“If variety is the spice of life, marriage is the big can of leftover Spam” Johnny Carson, American TV Host, 1925-2005 "Just another of our many disagreements. He wants a no-fault divorce, whereas I would prefer to have the bastard crucified." J.B. Handlesman, illustrator.
“My mother always said don't marry for money, divorce for money.” Wendy Liebman
Ah, fall, when the leaves and matrimonial decisions start falling from the skies and the Third Department website, respectively. At last the doldrums of summer are over, and we can learn what is happening on the fifth floor of the new and improved Justice Building.
What’s this? Another fault decision? Why not. In a really long term marriage (33 years) the App Div (as the cognoscenti call them) upheld the granting of a divorce to a wife who moved from the marital residence in 2000. Now we all know that a “high degree of proof” is necessary in such cases, otherwise known as the Shackles of Brady[1] and Hessen[2], which is somewhere between the kidnapping of Cerberus and the scattering of the Stymphalian birds among the Labors of Hercules. What was the offending conduct here? Lack of communication, isolation, name calling, controlling behavior, failure to end a relationship with an alleged paramour[3], and refusal to attend marriage counseling. This constituted a “systematic pattern of emotional neglect” to give a divorce to Mrs. Freas[4]. In short, not much. It all goes to show you that one judge’s dead marriage is another judge’s cruelty, so you just never know. All this was too much for Justices Crew and Mugglin who dissented[5], leaving the delicious prospect of going to the Court of Appeals as of right. This case does seem make it easier to prove fault. Unlike the late great Justice Edward Conway who once said that he never found fault in a contested divorce, but never failed to find it in an uncontested one. Amen. Freas is also an interesting maintenance case, because the husband came down with a bad case of RAIDS (Recently Acquired Income Deficiency Syndrome) when the summons was served. His income went from $57,000 to $39,000 because of a “voluntary change in his work shift”. The wife earned $17,000 per year and the Third Department upheld her award of $450 per month until she attains an age of 62, a rather modest sum.
By the way, kudos to Presiding Justice Anthony Cardona for making custodial decisions understandable by referring to the litigants as mother and father rather than Appellant, Respondent, Petitioner, Appellant-Respondent, Respondent-Appellant, etc[6]. I had to read a recent custodial decision three times to figure out who won, and even then I had to call one of the attorneys to be sure I read it right. The case is Williams v. Boger[7], where the Petitioner at the trial level was the Respondent on appeal (but referred to as the Petitioner in the decision) and the Respondent at the trial was the Appellant on appeal, but referred to as Respondent in the decision. You try to figure it out. In any event, this case uniquely struck language from the decision giving the primary custodial parent final say on major issues because that is “antithetical to the concept of joint legal custody”. Huh? If no one can make a decision without a joint agreement, it is but another boon to matrimonial lawyers with children in college, but an expensive proposition for those who enter into joint custodial agreements with a parent who is difficult. For the most part, the primary parent makes the decision, but not anymore in the Third Department. I guess we’ll be going to court to see where Johnny goes to daycare, whether he joins the cub scouts or takes tuba lessons. God help us.
If all this seems a little silly, consider our Legislature, which couldn’t pass a no fault bill but did amend the Order of Protection statutes to allow a court to impose a provision “to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household”[8]. It must have been a slow day in the Capitol when they debated that baby. By the way, there is at least one decision that holds that goldfish (Carassius Auratus) of all things are “companion animals”[9]. I kid you not.
Finally did you see the World Health Organization did a comprehensive study of violence against women, interviewing over 25,000 women in ten countries? In concluding that violence against women crossed rural and urban areas as well as developed and developing nations. The safest place for women? Yokohama, Japan with a partner violence rate of ONLY 15%. The highest was rural Ethiopia with 71%. Our statistics put us at about 25%. With numbers like this, one hopes that the Legislature does more than add goldfish to those protected by our domestic violence statutes.
[1] 64 N.Y.2nd 339 (1985)
[2] 33 N.Y.2nd 406 (1974)
[3] The alleged trollop testified at the trial that she wanted to have sex with Mr. Freas, but they never really did it.
[4] Freas v. Freas, __A.D.3rd __ (Case 97400 decided October 19, 2006).
[5] Peters wrote the opinion in which Cardona and Spain concurred.
[6] Eck v. Eck, __ A.D.3rd __ (Case 98388 decided October 19, 2006).
[7] __ A.D.3rd __ (Case 98832, October 19, 2006)
[8] Family Court Act §842, among others.
[9] People v. Garcia, 29 A.D.2nd 255 (1st Dept., 2006). The normally taciturn First Department, who usually say NOTHING in their decisions, traces here the history of goldfish as domesticated pets in the Tang Dynasty in China through the Ming Dynasty and the first aquarium in London in 1853. They then cite an 1854 poem by Cecil Alexander titled “All Creatures Great and Small”. I’ll spare you the maudlin schmaltz, but our Third Department should never take any guff from those guys when it comes decision writing.
