December 2007 Divorce Stuff

“Marriages are made in heaven, but so again are thunder and lightning.” Clint Eastwood, actor
“Falling in love is a mental disease. Like a cold, it will go away by itself after awhile.” Miriam Friedman, raconteur “Every woman wants a man who is handsome, understanding, economical and a considerate lover, but again, the law allows only one husband.” Anonymous

Are you kidding me? In another effort to protect litigants from the stupidity of matrimonial lawyers, the legislature has required a notice to be signed, sealed and delivered to our clients in our agreements, judgments, wallpaper, wills and memoirs. In true legislative fashion, they have mucked it up big time, but what else is new? As we all know, once you get divorced you are no longer a member of your spouse’s family. Duh! Ergo, you are no longer eligible for “family coverage” on your spouse’s health insurance policy. As though this bit of logic isn’t self-evident, we now must have our clients sign a nonsensical statement in an attempt to let them know what’s what. Creating a new Section 177 of the Domestic Relations Law[1], the court must now insure that all stipulations and agreements contain a statement that “(a) provide for the future coverage of the individual; or (b) state that the individual is aware that he or she will no longer be covered by his or her spouse's health insurance plan and that the individual will be responsible for his or her own health insurance coverage.” Say that again? Is it therefore OK to have an agreement to provide for the future health care of a party, even for one day, since the legislature doesn’t require anything other than “the future”? Otherwise, you can have a notice signed that says, “Hey, I’m no longer eligible under my spouse’s coverage.” Makes me wonder who got the ear of the legislature to pass such a thing when they can’t even get around to giving judges a raise every decade or so. But it gets better. In spite of the fact that you can provide for future coverage under (a) above, that isn’t good enough. Not for the New York State Legislature. No siree Bob. Therefore, they require the following statement signed by each party in every stipulation or agreement: “I, (spouse), fully understand that upon the entrance of this divorce agreement, I may no longer be allowed to receive health coverage under my former spouse's health insurance plan. I may be entitled to purchase health insurance on my own through a COBRA option, if available, otherwise I may be required to secure my own health insurance.” So, what if there is no agreement? They’ve got that covered too. Before rendering any decision, the court must now ensure “that he or she notifies both parties that once the judgement [sic] is entered, a person may or may not be eligible to be covered under his or her spouse's health insurance plan, depending on the terms of the plan.” Putting aside that the Legislature has gone back to the 13th Century spelling of the word judgment, inconsistent with the 4523 statutes where the word is used in McKinney’s, what does it mean to tell someone that they “may or may not be eligible” for anything? For example, I “may or may not be eligible” for the National League MVP next year, or the Nobel Prize in Physiology, or the Presidency of Uzbekistan, but I don’t think so. It kind of reminds me of the “you may or may not be a millionaire” nonsense of the Publishers Clearing House. But believe me, the judges have been well versed on this nonsense and the dreaded opting out forms have been revised to have the requisite language. There is even a new paragraph to be added to the