Divorce

Published on: July 15, 2024

Where a divorce was finalized in Vermont, can New York Family Court modify the provisions of the divorce decree related to parental access? Etzel v. Freleng 188 A.D.3d 1054 (N.Y. App. Div. 2020)

by Stephen Bilkis

In Etzel v. Freleng, 188 A.D.3d 1054 (N.Y. App. Div. 2020), the Appellate Division addressed issues pertaining to jurisdiction in custody disputes where the divorce decree establishing custody was issued in Vermont.

Jurisdiction in divorce and custody cases is paramount for ensuring the proper adjudication of legal matters surrounding the dissolution of marriage and the welfare of children. One fundamental aspect of jurisdiction involves residency requirements, which mandate that parties must reside within a particular jurisdiction for a specified period before initiating legal proceedings. These requirements serve to establish a connection between the parties and the jurisdiction in which they seek relief, ensuring that the court has a legitimate basis for asserting authority over the case. Importantly, once a court in one state issues a custody order, that decision generally cannot be modified by another state. This principle upholds the finality of court decisions and prevents jurisdictional conflicts that could harm the child’s well-being.

Background Facts

Published on: April 22, 2024

Appellate Division considered whether a stipulation to a separation agreement related to child support could be enforced by the Family Court. Barra v. Barra 214 A.D.3d 1224 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Barra v. Barra, 214 A.D.3d 1224 (N.Y. App. Div. 2023), the court was asked to settle a child support payment dispute. Part of the evidence submitted was the couple’s divorce decree.

Divorce cases and child support proceedings are inherently interconnected, with the former often laying the groundwork for the latter. In many instances, child support arrangements are established as part of the divorce settlement, outlining the financial obligations of each parent towards their children. Divorce decrees or settlement agreements typically specify the amount of child support to be paid, the frequency of payments, and any additional financial responsibilities related to the children’s upbringing. By establishing clear terms during the divorce process, the court sets the stage for subsequent child support proceedings, providing a framework for resolution and enforcement.

Moreover, divorce cases create legal precedents that guide child support matters in the future. Courts often refer to the terms outlined in the divorce decree when adjudicating disputes related to child support. This ensures consistency and adherence to the original agreement, promoting fairness and stability in child support arrangements.

Published on: February 19, 2024

Determining the proper jurisdiction in a divorce and child custody dispute where parties have ties t New York and the United Kingdom. William L. v. Therese L. 66 Misc. 3d 1228 (N.Y. Sup. Ct. 2020)

by Stephen Bilkis

The doctrine of forum non conveniens, a Latin term meaning “forum not convenient,” allows a court to decline jurisdiction over a case if another forum would be more appropriate for the resolution of the dispute. In New York, this doctrine applies to various legal matters, including divorce and child custody disputes, when issues of jurisdiction and forum selection arise.

In divorce and child custody cases, forum non conveniens may come into play when one party argues that another jurisdiction would be more suitable for resolving the dispute. Factors considered by the court include the parties’ residences, the child’s welfare, the location of evidence, financial circumstances, and court familiarity with the case.

For example, if a couple has ties to both New York and another country, and the child primarily resides outside New York, a court may find that the other jurisdiction is more appropriate for adjudicating custody matters. Similarly, if evidence and witnesses are predominantly located in another jurisdiction, it may be more convenient for the case to be heard there.

Published on: September 28, 2022

In a maintenance determination, what amount of earnings is necessary to enable the recipient to become self-supporting? Lorenz v. Lorenz, 881 N.Y.S.2d 208 (N.Y. App. Div. 2009)

by Stephen Bilkis

In divorce cases, the primary purpose of awarding one party to pay another party maintenance is to provide the receiving party temporary financial support to give them time to become self-sufficient. During the support period, the receiving party is expected to finish school or complete other training so that they would have the skills necessary to get a job and support themselves. In Lorenz v. Lorenz, Supreme Court of New York, Appellate Division, was asked to the amount of time and amount of money is necessary to help enable the receiving party to become self-sufficient.

Background

Defendant William Lorenz and Plaintiff Pamela Lorenz were married for 33 years. Pamela filed a petition for divorce. Both parties were 54 years of age. At the time of the divorce, Williams’s income was over $100,000, and Pamela’s income was $20,000. William was in good health, but Pamela had back problems that affected her work as a hairdresser. The Supreme Court of New York, taking into account the couple’s standard of living prior to divorce, awarded Pamela $500 per week in maintenance from William until such time as Pamela can draw full Social Security benefits, apparently when she becomes 66. William appealed.

Published on: September 26, 2022

Does the SUNY cap apply in determining parental contribution to educational expenses? Pamela T. v. Marc B., 930 N.Y.S.2d 857 (2011)

by Stephen Bilkis

In New York, as part of a divorce and child support settlement, parents can be required to contribute to their children’s educational expenses. The SUNY Cap attempts to limit the required contribution of both parents to the cost of State University of New York (SUNY) tuition. In Pamela T. v. Marc B., a high-conflict divorce with substantial assets, the parents disagreed on each parent’s contribution to college tuition of one of their children, with one parent wanting to limit it to the SUNY cap.

Background

Plaintiff Pamela T. and Defendant Marc B. divorced in 2008. They had two children. The parties had similar annual salaries, each earning just over $100,000 per year. Pamela had approximately $1,200,000 in assets. Marc had approximately $600,000 in assets. Both Pamela and Marc attended private colleges and both have law degrees. Their amended stipulation of settlement addressed child custody and child support. Pamela was awarded custody and Marc was ordered to pay child support. However, it did not address payment of the children’s college tuition and expenses.

