Rule
A NY divorce lawyer must give a client a bill of rights and a signed written retainer agreement containing a
fee schedule and an estimate of the total legal bill expected
- the right to collect a fee is forfeited if no agreement is given
- new 2002 bill that every lawyer must give an engagement/retainer letter (but this bill is different
from the DRL rule)
Phillips, 178 Misc.2d 159 (retainer signed by client’s brother who had power of attorney insufficient
compliance with the rule); McMahon, 169 Misc.2d 509 (ordering refund of fees because attorney failed to
provide a written retainer agreement)
Rule
A lawyer is prohibited from having sex with a client
- the client is vulnerable
Rule
A lawyer cannot charge a non-refundable fee
- must also bill the client every 60 days (puts the client on notice)
Rule
Liens to secure payment of a fee must be approved by the court on notice to the other spouse
- a court-approved lien on a client’s residence cannot be foreclosed while a client still lives in the
home and the home is the client’s primary residence (principle of fairness)
- July 2000/01, Essay 3
Rule
In any legal fee dispute, where the amount disputed is between $1k and $50k in a civil case, mandatory
arbitration can be demanded by the client (not the attorney) and the attorney must notify the client of this
option
- new rule (Jan. 2002)
- because the client has to go out for a new lawyer if no arbitration allowed; the lawyer doesn’t have
to (with arbitration, there are no pleadings, no rules of evidence, etc.)
Rule
If the arbitration produces evidence of professional misconduct, the panel must forward the evidence to the
grievance committee
- might induce the attorney to settle beforehand
Rule
Either party can seek judicial review of their claim within 30 days of the written arbitration award, but an
arbitrator cannot be called as a witness and the award is inadmissible at trial
- encourages lawyers to act as arbitrators
Rule
The arbitration proceeding is confidential
- don’t let the press and the public know that the attorney is in a dispute with his client
Rule
If the disputed amount is less than $6k, only 1 attorney arbitrator hears the case, but for larger disputes, the
panel is three arbitrators, one of whom must be a non-lawyer
Rule
Arbitration rules do not apply to
1. claims less than $1k or more than $50k unless all parties consent
2. claims involving substantial legal questions (i.e. attorney’s legal malpractice) – only fairness,
reasonableness, and amount of fee
3. disputes where the fee is fixed by court or by statute (ex. contingency fees)
Rule
NY Family Court lacks subject matter jurisdiction to hear matrimonial actions but once the matrimonial
judgment is granted by the Supreme Court, family court has concurrent jurisdiction over the enforcement or
modification of the decree
- unless the judgment expressly reserved jurisdiction with the Supreme Court (which it never does)
Rule
Under CPLR 105P, a matrimonial action is defined as a divorce, annulment, separation cause of action, a
dissolution of marriage, declaration of nullity of a void marriage, declaration of nullity or validity of a
foreign divorce judgment, or an action to declare valid or null a marriage
Rule
Family court lacks equitable jurisdiction and thus cannot rescind or modify a separation agreement or
prenuptial agreement
- such actions must be commenced in the Supreme Court
- but if a child is not receiving adequate support under an agreement then the family court can order
an increase of the child’s support under the Family Court Act
Rule
Under the “domestic relations exception” to diversity jurisdiction, federal courts abstain from suits for
divorce, custody or maintenance (alimony), but they will here intrafamily tort claims
- provided diversity exists and the claim is for more than $75k
Grounds for Divorce
Rule
In NY: A PAIN (DRL 170)
A – Adultery
P – Prison
A – Abandonment
I – Cruel & Inhuman Treatment
N – No fault conversion divorce
- these grounds are usually not issues of contention; money is where the issues are
Rule
A spouse has a right to a jury trial on A PAIN grounds but not for
1. Separation action: orders parties to live apart because of A PAIN grounds; marriage has not ended
o gives spouse a wake-up, psychologically easier than divorce
2. Economic issues involved in a divorce
o alimony, child support, equitable distribution of assets acquired during the marriage
Rule
Unlike a criminal jury which must consist of 12 persons requiring a unanimous verdict, a civil jury requires
a vote of 5/6 jurors
Rule
If one party dies prior to A PAIN judgment, the matrimonial action is rendered moot since the marriage no
longer exists
- thus there is no right of the dead spouse’s estate to seek equitable distribution
- surviving spouse can take under decedent’s will or can exercise right of election or can seek her
intestate share
Rule
CPLR 3013: statements in a pleading only have to give the courts and the parties notice of the transaction
or occurrence intended to be proved together with the material elements of the plaintiff’s cause of action or
the defendant’s defense
- in a matrimonial action, CPLR 3016(c): requires allegations must describe the nature and
circumstances of the alleged misconduct and the time and place of each act complained of
 a complaint alleging “H committed adultery” is insufficient
- defect cannot be cured by a subsequent bill of particulars setting forth the required specifics (time,
place, persons involved, etc.)
Rule
All pleadings in a matrimonial action must be verified that pleading is true under penalty of perjury except
for an answer responding to an adultery cause of action
- if the defendant’s answer contains a counterclaim, it has to be verified
- DRL 3211, CPLR 3020
Rule
The A PAIN grounds must be established by a fair POE except for adultery (must be CCE)
Rule
In matrimonial actions, broad financial disclosure is required
- tax returns, W2s
- on all financial matters subject to equitable distribution
Rule
In a matrimonial action, summary judgment may not be granted in favor of the non-moving party (reverse
summary judgment)
- CPLR 3212(c)
Rule
NY is extremely liberal in opening default judgments but CPLR 3015 still has to be satisfied
- CPLR 2004; 251 A.D.2d 942
- Reasonable excuse, affidavit of merit
 Law office failure may be a reasonable excuse
 There must be a defense in the affidavit of merit
- Courts are liberal in opening marital default judgments
Rule
A plaintiff is limited in a default judgment to the relief requested in the original pleading
Rule
A spouse cannot wiretap or e-eavesdrop on the other spouse’s phone conversations with her lover and use
them to establish A PAIN
- inadmissible absent a valid search warrant or consent of one party to taping the conversation
- CPLR 4506
Rule
In a marriage of long duration (over 15 years), NY requires the plaintiff establish A PAIN grounds with a
high degree of proof and must show more than mere incompatibility or that the marriage was dead
- substantial misconduct in a marriage of short duration = transient discord in a long-term marriage
- strong proof (but not necessarily CCE) or consent
- a couple that has been together for a long time might be able to work it out if the court doesn’t
grant the divorce
(A) Adultery
Rule
Grounds are the same for both divorce and traditional separation
- used to be the only cause of action for divorce until 1963 (now have A PAIN)
Rule
Sexual or deviant sexual intercourse with someone other than the spouse
Rule
Adultery judgment cannot be granted solely on the basis of a spouse’s confession
- must be corroborated
Rule
Adultery can be established circumstantially by showing opportunity, inclination, and intent
Rule
Adultery makes a spouse incompetent to testify in the adultery action except
1. to prove the marriage
2. to disprove the adultery
3. to disprove the spouse’s defense to adultery
 wife cannot testify that she saw husband having sex with another woman or that
husband told her he had committed adultery
 husband can testify that he never slept with anyone else (but once husband
testifies in his defense, it opens the door for wife to testify as to what she saw or
what husband told her, to disprove husband’s defense)
- CPLR 4502(a)
- Admission by a party opponent is not hearsay for purposes of NY rules of evidence but this is an
exception (no such incompetence rule in FRE)
Rule
If wife also sued husband for cruel and inhuman treatment, she would be competent to testify without
restriction because CPLR 4502’s restrictions apply only to adultery actions
Rule
The four statutory defenses to adultery are CRAP (DRL 171)
C – Condonation (forgiveness): either expressly or by cohabiting and resuming martial relations where the
plaintiff knew of the adultery
- forgiveness is conditional upon the defendant’s continued good behavior (any subsequent acts of
adultery revive the condoned past adultery)
R – Recrimination: where the plaintiff is also committing adultery
- unless plaintiff’s prior adultery was forgiven by the defendant or the S/L had expired for a cause
of action on plaintiff’s prior adultery
A – Act of Adultery: was discovered by plaintiff more than five years before commencing the action
- to successfully assert S/L, plaintiff must have been aware of plaintiff’s adultery for more than five
years even though the adultery continues to the present
P – Plaintiff’s procurement or contrivance of the adultery
Benscoter (p.353); Arnoult (p.356); Johnson (43 A.D.2d 822)
(P) Imprisonment
Rule
If a spouse is confined to prison for three or more years after the parties are married, the other spouse has a
cause of action for either a separation decree or a divorce decree
Rule
A life sentence treats the criminal defendant as civilly dead and prohibits that prisoner from getting married
but does not dissolve an existing marriage
Rule
A prisoner facing prolonged incarceration after which time his children would be emancipated is deemed to
have permanently neglected his children if the only living arrangements made for those children are in
foster homes
- part of MA&PA for a proceeding to terminate parental rights and give rights to a foster parent
(A) Abandonment
Rule
Elements of an abandonment divorce are IOU
I – Intent not to return
O – abandonment continues for one year or more
- to obtain a separation judgment, abandonment can be based on any time period provided the other
two elements are present
U – Defendant’s departure is unjustified and without plaintiff’s consent
- leaving in a huff with all clothes left behind is not abandonment
- mutual agreement is not abandonment because there is consent
- if the wife changes the locks, she has abandoned the husband
Rule
Constructive abandonment is where one spouse does not actually leave but unjustifiably ceases and refuses
to have sex with the other spouse
- Hemmer case: H is estopped because he didn’t do anything for 6 years after W stopped having sex
with him
- If the spouse stops because of religion, still constructive abandonment
- If stops because the sex is painful or kinky, no constructive abandonment
Rule
If spouses are living separate and apart pursuant to a separation agreement, that separation cannot be a basis
for an abandonment cause of action
Rule
Where the parties are living separate and apart without an agreement or decree, and one spouse makes a
bona fide offer to resume cohabitation which the other spouse unreasonably refuses, then refusal constitutes
abandonment
- even if the original separation was by mutual consent or was due to the unjustified departure of the
offeror
Rule
After a trial in which both spouses have sued for divorce, the court cannot issue dual divorces to each
spouse
1. Based on mutual adultery, since the CRAP defense of recrimination would prohibit adultery
divorce to both spouses
2. based on dual abandonment, because if one spouse has already been abandoned, that spouse
cannot abandon the departed spouse
- it is possible to grant one spouse a divorce decree on abandonment grounds and grant to the other
on a different A PAIN ground (or grant a dual divorce where both spouses’ grounds are CIT) since
a marriage can be terminated in NY even though both parties are at fault
(I) Cruel & Inhuman Treatment
Rule
Grounds are the same for both divorce and a judicial separation
-
serious misconduct by the defendant that must endanger mental or physical well-being of plaintiff
so as to render it improper or unsafe to continue to cohabit with the defendant
Rule
A court cannot grant a divorce on the ground that the marriage is simply dead
- its decision must articulate specific findings of CIT
- must be more than mere incompatibility (a complaint alleging that defendant was cold,
calculating, showed no personal affection and was loveless was dismissed under CPLR 3211(a)(7)
as failing to state a cause of action
- Cali allows irreconcilable differences
Rule
Trial judge is given broad discretion in determining CIT
- it may constitute one slap or where a spouse boasts of having engaged in an extra-marital
relationship
- sort of strict liability (not like tort law w/ domestic animals where you get “one bite”); look at
length of marriage and evidence to demonstrate the slap
Rule
A plaintiff’s testimony of cruel and inhuman treatment does not have to be corroborated and a defendant’s
mental illness is not a defense to a CIT claim
Rule
If physical abuse is involved the plaintiff may also add a cause of action for intentional tort (i.e. assault,
battery)
Pallin (213 A.D.2d 707)
- appellate court dismissed the wife’s claim because the marriage was of long duration and the wife
continued to live with the husband for a year after initiation of divorce
- Pieper thinks bad reasoning because wives often don’t leave because of psychological and
economical dependence (fear of further violence, lack of money)
214 A.D.2d 99
- wife couldn’t prove CIT with only two occasions of violence and no medical records in a marriage
of long duration
- Pieper says tell client to keep a diary, go to a psychiatrist, gets pictures of physical abuse
Doyle (214 A.D.2d 918)
- Pieper thinks as soon as there is physical violence in the home, there are valid grounds for divorce
based on CIT whether the marriage is of long or short duration
Wilson (244 A.D.2d 646)
- no divorce (30 year marriage, all husband does is not talk to wife and curse at her)
Gunner (214 A.D.2d 871)
- court granted divorce (18 year marriage, wife left and took 275k from the joint bank account)
Rule
If one spouse has health insurance that covers the other spouse and the children, have to make sure the
policy continues to cover them
Johnson (43 A.D.2d 822, 842, aff’d 36 N.Y.2d 667)
Cicero (58 A.D.2d 513)
- accusing someone falsely (of infidelity and nonpaternity) is enough for CIT
- cf. Hessen (33 N.Y.2d 406): because a marriage of long duration, divorce denied
Lee (51 A.D.2d 516)
- court grants divorce, says can use the same facts for adultery as for CIT
- wife pushed husband to divorce her, suggested she was having an affair
- no spousal privilege when the spouse acts contrary to the best interests of the relationship
H/W Privilege
Rule
1.