Findings of Fact that states: “Each party has been provided notice as required by Domestic Relations Law §177.” I suggest you now have this notice put in your complaints or certainly your Summons with Notices in the event of a default. You don’t want to be tracking down a defendant to give this silly useless notice in order to get a divorce. Which brings me back to: Why? I really don’t know. But the Justification Memorandum in support of the legislation in the Assembly states, shockingly, “Divorce settlements can be a long, arduous process for all parties involved.” Nice syntax Shakespeare. Childrens do also learn. So, if divorce is so long and arduous, let’s pass a law to make it longer and more arduous. Makes sense to me. The Women’s Bar Association of the State of New York (WBASNY) was all in favor of this thing. We might as well pass a law that says, “Notice: Upon divorce, you may or may not remarry and make someone else’s life miserable for a few years.” To quote noted child philosopher Lisa Simpson, “Aaaaaargh.”
As if that wasn’t strange enough, the Second Department gave us a bizarre little gem in Wladyslaw Czaban v. Grazyna Czaban.[2] Good luck pronouncing the names of those two lovebirds. New York remains the only state in the nation to require proof of fault grounds before the doors to equitable distribution are opened to the nontitle holder spouse, but the Second Department may have created a new “out” for the spouse who is otherwise without grounds. Let’s say your marriage is pretty rocky. Your spouse and you do not get along, and for about a year your wife refuses to have sex with you because she is frolicking with someone else (end of 1998 through1999). You reconcile, or at least the abandonment ends for a few years. You commit domestic violence, get thrown out of the house (late 2000) and consent to a multiyear stay away order of protection. Time to get divorced, so in 2002 you sue her for constructive abandonment. Wait a minute here. What about the reconciliation or at least the period of marital tranquility following the abandonment? That means nothing since forgiveness is not a defense to abandonment, at least not a statutory defense. What about your own heinous behavior? So what? Doesn’t the abandonment have to be within one year of the commencement of the action? Not according to the statute[3], although there is certainly ample case law for this proposition. In short, Wladyslaw, God bless his heart, was granted the divorce, and the Second Department affirmed.[4] The authority? A thirteen year old uncited Suffolk County Supreme Court Case known as Froeb v. Froeb, which appeared in the Law Journal on August 4, 1994 on page 23, column 4. Unfortunately, I only keep my law journals for 12 years so I have utterly no idea what the Froeb case says, but it was ironically decided by Acting Supreme Court Justice A. Gail Prudenti. Who is she? Just the current Presiding Justice of the Second Department, thank you very much. It was a nice touch of the judges who decided Czaban to cite their learned colleague’s unpublished decision, I just wish they would have let us in on the festivities. So let’s see. If you have a stormy, sexless year in your marriage, I guess you can put that in your back pocket for the right moment as no amount of time, reconciliation, or bad conduct will prevent you from getting a fault divorce in New York whenever you want. The ultimate Get Out of Marriage Free card, courtesy of the Second Department.
Well, that’s enough ranting and raving for another year. Prospero Ano y Felicidad and ‘Īd sa‘īd ul-Adha to our brethren in the Islamabad Bar Association.