Wednesday, December 20, 2006
November Divorce stuff
“We had different needs. I needed him to treat me decently and get a job, and he needed to empty my bank account and leave." Helen Slater (1963-) U.S. actress
"In our family, we don't divorce our men - we bury them."
Ruth Gordon (1896-1985) U.S. actress
"Nine o'clock and Mr. Excitement here is in bed, and I'm watching Desperate Housewives with Lynne Cheney. Ladies and gentlemen, I am a desperate housewife." Laura Bush (1946-) librarian
These are truly the halcyon days for matrimonial lawyers. We are all over the news with the latest tidbits on the divorces of Britney/Federline, Chris Evert, Chris Rock, Sir Paul, Reese Witherspoon, Kate Hudson, Whitney Houston, Zellweger/Chesney, etc. You can’t watch CNN or Fox News for more than 60 minutes without Raoul Felder[1] or some other divorce wank spouting off on the 60 page prenup buyout of KFed aka FedEx and his threat to take custody to squeeze a few more shekels out of America’s Sweetheart. Even Forbes Magazine last month had a front page article on “Divorce Dirty Tricks (How Hiding Assets is No Longer a Tycoon’s Game)”, describing of course the way tycoons hide assets. It featured a really scary picture of a bald scowling lawyer who looked like a mad dog named Joel (Mad Dog) Weissman. Is there any better time to be a divorce lawyer with the cocktail party season upon us? I think not.
But before we let all this fame and adulation go to our heads, let’s get a dose of reality from the Appellate Divisions. The first comes in the form of a non matrimonial case. I venture out of the field when something comes up that is important to us as practitioners, and certain cautionary tales can be found in some pretty obscure places. In this case that place is the Court of Claims. As we all know, sometimes we can get frustrated with opposing counsel. However, one should never lose sight of the goal, i.e. the attainment of your client’s objectives within the bounds of the law. Otherwise, we all look bad, and then everyone loses faith in the ability of the system to function. Once the client is exposed to the squabble, then all is lost. Such was the case in Dworkin v. State of New York[2] where an Assistant Attorney General saw fit to write in an affidavit opposing a discovery motion that, “The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” I beg your pardon? Did you really write that? The claimant’s attorney unsuccessfully moved for sanctions in the Court of Claims. Not being satisfied, he sued the State of New York for defamation. The Court of Claims dismissed the case as the statements of counsel were absolutely privileged, and the Third Department affirmed, but not before calling the comments intemperate. Me? I’d call them stupid and unprofessional. This is just a sad chapter in an otherwise legitimate dispute that needed to be resolved civilly in a court of law.
As long as I’m on my soapbox, is there something wrong with the Second Department? Have they lost interest in things, or are they just too tired to write on some matters? While I may disagree with the Third Department from time to time, at least they tell us the issues, the facts and why they are deciding a certain way. No such restraint limits the Second Department, where they made the following two matrimonial decisions recently, and I’m quoting the full text of both decisions for your reading pleasure: “Under the particular circumstances of this case, the Supreme Court properly dismissed the plaintiff’s cause of action for a divorce on the ground of constructive abandonment.”[3] “In view of the defendant’s appropriate concession, he is not entitled to a credit against child support for college tuition. The parties’ remaining contentions do not require further modification of the judgment.”[4] Look guys. The purpose of an appellate division is to tell us grunts in the trenches how to advise our clients on legal issues so we can get matters resolved. If all you wanted to do was to tell who won or lost, you should not publish your decisions in the Law Journal or anywhere else. Just send a letter to counsel. I know it’s a lot to expect for $136,700, but try to let us know what’s going on, if not for us, for our clients.
OK, enough of that. How about a little substance? Under Article 8 of the Family Court Act, a court can award attorneys fees to be paid as part of an Order of Protection. We also know that an attorney is supposed to have and file a written retainer agreement and to send an itemized bill at least every 60 days. The failure to comply results in the inability to recover fees[5]. So, if a lawyer does not comply, can the offending spouse raise the failure in a family offense proceeding? Nope. You see the obligation to comply with the filing of retainers and other provisions are in 22 NYCRR §1400.2 and §1400.3 and apply to actions described in 22 NYCRR §1400.1. Surprise, surprise, but a Family Offense proceeding is not such a lawsuit and therefore the court can award the fee even if there is no compliance with the rules. Thank you, Second Department, for explaining that one at least.[6]
Finally, did you happen to catch the election results from North Dakota? No? It seems the good folks in the Flickertail State defeated a statewide initiative to mandate joint custody and equal time sharing in custodial disputes unless there was clear and convincing evidence of parental unfitness. It also held that child support will not be greater than the actual cost of providing for the basic needs of the child. While it is notable that the initiative was defeated, at least there was a referendum on the issue, whereas the New York State Legislature can’t even find a way to get such a bill out of committee.