-
H/W Privilege: applies in both criminal and civil actions (CPLR 4502(a))
prevents a spouse from disclosing written oral or even taperecorded confidential communications
where no 3rd person was present
designed to protect the marital intimacy that existed when the communication occurred
Privilege is inapplicable where a crime is directed by one spouse against another
66 N.Y.2d 881
- H finds W with M, shoots M and makes statements, M later dies, H calls W and apologizes
- Statements at time of shooting admissible (b/c presence of 3rd party and violence directed at W),
statements made later are confidential
2. Spousal Testimonial privilege: in criminal cases only, protects nonconfidential conversations and
events witnessed by a spouse
- can be waived by a testifying spouse over the objection of the criminal defendant spouse
- recognized in federal courts, 31 states and MBE (not recognized in NY)
- seeks to protect marital harmony at the time the testimony is demanded
Rule
STP covers conversations made prior to or during the marriage whereas the H/WP only covers
communications made during marriage
- in order to invoke STP, parties must be legally married at the time of trial, whereas to invoke
H/WP parties do not have to be married (must be married at time of communication)
- if divorce, death, separation, no STP because no marriage to protect, but still H/WP
Rule
In NY, no H/WP to communications involving
1. crimes or intentional torts or acts of cruelty committed by one spouse against the other
2. crimes committed against the spouse’s children
Domestic Violence
Rule
DV (which includes crimes of harassment, disorderly conduct, reckless endangerment, menacing or
criminal assault – battery) is criminal conduct occurring within the household and requires immediate
deterrent action by the police and the courts
Rule
The offense of DV arises whenever parties involved are related by blood, marriage, former marriage or
have a child in common
Rule
In DV cases, the criminal and family courts have concurrent jurisdiction
- they can issue orders of protection to keep the batterer away from the victim
- stay away orders: violation is a felony
Rule
New mandatory police arrest policy for on-scene police intervention if police have PC that
1. the DV is a felony – the arrest must be made regardless of whether the victim cooperates
2.
3.
the stay away order has been violated
the DV is a misdemeanor occurring in which case police shall not ask victim whether she wants
defendant arrested and police shall not attempt to mediate or reconcile the parties but shall arrest
unless the victim requests otherwise
(N) No-Fault Conversion Divorce
Rule
Permits either spouse regardless of fault to obtain a divorce based on spouses having lived separate and
apart for one year or more pursuant to a NY or sister state separation agreement or separation judgment to
which the plaintiff has “substantially complied”
- flawless compliance is not required (i.e. bringing a child home late from visitation is not noncompliance, failing to pay child support for three months probably is)
Rule
Separation agreement must be signed by both husband and wife and must be acknowledged by a notary
with the same formality as a deed
- 90 NY.2d 127 (strict construction of acknowledgment requirement of prenuptial or separation
agreement)
- more formal than “sworn to before me on this day…”
Rule
Separation agreement or brief memo of agreement must be filed with the county clerk before the divorce
action is commenced
- a court order can be obtained allowing late filing
- not a strictly construed requirement
Rule
During the one year either spouse can be sued based on adultery or CIT
Rule
Even though an individual clause in an agreement is set aside by the court (e.g. based on fraud or
unconscionability), the court may nevertheless grant the conversion divorce.
Dissolution
Rule
A marriage can be dissolved because one spouse has been continuously absent for five years or incurably
mentally ill for five years
Rule
If incurable mental illness is a basis for dissolution the court can require suitable maintenance and equitable
distribution for the disabled spouse
Rule
A spouse’s willful failure to financially support the other spouse is a ground for judicial separation but not
dissolution
Annulments (DRL 140 & 7)
Rule
Annulment grounds render a marriage void
- do not look at the spouse’s behavior after marriage, focus on the spouse’s status on the day of
marriage
1.
2.
3.
grounds for NY annulment are
Infancy
Mental or physical incapacity
Fraud
Rule
No right to an annulment, always discretionary
Rule
Proof for an annulment claim cannot be based solely on the testimony of either spouse (including a
confession)
- must be some additional corroborative evidence
Rule
Even though the marriage was approved by the court, a marriage by an infant may be annulled by the
infant, a parent, or a “friend of the court” (teacher, guidance counselor)
- but NOT by the adult spouse
Rule
The infant waives annulment claim if she cohabits with her spouse after reaching 18
Rule
Mental incapacity at the inception of the marriage renders that spouse incapable of consenting to the
marriage contract
Rule
Physical incapacity arises when one souse is incurably physically incapable of copulation
- the incapacitated spouse cannot maintain annulment unless he was unaware of the incapability or
did not know it was incurable
Rule
If the physical incapacity did not arise until after the marriage it is not a ground for annulment but rather is
a misfortune which the parties must bear
Rule
Sterility is not a ground for such an annulment but may be a basis for a fraud annulment if the condition
was known, not disclosed and misrepresented
Rule
If one spouse’s consent to the marriage was obtained by fraud or duress, the marriage is voidable
- must exist at the inception of the marriage and fraudulent statements must have been a material
inducement for the plaintiff to enter into the marriage contract
o failure to reveal a known serious illness
o entering into marriage to circumvent immigration laws
o misrepresentation of willingness to have kids or switch religions or raise kids in a
particular faith
- Essay 3, February 2000
Wills
Rule
If the testator is divorced, marriage annulled or it is dissolved (DAD), then the decree automatically
revokes any bequest to a former spouse as well as revokes any provision naming the former spouse as
executor or trustee
- unless the will otherwise provides
Rule
EPTL treats the former spouse as immediately predeceasing the testator
Rule
If after DAD decree, the testator executes a codicil that republishes the will, it revives the bequest to the
former spouse
Rule
A spouse’s wrongful death proceeds, intestate share, and right of election (die) are defeated by DAVIS
D – DAD decree
A – unjustified abandonment by surviving spouse without consent of the deceased spouse (continued until
spouse’s death)
V – void marriage (no decree is necessary): bigamous or incestuous
I – surviving spouse as a plaintiff had earlier obtained an invalid DAD decree outside of NY
- as a sanction against spouse for obtaining this invalid decree, court will recognize it for purposes
of defeating DIE
S – surviving spouse was a defendant in a separation judgment based on her/her misconduct (fault)
Rule
A separation agreement has no effect on a will or DIE rights unless precise language in the agreement
expressly so provides
- if the agreement is going to revoke a clause in the will, it needs to be precise
- the agreement also does not extinguish a survivorship interest in a TBE unless it specifically states
as such (thereby changing the TBE to a TIC)
o divorce would extinguish the TBE
Rule
A will cannot change the beneficiary named in the testator’s insurance policy
- policy is a contract, need to file a form with the insurance company to change the beneficiary
(even after divorce)
- 92 N.Y.2d 436
Rule
ERISA preempts state law
- under ERISA, the person designated on the retirement plan gets money regardless of any state law
that would revoke
Children
Rule
The contracts of an infant are voidable at the infant’s option
- 3211(a)(5)
Rule
When an adult signs as a surety on an infant’s contract, that adult cannot raise infancy as a defense because
it only can be raised by the infant herself
Rule
After reaching majority the infant may ratify the voidable contract by manifesting an intent (words, acts,
inactivity) which the reasonably prudent person would objectively construe as an assent by the former
infant to be bound to that contract
Ex. making payments, accepting benefits
Rule
The contracting party who entered into the contract with the infant where the infant disaffirms the contract
has a limited right of restitution only to the extent that the fruits of the contract are in the infant’s
possession
Rule
In NY a married infant’s contracts involving the principle place of abode cannot be disaffirmed on the
ground of infancy
Rule
Minors are not liable for their contracts but may be liable for their torts
- for the MBE, a minor less than 7 (and for NY, a minor less than 4) is deemed incapable of
committing negligence as a matter of law
- non sui juris defense not limited to negligence and can be applied to intentional torts
Rule
In NY, a parent owes no duty to the child to supervise the child and prevent him from harming himself (no
tort of negligent supervision)
- Holodook, 36 N.Y.2d 35; Jeffries, p. 1139
- A defendant who hurt the child could not implead a parent to share in contribution
- Most states allow a child to sue (NJ allows for reckless but not negligent supervision)
- Parental immunity does not extend to grandparents
Sapienza – sibling owes no duty to another sibling to supervise (can’t be negligent)
Rule
Tort law distinguishes a parent’s moral but not legal duty to supervise a child from harming himself and the
parent’s legal duty to supervise the child from harming others or their property
Rule
Generally parents are not vicariously liable for torts of children merely because of the parent/child
relationship
- but claims against the parents are permitted if the child is SICK
S – in an employment relationship, the child commits a tort while acting as a servant or agent of the parent
I – where the parent entrusts or knowingly leaves in the child’s possession an instrumentality which, in
light of the child’s age, intelligence, disposition, and prior experience creates an unreasonable risk of harm
to others (also true for schools)
- Sorto, 241 A.D.2d 446 (2d Dep’t) (bike is not a dangerous instrument)
C – parent knows of a child’s tortious conduct and consents, approves, of or somehow participates in that
conduct
K – where the parent has the ability to control the child but fails to do so even though the parent knew or
should have known that the foreseeable injury to another was a probable consequence of the child’s
negligent or intentional conduct
Rios, 95 N.Y.2d 647 – dad loans car to son, son loans to friend, car crashes, dad held liable for son’s
friend’s negligence
- dad entrusted the instrument to the son, created a foreseeable risk of harm
Rule
In NY, you are liable if you let someone use your car and they are negligent
- if the car is in your child’s name and you bought him the car and were aware of the risk, you are
liable
Rule
In NY a parent has strict tort liability for up to $2500 for the child’s willful malicious or unlawful property
damage if the child is between 11 and 17 years.
-
where the property damage is done to a house of worship, this liability increases to $5k
not a defense that the parent exercised due diligent supervision over the child’s activities
Rule
In NY only parents are absolutely liable for up to $1500 for an infant’s shoplifting.