Published on: September 7, 2022

New York Supreme Court considered a divorce petition even though a divorce was already granted in another state. Weiss v. Weiss, 29 Misc. 3d 1202(A) (2010)

by Stephen Bilkis

A divorce proceeding must be initiated in the state where at least one of the parties is domiciled. Not only must one of the parties be domiciled in the state where the divorce proceeding is initiated, the person must have met the minimum residency requirements.

In Weis v. Weis, because of there was a question related to residency requirements, the New York Supreme Court was asked to grant a divorce even though the other spouse had sought and was granted a divorce in another state.

Background

Published on: January 21, 2022

A fault-based divorce should not be granted without sufficient proof of constructive abandonment. Molinari v. Molinari, 2007 WL 1119894 (Sup. Ct. N.Y. 2007)

by Stephen Bilkis

Fault divorce is granted when one spouse proves that the other spouse did something which resulted in the failure of the marriage. Under New York Domestic Relations Law, grounds for fault-based divorce include:

Cruel and inhuman treatment. DRL §170.1
Abandonment for a continuous period of one year or more. DRL §170.2

Published on: January 3, 2022

New York recognizes the same-sex of marriage validly entered into outside of New York. Beth R. v. Donna M., 853 N.Y.S.2d 501 (2008)

by Stephen Bilkis

At the time that this case was decided, New York did not recognize same sex marriage. The law changed on June 24, 2011. Before that time, it was common for same sex couples to get married outside of New York in jurisdictions that did recognize same sex marriage. Just like with any marriage, when same sex relationships dissolved, legal questions related to child custody and child support had to be resolved. In Beth R. v. Donna M., the Supreme Court of New York was asked to determine whether New York recognizes same sex marriages validity entered into outside of New York and what the rights and obligations are of the parties regarding child custody and child support.

Background

Plaintiff Beth R. and Defendant Donna M., both residents of New York, met in 1999 and soon thereafter entered into an intimate relationship. The moved in together in 2002. In 2003, Donna became pregnant through artificial insemination.

Published on: April 20, 2020

Separation and Property Settlement Agreement Prepared by Mediator Was Not Unconscionable- Irizarry v Hayes, 2020 NY Slip Op 50217(U)

by Stephen Bilkis

In this case the Supreme Court considered whether the terms of a separation agreement prepared by a non-attorney mediator were unconscionable and as a result should be voided.

A separation agreement is a document agreed to by a husband and wife in which they agree to the conditions related to how they are going to live separately, such as property division, spousal maintenance, child custody, and child support. While a separation agreement is not always a precursor to a divorce, it can be. In fact, when filing for a divorce in New York, you must state the grounds for the action. One of the possible grounds is that the couple has been separated pursuant to a separation agreement. According to Dom. Rel. Law §170 (6), if a couple signed and notarized a separation agreement, are not living together, and have abided by the terms of the agreement, then they would have grounds for divorce.

In this case Irizarry v Hayes, the couple married in 2008 and had one child. A prenuptial agreement was drafted. Both parties were aware of its terms and agreed to them, but only the husband signed it. As a result, the prenuptial agreement was not enforceable. Several years later the couple experienced problems. After meeting with a mediator, the couple signed a separation agreement in 2016. In the agreement they acknowledged that they were encouraged to seek the advice of independent counsel, that they had the opportunity to seek independent counsel and financial advisors to review the agreement, and that by signing it they agreed to file an uncontested divorce action. The husband then filed an action for an uncontested divorce, and in her answer the wife consented to the uncontested divorce. The wife also stated in the answer that she “waives her right to any additional equitable distribution of marital property insomuch as all properties ever jointly owed, shared or enjoyed, have been distributed between the parties voluntarily prior to the commencement of the action by and through their Separation and Property Settlement Agreement.” The couple received a judgement of divorce.

Published on: January 20, 2020

Custodial Interference Can Be the Basis for Suspending the Obligation to Pay Child Support – Katz v. Katz, 2008 NY Slip Op 7873 (N.Y. App. Div. 2008)

by Stephen Bilkis

In Katz v. Katz, the Appellate Division considered whether a father’s obligation to pay child support could be suspended because the mother interfered with his visitation.

The general rule is that under New York law a noncustodial parent’s access to a child and his or her obligation to pay child support are separate issues. The court can require a parent to pay child support and also deny the parent visitation. If a custodial parent refuses to allow the noncustodial parent access to the child, the noncustodial parent should petition the court for custody or visitation. If there is a custody or visitation order in place and the custodial parent does not allow the noncustodial parent access to the child as required by the order, then the custodial parent is violating a court order. The aggrieved parent should take up the matter with Family Court. The remedy is not for the noncustodial parent to simply withhold child support. If the custodial parent is willfully interfering with visitation, upon petition the court may suspend or even cancel the noncustodial parent’s obligation to pay child support.

In Katz v. Katz, upon the couple’s divorce, the mother was awarded physical custody of the couple’s children. The father was awarded visitation. The father was also ordered to pay child support in the amount of $10,000 per month. The father petitioned the court to suspend his obligation to pay child support because the mother was not permitting him to have access to the children as required by the custody order. He also requested a recoupment of the child support that he had already paid. In support of his petition the father alleged multiple incidents in which the mother interfered with his parenting time and denied him telephone contact with the children. The mother responded by filing a motion to dismiss.