Happy Kwanzaa everyone, and to all a good night.
[1] Author of one of the most useless books on matrimonial practice, Encyclopedia of Matrimonial Practice, but hey, what do you expect from a divorce lawyer who wrote Guide to New York and Los Angeles Restaurants with Jackie Mason?
[2] __ A.D.3rd __ (3rd Dept., November 16, 2006), case 500479
[3] Greenspan v. Greenspan, __ A.D.3rd __ (2nd Dept., Halloween, 2006)
[4] Keating v. Keating, __ A.D.3rd __ (2nd Dept., October 24, 2006)
[5] Wagman v. Wagman, 8 A.D.3rd 263 (2nd Dept., 2004)
[6] Grald v. Grald, __ A.D.3rd __ (2nd Dept., October 24, 2006)
"In our family, we don't divorce our men - we bury them."
Ruth Gordon (1896-1985) U.S. actress
"Nine o'clock and Mr. Excitement here is in bed, and I'm watching Desperate Housewives with Lynne Cheney. Ladies and gentlemen, I am a desperate housewife." Laura Bush (1946-) librarian
These are truly the halcyon days for matrimonial lawyers. We are all over the news with the latest tidbits on the divorces of Britney/Federline, Chris Evert, Chris Rock, Sir Paul, Reese Witherspoon, Kate Hudson, Whitney Houston, Zellweger/Chesney, etc. You can’t watch CNN or Fox News for more than 60 minutes without Raoul Felder[1] or some other divorce wank spouting off on the 60 page prenup buyout of KFed aka FedEx and his threat to take custody to squeeze a few more shekels out of America’s Sweetheart. Even Forbes Magazine last month had a front page article on “Divorce Dirty Tricks (How Hiding Assets is No Longer a Tycoon’s Game)”, describing of course the way tycoons hide assets. It featured a really scary picture of a bald scowling lawyer who looked like a mad dog named Joel (Mad Dog) Weissman. Is there any better time to be a divorce lawyer with the cocktail party season upon us? I think not.
But before we let all this fame and adulation go to our heads, let’s get a dose of reality from the Appellate Divisions. The first comes in the form of a non matrimonial case. I venture out of the field when something comes up that is important to us as practitioners, and certain cautionary tales can be found in some pretty obscure places. In this case that place is the Court of Claims. As we all know, sometimes we can get frustrated with opposing counsel. However, one should never lose sight of the goal, i.e. the attainment of your client’s objectives within the bounds of the law. Otherwise, we all look bad, and then everyone loses faith in the ability of the system to function. Once the client is exposed to the squabble, then all is lost. Such was the case in Dworkin v. State of New York[2] where an Assistant Attorney General saw fit to write in an affidavit opposing a discovery motion that, “The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” I beg your pardon? Did you really write that? The claimant’s attorney unsuccessfully moved for sanctions in the Court of Claims. Not being satisfied, he sued the State of New York for defamation. The Court of Claims dismissed the case as the statements of counsel were absolutely privileged, and the Third Department affirmed, but not before calling the comments intemperate. Me? I’d call them stupid and unprofessional. This is just a sad chapter in an otherwise legitimate dispute that needed to be resolved civilly in a court of law.
As long as I’m on my soapbox, is there something wrong with the Second Department? Have they lost interest in things, or are they just too tired to write on some matters? While I may disagree with the Third Department from time to time, at least they tell us the issues, the facts and why they are deciding a certain way. No such restraint limits the Second Department, where they made the following two matrimonial decisions recently, and I’m quoting the full text of both decisions for your reading pleasure: “Under the particular circumstances of this case, the Supreme Court properly dismissed the plaintiff’s cause of action for a divorce on the ground of constructive abandonment.”[3] “In view of the defendant’s appropriate concession, he is not entitled to a credit against child support for college tuition. The parties’ remaining contentions do not require further modification of the judgment.”[4] Look guys. The purpose of an appellate division is to tell us grunts in the trenches how to advise our clients on legal issues so we can get matters resolved. If all you wanted to do was to tell who won or lost, you should not publish your decisions in the Law Journal or anywhere else. Just send a letter to counsel. I know it’s a lot to expect for $136,700, but try to let us know what’s going on, if not for us, for our clients.
