster County where the Family Court in Stearns v. Baxter (655 N.Y.S2d 261, 1997) interpreted the new "best interests" standard for relocation by the custodial parent in a way that sought, first and foremost, to keep the child’s world together. The mother sought permission to move to North Carolina with the child of the parties. There appears to have been no question of whether she truly loves the man she wants to marry there and start a new life with, and there was no issue of whether her son had strongly bonded to his mother during his seven young years. However, the court found that the network of family and friends in the area of the parties’ upstate Ulster County home, as well as the father’s active involvement in the child’s life and his academic success in school here in New York made this the child’s real home. The court then directed that the mother make the choice: stay and keep custody, or leave and lose it. It may well be impossible to be completely fair to both parents when stuck with a choice between such basic interests — personal freedom of the custodial parent on the one hand, and the quality of the non-custodial parent’s relationship with the child on the other. Faced with such a difficult choice, the Stearns court focused instead on the child’s perspective, recognizing that if the interests of the parents compete substantially — i.e., the relocating mother has a much needed or very desirable new life awaiting her elsewhere, yet the father has an indisputably involved and loving relationship with the child or children — then the parents’ interests are no longer really relevant. The court is almost forced to view the relocation from the child’s perspective. In Stearns, this meant that the child's success in his current school program outweighed the risk that he would do as well in an untried program in North Carolina. It meant that the child's established relationships with family and friends in Ulster County were more important than any emotional benefit that might accrue to the child should his mother be free to live happily ever after in a different state. This approach — considering the best interests of the child in light of the quality of all of his social and educational connections to his home — was recognized by the Court of Appeals, the state's highest court, in the groundbreaking decision in Tropea v. Tropea (87 N.Y.2d 727, 1996): ...each relocation request must be considered on its own merits with due consideration of all the relevant factors and circumstances and with predominant emphasis being placed on what outcome is most likely to serve the best interests of the child...it is the rights and needs of the children that must be accorded the greatest weight...(emphasis supplied). In Tropea, the Wife sought judicial approval to relocate with the two children of the marriage to Schenectady, where she had already purchased a home with her fiancé, a well-established architect in the area. The father, who lived in Syracuse, about two and a half hours away from Schenectady, opposed the move and petitioned for custody. The court found that, while the father’s customary midweek visits would be impossible during the school term, the visitation schedule that the mother proposed would afford the father frequent and extended contact with his children. The court further found that the relocation would be in the best interests of the children. The decision in Tropea re-defined the law in New York State regarding relocation by a custodial parent. It broke up a three part test that had been implemented by the Appellate Division (the court directly above the trial level court). Under the Appellate Division analysis, the parent seeking to block a relocation had to first show that the proposed move would deprive him/her of "regular and meaningful access to the child". Once this was established in the affirmative, the burden switched to the moving spouse, who had to show extraordinary circumstances before a move would be sanctioned. If extraordinary circumstances were adequately demonstrated, the court would go on to consider the child’s best interests. Unfortunately, the scope of the terms "meaningful access" and "extraordinary circumstances" varied from case to case. In Tropea, the Court of Appeals responded to this confusion by tearing down the "artificial barriers to the courts’ consideration of all the relevant factors" erected by the Appellate Division’s three-tiered test. They held that, in all cases, the courts should be free to consider and give appropriate weight to all of the relevant factors, including but not limited to (1) each parent’s reasons for seeking or opposing the move, (2) the quality of the relationships between the child and the custodial and noncustodial parents, (3) the impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent, (4) the degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move, and (5) the feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements. While, under the Tropea guidelines, all of these factors, and others, may be considered, the Court makes it clear that they are to be considered only to establish whether the relocation would be in the best interests of the child. In other words, the interests of the parents are not really at issue. In a very real sense, the Court of Appeals insertion of a "best interests of the child" standard into relocation cases signaled the end of the presumption that relocation is a bad thing for children; that it is only to be tolerated under the most compelling circumstances. Ironically, the court in Stearns v. Baxter has brought the Tropea decision down to earth and in line with the caselaw it supposedly overturned. It applied the Tropea analysis and weighed all of the relevent factors, but concluded nevertheless: There still had better be a damn good reason to relocate with a child before it will be worth stripping the child of his ties to his home and community.