- If the stolen item is not recovered in merchantable condition, a parent’s attempt to diligently
supervise the child is a defense
Rule
In most states, intrafamily immunity has been totally or (in NY) partially abolished
- in a wife’s claim against a negligent husband, insurance does not have to pay the wife’s damages
unless the coverage expressly provides for a claim by spouse (which none do)
o 3420(g)
o this limitation applies only to spouses and not to other family members (because with
spouses, there is potential for collusion)
- if the wife does not sue the husband but sues a third party, the 3 rd party can implead the husband
for contribution
o husband’s insurance company has to defend here because not a direct suit (insurance
company would also have to pay out on 3 rd party’s claim)
Rule
NY Insurance law now requires carriers to notify insured of his ability to take out insurance protection
(with a reasonable rate increase) from a lawsuit based on an accident resulting in the injury or debt of a
spouse
Rule
GOL 3-111: comparative negligence of a parent is not imputed to the infant
Twyman, p. 388 – a claim for IIED cannot be brought in a divorce proceeding
- dissent said the claim should be allowed; divorce law allows widespread mistreatment of women
(p. 396-97)
Rule
NY does not recognize a tort action by one spouse against a 3rd person for sex with the other spouse
- or a tort of alienation of affection (in which a 3 rd person willfully interferes with the marriage)
Rule
In jurisdictions that do recognize this tort NY will enforce a civil judgment from that state because the tort
merges into the judgment and gets full faith and credit
Rule
Generally any sisterstate judgment is conclusive on the merits and cannot be attacked collaterally in NY
unless
1. judgment was tainted by fraud, or
2. due process violation in which the court failed to have procedural jurisdiction over the defendant
Rule
If these two grounds do not exist, look back to the state where the judgment was obtained because then the
only ground on which judgment can be attacked or vacated is a ground permitted under that state’s law
Loss of Consortium
Glomb, p. 1145 – parent’s negligence facilitated the nanny’s abuse, child had brain damage, nanny and
parents defendants joint and severally (Pieper thinks this would be reckless conduct – therefore can ask for
punitive damages)
Rose, p. 1150 – there is a duty in Nebraska for a babysitter’s parents to warn about the babysitter’s known
sexual propensity, but no liability if parents didn’t know
Giuliani, p.1153 – NY doesn’t recognize loss of parental consortium claim, only between spouses
- 17 states recognize loss of parental consortium (a claim for loss of companionship)
Rule
Hard to get a lot of wrongful death damages for a young child
- usually federal courts give more, but only 100-150k
- if the defendant in wrongful death thinks the award is too high, can move for a new trial on the
damages issue, and the court will probably say okay if they think the award was too excessive
(unless the plaintiff agrees to a remittitur)
Rule
Immediate family members can sue for NIED if they witness their family member die
- NY doesn’t like the tort of NIED, too easy to pretend injury
Gallimore, p.1155 – parents can recover for loss of child’s services (companionship)
- NY limits loss of consortium but does allow for loss of services (need to show pecuniary loss)
Rule
In NY, loss of consortium by the spouse should be brought simultaneously with the injured person’s
personal injury claim, otherwise the loss of consortium claim would be barred
- Buckley, 90 NY.2d 210
Rule
Have to be married at the time of injury to sue for loss of consortium
Rule
Comparative negligence reduces the loss of consortium and wrongful death awards proportionately
Commencing a Matrimonial Action
Rule
Opinion 736 (2001) of NYS Bar Association Ethics Committee now permits a lawyer to represent both H
and W as a mediator (and upon successful completion of the mediation process that lawyer can draft a
separation agreement and divorce papers), provided
1. full disclosure to H&W of all risks involved
2. a disinterested lawyer would objectively conclude that one attorney could represent the interests of
both (rare)
3. the attorney must withdraw from any further representation of either spouse if withdrawal is
required by one of the spouses (attorney must also withdraw if the process becomes acrimonious)
Bd of Overseers, p.428 – attorney suspended from practicing for 6 months for representing both H and W
in a divorce action and favoring H (used confidential info against W)
Levine, 56 N.Y.2d 421 – separation agreement not necessarily set aside because one lawyer represented
both parties
Rule
Marital status is a res that can be dissolved in an in rem action and the res is located in any state where H or
W is validly domiciled
- NY will recognize an in rem sisterstate divorce decree provided due process was satisfied
- That decress is subject to the doctrine of divisible divorce where there is no IPJ over the spouse
Crosby, p.359 – unconstitutional gender discrimination to force W to follow H if he moves to another states
under penalty of being found to have abandoned H (no important govt interest)
Rule
NY will recognize and give comity (not FFC) to a bilateral foreign country divorce decree where both
spouses submitted to jurisdiction in that country and one spouse was physically present
- not an ex parte divorce decree
Clagett, p.464; Sosna, p.451 – upheld durational residency requirements for divorce
- NY has residency requirements (don’t want to be a divorce state); must plead and prove residency
Rule
Under NY law (DRL 230), to plead a prima facie matrimonial action and to avoid a motion to dismiss, the
plaintiff must plead and prove NY residency of either the plaintiff or defendant
Rule
Three ways to satisfy NY residency requirements: TD RAM + one
1. Two years where no other contact with NY but where the spouse has been a NY resident for a
continuous 2-year period immediately preceding the action
2. Both spouse are NY domiciliaries when the action is commenced and rose in NY (no minimum
amount of years for domicile)
3. One year of residency if
a. Both parties resided in NY as H&W, or
b. The action arose in NY, or
c. The parties were married in NY
Rule
Do not confuse
1. DRL 230 (requirements to establish prima facie matrimonial action, with
2. minimum contacts for obtaining IPJ over a defendant
Rule
Matrimonial actions can proceed on in personam and in rem actions, but not in quasi-in rem actions
Rule
For all three types of jurisdiction, need minimum contacts, an opportunity to be heard, and proper process
Rule
To obtain IPJ over a defendant, a defendant must have some minimum contact with the state of NY so that
the exercise of jurisdiction is fair (DIAL DC)
D – defendant is a domiciliary
I – Instate service of non-domiciliary defendant
A – Agent expressly or impliedly appointed to accept service on defendant’s behalf
Express: secretary of state
Implied: if plaintiff starts an action in NYS, he impliedly appoints his lawyer or the court clerk,
but only for other parties in that action (CPLR 303)
L – Long-arm jurisdiction
D – Doing business in NYS
C – Consenting to jurisdiction: agree not to raise jurisdictional objections
- i.e. in exchange for more time to answer, or by appealing and not objecting to jurisdiction at the
earliest possible opportunity
Burnham, p.471 – sufficient minimum contacts if in-state service, even if in the state momentarily
Rule
Under 302(b), when a NY plaintiff seeks alimony or child support in Supreme Court or family court over a
non-domiciled defendant there exists IPJ provided DADA
D – NY was the last marital domicile of the parties
A – Abandonment took place in NY
D – claim for support arose from a NY decree or under NYS laws
A – claim for support arose from a separation agreement executed in NY
- 302(b) not exclusively limited to matrimonial actions because only the Supreme Court has SMJ
over them
Rule
Once the summons with notice or summons and complaint has been filed with the Supreme Court, a filing
fee of $185 has been paid and the plaintiff has received an index number, if the defendant doesn’t show the
plaintiff gets only the relief sought in the original pleadings
- service must be done within 120 days regardless of where served (in or out of state), service can
be made only pursuant to SADMIC (CPLR 305, 306)
- if only the summons (not with complaint) is given, need a bold announcement of the nature of the
claim
- don’t have to put an index number on the summons, it is requested but if it isn’t there the
summons is not defective
S – Service on person of suitable age and discretion followed up with a mailing to the defendant and proof
of service filed with the court
- service is complete 10 days thereafter
- suitable age and discretion? A question of fact
- AppDiv has said service on a neighbor is no good (service on a doorman is probably ok)
- If not personally served, defendant has 30 days from the filing of proof of service to appear (adds
up to 40 days total)
- The fact that the defendant has received notice is of no consequence, it does not bring the
defendant under the court’s jurisdiction, still have to be properly served
- If summons is not served or served improperly, the court has discretion to extend 120 days in the
interests of justice or for good cause
o Judge looks at the merits of the claim, whether superficial error, intent, etc.
A – serving process on an agent
D – due diligence in attempting to serve the defendant personally or serving a SAD person and then serving
process by nailing a copy at defendant’s business or home and following up with a mailing and filing proof
of service
- due diligence? Question of fact, could be as little as two times
M – service by mail but only if the defendant consents
- service is complete once the defendant mails consent back to the plaintiff
- if the defendant doesn’t consent, he may have to pay for cost of service
- defendant has 30 days to appear if served out of state, 20 days to appear if served by mail in state
I – in hand personal delivery
- if the defendant impairs his own due process right by evading service, service is still good
- server can announce service and leave the summons in the defendant’s presence
- Where the defendant puts a door between himself and the process server and the PS advises the
defendant of what he is doing, service is good
- Service in a matrimonial action (CPLR 105(p)) requires in hand personal delivery on a defendant
unless the court orders otherwise or unless the defendant consents to service by mail
o No SAD, if can’t find the defendant, get a court order
C – court invented service (CPLR 308(5))
Rule
If other methods of SADMIC service prove impracticable (not impossible, this std is not as stringent as due
diligence), the plaintiff can make an ex parte motion and ask the court to prescribe some other method of
service
- the court frequently prescribes service by publication
- 240 A.D.2d 606; 252 A.D.2d 480
Rule
US Supreme Court has held that court ordered service does not have to guarantee that the defendant will
receive actual notice
- it is constitutionally sufficient if the method prescribed is reasonably calculated under all
circumstances to apprise the defendant of the lawsuit
Rule
US Supreme Court requires actual notice to any defendant whose address is known to the plaintiff or is
reasonably ascertainable
Rule
Notice by publication in NY: 4 successive weeks in two papers
- matrimonial action: 3 successive weeks in 1 paper and service of process by mail somewhere that
defendant may be found (get proof from the mail clerk that it was sent)
Rule
Any adult nonparty (include the attorney) can serve the client’s summons
Rule
Outside NY, AL RAN can serve for a NY action
A – attorney admitted in that jurisdiction
L – look to the laws of the jurisdiction where the summons was served
RAN – resident of NY, adult, nonparty
Rule
Whether service is made in NY or outside, it can never be made on Sunday
- unless accompanied by an injunction to avoid irreparable injury (GBL 11)
Rule
Service cannot be made on a Saturday if made with malice on the defendant observing the Sabbath
- 184 Misc.2d 946
Counsel
Rule
A party is not entitled to an attorney in a matrimonial action as in a criminal case
- some civil legal aid groups give assistance to indigent husbands or wives
- courts have asked attorneys to take a case pro bono
Rule