OK, enough of that. How about a little substance? Under Article 8 of the Family Court Act, a court can award attorneys fees to be paid as part of an Order of Protection. We also know that an attorney is supposed to have and file a written retainer agreement and to send an itemized bill at least every 60 days. The failure to comply results in the inability to recover fees[5]. So, if a lawyer does not comply, can the offending spouse raise the failure in a family offense proceeding? Nope. You see the obligation to comply with the filing of retainers and other provisions are in 22 NYCRR §1400.2 and §1400.3 and apply to actions described in 22 NYCRR §1400.1. Surprise, surprise, but a Family Offense proceeding is not such a lawsuit and therefore the court can award the fee even if there is no compliance with the rules. Thank you, Second Department, for explaining that one at least.[6]
Finally, did you happen to catch the election results from North Dakota? No? It seems the good folks in the Flickertail State defeated a statewide initiative to mandate joint custody and equal time sharing in custodial disputes unless there was clear and convincing evidence of parental unfitness. It also held that child support will not be greater than the actual cost of providing for the basic needs of the child. While it is notable that the initiative was defeated, at least there was a referendum on the issue, whereas the New York State Legislature can’t even find a way to get such a bill out of committee.
Happy Kwanzaa everyone, and to all a good night.
[1] Author of one of the most useless books on matrimonial practice, Encyclopedia of Matrimonial Practice, but hey, what do you expect from a divorce lawyer who wrote Guide to New York and Los Angeles Restaurants with Jackie Mason?
[2] __ A.D.3rd __ (3rd Dept., November 16, 2006), case 500479
[3] Greenspan v. Greenspan, __ A.D.3rd __ (2nd Dept., Halloween, 2006)
[4] Keating v. Keating, __ A.D.3rd __ (2nd Dept., October 24, 2006)
[5] Wagman v. Wagman, 8 A.D.3rd 263 (2nd Dept., 2004)
[6] Grald v. Grald, __ A.D.3rd __ (2nd Dept., October 24, 2006)
November Divorce stuff
“We had different needs. I needed him to treat me decently and get a job, and he needed to empty my bank account and leave." Helen Slater (1963-) U.S. actress
"In our family, we don't divorce our men - we bury them."
Ruth Gordon (1896-1985) U.S. actress
"Nine o'clock and Mr. Excitement here is in bed, and I'm watching Desperate Housewives with Lynne Cheney. Ladies and gentlemen, I am a desperate housewife." Laura Bush (1946-) librarian
These are truly the halcyon days for matrimonial lawyers. We are all over the news with the latest tidbits on the divorces of Britney/Federline, Chris Evert, Chris Rock, Sir Paul, Reese Witherspoon, Kate Hudson, Whitney Houston, Zellweger/Chesney, etc. You can’t watch CNN or Fox News for more than 60 minutes without Raoul Felder[1] or some other divorce wank spouting off on the 60 page prenup buyout of KFed aka FedEx and his threat to take custody to squeeze a few more shekels out of America’s Sweetheart. Even Forbes Magazine last month had a front page article on “Divorce Dirty Tricks (How Hiding Assets is No Longer a Tycoon’s Game)”, describing of course the way tycoons hide assets. It featured a really scary picture of a bald scowling lawyer who looked like a mad dog named Joel (Mad Dog) Weissman. Is there any better time to be a divorce lawyer with the cocktail party season upon us? I think not.
But before we let all this fame and adulation go to our heads, let’s get a dose of reality from the Appellate Divisions. The first comes in the form of a non matrimonial case. I venture out of the field when something comes up that is important to us as practitioners, and certain cautionary tales can be found in some pretty obscure places. In this case that place is the Court of Claims. As we all know, sometimes we can get frustrated with opposing counsel. However, one should never lose sight of the goal, i.e. the attainment of your client’s objectives within the bounds of the law. Otherwise, we all look bad, and then everyone loses faith in the ability of the system to function. Once the client is exposed to the squabble, then all is lost. Such was the case in Dworkin v. State of New York[2] where an Assistant Attorney General saw fit to write in an affidavit opposing a discovery motion that, “The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” I beg your pardon? Did you really write that? The claimant’s attorney unsuccessfully moved for sanctions in the Court of Claims. Not being satisfied, he sued the State of New York for defamation. The Court of Claims dismissed the case as the statements of counsel were absolutely privileged, and the Third Department affirmed, but not before calling the comments intemperate. Me? I’d call them stupid and unprofessional. This is just a sad chapter in an otherwise legitimate dispute that needed to be resolved civilly in a court of law.
As long as I’m on my soapbox, is there something wrong with the Second Department? Have they lost interest in things, or are they just too tired to write on some matters? While I may disagree with the Third Department from time to time, at least they tell us the issues, the facts and why they are deciding a certain way. No such restraint limits the Second Department, where they made the following two matrimonial decisions recently, and I’m quoting the full text of both decisions for your reading pleasure: “Under the particular circumstances of this case, the Supreme Court properly dismissed the plaintiff’s cause of action for a divorce on the ground of constructive abandonment.”[3] “In view of the defendant’s appropriate concession, he is not entitled to a credit against child support for college tuition. The parties’ remaining contentions do not require further modification of the judgment.”[4] Look guys. The purpose of an appellate division is to tell us grunts in the trenches how to advise our clients on legal issues so we can get matters resolved. If all you wanted to do was to tell who won or lost, you should not publish your decisions in the Law Journal or anywhere else. Just send a letter to counsel. I know it’s a lot to expect for $136,700, but try to let us know what’s going on, if not for us, for our clients.
