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.