NYCPR – when a court assigns a case, a lawyer shall take it unless there are compelling reasons not to
- giving money to a pro bono group/program satisfies this requirement
In Rem
Rule
In rem jurisdiction is used to determine title or right to possess property located in NY or to determine
marital status
- if no IPJ over a defendant (DIALDC), then an in rem action can be brought to obtain a DAD
decree but because the court lacks IPJ it cannot order the defendant to pay money
Rule
A defendant in an in rem action has a limited qualified appearance to appear and contest the jurisdictional
issue only
- if 3211(a)(9) motion is denied, and the defendant takes any further participation in the action then
the defendant consents to jurisdiction and is subject to IPJ
TBE
Rule
At common law Husband and wife were merged by marriage and it was the marriage entity that held title to
property and neither spouse had a separate interest
- at CL, spouses were incapable of holding property as TIC or JT, because it was held by the
marriage entity
Rule
The transfer of property to 3 people (two of whom are H&W) creates a ½ interest in H/W and the other half
would vest in the 3rd person (because spouses take as one entity)
- 187 Misc.2d 275
Rule
A TBE can exist in personal or real property but in NY it can only exist in real property or in cooperative
apartment shares of stock (on or after 1/1/96)
- EPTL 6.2.1 and 6.2.2
Rule
No words of survivorship need to be expressed to create a TBE
- only requirement: deed or will naming two parties that are H/W (automatic right of survivorship)
Rule
Neither JT nor TBE may devise their interest in a will because that interest is automatically extinguished
upon death and passes upon operation of law to the survivor
- July 1997, Essay 5
Rule
A TBE differs from a JT in three ways
1. requirement for a TBE is an existing valid marriage
2. neither spouse can destroy a TBE without consent of the other (a court could not entertain an ex
parte partition action commenced by one spouse)
3. a judgment creditor of a joint tenant can bring a partition action and have property sold, whereas
one spouse’s creditor cannot have the property sold
- a lien on the TBE property which is enforceable only if the debtor spouse survives the other
spouse or the marriage is terminated by DAD
Rule
An MBE spouse lacks capacity to unilaterally transfer title or mortgage his contingent interest in the TBE
- NY allows one spouse to do so but the interest conveyed or encumbered is the survivorship
interest subject to the other spouse’s right of survivorship (contingent on the debtor spouse
surviving the other spouse)
Rule
If a JT or TBE improperly conveys more than his ½ interest, then if the grantor survives the other
concurrent tenant, the grantor is estopped from denying the effectiveness of the conveyance
- full title immediately vests in the grantee under the doctrine of deed by estoppel (aka afteracquired title theory)
Rule
If parties are not in fact married or the marriage is void (bigamous, incestuous), then TBE would be
impossible to create and a TIC is created by default
Rule
In NY on deed executed on or after 9/1/75 that purport to convey to H/W (who are not in fact married), NY
presumes that a JT with right of survivorship was created
- NY doesn’t recognize CL marriage after 1931
Rule
When a NY divorce decree is obtained or when a valid bilateral sisterstate divorce decree is obtained, it
converts a NY TBE into a TIC because a valid marriage is a continuing condition for a TBE
Rule
Prior to Williams v. NC, NY refused to honor foreign ex parte divorce decrees as to either
1. marital status
2. vested marital property rights
- after Williams, foreign ex parte sister state divorce decrees were afforded FFC in NY but only to
the extent that marital status had been adjudicated
- this gave rise to the concept of divisible incidents of divorce
o a valid ex parte divorce having valid in rem jurisdiction but not IPJ over the defendant
cannot affect that defendant’s vested economic incidents arising out of the marital res
o i.e. TBE, alimony, child support, or equitable distribution (not inheritance rights, right of
election or intestacy rights, which are not deemed vested and which will be defeated by a
valid ex parte in rem divorce decree)
Rule
If a husband goes to a sisterstate and obtains an ex parte divorce, his death will not convert a TBE to a TIC
- if he did not die and instead returned to NY, he could commence a NY proceeding to have the
parties’ marital property equitably divided
- DRL 236(b)
Rule
In NY (not MBE) if a separation judgment is granted then even though it does not dissolve the marriage, it
nevertheless sufficiently alters the marriage relationship and the court can convert property from a TBE to a
TIC
Rule
A TBE is defeated by 4 D’s
1. Death of a spouse (if both die together, remove survivorship element and turn into a TIC)
2. Dual transfer in which both H/W take part (i.e. a sale, gift, or an action in partition in which both
spouses participate)
3. One spouse becomes a Debtor in bankruptcy
4. Divorce, annulment or dissolution (or in NY, a NY separation judgment)
Rule
A judgment of divorce giving one spouse exclusive possession precludes a partition action
- remedy is to move to modify the divorce decree
Fink, p.446 – uses Williams case, which states that a state that is forced to give FFC to a sisterstate decree
can look at the jurisdictional element to see if the plaintiff is a proper domiciliary of the sisterstate
- need intent to make the new state the new domicile (top 448), cited Stillwell case
Custody and Visitation
Rule
Child custody can be determined in a matrimonial action or by separate proceedings by writ of habeas
corpus in family or supreme court
Rule
Physical custody is the right of a parent to reside with the child
-
“legal” custody is a parent’s right to make decisions on education, medical care, religion,
discipline and association with others
which parent makes the decisions? Absent an agreement, the court will not interfere with a
custodial parent’s decisions regarding the child’s upbringing
joint custody is only given if the parents agree to share decision-making
Rule
NY does not recognize the tender years doctrine which presumes that the mother is in the best position to
raise young children
Devine, p.574 – gives tender years doctrine definition (p.575), court agrees the doctrine violates equal
protection
Rule
Child custody and visitation are inappropriate for arbitration; however, alimony and child support can be
subject thereto.
Rule
Standard used by family and supreme court to determine which biological parent should have legal custody
is based on the best interests of the child (BIC)
- DRL 240
- No one factor is controlling (FLIPDADS2)
Rule
On the issue of child custody (not visitation), between a parent and a third parson (e.g. grandparent or
stepparent), it is the biological parent who is entitled to custody and the BIC issue is not even addressed by
the court
- unless there is CCE of biological parent’s unfitness (MA&PA)
Rule
Where parties recognize a non-biological parent as a parent, the biological parent is estopped from claiming
the non-bio is not a parent
Rule
Unlike where two parents are fighting for custody (where the std is BIC), in a proceeding to terminate
parental rights, the burden is on the terminator to show MA&PA by CCE (14 th A DPC)
M – Mental illness or retardation
A – Abandonment (failing to contact the child for 6 months)
P – serious permanent neglect
A – Abuse (severely or repeatedly, physically or mentally)
Hassenstab, p.581 – sexual preference of parent is not a factor in changing custody unless it affects the
child (top 584)
- court gives standard for modification of custody (p.582)
Gottlieb, 108 A.D.2d 120 – app ct upheld trial court’s condition that the father was not to involve his child
in gay activity or publicity but rejected conditions that the child not have contact with the father’s lover or
travel to places where known homosexuals gather
Simpson, p.590 – when OJ was initially jailed, the kids went to live with the grandparents, now trying to
get custody
- court sent the case back for the trial court to consider (p.601)
- 18 months went by with the kids in OJ’s custody after he was acquitted, Pieper says the
grandparents should never have given the kids up before bringing this proceeding
Rule
Under DRL 240(1-c) and family court act 1085, no court shall grant an order for either child custody or
visitation for a person convicted of 1st or 2nd degree murder of the child’s parent or guardian unless
1. child is of suitable age to agree to the custody or visitation and does so (hold a hearing to
determine suitable age)
2. child is not of suitable age but the child’s guardian agrees to the visitation or custody
3. the killer can prove by POE
a. that she was a victim of domestic violence by the person who was killed
b. domestic violence had a causal relationship to the murder
c. BIC
John R. v. Marlene C., 179 Misc.2d 72 – changing a regulatory law is not an ex post facto problem
Rule
The ex post facto clauses prohibit both Congress and state legislatures from retroactively altering the
definition of a crime or increasing the punishment for a defendant’s prior criminal conduct
Rule
EPF prevents retroactive A DIP penal law
A – Alters or changes rules of evidence in order to need less evidence to obtain a conviction (ex. abolishing
a corroboration requirement after the crime was committed)
D – Depriving a criminal defendant of any defenses that were available at the time the crime was
committed
I – Increasing the punishment for the crime after it was committed
P – Punishing past conduct which at the time it occurred was not against the law
Rule
Generally EPF does not apply to retroactive procedural changes (only to penal laws)
- i.e. lengthening the crime’s statute of limitations, allowing the government to appeal an order that
granted the defendant a new trial
Rule
EPF only applies to legislative acts, not judicial decisions
- judicial decisions are governed by the DPC which incorporates the limitations of EPF
- a court decision that retroactively abolishes the one year and a day rule (A hurts B, if B dies after
one year and a day have passed, no proximate cause that A’s conduct caused B’s death) does not
violate EPF (modern science has overcome the ancient CL year and a day rule)
Rule
The SCt has held that an unexpected judicial construction of a penal statute should not be applied
retroactively to conduct occurring before the court’s decision
Rule
EPF does not apply to civil penalties or regulatory sanctions
- i.e. a law making a past crime a basis for deportation, disqualifying prior felons from obtaining
professional licenses, requiring sexual predators to register (cops must give predators notice before
classifying him as a certain grade of predator)
Allen v. Farrow, p.585 – dad’s considerable wealth was not a deciding factor in changing custody
considering his lack of attention towards the children and allegation of sexual abuse (did affect the court’s
decision to force dad to pay court fees)
- BIC considerations (p.588)
Carney, p.602 – dad’s severe handicap not enough to change visitation, court rejected stereotype that dad
won’t be able to take the son fishing, have a catch, etc.
- standard for change in custody (p.603)
Race
Palmore, p.607 – wife remarried a person of a different race, court said racial prejudice of society not
enough to justify a change in custody
Rule
Ultimate goal of the 14th A is to end racially motivated state action and to enact laws that are blind to race
- all race-based classifications used by Federal, State or Local governments must pass the test of
strict scrutiny
- race-conscious education/employment programs will be upheld only if there is sufficient specific
evidence of present effects of past discrimination and not just generalized assertions of widespread
past discrimination
Farmer, p.610 – obvious racial characteristics of the child and society’s identification of the child’s race
should not have a bearing on BIC and where the child is placed
Religion
Rule
Absent an agreement, the court will not interfere with the custodial parent’s decision regarding religion,
health care, and education
Quiner, p.615 – custodial parents are allowed to raise the children in their religion, but here mom’s religion
teaches that everyone not in the religion is unclean, and because dad is a “nonbeliever,” he is unclean.
Court says to wait for evidence of damage to the child before the kids are taken away from the mom.