OK, enough of that. How about a little substance? Under Article 8 of the Family Court Act, a court can award attorneys fees to be paid as part of an Order of Protection. We also know that an attorney is supposed to have and file a written retainer agreement and to send an itemized bill at least every 60 days. The failure to comply results in the inability to recover fees[5]. So, if a lawyer does not comply, can the offending spouse raise the failure in a family offense proceeding? Nope. You see the obligation to comply with the filing of retainers and other provisions are in 22 NYCRR §1400.2 and §1400.3 and apply to actions described in 22 NYCRR §1400.1. Surprise, surprise, but a Family Offense proceeding is not such a lawsuit and therefore the court can award the fee even if there is no compliance with the rules. Thank you, Second Department, for explaining that one at least.[6]
Finally, did you happen to catch the election results from North Dakota? No? It seems the good folks in the Flickertail State defeated a statewide initiative to mandate joint custody and equal time sharing in custodial disputes unless there was clear and convincing evidence of parental unfitness. It also held that child support will not be greater than the actual cost of providing for the basic needs of the child. While it is notable that the initiative was defeated, at least there was a referendum on the issue, whereas the New York State Legislature can’t even find a way to get such a bill out of committee.
Happy Kwanzaa everyone, and to all a good night.
[1] Author of one of the most useless books on matrimonial practice, Encyclopedia of Matrimonial Practice, but hey, what do you expect from a divorce lawyer who wrote Guide to New York and Los Angeles Restaurants with Jackie Mason?
[2] __ A.D.3rd __ (3rd Dept., November 16, 2006), case 500479
[3] Greenspan v. Greenspan, __ A.D.3rd __ (2nd Dept., Halloween, 2006)
[4] Keating v. Keating, __ A.D.3rd __ (2nd Dept., October 24, 2006)
[5] Wagman v. Wagman, 8 A.D.3rd 263 (2nd Dept., 2004)
[6] Grald v. Grald, __ A.D.3rd __ (2nd Dept., October 24, 2006)
"In our family, we don't divorce our men - we bury them."
Ruth Gordon (1896-1985) U.S. actress
"Nine o'clock and Mr. Excitement here is in bed, and I'm watching Desperate Housewives with Lynne Cheney. Ladies and gentlemen, I am a desperate housewife." Laura Bush (1946-) librarian
These are truly the halcyon days for matrimonial lawyers. We are all over the news with the latest tidbits on the divorces of Britney/Federline, Chris Evert, Chris Rock, Sir Paul, Reese Witherspoon, Kate Hudson, Whitney Houston, Zellweger/Chesney, etc. You can’t watch CNN or Fox News for more than 60 minutes without Raoul Felder[1] or some other divorce wank spouting off on the 60 page prenup buyout of KFed aka FedEx and his threat to take custody to squeeze a few more shekels out of America’s Sweetheart. Even Forbes Magazine last month had a front page article on “Divorce Dirty Tricks (How Hiding Assets is No Longer a Tycoon’s Game)”, describing of course the way tycoons hide assets. It featured a really scary picture of a bald scowling lawyer who looked like a mad dog named Joel (Mad Dog) Weissman. Is there any better time to be a divorce lawyer with the cocktail party season upon us? I think not.
But before we let all this fame and adulation go to our heads, let’s get a dose of reality from the Appellate Divisions. The first comes in the form of a non matrimonial case. I venture out of the field when something comes up that is important to us as practitioners, and certain cautionary tales can be found in some pretty obscure places. In this case that place is the Court of Claims. As we all know, sometimes we can get frustrated with opposing counsel. However, one should never lose sight of the goal, i.e. the attainment of your client’s objectives within the bounds of the law. Otherwise, we all look bad, and then everyone loses faith in the ability of the system to function. Once the client is exposed to the squabble, then all is lost. Such was the case in Dworkin v. State of New York[2] where an Assistant Attorney General saw fit to write in an affidavit opposing a discovery motion that, “The general tone of his motion papers seems to suggest a level of instability and paranoia on his part.” I beg your pardon? Did you really write that? The claimant’s attorney unsuccessfully moved for sanctions in the Court of Claims. Not being satisfied, he sued the State of New York for defamation. The Court of Claims dismissed the case as the statements of counsel were absolutely privileged, and the Third Department affirmed, but not before calling the comments intemperate. Me? I’d call them stupid and unprofessional. This is just a sad chapter in an otherwise legitimate dispute that needed to be resolved civilly in a court of law.
