November 17, 2011
A BRIEF HISTORY OF THE GROUNDS FOR DIVORCE IN NEW YORK AND RECENT COURT DECISIONS REGARDING NO FAULT DIVORCE
Posted by Marc Rapaport
Until October, 2010, the causes of action for divorce in New York were limited to grounds based on "fault", which included:
Until the advent of no-fault divorce in 2010, the most common basis for divorce was abandonment (DRL § 170.2). The ground of abandonment included either "actual abandonment" (defendant left the marital residence) or "constructive abandonment" (defendant refused to have sexual relations with the plaintiff.
The ground of cruel treatment (DRL § 170.1) was (and it continues to be) used primarily in contested cases. Typically, a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must prove at least three instances of cruelty, which can include both verbal and physical abuse. The "amount" of cruelty that a plaintiff must establish to obtain a divorce on the ground of cruel and inhuman treatment depends, in part, on the length of the marriage. Simply stated, a plaintiff seeking to end a long-term marriage on the ground of cruel treatment will need to show more severe and pervasive cruelty than would be required for a brief marriage. To a certain extent, with the advent of no fault divorce in New York in October, 2010, the issues relating to cruelty (as well as those relating to other fault-based divorce grounds) have been rendered moot.
Since 2010, a new ground has been added, effectively permitting no-fault divorce in New York state. The new, no-fault ground for NY divorce is set forth in the NY Domestic Relations Law as follows:
The fact that a divorce is filed under the no fault statute does not necessarily signify that the proceeding is uncontested. The parties may still be contesting (oftentimes quite bitterly) financial issues (equitable distribution of property; maintenance; etc.), as well as issues pertaining to children (custody, visitation and child support). The no fault statute states that no divorce judgment may be entered unless all financial and custodial issues have been resolved.
The advent of no fault divorce in New York does not alter the fact that New York has the most complex divorce laws and procedures in the United States. The definition of "marital property" is defined more broadly by New York courts than anywhere else. Certainly, the advent of no fault in New York was widely welcomed by divorce lawyers and most litigants, because it eliminated the possibility of a spouse using "grounds" as inappropriate leverage to extract unjustified financial advantage against the other party. Grounds trials were not common. With no fault, they will be less common.
However, there are still instances in which one of the spouses tries to stop the divorce by arguing that the statutory requirements (minimal as they are) have not been met. A recent decision by Justice Wood of the Supreme Court, Dutchess County, in the case Schiffer v. Schiffer, 930 N.Y.S.2d 827 (Supr. Crt., Suffolk Cty. 2011), suggest that even with the new statute, there are still instances in which grounds trials are necessary. In Schiffer, the defendant-wife opposed the divorce, arguing that contrary to the plaintiff-husband's allegations, the marriage was not irretrievably broken. The court ruled that a trial on the issue of grounds would be necessary, stating:
An assertion by a party that the marital relationship has been irretrievably broken for six months is subject to the same scrutiny and burden of proof as assertions made under other sections of the statute. Domestic Relations Law § 170(7) is clear, and it is consistent with the overall framework of the entire statute. There is no reason to treat it any differently than the rest of Domestic Relations Law § 170 for purposes of this summary judgment motion. The legislature has granted matrimonial litigants the option of asserting the no-fault ground-it has not removed a defendant's basic right to contest grounds, which exists for all other similarly worded sections.
Because of the complexity of New York divorce law, and the important legal and financial issues at stake in any divorce, it is essential for you to retain an experienced New York divorce lawyer if you are facing the prospect of divorce or legal separation. Rapaport Law Firm has represented New York residents in divorce and family law matters since 1995. Rapaport Law Firm has offices in New York City's Empire State Building, and provides legal representation in all counties of New York and New Jersey.
October 31, 2011
GETTING DIVORCED WITHOUT RUINING YOUR RELATIONSHIP WITH YOUR CHILDREN: SOME PRACTICAL ADVICE BY A NEW YORK DIVORCE ATTORNEY
Posted by Marc Rapaport
As a New York divorce lawyer for nearly the past two decades, I have observed that even in the most bitter of divorces, each of the divorcing parents continues to love and want the best for their children. However, the dissolution of the parties' marriage creates a tense and oftentimes confusing dichotomy - both for the parties and their children.
Divorce occurs when one or both of the spouses has determined that the marital relationship is no longer fulfilling and cannot be saved. Nonetheless, both spouses continue (as they should) to seek close and healthy bonds with their children. This stressful dichotomy merits careful consideration. Divorcing spouses can and should discuss how they will continue to cooperate so that their children may continue to enjoy happy, healthy, and mutually-fulfilling relationships with both of them. The parties' respective divorce lawyers can serve important and positive roles in helping couples reach practical arrangements with regard to parenting. It is important that each party have an experienced divorce lawyer who is thoroughly familiar with New York divorce and family law. Among other things, experienced and skilled divorce attorneys help their clients reach settlements (separation agreements) that set forth the parties' mutual understanding and goals and that promote the best interests of un-emancipated children.
