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.