As long as I’m on my soapbox, is there something wrong with the Second Department? Have they lost interest in things, or are they just too tired to write on some matters? While I may disagree with the Third Department from time to time, at least they tell us the issues, the facts and why they are deciding a certain way. No such restraint limits the Second Department, where they made the following two matrimonial decisions recently, and I’m quoting the full text of both decisions for your reading pleasure: “Under the particular circumstances of this case, the Supreme Court properly dismissed the plaintiff’s cause of action for a divorce on the ground of constructive abandonment.”[3] “In view of the defendant’s appropriate concession, he is not entitled to a credit against child support for college tuition. The parties’ remaining contentions do not require further modification of the judgment.”[4] Look guys. The purpose of an appellate division is to tell us grunts in the trenches how to advise our clients on legal issues so we can get matters resolved. If all you wanted to do was to tell who won or lost, you should not publish your decisions in the Law Journal or anywhere else. Just send a letter to counsel. I know it’s a lot to expect for $136,700, but try to let us know what’s going on, if not for us, for our clients.
OK, enough of that. How about a little substance? Under Article 8 of the Family Court Act, a court can award attorneys fees to be paid as part of an Order of Protection. We also know that an attorney is supposed to have and file a written retainer agreement and to send an itemized bill at least every 60 days. The failure to comply results in the inability to recover fees[5]. So, if a lawyer does not comply, can the offending spouse raise the failure in a family offense proceeding? Nope. You see the obligation to comply with the filing of retainers and other provisions are in 22 NYCRR §1400.2 and §1400.3 and apply to actions described in 22 NYCRR §1400.1. Surprise, surprise, but a Family Offense proceeding is not such a lawsuit and therefore the court can award the fee even if there is no compliance with the rules. Thank you, Second Department, for explaining that one at least.[6]
Finally, did you happen to catch the election results from North Dakota? No? It seems the good folks in the Flickertail State defeated a statewide initiative to mandate joint custody and equal time sharing in custodial disputes unless there was clear and convincing evidence of parental unfitness. It also held that child support will not be greater than the actual cost of providing for the basic needs of the child. While it is notable that the initiative was defeated, at least there was a referendum on the issue, whereas the New York State Legislature can’t even find a way to get such a bill out of committee.
Happy Kwanzaa everyone, and to all a good night.
[1] Author of one of the most useless books on matrimonial practice, Encyclopedia of Matrimonial Practice, but hey, what do you expect from a divorce lawyer who wrote Guide to New York and Los Angeles Restaurants with Jackie Mason?
[2] __ A.D.3rd __ (3rd Dept., November 16, 2006), case 500479
[3] Greenspan v. Greenspan, __ A.D.3rd __ (2nd Dept., Halloween, 2006)
[4] Keating v. Keating, __ A.D.3rd __ (2nd Dept., October 24, 2006)
[5] Wagman v. Wagman, 8 A.D.3rd 263 (2nd Dept., 2004)
[6] Grald v. Grald, __ A.D.3rd __ (2nd Dept., October 24, 2006)
Divorce New York Style
“The divorced person is like a man with a black patch over one eye. He looks rather dashing but the fact is that he has been through a maiming experience.” Jo Coudert (1923- ), author
“There is nothing wrong with a woman welcoming all men’s advances as long as they are in cash.” Zsa Zsa Gabor, none times married.
"My husband said he needed more space. So I locked him outside." Roseanne Barr (1952 - )
Did you ever wonder what motivates those wild and crazy guys at the Office of Confused Adults (OCA)? I think it is a sense of humor. There is no other explanation for what they foist upon us in the name of judicial reform. Maybe it is the giddiness of figuring how to spend their $1.6 Billion budget before the end of the year, not having spent enough on those round Styrofoam gold painted “Unified Court System” wafers that now grace the walls behind each courtroom in the state. Yippee. The other day I was toiling in the Rensselaer County Courthouse trying to resolve some matrimonial matter at a settlement conference when the fire alarm went off. It seems some genius in the court system decided it would be a good idea to have a fire drill in all the county courthouses before the end of the year, preferably like this day when the outside temperature was a tad above freezing. So, the job of resolving disputes came to a halt for a few minutes as we trudged across Second Street where they stopped traffic and had a role call of the judges working in the courthouse under the bronze gaze of Russell Sage in Robison Common. Before everyone could pat themselves on the back about the efficiency of saving the hoi polloi from perishing, it was pointed out that there were about fifteen prisoners awaiting justice in their jail cells who were left out of the festivities, demonstrating to us all that OCA sure knows how to efficiently stop traffic and count judges, and it also knows how to practice broiling those accused of criminal behavior. You cannot make this stuff up.