For most people, their most valuable asset is their home. If your home was purchased during your marriage and is titled jointly in the names of you and your spouse, dividing this asset in a divorce would seem to be a simple matter – sell it and split the proceeds equally. In some cases it is, in fact, a straightforward transaction. However, fairness (and the law) dictate a different result if one of the parties contributed their separate property to the purchase or improvement of the property during the marriage. In other words, even though the house is legally titled in both parties’ names and is a marital asset purchased during the marriage, one of those parties could walk away from the sale with more – maybe most – of the proceeds of sale. How could this be? From a property law (as opposed to matrimonial law) perspective it makes no sense. After all, when a married couple purchase real estate together the resulting form of title known as "tenants by the entirety" prescribes ownership by each of the parties of an overlapping whole interest in the property. This overlapping ownership of the "whole pie" is what keeps a judgment creditor from foreclosing its judgment lien against the residence, since the other "innocent" spouse’s interest cannot be separated out. The answer to how a jointly owned home can end up unequally divided in a divorce, lies in the case law interpreting the Domestic Relations Law which seeks to preserve separate property rights in the face of jointly titled home ownership. Separate property is property that, despite a divorce judgment in which all other property is split up, one of the spouses gets to keep without sharing with the other spouse. It is narrowly defined by statute, and includes property owned by one of the parties prior to the marriage, property received as a gift or inheritance during the marriage, and property (money) received as compensation for personal injuries during the marriage. Usually, separate property only remains separate when a spouse keeps it titled in his or her separate name. For example, if you combined bank accounts into joint checking and savings when you got married, you cannot get the money you contributed back in a divorce even where you contributed most of the money into those joint accounts. The monies are considered "commingled" and no longer separate. However, in the limited circumstance of separate property investment into real property, the opposite is true. For example, when one spouse walks into the marriage with a large bank account and keeps that account in his or her sole name until that happy day when the happy couple purchase a home together using those funds as the down payment toward the purchase, the spouse who contributed those funds can expect — even without a pre-nuptial agreement – to walk away from a divorce recovering all of that initial investment before his or her spouse gets a dime from the proceeds of the sale of the home. Only the actual amount of the separate property investment is recovered – there is no interest, nor pro rata appreciation that works to enhance the invested monies. A similar result can occur when the house itself was owned by one of the parties prior to the marriage, and then placed into joint name during the marriage. This is fairly common with second marriages, where one of the spouses obtained the house in the first divorce, or where the house was received by one spouse as an inheritance prior to or during the marriage. Often, to avoid probate, the other spouse will be added to title. Later, should the parties need to divide the home as part of a divorce action, the spouse who owned the house prior the marriage may, before any portion of the proceeds of sale is shared with the other spouse, receive back the value of the house as it was valued on the date of the transfer into joint name. This is not necessarily the result, however; technically, the prior-owning spouse’s separate property interest in the residence was "commingled" when title was transferred into joint name. The trial court’s role in dividing the residence is to apply equitable factors to the division of marital (not separate) property. It is conceivable that the prior-owning spouse’s interest would be less than the value of the residence at the time of transfer into joint name, where the other spouse contributed directly (or indirectly) to paying off the mortgage, or where improvements paid for with marital funds, were made to the residence prior to the transfer into joint name. In other words, it is not an automatic return of investment, as when the house is purchased during the marriage with separate property funds. Even if the title to the marital residence remains solely in the name of one spouse and is never transferred into joint names, the other spouse can share in the value of the residence in a divorce. Look for a discussion of the rules concerning the appreciation of separate property in a future article on this website.