The interplay between divorce and parenting is complex. This article seeks to address some of the more common issues that arise in cases involving minor children, and to discuss recent, relevant developments in New York divorce law.
A Divorced Parent's Unresolved Feelings of Bitterness Can Lead to "Parental Alienation" or "Inappropriate Parental Influence":
At times, the uncertainty, trauma and bitterness of a divorce will lead one or both parents to engage in behavior that, unbeknownst to them, increases the stress that children experiencing in conjunction with divorce. For example, a parent might not fully realize the extent to which his or her child (or children) feels confusion or distress when the child overhears the parent speaking in a disparaging manner about the other parent. This is sometimes referred to as "parental alienation syndrome." In such instances, counseling is particularly important. If not resolved, such conduct can have extreme consequences, such as a child’s alienation from the parent who is being disparaged.
A parent’s verbal remarks or conduct that is disruptive of a child's relationship with the other parent is a matter that has fueled bitter court proceedings, both in New York and in courts throughout the United States. Judge Jeffrey S. Sunshine (who is a Justice of New York’s Supreme Court in Kings County, and is widely held in high esteem) has used the phrase "inappropriate parental influence" to describe such behavior.
In the case NK v. MK, 851 N.Y.S.2d 851 (2007), Judge Sunshine issued a decision that denied the father's request that the Court punish the mother for her inappropriate comments to the children regarding the father by suspending child support and maintenance. Judge Sunshine explained that such relief was not appropriate at that juncture because the mother she "was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis." However, the Court ordered the mother to cease her behavior:
Pending resolution of the post trial applications, the mother is hereby enjoined and restrained from discussing this litigation at any time the child may be within 1,000 feet of her. That includes her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection, and this opinion; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships[.]
No Good Deed Goes Unpunished": Under New York law, A Child Support Obligor Does Not Receive Credit for Voluntary Payments or Purchases on Behalf of the Children
In other instances, a parent's love for the children of the marriage leads him or her to engage in conduct that is destructive of his or her financial or legal interests. A fairly common scenario is a father who has fallen behind on his child support obligations, yet continues to make voluntarily purchases (such as paying for cell phone bills or items of clothing) for a child. Most payers of child support (in the vast majority of cases, fathers) do not realize that voluntary purchases that they make for children are not "child support", and that most courts will not give them credit for such payments should the custodial parent file an action seeking to collect child support arrears.
Stated succinctly, under New York law, voluntary payments made for children are not child support, and such payments do not diminish arrears. This issue was addressed by the New York Supreme Court, 2nd Department, approximately two months ago, in the case LiGreci v. LiGreci 929 N.Y.S.2d 253 (2nd Dept. 2011). The Court held that "[t]he plaintiff's voluntary payments for the benefit of the children, not made pursuant to a court order, may not be credited against the amounts due pursuant to the judgment of divorce." Id.
Clearly, it is painful for a parent to refuse to make purchases directly for his or her children. This is particularly true for divorced parents, who sometimes experience feelings of guilt at having "inflicted" divorce upon their children. As a divorce lawyer, I encourage clients who are experiencing such emotions to seek counseling.
Feelings of guilt are not merely counterproductive, but also (I firmly believe) unjustified. Each person is entitled to fulfillment and happiness, and a healthy marriage is one that helps each of the spouses to enjoy life to its fullest. Couples who indefinitely delay or avoid divorce solely for the perceived benefit of their children sometimes subject themselves, and their children, to years of avoidable, yet painful, conflict, misery and stress. Oftentimes, couples who delay a divorce "for the kids" later discover that their children knew – all along – that the couple was miserable. In such cases, divorce is a relief for the entire family, including the children.
When couples who have minor children get divorce, they must address legal, financial, psychological and other issues that are sometimes painful. As a divorce lawyer, my role is to help each client identify such issues, and then, through litigation or negotiation (or both) help my client reach a resolution that serves their interests and those of their children.
Marc A. Rapaport is a divorce attorney in New York City, with offices in the Empire State Building. Mr. Rapaport is the founder of Rapaport Law Firm, PLLC, a full-service law firm.
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|MARC RAPAPORT IS A NEW YORK DIVORCE ATTORNEY WITH MORE THAN 18 YEARS OF EXPERIENCE. HE IS A CONTRIBUTOR TO NEW YORK MAGAZINE'S "ASK THE EXPERTS" COLUMN, AND HE REGULARLY APPEARS IN THE LOCAL AND NATIONAL MEDIA REGARDING NY DIVORCE AND FAMILY LAW. IF YOU ARE FACING DIVORCE, IT IS ESSENTIAL THAT YOU RETAIN AN EXPERIENCED NY DIVORCE LAWYER. FOR AN APPOINTMENT, CALL THE RAPAPORT LAW FIRM TODAY: (212) 382-1600 or EMAIL MR. RAPAPORT.|
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