When not so occupied, some bean counter at OCA uses his or her time to make changes to the official forms. For example, we are required by court rule to file a Statement of Net Worth in all matrimonial matters “in substantial compliance with the statement of net worth form” attached to the court rules[1]. This form gets updated every few weeks, the most recent change being on July 20, 2006. The changes are so minute it is sometimes like finding Waldo. So to make things easier, the Unified Court System has a nifty website with the official forms for litigants and lawyers alike[2]. Unfortunately, the Statement of Net Worth form on their website was last updated in November of 1998, when Monica Lewinsky had her 15 minutes of fame.
Ah, enough of that. How about reality based law, courtesy of the Our Favorite Judicial Department. Currently, there are only four states and the District of Columbia that require child support until age 21. Being the minority in most things matrimonial, New York is one of them. Most states end the obligation at age 18, with a possibility of more support if in college or some other standard. So, what happens if a couple has a support order that terminates support under the laws of another state at age 18, and the child gets dragged to New York, which likes to pound the payor parent for an additional three years of tax free jing at our much higher child support percentages? Thankfully, there is a federal law that deals with such things, known as the “Full Faith and Credit for Child Support Orders[3]” law. This provides that the original state has “continuing, original jurisdiction” unless of course no one lives in the original state. Pretty simple, eh? Not exactly. You see, the Spencer family has three children, and a nice support order from Connecticut that terminates child support at age 18. So, mommy moves to New York with the kiddies, and sues for support of the oldest child when he reaches age 18. Faster than Dad can say FFACFCSO (supra), mom is granted support for the 18 year old at an extra $100 per week above the weekly amount of the now expired Connecticut support order[4]. Ouch! So, up to the Third Department he goes, but the court says that is just fine because, you see, Family Court did not “modify” the Connecticut support order since that order expired when the cherub reached the age of 18. Therefore, New York had the power to make a new order since none was in place, and by the way, New York also had the power to make daddy pay mommy’s legal fees. Wow. This is very interesting since the federal statute specifically defines “modification” to include a change in a support order that affects the duration of the order[5]! I guess that extending the support obligation for an extra three years is not a change in duration, at least under some quantum gravity, string theory, special relativity view of space and time found in the Domestic Relations Law. Now that the second child has reached 18 while this case wound its way through the courts, one can only imagine what terrors lie for dad in the new Albany County Family Court building.
Finally, an interesting case from the First Department, where our old friend Justice Malone was one of the sitting justices[6]. As we all know, if you overpay for child support, it cannot be recouped against future support payments, the famous “tough noogies” rule that allows the payee parent to keep the undeserved tax free money[7]. But what about the “add ons” such as educational expenses? While there appears to be no distinction in the statute, the First Department has held that the overpayments can be recouped against ad ons, but curiously refers to the ad ons as “camp and extracurricular activities”, which of course are not really ad ons under the statute[8]. Why are these considered ad ons by the First Department? You don’t really expect them to answer that one, do you? Silly boy, this is the First Department we’re talking about here. They don’t explain, because, well, they don’t have to. So there.
Happy New Year, y’all.
[1] 22 NYCR 202.16(b), the form being in Appendix A.
[2] http://www.courts.state.ny.us/ip/matrimonial-matters/forms.shtml
[3] 28 USC 1738B
[4] The original order was for $250 per week per child or $750 per week. The new order is $250 per child for the two youngest kiddies and $350 per week for the 18 year old.
[5] 28 USC 1738B(b)(B)
[6] By the way, Justice Kavanaugh has now been appointed to the First Department, taking two of our Third District trial judges and sending them to the Big Apple to serve people who never pulled a voting lever for their election. Of course, the “powers that be” at OCA do NOT replace them with anyone, so we have to make do with two less Supreme Court judges here for the resolution of our disputes. Coupled with the untimely and tragic death of Justice Vincent Bradley, things are not bright for the trial calendar around here.
[7] Domestic Relations Law §236B(7)(a) and Baraby v. Baraby, 250 A.D.2nd 201 (3rd dept., 1998).
[8] Coul v. Rottman, __ A.D.3rd __ (1st Dept., Pearl Harbor Day, 2006), a case with two pro se litigants.
“There is nothing wrong with a woman welcoming all men’s advances as long as they are in cash.” Zsa Zsa Gabor, none times married.
"My husband said he needed more space. So I locked him outside." Roseanne Barr (1952 - )
Did you ever wonder what motivates those wild and crazy guys at the Office of Confused Adults (OCA)? I think it is a sense of humor. There is no other explanation for what they foist upon us in the name of judicial reform. Maybe it is the giddiness of figuring how to spend their $1.6 Billion budget before the end of the year, not having spent enough on those round Styrofoam gold painted “Unified Court System” wafers that now grace the walls behind each courtroom in the state. Yippee. The other day I was toiling in the Rensselaer County Courthouse trying to resolve some matrimonial matter at a settlement conference when the fire alarm went off. It seems some genius in the court system decided it would be a good idea to have a fire drill in all the county courthouses before the end of the year, preferably like this day when the outside temperature was a tad above freezing. So, the job of resolving disputes came to a halt for a few minutes as we trudged across Second Street where they stopped traffic and had a role call of the judges working in the courthouse under the bronze gaze of Russell Sage in Robison Common. Before everyone could pat themselves on the back about the efficiency of saving the hoi polloi from perishing, it was pointed out that there were about fifteen prisoners awaiting justice in their jail cells who were left out of the festivities, demonstrating to us all that OCA sure knows how to efficiently stop traffic and count judges, and it also knows how to practice broiling those accused of criminal behavior. You cannot make this stuff up.