[1] Ignoring of course that there are no Sections 174 and 176 of the Domestic Relations Law, which were repealed during the Johnson and Reagan administrations, respectively.
[2] __ A.D.3d __ (2nd Dept., October 23, 2007)
[3] Domestic Relations Law Section 170(2)
[4] In true Second Department fashion, they did not give all the facts in the decision, and I am grateful to Ms. Czaban’s counsel Judith Ellen Stone for filling in the blanks.

October 2007 Divorce Stuff

“A girl can wait for the right man to come along but in the meantime that still doesn't mean she can't have a wonderful time with all the wrong ones.” Cher

“You can find women who have never had an affair, but it is hard to find a woman who has had just one.” François, Duc De La Rochefoucauld (1613–1680)

"I married beneath me. All women do." Roseanne Barr (1952- )

As expected for this time of year, the Third Department issues precious few decisions. Formal arguments ended June 6 and did not begin again until September 4, so it will take a few weeks for the machinery to start churning out those gems we love to read. In the meantime, they tackle such burning issues as the thickness of the new runway at the Chemung County Airport[1] or the appropriate fine for some MTA director getting a free $150 ticket to a Transit Museum gala[2]. In the latter case, it took over four months for the decision, a millennium in Third Department time, and there was one dissent. So, what are we to do in the meantime? Gossip, of course.
Do you know what a matrimonial lawyer’s dream is? A wealthy client married to a crazy person. That is a trough for extended legal wallowing, as you usually have good results, a happy client and it takes oodles of time to get there. And we all know time is the only commodity we can utilize to generate money. If you don’t believe me, take a gander at Disciplinary Rule 2-106 and 22 NYCRR 1400. I have followed with interest the fortunes of Peter Tauck who is nearing 90 days of hearings in the longest divorce trial in Connecticut history and certainly the most expensive. After all, he is (a) wealthy and (b) married to a crazy person. In this nine year marriage, the mom disappeared with the kids and somewhere along the way may have signed herself into drug rehab. In a tasteless bit of over the top lawyering, one of his attorneys told the press that Ms. Tauck was a "markedly disturbed woman with paranoid features and poor temper control." Not to be outdone, Ms. Tauck falsely accused her husband of sexually molesting the children and cocaine and sexual addictions. All of this aside, I am mostly fascinated by the legal fees generated by this mess. Ms. Tauck hired New York lawyer Judd Burstein[3] at $850 an hour, who was promptly banned from representing her in Connecticut. No matter, Mr. Burstein is a “consultant” and she is seeking to have her hubby pay his fees and her other counsel, currently due about $2.5 million. As for Mr. Tauck, he has paid $70,000 just to house and feed his lawyers during the trial. A helluva guy. He has paid $7 million in legal and expert fees thus far, and the law guardian Gaetano Ferro, God bless him, has pocketed $1.3 million and no one is challenging his fees. It’s a great world, isn’t it? So what did Ms. Tauck get for her $2.5+ millions? She is currently in alcohol rehab in California and she will get only supervised visits after she completes her inpatient program. Hell, I could have gotten her that for $1 million. Oh well.
Speaking of money, remember Attorney at Law Debra Opri? She sued David Hasselhof for $289,000 claiming her retainer with his wife allowed her only to collect from him. Her case was tossed by the trial judge so she’ll have to be content with suing Larry Birkhart for some $600,000 in fees. As for the former Mrs. Halsselhof, she was sued the next day by another matrimonial lawyer for about $40,000. I guess without the Third Department to guide us, there’s a whole lotta suing going on.
Let me ask you something. How would you like to be awarded over a quarter million dollars in legal fees to be paid by a husband in a divorce case only to have the Appellate Division yank it away from you? Not a good day. That’s exactly what happened in Warner v. Houghton[4] where the trial judge stuck it to the husband and the Appellate Division First Department unstuck it. For example, the wife was awarded a lump sum of $188,000 for “lost opportunity earnings” since she relocated with her husband to Singapore. There is no such concept in the Equitable Distribution Law and the Court of Appeals supposedly settled that issue in 1985,[5] so that award was eliminated. In addition the trial court’s decision to award half the appreciation in the defendant’s separate property home was remanded for a determination of any increase due to the wife’s efforts versus market forces. As for the legal fees, the quarter million buckaroos were supposedly based on the husband’s misconduct in discovery and failing to appear. The entire fee award was reversed and the issue remanded to determine only those fees related to the defendant’s noncompliance with court orders or failing to appear at court. Strangely the First Department felt she could well afford to pay the $250,000 on her $160,000 yearly income and $220,000 in savings. I’d like to see who pays their bills. At least she won’t have to pay for housing and feeding her lawyers.
Finally this bit of sad news. Kevin Federline is broke. His income barely pays the bills, so his divorce lawyer is seeking to have poor Britney pay $50,000 in legal fees from her $737,000 monthly income. I’d say he has a shot, unless he lives in the First Department, which of course he doesn’t. Is it any wonder that the divorce rate in Great Britain has hit a 30 year low? Who can afford theses things?
Riposare in pace, Luciano et Leona.

[1] Fahs Roylston Paving Company v. County of Chemung, __ A.D.3d __ (Third Dept., September 6, 2007)
[2] $2,000 in case you care, Matter of Rubenfeld v. NYS Ethics Commission, __ A.D.3d__ (Third Dept., September 6, 2007).
[3] One of Donald Trump’s lawyers in his matter with Ivana, Trump v. Trump, 179 A.D.2d 201 (2nd Dept., 1992)
[4] __ A.D.3rd__ (First Dept., August 30, 2007)
[5] Capiello v. Capiello, 66 NY2d 107 (1985).

