Hey, New York, Why Don't You Leave Us Alone

“I've had bad luck with both my wives. The first one left me and the second one didn't. Patrick Murray
“A girl must marry for love, and keep on marrying until she finds it.” Zsa Zsa Gabor
“I don't care if she doesn't know how to cook - so long as she doesn't know a good lawyer.” Errol Flynn, on the Ideal Wife
Honestly, just what are they thinking? Has anyone in the New York State legislature ever practiced matrimonial law or ever been divorced? Is it too hard to figure out why our state is broke so they have to torture those who seek a simple way out of a bad marriage? I really have no idea where they come up with this stuff, but sometimes they seem to make the Somali government seem like the voice of reason.
Per Esempio Numero Uno: It seems to me the whole system of divorce litigation is getting way out of hand. Just to sue someone, now you need to let hubby know a whole slew of things that for the most part mean nothing. How is this done? Put it in the Summons and give it to him (or her) of course. Some genius in the legislature last year thought it was a good idea to let people know that if they are divorced then they are no longer married, as in you are no longer the member of a “family” for health insurance purposes. Duh. Hell, why stop at health insurance? How about letting them know that they can have sex with other (nonmarried) people without committing a Class B misdemeanor, or that they can now file as a single taxpayer, or that they need not worry about that damned right of election should he or she drop dead before the divorce judgment gets filed? Forget that. Let’s just screw up everything with a worthless notice that no one cares about. However, judges will be schooled in the art of denying people divorces because the spouse was not advised of the loss of health insurance. Is anything more asinine? When you find it let me know. So the legislature and our Gov’nor decided to “correct” the ills conceived by Domestic Relations Law Section 177 which made you acknowledge the loss of health insurance in a “divorce agreement” whatever that is. No such “divorce agreement” animal is defined in the Domestic Relations Law or the Family Court Act, but what the hell. So, this stupid piece of legislation required us to hunt down recalcitrant spouses to try to get him to sign insurance acknowledgment agreements or to drag them in to court to let them know that they are no longer a member of hubby’s family. How did that work out for us? Not good. So hundreds of divorces were denied because the opposing spouse won’t sign ANYTHING proffered by that whore mongering abusive slug who now wants a divorce after I gave him THE BEST YEARS OF MY LIFE! Good job guys. That was a really good idea. So to correct things they screwed it up even more by repealing Section 177, or as the great Gilda “Emily Litella” Radner used to say, “Never mind.” So they created Domestic Relations Law Section 255 which requires a court to ensure that both parties have been notified, “at such time and by such means as the court determines”, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Say what? Just what is “at such time and by such means”? How about courier pigeon in five years? Not to mix my metaphors, but what is a good time and means to one goose is not necessarily a good time and means to another gander. So just what do we tell our clients? Gee, let’s put this up the old DRL 255 flagpole and hope we can get you a divorce. Let’s say for example, that things are not going too well in the divorce litigation and the litigant declines to sign anything or acknowledge anything just to prevent the impending doom of equitable distribution. Well at least now we can put into the summons the following notice: “Once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan.” That will do, but of course not for signed agreements, which must state either: (a) We hereby provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available.” Got that? So just what does THAT mean? Let’s say you are providing for the future coverage of your soon to be ex-spouse for one day, or one minute. Does that suffice? Or must it be forever, even following the remarriage of the other spouse. Beats me. But why complicate things and provide the (b) notice above? Well sometimes things slip through the cracks, and here these provisions cannot be waived by either spouse, so if it isn’t there, you ain't getting divorced. Got that Jacko? Which says to me that the legislature thinks that the notice provisions about health insurance are more important than people having the fundamental right to divorce? Wonder who was the genius who came up with THAT idea? I’d like to shake his or her hand, as the whole result of all this nonsense is to drive out the poor practitioner who wishes to dabble in divorce law in favor of us high priced specialists who charge large fees for our expertise. In other words, the poor consumer of litigation services gets screwed for no good reason than to put a bunch of useless words in some summons or agreement because some legislator thinks it is a good idea.
Per Esempio Numero Duo: Last I heard, an Order was something a judge signs. If you don’t believe me, take a gander at Section 400 of the Code of Civil Procedure which has been around in some form in New York since about 1850 which stated “every direction of a court or judge, made or entered in writing, and not included in a judgment, is denominated an order.” Of course this is now CPLR Rule 2219 which speaks of an order which “shall be signed with the judge's signature or initials by the judge who made it.” You see, Orders are important as they can deprive someone of money, liberty or a whole bunch of other things. So they have to be signed by a judge, and done right. Got that? Not to the New York State legislature, however. Now we have something known as “Automatic Orders”, denominated a “term of art” in some anonymous OCA memo flowing through the New York Judicial Institute somewhere in White Plains. So now we have “automatic orders” which are signed by no one but supposedly govern the behavior of divorce litigants merely by the filing of a summons in the county clerk’s office. Just what are these things? The “new” Domestic Relations Law Section 236B(2)(b) provides as follows (drum roll please):
(1) Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.
(2) Neither party shall transfer, encumber, assign, remove, withdraw or in any way dispose of any tax deferred funds, stocks or other assets held in any individual retirement accounts, 401K accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties shall further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party in writing, or upon further order of the court.
(3) Neither party shall incur unreasonable debts hereafter, including, but not limited to further borrowing against any credit line secured by the family residence, further encumbrancing any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with this action.
(4) Neither party shall cause the other party or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage, and each party shall maintain the existing medical, hospital and dental insurance coverage in full force and effect.
(5) Neither party shall change the beneficiaries of any existing life insurance policies, and each party shall maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Of course, these terms are to be in all Divorce Summons and are in effect on the plaintiff immediately on filing and on the defendant upon service. I can’t wait for the first poor schnook who faces jail for violating an order signed by no one by buying his new sweetie a Valentine’s Day card after the service of the summons. I really do feel sorry for the judges who have to interpret this stuff or possibly impose sanctions that are not authorized in the New York or United States constitutions. Can you imagine some guy sitting in the Albany County hoosegow trying to explain he is there because he took his grandfather’s cufflinks out of the home because he just couldn’t stand to have them for another minute? If this were really that important to the legislature, why not allow the Part 1 judge in each county to sign the Summons in advance of filing so at least there will be some semblance of due process, albeit ex parte. Nah, that’s too easy. Aaaargh. By my count, the normal Summons for Divorce in New York is about three pages long and growing, for no good reason. How about this guys? The new Mike Friedman Simplified Divorce Summons: “Honey Bunchkins. I no longer want to be married to you. I hope you’ll agree that our marriage sucks and so you’ll ignore this thing and let me be done with you. If you don’t I will get a divorce and most of your worldly possessions, the kids and lots of your income so if you want, let the court know you care within 20 days. Till death do us part my eye. Your ever loving Sweetie Pie.” That’s good enough for me.
Sorry to be so long winded here, but this stuff really boils my blood and if I don’t get this off my chest my head is going to explode. Good luck with this flotsam. Next month: The “New” CSSA cap or How I Learned to Stop Worrying and Love the New Rules of Professional Conduct or Just What is the Intimate Part of a Lawyer. And remind me, just how do you spell violence? Ciao baby.