Rule
If a child gets hurt and needs medical attention, but the parents will not let him have it because of their
religion, the hospital has to file an order to show cause and get the court to intervene
- free exercise v. BIC (must be possibility of substantial harm to the child)
- Deluca, 202 AD.2d 580
Kendall, p.621 – court must look at BIC even if that limit’s parent’s liberty (p.622 Felton)
- court says there must be threat of substantial harm to the child to limit the parent’s rights (p.62526)
- court ordered psychiatrist to explain the decision to the kids
McMillan, p.628 – child (9 yrs) preferred to live with dad, court found his preference was supported by
reasons (p.629), since FLIPDADS could go either way, child’s preference won out
- in NY, judge would talk to the child without parents or lawyers in chambers
Rule
Courts will often order a study of the child by psychological experts (go to the home, make a report)
- report must be disclosed (expert has many kids to see, could get mixed up, important that others
involved make sure he did it right)
- DiStefano, p.631
Zones of Responsibility
Rule
Many factual determinations are needed to rule on custody
- joint custody is not a good idea if parents are fighting a lot or are separated far geographically
- custody is usually given to one parent and certain areas of decision-making are given to the other
(zone of responsibility)
- Braiman, 44 N.Y.2d 584
Frize, 266 A.D.2d 753 – court gave custody to mom but reserved education decisions to dad
Rule
Every state has adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act giving
uniform recognition to sisterstate child custody decrees
- the act seeks to prevent child snatching by a N/C (a felony in NY) and then taking the child to
another jurisdiction for a more favorable judicial determination on the custody issue
- seeks to prevent conflicting custody orders from two states (DRL 76)
Rule
Although custody decrees are never res judicata, this act invokes a clean hands doctrine, forum nonconveniens, and imposes quasi FFC on child custody decrees
Rule
The home state of the child is where the child has resided for consecutive months
- that state has continuing original custody jurisdiction except in emergencies (i.e. child abuse)
Rule
Based on BIC, the NY courts have broad discretion to grant a geographic relocation by the custodial parent
even though it will substantially affect visitation rights of the N/C
Rule
The court must consider HER SOBS factors
H – Health related concerns
E – Economic necessity for the move
R – Impact the move would have on the existing relationship between the child and the N/C together with
the feasibility of a similar move by the N/C
S – demands of a second marriage
O – N/C’s good faith reasons for opposing the move (quantity and quality of the N/C’s relationship with
the child)
B – BIC
S – whether the move would strengthen and stabilize the post-divorce family and allow a fresh start
King, p.710 – standard to re-open divorce decree is a substantial change in circumstances
- court said it was enough that the son had grown up and wanted to live with his dad (Pieper thinks
court’s persuasion based on desire of the child was a bit excessive here but as long as it considered
the other FLIPDADS factors and it is a close call then it is okay)
Lazarevic, p.713 – court considered HER SOBS, allowed mother to move family to Saudi Arabia but also
ordered the mom to pay for dad’s/kids’ flights so SA/NY and fax, email, etc., so they could communicate
Visitation
Rule
Best interests of the children is the primary std determining visitation, including duration, location,
frequency and conditions
Rule
A parent has a substantive due process right to make decisions concerning the care, custody,
companionship and control of the child
- thus custodial parent is given primary control over who the child associates with, how the child is
educated, and issues involving religion
- court can’t interfere unless there is a compelling state interest (i.e. welfare of the child)
Rule
US Supreme Court struck down as overly broad a state law that allowed anyone standing to seek courtordered visitation with a child as a violation of the parent’s substantive due process right
- Troxel v. Granville, 120 SCt 11 (1999)
Rule
Under DRL 71 & 72, grandparents and siblings are given standing to seek visitation
- DRL 72 gives grandparents standing when one or both parents are deceased, or when neither are
dead under equitable circumstances
- NY courts follow a 2-step process when grandparents and siblings are seeking visitation (Hertz
291 A.D.2d 91)
1. a sufficient existing relationship between the child and sibling or grandparent
 court looks at previous nature and length of the relationship
2. reasons for the parent’s objections
 78 N.Y.2d 178
 a parent’s objections and wishes must be given considerable deference but must
be based on factual assertions and be in BIC
Rule
Ordinarily when a court grants visitation to the N/C, visitation is frequently
a. alternating weekends
b. alternating holidays including Saturday and Sunday where the holiday falls on a Monday
c. alternating birthdays
d. alternating vacations during the school year
e. two-four weeks during summer vacation
f. midweek dinner
Rule
Many courts are encouraging virtual visitation (internet/video conferencing) allowing parent and child to
see one another during the conversation
Rule
Where parents are in battle and constantly cannot agree the court frequently will eliminate 100% custody in
one parent and instead assign decision-making in certain areas to N/C (e.g. health care, education, religion
or afterschool activities)
- keeps both parents involved in the child’s life and reduces the need for the court to intervene
- where neither party can be trusted not to obstruct the other’s relationship with the child, it is error
for the court to vest all decision-making in one parent
- Mars, 286 A.D.2d 201
Tran, 277 A.D.2d 49 – court recommended therapy for child, mom was not allowing it, court transferred
the duty to the dad who was doing more
Chicoine, p.636 – problem because mom’s sexuality very apparent in front of kids (would have been the
same regardless of whether mom was a lesbian or not – homosexuality is not a basis to deny custody)
MAB, 134 Misc.2d 317 – marriage ended on grounds of abandonment (dad was gay and left), dad wants
custody of son, evidence that son did better in school while living with dad for a few months
- mom wants to move all her kids to Florida, court says circumstances don’t exist to bring kids all
together, gives custody to dad
- Pieper says court probably wouldn’t decide the same today, during this case HER SOBS didn’t
exist yet
Shutz, p.640 – court said mom had duty as custodial parent to nurture the kids’ relationship with dad
Rule
NY – prima facie right to change custody if willful interference with N/C relationship
- physical and psychological
Zafran, p191 Misc.2d 60 – Parental Alienation Syndrome
- not recognized in NY yet
- fits in with Rape Trauma Syndrome, where people act differently from how we would assume
they would act given the situation, the syndrome explains the behavior
Rule
NY requires a Frye Hearing which will determine if an expert’s testimony is admissible
- expert’s theory must be generally and widely accepted as reliable in that field
- FRE 702 is more liberal in allowing the trial judge to make the determination based on its
reliability and relevance to the case
o Allows the trial judge to verify soundness of expert’s conclusions and whether the
expert’s theory is reasonably reliable by determining whether the expert’s theory is
CREAP
C – Confirmed by testing
R – Reviewed by peers
E – potential rate of error
A – whether the theory is widely accepted in that field (Frye)
P – whether the theory has been published
- NY – more and more accepting these elements even though not officially
JF v. LF
- programming the child so that the child participates in alienation of the father
- damages the child permanently if allowed to remain with the alienating parent
- parent is a psychological impediment to visitation
Rule
A custodial parent’s interference with the N/C’s visitation rights raises a per se presumption of that parent’s
unfitness for custody
- Malony, 208 A.D.2d 603
Smith, p.642 – dad let visitation rights lapse, went to court and got a new visitation schedule, mom did not
comply, court held her in contempt and threatened jail time
- court said mom has to do more than encourage kids to visit with their dad, she must bring them
- jail time is to scare mom into compliance
- Pieper thinks it is a bad idea to lower the mom’s child support payments as punishment because
that hurts the kids
Egle, p.644
Gleiss
Kajtazi, 488 F.Supp 15
Kemp, p.650 – it is in the child’s best interests to develop the parent/child relationship
Franz, p.657 – stepdad needs to go into Witness Protection, so dad won’t be able to see his kids or know
where they are or how they are
- Court said government needs to show a compelling interest to sever all ties with the dad
Bevis, p.666 – attempted adoption by stepparent
Rule
Visitation is a join right of both child and N/C
- Weiss, 52 N.Y.2d 170 (1981)
Rule
BIC is furthered by the child being nurtured and guided by both parents
Rule
In visitation disputes, just as in custody matters, BIC is the controlling factor
Rule
Although the opinions and desires of a 15-year-old deserve great deference and respect, they do not end the
court’s inquiry about visitation or custody issues and are not dispositive
Mark-Wiener v. Mark, NYLJ Aug. 21 2002 p.18 c4
- weird dad, court orders psychological counseling for dad if he wants to keep seeing his child
Smoking
Rule
Courts have taken judicial notice that 2nd hand smoke is harmful
- have held that parents can’t smoke when the child is visiting, must smoke outside, etc.
- but Pieper says smoking is not a sole basis upon which to change custody
Rule
Right to raise child as a parent sees fit is not an absolute right (can be limited with not BIC)
Names
Rule
An adult does not need a court order to change his name (but can get one)
- CRL 65(4)
Rule
When a person obtains a divorce or any DAD decree, each spouse has the right to resume their pre-marital
name and the DAD judgment must contain such a provision
- DRL 240-A; CRL 65(2)
Rule
Under DRL §15, upon marriage a spouse is not required to assume the surname of the other spouse
Gonzalez, 77 Misc. 2d 745 – dad had abandoned wife and son, mom wanted to change surname of the baby
after the divorce
- court found no reason not to allow this (this is the ground where the court most frequently allows a
name change to mom’s name)
- tendency in NY is to leave the name alone absent abandonment by the father (Pieper disagrees
with this tendency)
Gershowitz, 112 A.D.2d 67 – provision in divorce decree that wife couldn’t change son’s name without
husband’s permission
- Pieper says if want to change kid’s surname, show desire of child to change (show change is in
kid’s BIC)
- Such a provision is common and bargained-for in the divorce agreement
Githens, 177 Misc. 2d 918 – mom must show BIC to change son’s name (especially if dad had reasonable
reasons not to change such as payment of child support, visitation, etc.)
Rule
A custodial mother cannot unilaterally change the child’s surname to her maiden name without giving
notice to the father and demonstrating to the court that BIC would be “substantially promoted” by a name
change
Rule
It is common for separation agreements to prohibit changing the child’s surname
- generally courts will enforce these provisions
Rule
The change of a child’s name usually is granted only where the natural father has abandoned the child
and/or has paid no support (otherwise rarely granted)
Rule
Article 6 of CRL – if can’t find dad’s whereabouts to send petition for name change, send to wherever he
reasonably may be found (i.e. family member’s home)
Equitable Distribution
Rule
In a matrimonial action dissolving the marriage, the court shall equitably (not necessarily equally)
distribute the marital property to both spouses
- unless the parties opted out of ED prior to or during the marriage (prenup, nup, separation
agreement)
- July 90, 91, Feb. 02
- With a longtime marriage, the court will usually split down the middle
Rule
Such contracts can also provide for inheritance rights in the event of one spouse’s death or in the event of a
divorce, amounts of maintenance to be paid to the other spouse or amounts to be paid for child support
Rule
A prenup entered into in contemplation of marriage or a nup entered into during the marriage requires that
both spouses fully disclose all their assets
- such agreements must be fair and reasonable when entered into and not unconscionable for the
court to enforce at the time of trial (FAR NUT)
- such agreements together with separation agreements are interpreted in a similar fashion and in
order to be enforceable the document must be acknowledged by a notary in the same manner
required to record a deed
Rule
Under ERISA, pension rights can be waived only while a person is a spouse; thus they cannot be waived in
a prenup
Rule
ED recognizes the marriage as an economic partnership and also recognizes the “direct and indirect”
contributions of a spouse who stayed at home and was not employed
Rule
The court will ED marital property regardless of who has title (including professional licenses or academic
degrees – which enhance earning capacities, the marital residence, pensions or stock options) earned during
the marriage
Rule
ED broadly defines marital property and narrowly defines separate property
Rule
Marital property is that property acquired by either spouse from the date of the marriage up to the date of
the commencement of the matrimonial action (date the index number is obtained), which marks the end of
the economic partnership for ED purposes
Rule
An action for a judicial separation and a resulting judgment does not dissolve the marriage or the economic
partnership (therefore, no ED)
Rule
Courts have broad discretion in identifying, classifying and valuing assets from the date the action was
commenced up to the date of trial
Rule
“Passive assets” and investments, whose value depends only on market conditions, are typically valued as
of the trial date to avoid a windfall to the title spouse if the asset increases in value after date of
commencement
- “active assets,” whose value depends on the labor of one spouse, are typically valued as of the date
the action is commenced
Rule
A professional license does not merge into the professional’s practice
- each is valued separately
- the value of a law license and law practice that develops thereafter can be measured by enhanced
earning potential (by comparing a similar person with only a college education and the average
lifetime annual income of the professional after deducting taxes and depreciating that figure to a
current value)
Rule
To avoid a double recovery (aka double dipping), the earnings from the license and the practice must be
deducted from a spouse’s income before determining that spouse’s alimony obligation (because the other
spouse will get ½ of license and practice earnings in ED)
Grunfeld, 94 N.Y.2d 696 – used excess formula to value a lawyer’s partnership interest because he earned
more than the average person his age with just a college education
- H got married ½ way through law school, therefore she only gets ½ of ½ interest in the license
- Alimony amount exceeded ½ of H’s practice so the court took away the whole of W’s amount
from the practice
- Bad for the wife b/c if H dies, no more alimony, better for W to take ED now (she can invest, ED
is tax free, etc.)