When not so occupied, some bean counter at OCA uses his or her time to make changes to the official forms. For example, we are required by court rule to file a Statement of Net Worth in all matrimonial matters “in substantial compliance with the statement of net worth form” attached to the court rules[1]. This form gets updated every few weeks, the most recent change being on July 20, 2006. The changes are so minute it is sometimes like finding Waldo. So to make things easier, the Unified Court System has a nifty website with the official forms for litigants and lawyers alike[2]. Unfortunately, the Statement of Net Worth form on their website was last updated in November of 1998, when Monica Lewinsky had her 15 minutes of fame.
Ah, enough of that. How about reality based law, courtesy of the Our Favorite Judicial Department. Currently, there are only four states and the District of Columbia that require child support until age 21. Being the minority in most things matrimonial, New York is one of them. Most states end the obligation at age 18, with a possibility of more support if in college or some other standard. So, what happens if a couple has a support order that terminates support under the laws of another state at age 18, and the child gets dragged to New York, which likes to pound the payor parent for an additional three years of tax free jing at our much higher child support percentages? Thankfully, there is a federal law that deals with such things, known as the “Full Faith and Credit for Child Support Orders[3]” law. This provides that the original state has “continuing, original jurisdiction” unless of course no one lives in the original state. Pretty simple, eh? Not exactly. You see, the Spencer family has three children, and a nice support order from Connecticut that terminates child support at age 18. So, mommy moves to New York with the kiddies, and sues for support of the oldest child when he reaches age 18. Faster than Dad can say FFACFCSO (supra), mom is granted support for the 18 year old at an extra $100 per week above the weekly amount of the now expired Connecticut support order[4]. Ouch! So, up to the Third Department he goes, but the court says that is just fine because, you see, Family Court did not “modify” the Connecticut support order since that order expired when the cherub reached the age of 18. Therefore, New York had the power to make a new order since none was in place, and by the way, New York also had the power to make daddy pay mommy’s legal fees. Wow. This is very interesting since the federal statute specifically defines “modification” to include a change in a support order that affects the duration of the order[5]! I guess that extending the support obligation for an extra three years is not a change in duration, at least under some quantum gravity, string theory, special relativity view of space and time found in the Domestic Relations Law. Now that the second child has reached 18 while this case wound its way through the courts, one can only imagine what terrors lie for dad in the new Albany County Family Court building.
Finally, an interesting case from the First Department, where our old friend Justice Malone was one of the sitting justices[6]. As we all know, if you overpay for child support, it cannot be recouped against future support payments, the famous “tough noogies” rule that allows the payee parent to keep the undeserved tax free money[7]. But what about the “add ons” such as educational expenses? While there appears to be no distinction in the statute, the First Department has held that the overpayments can be recouped against ad ons, but curiously refers to the ad ons as “camp and extracurricular activities”, which of course are not really ad ons under the statute[8]. Why are these considered ad ons by the First Department? You don’t really expect them to answer that one, do you? Silly boy, this is the First Department we’re talking about here. They don’t explain, because, well, they don’t have to. So there.
Happy New Year, y’all.
[1] 22 NYCR 202.16(b), the form being in Appendix A.
[2] http://www.courts.state.ny.us/ip/matrimonial-matters/forms.shtml
[3] 28 USC 1738B
[4] The original order was for $250 per week per child or $750 per week. The new order is $250 per child for the two youngest kiddies and $350 per week for the 18 year old.
[5] 28 USC 1738B(b)(B)
[6] By the way, Justice Kavanaugh has now been appointed to the First Department, taking two of our Third District trial judges and sending them to the Big Apple to serve people who never pulled a voting lever for their election. Of course, the “powers that be” at OCA do NOT replace them with anyone, so we have to make do with two less Supreme Court judges here for the resolution of our disputes. Coupled with the untimely and tragic death of Justice Vincent Bradley, things are not bright for the trial calendar around here.
[7] Domestic Relations Law §236B(7)(a) and Baraby v. Baraby, 250 A.D.2nd 201 (3rd dept., 1998).
[8] Coul v. Rottman, __ A.D.3rd __ (1st Dept., Pearl Harbor Day, 2006), a case with two pro se litigants.
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