The idea that there must be legal distinctions for practical differences has always carried with it a related, if somewhat less popular idea -- where there are no practical differences, there should be no legal distinction. And yet legal distinctions abound when it comes to the treatment in a divorce case of bank accounts and houses (real property). These assets are not so different that they would merit an entirely different set of rules regarding when a contributing spouse can get his or her separate contribution back, yet they are different enough to give the spouse who had invested his inheritance during his marriage in the downpayment on a house, a decided advantage over the spouse who just stuck it in the bank. The result is a familiar one. All too often the Courts are confronted with a scenario in which, for example, the husband put a large inheritance into the purchase of the marital home, while his wife puts similar sums into a joint bank account. Each has invested money that, because of its origin, is considered "separate property" under New York law, and which, handled properly, would be fully recoverable to the investing spouse at the time of divorce. Of course, the key words are "handled properly." Different investments yield completely different results. At the time of divorce, the wife's investment in the previous example will likely be considered a "transmutation," while the husband will be entitled to a "separate property credit" and get back the entire amount of his separate deposit in the marital home. In New York, the deposit of funds into a joint depository account is deemed by statute to create a form of title in which the person making the deposit is presumed to have given one-half of the deposit to the other joint account holder. A "joint tenancy" is created in which each spouse automatically owns one-half of the deposit. In addition, each of the spouses stands to inherit the entire amount of the deposit upon the death of the other. This form of ownership is created in this automatic, often unwitting way, with bank accounts only, and is a creature of New York State's banking law. Section 675 of the Banking law sets forth prescribed language for the title on a joint bank account. If the language ("pay to A or B, or survivor") is used, the account is set up as a joint tenancy under the law -- with the presumption of a gift of one-half of a deposit to the other party being established automatically, even though the phrase "joint tenants" does not appear anywhere on the account. The advantage is less litigation over what Depositor A really meant when he put the money in -- a question that usually arises when he tries to take more than one-half out. The unwritten intention of the law is to protect banks from becoming parties to litigation over the disposition of the proceeds of joint bank accounts. However, the unexpected result has been the creation of rules of ownership that seem to contradict the rules employed by the courts when dividing up other forms of property in a divorce. For whatever reason, when considering bank accounts, divorce courts adhere to the state banking law, yet when dividing other forms of property, they will ignore the "form of title" as the equitable distribution law directs, and divide the marital estate equitably. There are exceptions, of course, as with the spouse who has deposited separate funds (inherited, gifted or a received as a personal injury award) in a joint account, as a matter of convenience prior to writing a big check as a deposit on a new house. In any given case, the depositing spouse can introduce evidence in a divorce case to "rebut the presumption" of having intended to donate half of it to the other spouse when the joint deposit was made. By rebutting the presumption that the creation of a joint asset was intended, the depositing spouse will not automatically lose one-half of the deposit in a divorce. In a case where separate property funds are deposited for a short period in a joint account as a matter of convenience (i.e., instead of opening a new, separately titled account) and then used for the purchase of a new home, the courts will generally not view the deposit as a joint asset, and the spouse who made the deposit will still be able to claim a separate property credit in the amount of the deposit when the house is sold. Just as it is hard to define "convenience" in the previous example, there is no bright line rule as to when a deposit into a joint account will be deemed "transmutated" (sorry) into a joint asset. The outcomes vary according to the specific facts of each case. For example, in Pauk v. Pauk, NYLJ 10/15/96 p.30, col. 6 (2d Dept. 1996), the husband had deposited separate funds into a joint bank account one year before the couple purchased the marital residence. Upon divorce, the husband claimed that he had not intended the deposit to become a joint asset, even though he later used the monies (ironically) to help pay for the jointly-titled house. The Court found that there was, in fact, a transmutation of the deposited funds, so that the husband was not entitled to a separate property credit from the proceeds of the sale of the house. Sometimes the outcome appears to hinge on the creativity of the litigants, as in Giuffre v. Giuffre, 204 A.D.2d 684, 612 N.Y.S.2d 439 (2d Dept. 1994), where the husband was able to convince the court that the reason he had placed his separate funds into joint accounts was to take advantage of greater FDIC insurance. But rather than scramble in a divorce litigation for a good explanation in order to get the deposit of your inheritance back (while your husband or wife relaxes knowing that he/she will get back every penny of his/her inheritance used to purchase the house), the far easier course, of course, is to go to the trouble ahead of time to open a separate account with that inheritance. Unless, of course, your intention is truly to make your spouse feel loved and included by putting the money in a joint account. And, if you are among the forty-five percent of people whose marriages do not end in divorce, you will probably never live to regret it. If, however, you are not so fortunate, or it is a little late for good planning, you may wonder whose interests are really being served when the distinctions drawn by the law seem arbitrary, and impossible to predict while married. Frankly, there at least should be uniformity in the "equitable distribution" of marital assets upon divorce, if not an outright uniform split of assets as in states that evenly divide the "community property" acquired by spouses during marriage. In the view of this writer, the latter approach seems a bit extreme. The idea of empowering the courts to decide how things should be split up on a case-by-case basis is a good one, since every case presents unique facts that may influence a reasonable man's view of what is a fair split of assets and debts. Equal is not always best. However, if the playing field itself is not level, the dignity usually accorded to the referee is lost on the players. If the ordinary person is to feel fairly treated by his society, he must be fairly treated in the courts. Unfortunately, too little attention is paid to the common sense and basic fairness of the law - not just a particular law, but the way in which the laws work together, for this is the way that the law is encountered. Too often, a particular outcome (the joint account deposit is a good example) will be nicely explained (by, say, a judge in his Findings of Fact) in a way that seems very smart and well analyzed, but which fails to consider the rest of the case as a whole. But the basic fairness or unfairness of the result is not lost on the parties. The effect of bad law in divorce is, ultimately, a bad image of marriage, for those who have been burned once tend not to forget. And if we are to work to strengthen families, they must have faith that the institution that binds them will not betray them. Especially in an age with a rampant divorce rate, we must work to ensure, through thoughtful legislation, that divorce is fair for everyone.