Tanzman, 191 Misc.2d 215 – court valued a lawyer’s contingency fee cases by giving 1/3 to wife straight
off for each case (had substantial value just by walking through the door)
- Pieper likes idea of getting an expert to value each case, but expensive
Rule
Generally a spouse’s fault (e.g. adultery) will not be considered in ED awards, except in the most egregious
cases in which fault is just another relevant factor in the court’s determination
- fault may be a basis for denying alimony but is not automatic (as it was prior to ED)
- In determining whether H is entitled to any maintenance or ED, court may consider H’s fault
because H’s physical beatings of W constitute uncivilized egregious conduct (W could also have
asserted a claim for civil battery and sought punitive damages for the beatings)
Rule
There is neither a taxable gain nor loss to either spouse on property transfers relating to a divorce or ED
- one spouse’s transfer to another is not considered a taxable sale
-
the transferee spouse gets the transferor’s basis in that property
Rule
ED does not apply to separate property
1. accumulated by one spouse prior to marriage
2. property acquired during the marriage by dissent or gift from someone other than the spouse
(where gift or bequest is made to both spouses then that property is treated as marital)
3. compensation for personal injuries without distinguishing between economic and non-economic
losses
4. property acquired during the marriage that was paid for with separate property
5. Property transferred by one spouse to another to avoid the claims of creditors (constructive fraud –
based on doctrine of in pari delicto)
Rule
Under the CPLR, claims for fraud, deceit, or negligent misrepresentation are governed either by a 6 year
statute of limitations from the date of falsehood or 2 years from date it was (or reasonably should have
been) discovered
- whichever period gives the plaintiff more time to sue
- a claim for constructive fraud does not get two years from discovery allowance
Rule
Constructive Fraud arises whenever a debtor transfers assets for less than full and fair consideration and is
rendered insolvent by the transfer or because he believes he will incur debts in the future beyond his ability
to pay
- look to see if the debt occurred prior to the gift
Rule
If there was an actual intent to defraud or hinder creditors, then the plaintiff can recover attorneys fees
- court looks to the badges of fraud to determine if the debtor transferred the assets with a fraudulent
intent (SHIFTS – 249 A.D.2d 756)
S – Secret and
H – Hasty transfer
I – Inadequacy of consideration
F – Transfer was made to a close Family member
T – Transferor continues to possess or control property
S – Scienter
Rule
If separate property appreciates during the marriage due in part to the limited but active efforts of either
spouse then the value of the appreciation is marital property
- if it is passive appreciation based solely on market forces then the appreciation is not considered
marital property
Rule
Once separate property is commingled with marital property, then under the transmutation theory, it
becomes marital property
- but the contributing spouse gets a credit for the property’s value at the date of the transfer
- there is no credit when bank accounts are converted to joint bank accounts between H&W
Rule
In NY, all causes of action to recover for damages caused by breach of contract to marry have been
abolished
- To avoid an unjust enrichment, NY permits lawsuits to recover money or property (or their FMV)
given in contemplation of marriage
- If the sole consideration for the gift was a promise to marry, NY treats the gift as conditional; if
the condition fails for any reason, then regardless of fault, the gift or its value must be returned
(CRL 80-b)
-
If one person was married when he gave the gift, he can’t get it back (public policy)
If the H/W do get married and subsequently divorce, the engagement ring is separate property and
not subject to equitable distribution (289 A.D.2d 78)
Rule
If a spouse fails to establish her DAD claim, the court is prevented from rewarding equitable distribution
(no dissolution, no distribution)
- the dismissal does not prevent the court from awarding alimony or child support
Rule
SCt has broad discretion in equitably distributing the marital home, especially when minor children are
involved
- the court can
1. order the house sold and net proceeds equitably distributed (this is done when financial
circumstances dictate or there are no minor children)
2. give one spouse title as part of her share of ED
3. stay a sale and award sole possession to the custodial parent until the youngest child finishes high
school, if
a. no comparable housing is available in the same area at a lower cost
b. the parties are financially capable of maintaining that residence
Rule
Where sole possession of the marital home is awarded to one spouse, the court should include a limitation
on that possession
- otherwise it will be implied to give possession for a reasonable duration
Rule
Pension benefits of one spouse are subject to ED if the benefits were earned in whole or in part during the
marriage
- While issues such as vesting and maturity do not raise serious obstacles to ED determination, they
do affect valuation and distribution
- Courts issue qualified DR orders which ED the proceeds of future contingencies if and when
realized
- Pension benefits are also exempt from judgment
Laing, p.794 – pension benefits were not vested, trial court ordered money to be given to wife now
- appellate court required qualified DR order that would show W’s right to benefits when vested
(because H could die tomorrow and then his benefits would fail, W would get a windfall)
- W will get ½ benefits for the number of years H/W were married
Rule
In splitting an IRA that is subject to ED, one spouse who holds the IRA should transfer that proportionate
interest to the other spouse
- no income tax (cashing the IRA out and paying ½ to the other spouse would generate income tax
to the transferor because IRA rule states that if cashed out early, subject to tax)
Rule
A spouse cannot be convicted of larceny for stealing from the other spouse if the property stolen was
marital property because a required element of larceny is that the property be owned by someone other than
the defendant
Rule
Debts arising from nonpayment of alimony or child support whether under DAD judgment or a separation
agreement, are nondischargeable debts in bankruptcy
- however, a property settlement may be a dischargeable debt
Rule
2nd circuit found that a claim of W for money promised by H to pay off a debt in ED was nondischargeable
because its overall purpose was to provide W with support (3 F.3d 35)
Rule
Attorneys fees that were awarded in a MA based on a client’s needs are deemed support and
nondischargeable
- if they are awarded to balance a property division (no “need” was shown), then court-awarded
attorneys fees may be dischargeable
PAID WIG EATS POEM – factors for ED (handout)
Rule
Where one spouse uses marital assets for a purpose unrelated to the marriage (i.e. gambling, a lover) when
the marriage has irreconcilably broken down, then the money is entered into the ED pot
Siegel, p.772 – H loses $20k in Atlantic City, the other spouse was found entitled to half
Rule
According to Jewish law, a religious divorce is required in order for the wife to remarry or even to date
- only H has the power to give the divorce (called a “get”)
- under DRL 253, a plaintiff is required to submit a sworn statement prior to entry of judgment that
he has taken all steps within his power to remove all barriers to the defendant’s marriage
Rule
The court shall consider, under DRL 236(5)(h), the effect of any existing barrier to the remarriage of a
spouse in awarding ED
- cases have given 100% to W because H didn’t give the get
McSparran, 87 NY.2d 275 – H was found to have assisted W in getting her medical license by cooking
dinner for the kids, babysitting, etc.
- license did not merge into the practice, is separate and distinct
- Ct went against FLIPDADS guidelines and separated the kids
Graulrapp, p.774 – because of duration of marriage and the fact that W was getting the house, appellate
court said trial court erred in giving W so much in ED
- gifts W received separately were properly withheld from the ED pot
ALI Approach, p.775-76
- If marriage was 6 years, 4% of value of separate property of each is thrown into the pot for each
year
- If marriage was 30 years, all separate property goes into the pot
Rose, p.776 – 18 month marriage, no sense to combine property if it can be traced back as to what belonged
to whom beforehand
- rescission (puts the parties back into the position they were before the contract)
Rule
The longer the marriage the more likely the court is to equally divide the marital property
- in marriages of short duration (less than five years), the court usually divides marital property in
accordance with each spouse’s economic contribution to that property
- court’s aim is to restore each spouse to their respective economic position before marriage
Rule
In the court’s decision it must articulate the PAID WIG EATS POEM factors that it considered in making
the award
-
the parties cannot stipulate to waive this requirement (DRL 235(b)(5)(D)); if they do, appellate
court will send award back
Postema, p.786 – W agreed before marriage to postpone her career and do the cooking, cleaning, errands,
etc. while H went to law school, after graduation H left W
- court held the license was a marital asset and gave W ½ of its value
- app court agreed with trial court regarding value (p.791), but said it was equitable to give W
money to pursue her own education (even though marriage of short duration, W contributed
heavily)
Child Support
Child Support Standards Act (CSSA): gives schedules of CS
Rule
Both parents are responsible for the support of a child up to age 21 unless the child is emancipated, the
parent dies or the child is adopted before 21
Rule
Emancipation occurs when a child voluntarily and without sufficient cause leaves the parents’ home and
withdraws from parental supervision and control (by operation of law)
Rule
Family Court Act 413 imposes child support liability on a stepparent but only if that child is in danger of
becoming a public charge
- stepparent’s liability does not cease when he divorces biological parent but the duty to support
ends with the biological parent dies
Rule
A parents’ obligation to support is not an independent obligation, thus a parent can impose reasonable
conditions on the child’s conduct
- the parent’s duty to support the child is dependent on the child’s compliance (43 N.Y.2d 128)
- Roe v. Doe, p.1109 – reasonable obligations include going to school and staying there, they are
consisted with the parent’s efforts to protect the child (the child asserted independence and in
essence abandoned her parent)
Rule
An adult child is not legally responsible for supporting a parent if the child has sufficient means and the
parent is in danger of becoming a public charge
- no legal duty between grandparents and grandchildren either
Rule
To avoid ad hoc child support awards, NY has adopted (at Congress’ urging) the CSSA
- not based on need for the 1st $80k of combined parental income; based on a fixed percentage of
both parents’ combined incomes from the prior year (including imputed income from gifts, lottery,
workers’ comp, social security, unemployment, retained earnings in a corporation, and
inheritance)
Rule
Only deductions
1. FICA
2. Alimony actually paid by one spouse to a current or former spouse according to a court order or
separation agreement (once payments end, court order of CS must adjust)
3. CS paid to children from another marriage
4. municipal income taxes
5. unreimbursed business expenses
Rule
CSSA formula is based solely on the number of children to be supported and is computed by multiplying
the combined parental income by
a. 17% for 1 child
b. 25% for 2 kids
c. 29% for 3 kids
d. 31% for 4 kids
e. 35% for 5 or more
Rule
Court can deviate from this formula only if it would be inappropriate or unjust to comply
Rule
Percentage will not be altered simply because custody was shared unless payments would be inappropriate
or unjust
- with shared custody, parent who has physical custody for majority of the year gets the payments
Schmidt, p.801 – mom made more than dad and had custody of 2 kids while dad only had one, court
disagreed with original plan that gave equal amount to each parent, said mom should get more (despite
making more money, 2 kids are harder than one – Pieper agrees)
Raymond, 180 A.D.2d 510 – 4 kids in 3 households, court says to calculate what the total would be and
split up between the families so they each get a sufficient amount
Bush, p.807 – Pieper likes the trial judge’s decision that put the money above what W thought wasn’t
enough for CS in a trust fund for the child (but app court said no because W should be able to use the
money to care for the child)
Rule
In deciding CS, court must consider the standard of living the child would have had absent the dissolution
Rule
The formula is now applied to combined parental income over $80k for child’s need unless it would be
inappropriate or unjust (where sums would exceed the child’s need)
- in making this determination, court looks at “F” factors in DRL 240(1-b)
Rule
The court must articulate in its decision why and to what extent there should be a departure from the
formula for the income over $80k
- Bast, 91 N.Y. 723; Baravy, 250 A.D.2d 201
Rule
Courts emphasize the child’s needs and the parties’ pre-separation standard of living when considering
combined income over $80k
Rule
As “add-ons,” a parent is also required to pay a proportionate share of the child’s unreimbursed medical
expenses, day care, camp and education (e.g. tutors) including college
Rule
Where a parent has a group health plan that covers dependent children, the court shall order that parent to
continue to have that coverage for the children
- if both parents have health plans, the court generally selects the most comprehensive plan
Rule
A parent cannot be compelled to pay for college beyond age 21 unless the parent has expressly agreed to do
so in a separation agreement or court stipulation
Rule
In the area of private schooling the primary factors the court considers are
1. the financial resources of the parents
2. the quality of the existing public schools
3. whether the children previously were in private school
Rule
A court may compel a parent to pay a child’s college tuition based on
1. educational background of each parent
2. child’s academic ability
3. parent’s financial circumstances
Rule (Pieper says important for the bar)
The parties can opt out of the formula provided the written agreement expressly states
1. the parties were aware of the CSSA formula
2. the dollar amount that would have been owed (including add-ons)
3. the reason a different amount is being paid
Rule
On a CS motion the court must order CS on the return date even if the motion is adjourned
- payments must be ordered retroactively to the date the motion was filed (or if it was requested in a
complaint, the date the complaint was filed)
- because lawyers can manipulate and not show up (say otherwise engaged) to put off the time the
CS starts – so go into court right away!