November 2007 Divorce Stuff

"Marriage is one of the few institutions that allows a man to do as his wife pleases." Milton Berle
"Do not marry a man to reform him. That is what reform schools are for." Mae West
“It's a marriage. If I had to choose between my wife and my putter, well, I'd miss her.” Gary Player
As we all now know, childrens do learn.[1] However do lawyers learn? Of course we do, since we have the appellate courts to tell us what is right and wrong. For example, the Fourth Department recently told us that a Family Court Judge cannot order a woman NOT to become pregnant. Wow. In Matter of Bobbijean P.[2] Monroe County Family Court Judge Marilyn O’Connor handled a neglect proceeding of a child whose parents were cocaine addicts, and therefore the child was addicted at birth. After initially appearing, the mother failed to appear and the court entered an order of neglect followed by the following part of the Dispositional Plan: “The respondent shall not get pregnant again until and unless she has actually obtained custody and care of Bobbijean P. and every other child of hers who is in foster care and has not been adopted or institutionalized.” She had three such children. A similar order bound the father. Although there has been a great expansion of the powers of Family Court in the past decade, this was too much for the Fourth Department and the order was reversed. Although the Family Court Act allows a court to design reasonable terms and conditions, you cannot direct a woman not to become pregnant. Not now, not ever. The law guardian weighed in on behalf of the lower court decision, arguing that the direction concerning pregnancy was encompassed within “medical treatment” authority of the court rules, but I hardly think sexual intercourse can be termed a medical treatment except among the most jaundiced of scalawags. However, you cannot blame Judge O’Connor. After all, the Office of Court Administration has openly encouraged the courts to go beyond the bounds of thier limited jurisdiction, from proposing social workers to mandating parental education as a means of teaching the hoi polloi how to behave. By the way, Judge O’Connor is the mother of academy award winner Philip Seymour Hoffman, who brilliantly portrayed Truman Capote in Capote and of course Brandt in The Big Lebowski. You see? Celebrities are everywhere.
Speaking of which, under the “What Were You Thinking” file comes the matter of poor Irwin Selinger. It seems he had a prenuptial agreement that provided what’s mine is mine and what’s your is yours, “including gifts of land to the other as long as the gift was either evidenced in writing or such records or the title of the donated property must have been changed into the name of the donee party." As we know, gifts between spouses are still marital, but a prenuptial trumps this definition. So Irwin sold his home in his own name which was clearly premarital and separate property, and bought a home in Long Island in the name of his darling wife Alicia Zizzo Selenger. In upholding Alicia’s motion for summary judgment that she gets to keep the cool $3.4 million realized from the eventual sale of the home, the First Department in Selinger v. Selinger[3] rejected Irwin’s myriad of arguments to get the money back. Although there was no writing saying it was a gift, and Irwin certainly testified he never, ever, ever intended to make a gift of the property to his wife, she kept the bling because “neither the parties' valid prenuptial agreement nor New York law requires that a gift of land from a husband to a wife be evidenced by a writing explicitly stating the husband's intent.” So, what was he thinking? Of course, the First Department doesn’t tell you the “Rest of the Story”, as Paul Harvey calls it, but I will. Irwin was the Chief Executive Officer of Graham-Field Health Products, a Long Island firm employing over 2000 people in the mid-1990’s. The company distributed wheelchairs, blood pressure machines and the like, but ran into fiscal problems. Just prior to filing bankruptcy, Irwin cooked the books in an attempt to sell the company and he was convicted of securities fraud and sentenced to 18 months in prison. Ergo the transfer to his wife. No, he may not have intended to make a gift. He may have intended to get the asset out of his name until things could cool down, but lady luck and the Domestic Relations Law interfered to enrich the former Mrs. Selinger to the tune of millions of dollars. As Sir Walter Scott said, “Oh what a tangled web we weave when first we practice to deceive.”
Remember last month I wrote about the sad case of a litigant who was awarded $250,000 in legal fees only to have the First Department yank it away? Of course you do[4]. Well not to be outdone, the Second Department has decided to strip an award of $159,000 in expert and attorneys fees in Griggs v. Griggs[5]. The reasons? The wife received a ton of money in equitable distribution including 35% of Dr. Griggs’ medical practice, even double counted the income in maintenance because of the Court of Appeals unique view of the world last year in Keane[6], and because she misrepresented her income to enhance her support claims. So there.
Finally, the latest census statistics show that first marriages last about 8 years and parties separate after 7 years, giving credence to the famous itch. But if the falling divorce rates here give you pause, you can always move to Belgium, home of great beer and a 71% divorce rate.
Until next time, Tot ziens.

[1] Called by the White House a grammatical error, but of course using the plural form by saying a word that does not exist is hardly a grammatical error.
[2] __ A.D.3rd __ (4th Dept., September 28, 2007)
[3] __ A.D.3rd __ (1st Dept., October 4, 2007)
[4] Warner v. Houghton, 43 A.D.3rd 376 (1st Dept., 2007)
[5] __ A.D.3rd __ (2nd Dept., October 9, 2007)
[6] Keane v. Keane, 8 N.Y.3rd 115(2006) finding it permissible to award the same money twice if you are distributing a practice even if the value is a capitalization of earnings, as opposed to enhanced earning capacity.