Fortunately or unfortunately, married couples often wait until they can no longer stand the sight of each other before calling it quits. But "quits" is just the beginning of their divorce, a process that can last from several months to the better part of a year or more, depending on the issues involved. Where the parties continue to reside with each other, this can be a very difficult period for everyone. For many, getting exclusive occupancy of the marital residence during the pendency of a divorce action can be as important as the ultimate divorce itself. Yet the emotional need to be free of the company of one’s spouse is never enough. As with laws governing landlord-tenant relations, the courts do not lightly tread upon the right of a spouse to remain in his or her home even where, for example, that spouse continues an adulterous relationship, or the marital residence was owned by the other spouse prior to the marriage. Where both parties remain in the home when the application for temporary exclusive occupancy is brought before the divorce court, the party seeking occupancy must show that the other party is a threat to the safety of person(s) or property. More is involved than merely making a generalized statement — detailed allegations supported by third party affidavits, police reports and/or hospital records may be needed to convince a judge that the application is not a camouflaged effort to "get the house." Even then, if the other party contradicts the allegations of the application with his or her own sworn affidavit, the court will likely order that a hearing be held to resolve the conflicting stories. Occasionally, the evidence of the threat to safety is sufficiently persuasive that a court will dispense with the requirement of a hearing, and grant an order of exclusive occupancy based only upon a review of the papers submitted. Avoiding a hearing can be crucial, since it is typically 30 to 60 days before a decision on the application is reached by the supreme court. If that decision is a decision that a hearing is necessary, it is often another 30 to 60 days before the hearing is held. Of course, once a hearing is held, the court will very often reserve decision, adding another 30 to 60 days to the timeline. Adding it all up, it may make little sense to expend valuable resources on such a waiting game, when the whole process of getting divorced might be over before the "temporary" occupancy is granted. The key to success is in the evidence. The more violent the behavior, the more likely there will be sufficiently convincing proof (i.e., hospital records, police reports and graphic photographs, to name a few) to avoid a hearing. Ironically, convincing proof that one’s spouse is a threat to one’s safety usually involves violent conduct that is far more readily handled in the family court. Bear in mind that a divorce action can only be brought before the state supreme court in New York State. The family court is a court of limited jurisdiction that can make orders concerning support, custody, and visitation, but it has no power to divide property or allocate debt, nor can it dissolve a marriage. In a proper case, a family court judge can also direct a violent spouse to "stay away" from the other spouse and his/her home and place of business. Since this relief can be granted in a short span of time, with a temporary (pre-hearing) order being issued the first day the petition is presented to the court and a hearing often being held within 10 to 30 days from that date, the family court is an important ally to the supreme court which may be simultaneously hosting the parties’ divorce action, but which may be too bogged down with motion and trial calendars to respond to an emergency quickly. All of which is to say, that in a case where the parties continue to reside together, the Supreme Court (i.e, divorce court) can only be depended upon to grant temporary exclusive occupancy if the threat is one which the family court can handle faster. In short, although the Supreme Court may have statutory power to protect property from loss with a restraining order and can, in a myriad of ways, direct who will have possession of all kinds of property during the pendency of a divorce, the court cannot be depended upon to make a timely (and meaningful) grant of exclusive occupancy of the marital residence during the pendency of a divorce action. Unless the client finds him- or herself unfortunate enough to be the victim of domestic violence, time and resources are better spent on litigating and/or settling the main issues in the case — and staying out of each other’s way at home.