Dox v. Tynon, 90 N.Y.2d 166 – no implied waiver because mom didn’t sue for back CS for 11 years
Rule
A court may not for any reason retroactively cancel or reduce child support arrears (no excuses – except if
payor’s income drops below poverty level)
- payor should make an action to prospectively reduce as soon as possible
Rule
To collect arrears for alimony or CS arising from an order or judgment entered after 8/7/87, SOL is 20
years; if prior to 8/7/87, SOL is 6 years
Rule
20 year SOL does not apply to a separation agreement if there was (1) no subsequent divorce or (2) the
agreement was incorporated into and survived the decree
Rule
If a custodial parent wrongfully interferes with visitation rights of the NCP, the court can suspend alimony
and forgive arrears (but not CS arrears)
- the court can prospectively cancel or reduce CS or alimony
Modification of Child Support
Rule
Modification of CS depends on the type of order being modified
A. CS payments in a judgment or order may be modified prospectively upward or downward
by showing a “substantial change in financial circumstances” of the parent
-
-
in the 2nd & 3rd departments a substantial increase in the NCP’s income is by itself sufficient to
increase CS without needing to show the child’s needs were not being adequately met
in the 1st and 4th departments a showing of the child’s needs is also required (change in
circumstances is not enough)
B. CS payments in a separation agreement that survived the DAD judgment
CS payments can be modified up or down by showing
i.
fraud or duress at the time the agreement was executed
ii.
FARNUT not satisfied (agreement manifestly unfair or unreasonable)
iii.
Unanticipated and unfavorable change in circumstances (almost
impossible to satisfy) when the petition only seeks to adjust what the
spouse pays and not to change the amount of child support – a
reallocation of who pays what – the CP has substantial income and the
kids are being adequately provided for. (42 N.Y.2d 210)
iv.
One parent seeks to increase CS obligation of NCP based on the needs of
the children (not necessarily to show unforeseen change because the
motion is predicated on the kids’ right to receive adequate support
(therefore court is not bound by the separation agreement)
Rule
If a former spouse obtains an upwards modification in either alimony or CS, the increase does not give the
other spouse a breach of contract claim to sue for the difference
Rule
If NCP obtains a court order decreasing CS (based on unforeseen circumstances) that was contractually
provided for in a separation agreement, CP has a breach of K cause of action for the difference
Rule
Where the NCP pays college expenses, they can offset that payment against their CS obligation for those
amounts paid for room & board while the child is living away from CP
Rule
To deter parental abduction when joint custody has been awarded or where there is an ongoing custody
dispute, a child’s new passport application or renewal must be signed by both parents
- does not apply if one parent has been granted sole custody, but that parent must produce
documentary proof
- one parent can also sign a waiver
Rule
If a child can be expected to cross international borders with a parent then the NCP should ask NY court to
grant “joint custody” in order to have standing to request another country’s court to return a child who has
been wrongfully taken to that country – if that country is a signatory under the Hague convention
(International Child Abduction Act)
- might relax NY joint custody standard of “no animosity between the parents” to give joint custody
Rule
Where the child may be taken to a country that has not signed the Hague Convention (e.g. Philippines), one
parent should consider moving for an injunction and if the injunction is granted, it should be served on the
Department of State
- Covelli, NYLJ Oct. 2002 p.23 col.5
- Also get the passport filed with the court
Maintenance
Rule
The amount and duration of alimony is a matter left to the discretion of the trial court
- every case must be determined on its unique facts
-
maintenance may be awarded for a definite or indefinite period of time
Rule
Maintenance shall terminate upon the death of either party or upon the recipient’s valid or invalid marriage
unless the spouses, by clear language, otherwise agree
- even if the agreement leaves out “wife’s death” or some aspect of this rule
Rule
Lifetime (permanent) maintenance may be awarded by the court, considering the parties’ marital standard
of living (discretionary)
- where W is incapable of becoming self-supporting at the level roughly commensurate with the
marital standard, lifetime maintenance may be appropriate
Mills, p.779 – marriage of long duration, W was capable of sustaining standard of living
ALI Approach, p.781 – a year of alimony for every year married
Simmons, p.782 – wife submitted budget to the court, court increased the award
Rule
It is common in a divorce decree or separation agreement to require the party paying either CS or alimony
to take out a life insurance policy
- when a copy of the separation or decree is served on the insurance company, the insuror is
prohibited from changing the beneficiary and must notify the beneficiary in the even that the
premium is not paid
- Ct of App has implied a constructive trust in situations where the beneficiary was changed unfairly
from the recipient spouse (TCUP: transfer of property, confidential relationship, unjust
enrichment, promise)
Rule
In determining the amount of maintenance, the court will consider whether the spouses can SPAR
S – pre-divorce Standard of living
P – PAID WIG EATS POEM
A – Ability of spouse to become self-supporting (and time and training to do so)
R – The spouse’s Reduced earning capacity as a result of having waived educational or career opportunities
during the marriage
Owens, 288 A.D.2d 782
Schupak, 288 A.D.2d 91
Rule
Once a matrimonial action is commenced, the court can award temporary alimony and CS pending the final
judgment
Rule
If the amount awarded after a full trial is more than that prior to the trial, the court can award the difference
retroactively
Rule
The proper procedure when one party is unhappy with a temporary maintenance or CS award is to move for
an expeditious trial (rather than taking an appeal)
Rule
The court has discretion to grant counsel fees for the trial, for an appeal, for an AF hearing and even for
legal fees rendered prior to the start of the action
- the party seeking counsel feels does not have to allege indigence
Modifying Maintenance
Rule
Award may be modified upwards or downwards
- standard is easier than modifying the amount in a separation agreement: based upon recipient’s
inability to be self-supporting or a substantial change in circumstances by either spouse (i.e.
involuntary loss of job or increase in salary)
- on a pre-7/19/80 separation agreement, modification is permitted only by showing that a spouse is
unable to be self supporting and is in danger of becoming a public charge
- for a post-7/19/80 agreement, modification is permitted upon a showing of extreme hardship of
either party, unless payments are modified (stricter than substantial change in circumstances but
more lenient than public charge)
 Sass, 276 A.D.2d 42
Rule
If the court is persuaded to suspend or modify downwards the maintenance provisions of a separation
agreement, the court order supercedes the contract terms (no breach of contract action for the recipient
spouse)
- Where CS payments are decreased by the court, custodial parent may sue in contract for the
difference
Tax Aspects
Maintenance
Rule
Alimony payments are deductible by the payor and are taxable income to the recipient
Rule
To prevent parties from treating property (ED) settlements as alimony, IRC requires
1. alimony payment be by cash or check and not a debt instrument or a transfer of real or personal
property
2. payment must be made pursuant to a written court order or separation agreement
3. payments must end on the recipient’s death
4. parties must live in separate households (except for a temporary alimony order)
5. if alimony is more than $10k/year, must continue for at least three years unless earlier terminated
by remarriage or death
- payments during the 3 years cannot decrease too rapidly
Rule
Since the divorce is personal in nature, generally AF are not deductible expenses except
1. tax advice and research given to the spouse
2. that part of the fee attributable to deduction or collection of the taxable income (when you have to
fight to get the alimony)
CS
Rule
CS payments are not deductible and tax free income to the recipient
Rule
Regardless of what parties call it, it is treated as CS if the payment is decreased by any contingency related
to the children
Rule
Parent who has child for the greater part of the year automatically gets the dependency tax credit for that
child unless otherwise agreed
Separation Agreements
Rule
Separation agreement is a contract signed by both spouses and must be acknowledged like a deed
(Matisoff, 90 N.Y.2d 127)
- the agreement is signed only when both spouses agree to all terms
- separation agreement is conditional (precedent and subsequent) on the spouses living separate and
apart
Rule
Separation agreement remains enforceable until (1) it merges into a divorce decree (and thus its terms are
distinguished) or (2) the parties reunite with an intent to resume the marital relationship
Rule
A wife’s premarital agreement waiving marital rights to her husband’s current or after acquired property
does not impliedly waive her right to seek alimony
Rule
The terms and conditions of a separation agreement or of a prenup are enforceable as long as they are
FARNUT
- it is not against public policy for a separation agreement to relieve one spouse of any obligation to
support the other; however, under GOL 5-311 if the other spouse becomes incapable of selfsupport and is likely to become a public charge the court can order the former spouse to pay
alimony (Sass)
Rule
A valid existing separation agreement precludes a cause of action seeking a judgment of separation because
a separate agreement is predicated on the spouses living separate and apart (this is the goal of a separation
action)
- if one spouse commences such an action, defendant would move to dismiss under 3211(a)(1) –
lack of documentary evidence and 2311(a)(7) – failure to state a claim
Rule
Where there is an existing separation agreement and one spouse commences a divorce action, a motion for
temporary alimony or CS will not be obtained unless the court vacates the agreement (no FARNUT) or it is
materially breached by the other spouse
Rule
Separation agreements and prenups are distinguished from ordinary business contracts because they
involve a fiduciary relationship requiring utmost good faith
- NY courts strictly scrutinize all transactions between married persons
- Equity is “so zealous” in this regard than an agreement may be set aside on the grounds that would
be insufficient to rescind an ordinary contract (i.e. no fraud)
Grieff, 92 N.Y.2d 341 – where one party places trust in another, the burden of proof is on the proponent of
the document to show overreaching (i.e. burden on defendant to show no fraud in a prenup)
Rule
Ordinarily a party seeking to rescind a contract on the ground of fraud, unconscionability or overreaching
has the burden; with a fiduciary relationship, when one party places himself in a position of trust and
confidence and there exists unequal bargaining grounds, unfair advantage is rendered “probable”
- therefore NY shifts the burden to the proponent
Bloomfield, 97 N.Y.2d 188 – Pieper says this is an IMPORTANT CASE
- for the court to find a document unconscionable, it must be so in substance and procedure
- W gave up everything in the prenup (substance) and was not aware of all relevant facts
(procedure) – she had waived her right of election
- Even though her counterclaim for rescission was time-barred, the court allowed it because it arose
out of the same transaction and occurrence of H’s claim – equitable recoupment
o Timeliness of a counterclaim is determined as of the day the suit is filed, but a related
claim, even if time-barred, can be used to offset the plaintiff’s recovery (defendant can
only use defensively, can’t collect an award)
Rule
A general provision in which a spouse waives property rights is not enough to waive alimony (though
alimony can be waived)
Rule
A separation agreement may expressly provide for terminating maintenance if the ex-spouse cohabits with
a 3rd party
Rule
A judgment providing alimony payments may be terminated if (1) the spouse is habitually living with
another and (2) she holds herself out as the other’s spouse
- statements or conduct which would lead a reasonably prudent person to believe that the parties are
H&W
- DRL §248
Rule
Even if this standard is not satisfied the court may consider that when a spouse cohabits with another, this
constitutes a substantial change in circumstances, allowing the court to modify downward the alimony
payments
Nothrup, 43 N.Y.2d 566 – no words or activities to indicate W holding herself out as the other’s spouse, so
under §248 no basis to terminate alimony
Scham v. Weber, 65 N.Y.2d 1016 – separation agreement is still in effect and has provision that overrides
§248: states that alimony stops if W lives with another in H/W’s old house - these provisions are not
against public policy
- here, insufficient evidence of cohabitation as defined in the separation agreement (which is
common)
Rule
It is against public policy for a separation agreement to expressly be made conditional on one spouse
obtaining a divorce (under GOL 5-311, this voids the entire agreement)
- oral agreement of this condition does not void the agreement
Rule
Parties who are living separate and apart pursuant to a separation agreement can file a joint tax return
during the year
- only when the marriage has been dissolved by a DAD decree must the parties file separate returns
(if the divorce is on Dec. 31st, H/W cannot file a joint tax return for that year because marital
status for tax purposes is determined at the close of the tax year)
- each spouse remains J&S liable to the IRS for any deficiencies in the tax return unless one spouse
did not know and had no reason to know of a substantial (gross) understatement of income or
overstatement of deduction
- parties can put a hold harmless clause in the separation agreement
Rule
Former spouses married at least 10 years are entitled to social security, death or disability benefits from the
former spouse even though they are no longer married
- if the beneficiary spouse gets remarried, benefits will be paid to two women (both will get 100%)
Rule
Employers of 20 or more employees must allow a beneficiary of a group health plan who would otherwise
lose coverage as the result of a divorce, to elect (and pay for) three years of identical coverage at group
rates
- this coverage cannot be denied on the basis of noninsurability; thus no medical evidence is
required
Enforcement of Matrimonial Decrees or Separation Agreements
Rule
Although a matrimonial judgment may be enforced or modified with the speed of a motion or an order to
show cause (DRL 244), the enforcement of a separation agreement or prenup requires a spouse to
commence a separate cause of action based on breach of contract
- must slower than a motion
- a spouse seeking to enforce a matrimonial judgment (NY or sisterstate decree entitled to FFC) has
the following enforcement provisions: SIRE WCBS
S – a court order of Sequestration which orders the sheriff to take property from a spouse and place it in the
hands of a receiver (see R)
- usually used when there is a history of nonpayment
- available pre- or post-judgment
I – a state Income tax intercept program in which the court’s order or judgment is served on the department
of social security
- gives the defaulting defendant 30 days’ notice to contest; otherwise NYS department of taxation
can take the tax refund to satisfy CS or alimony arrears
R – Receivership used in conjunction with sequestration
- receiver sells the property to satisfy the debt owed to the W and kids
E – property Execution which under CPLR 52 allows seizure of defendant’s property (anything that can be
assigned may be seized)
- pension and IRA benefits cannot be touched by any judgment but a matrimonial judgment (for
nonpayment of CS, alimony, ED)
W – Wage deduction order under CPLR 5244 allowing a wage garnishment of up to 60% of a spouse’s
disposable income (gross income less FICA less income taxes)
- with nonmatrimonial actions, only 10%
- if the defendant has other dependents, only 50% of disposable income can be seized
- these amounts are increased by 5% if arrears are more than 12 weeks
- if defendant gets paid off the books, this tactic won’t work
- any order or judgment in arrears for either 3 payments or 1 month’s payment can be enforced by
this order issued by an attorney, court clerk or family court support collection unit (saves plaintiff
from paying a lawyer to go before a judge)
- only defense to this income execution is “a mistake of fact”: mathematical error in computing
arrears or a mistake in the debtor’s identity, otherwise employer must comply with the order on
the 1st pay date after 14 days from receipt
- available only for alimony or CS, not ED or AF (179 A.D.2d 1065)
C – by order to show cause to hold spouse in Contempt of court under Judiciary Law 756 and DRL 245
- requires CCE to show (1) the other SIRE WCBS remedies are not available and (2) the willfully
defaulting spouse possesses the means to pay
- in NY every parent is presumed to possess sufficient means to support a child; presumption shifts
the burden of production to the defendant to burst the bubble of the presumption with credible
proof of financial inability to pay
- if the court finds the spouse willfully failed to pay, defendant can be imprisoned for up to 6
months (277 A.D.2d 238)
B – requiring the defendant to post a Bond as security for future payments (DRL 243)
- often with recidivists, when the defendant is found in contempt
S – if CS arrears are 4 months or more, court may Suspend a drivers’ license, business or professional
license or recreational license
- arrears must be fully paid to restore the license, except for a drivers’ license, which may be
restored on a showing of part payment
Rosoff, 225 A.D.2d 197 – defendant’s license to practice law suspended regardless of whether defendant
had an ability to pay and intended to pay; point was he didn’t pay
Rule
If a parent is in arrears of CS for more than $5k the state department will confiscate or fail to issue a
passport
Rule
When a divorce decree is obtained, what happens to the separation agreement depends on the parties’ intent
(as expressed in the agreement)
- if nothing is said as to merger or incorporation, the agreement impliedly merges into the judgment
(1st, 2nd, 4th Dep’t; in 3rd Dep’t the agreement is impliedly incorporated)
- if the separation agreement is merged, it ceases to function and thereafter the parties and the court
look only to the DAD decree
- if the agreement is incorporated, it survives the decree and continues in full force and effect
(thereafter either spouse can use SIRE WCBS to enforce the terms of the incorporated separation
agreement)
- other advantages to having a separation agreement incorporated
1. if the court reduces CS payments, custodial parent has a cause of action for breach of
contract to recover the difference for what should have been paid under the terms of the
separation agreement
2. almost impossible to reduce CS in a separation agreement that survives the decree
3. more difficult to modify maintenance payments up or down (need a showing of extreme
financial hardship by either spouse rather than “substantial change in circumstances”
Non-Marital Children
Rule
Almost 1/3 of births in US in 2001 were bastards
Rule
Under EPC of 14th A, distinctions between bastards and non-bastards are subject to intermediate scrutiny
(laws of this kind generally fail)
Ex. denial of CS, wrongful death, workers’ comp, intestacy, public assistance
Lalli, p.1227 – court upheld state’s important interest of allowing nonmarital children to inherit from the
father only if the question of paternity was resolved during the dad’s lifetime (may not be good law today)
Reed v. Campbell – state law allowing nonmarital child to inherit only from mother was an EPC violation
Rule
In NY, a bastard can inherit under intestacy, through testamentary gifts in a will (under Anti-lapse statute as
an afterborn child), or benefit from a parent’s wrongful death
1. from his mother and his mother’s heirs
2. through the father and his heirs but only if
a. there was a court-ordered affiliation
b. father filed an acknowledgement of paternity
c. there exists CCE of paternity and the father openly and notoriously acknowledged the
child as his own
d.
DNA testing administered to the father during his lifetime together with other evidence
clearly establishes paternity by CCE (no posthumous DNA testing by exhuming the dad’s
body in NY – Bonanno, 192 Misc.2d 86)
Rule
Pre-death DNA was allowed when the decedent had submitted to a blood test in an earlier unrelated
paternity suit (184 Misc.2d 218)
- court allowed post-death twin brother DNA testing under both §C&D of EPTL 4-1.2
(Nasr, NYLJ 10/1/02 p.20 col.6)
Rule
Adopted children receive benefits under wrongful death and intestacy of their new parents
Rule
An unmarried partner of a biological mom, whether heterosexual or homosexual, who is raising the child
can become that child’s parent through adoption
Rule
A single person or married/unmarried couples can adopt but one adult cannot adopt another adult in order
to provide their sexual relationship with some form of legal identity
Rule
Absent contrary language in an instrument, adopted and nonmarital children are treated just like marital
children
- whenever an instrument refers to “issue, children, grandkids, descendents, heirs, or distributees” it
shall be construed to include these children
Rule
Where a testator executes a will and has no living marital children, an afterborn child can succeed to a
portion of the testator’s estate that would have passed to such child had testator died intestate (EPTL 5-3.2)
- if the will mentions other children, the AB will share the total amount of the bequest equally, and
if there are other kids but they aren’t mentioned, the AB gets nothing)
Rule
A void marriage in NY is either bigamous (E felony) or incestuous
- a marriage is incestuous if spouses are ancestor and descendant, siblings of whole or half blood, or
uncle/niece and aunt/nephew
- in NY 1st cousins can marry
Rule
A void marriage needs no decree to declare invalidity but a decree may be obtained to declare the nullity of
a void marriage
- a spouse of a void or voidable (annulment) marriage can seek maintenance, CS and ED
Rule
Any child born of a void/voidable marriage is deemed a marital child even if the birth occurred before the
marriage
Substantive Due Process
Rule
SDP has been used primarily to limit the power of the states from infringing on a person’s intimate rights to
make decisions in certain areas of human privacy, family life and values
Rule
NY holds contrary to Bowers v. Hardwick and struck down sodomy laws as applied to consenting adults
Rule
The rights protected by SDP are MAD2 COP
M – Right to get Married (fundamental)
- restrictions on the right to marry based on being in arrears on student loans or CS was found
unconstitutional because the states’ interest could have been achieved in a less restrictive manner
A – Right to get an Abortion: court has reduced the standard of judicial review to undue burden rather than
strict scrutiny (no longer fundamental)
- Women have the right to an abortion before the infant’s viability (after viability, states may choose
to prohibit and criminally punish unless the abortion is necessary to preserve the mother’s life
and/or physica/mental health)
- Women also have the right to an abortion without substantial obstacles from the state but states do
not have to provide funding
o 24 hour waiting periods, lectures from doctors discouraging abortion, parental
notification of teenage females (as long as accompanied by a judicial waiver) are
examples of non-substantial burdens
o notification/consent requirement for a spouse, consent requirement for parents,
requirement that mother has to get abortion in a hospital after the first trimester are
examples of substantial burdens
D – Freedom to Dissolve a Marriage
- filing fees for indigents should be waived; states are permitted to enact residency requirements
D – Right of a Terminally Ill Person to Die (discontinue food, water, medicine, life support)
- a state hospital can continue life support where patient’s wishes to terminate are not established by
CCE (In Re O’Connor, 72 N.Y.2d 517)
- if life-saving treatment is given against the patient’s clearly expressed wishes, the hospital can be
sued for battery (Dobbs, Torts §29 p.54 n.2)
C – Right to buy, sell or use Contraception
O – Right to privately possess Obscene material (but not if it depicts minors)
P – Parents’ fundamental right to raise their kids, to make decisions concerning care, custody and control
Gives parents the primary right to raise, educate and discipline (i.e. state can’t force kids to go to public
school if the parent provides an adequate alternative)
- SDP forbids a state from terminating a parent’s rights without notice and opportunity to be heard
- Must show by CCE a compelling reason for termination
- By abandonment, a biological parent abandons his fundamental right as well (absent father may
have rights terminated and the child adopted without consent)
o Still entitled to notice but waives consent
Rule
The relationship between a parent and a child is a constitutionally protected liberty interest, but if a parent
had no substantial or meaningful relationship to be protected (i.e. he abandons his duties for at least 9
consecutive months), he can not block or approve an adoption despite the fact that he is still entitled to
notice
Rule
An unwed father who took no steps to discover the child’s birth or once it was discovered took not steps to
support and develop a relationship is not entitled to either notice or consent if the child is adopted
- biological link is insufficient to create a constitutionally protected liberty interest
- An unwed father who assumes parental responsibility of support and visitation (biology plus
relationship) is entitled to notice of the child’s adoption and may block it if he is willing to assume
full custody
Common Law Marriages
Rule
A common law marriage is a simple oral contract to presently become H&W and to be bound by resulting
obligations
- no need for a marriage license
-
continuous cohabitation, reputation, documentation and public action are probative circumstances
of a common law marriage
Rule
CLMs have been abolished in NY since 1933 but under FFC, NY will honor a CLM contract if it was valid
in the state where it was executed
- contracting parties do not have to be domiciles of that state and their stay within the state does not
have to be of any minimum duration
Rule
Establishing a CLM is important on claims for alimony and ED in the event of a divorce or, in the event of
death, for determining R/E, right to intestacy or right to SS and pension benefits
Rule
Termination of a CLM requires a DAD decree
Garges, p.86
Schenck, p.88
- need more than just a reference as “significant other”