Litigating a Matrimonial Case

When seeking a divorce, you should always attempt, in good faith, to settle your matter if possible.  By entering into a separation agreement, you are able to control some if not all of the terms.  If settling is not possible, then you are leaving your fate to the Court.  Lets look at the recent case of Musacchio v. Musacchio, which the appellate division recently decided on June 27, 2013.

Here the parties were unable to settle and went to trial.  They were married in 1990 with three children.  If you are a follower of my blog posts, you know by now,  in a custody battle normally, a law guardian is appointed to represent the best interests of the children.  While appointing a law guardian is strongly encouraged such an appointment is discretionary and not mandatory.   In this case, the Court decided not to appoint a law guardian.  Without a law guardian the court must decide custody without the benefit of an attorney representing the children.  The wife in this case was awarded physical custody of the children. The Court relied on all relevant factors including the parents’ ability to provide a stable home environment for the children, the children’s wishes—though without a law guardian one can only surmise what their wishes are after perhaps through questioning by Court and having them put in the uncomfortable position of choosing—the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.   In this case, the wife was a stay at home mother and the husband worked long hours in the financial industry with frequent travel.

When it came to distributing the property, the Courts fashioned a distribution which was not necessarily 50/50.  When you leave it to the Court to distribute assets remember that there is no requirement that the distribution of each item of marital property be on a equal or 50/50 basis.  A trial court has substantial discretion to fashion awards based on the circumstances of each case and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors.  In this case, the Court considered the  needs and circumstances of the parties.  Here the husband made over $200,000.00 a year while the wife barely made $10,000.00.  While the Court did not list the equitable distribution award, I am hard pressed to think, after the rationale given by the Court, that the husband and wife split all the assets 50/50.

Finally, the Court awarded maintenance to the wife for seven and half years.  The Court considered the parties’ financial circumstances, their respective ages, the length of their marriage and the wife’s loss of income while she was a stay at home mother, and the wife’s ability to increase her earning potential taking into account her age and prolonged absence from the work force.  In other words, maintenance was left up to the Court.  Unlike the temporary maintenance formula, there is lacks a guide that one can look to even attempt to figure out what, if any maintenance will be awarded and for how long.

As you can see, if you and your spouse cannot come to a settlement, the Court will decide.  Once the Court decides, if the decision is supported by the evidence presented at trial and well-reasoned, it is unlikely that the awards will be disturbed.

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Carrying Costs and Temporary Maintenance in a Pendente Lite Application

Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending the litigation. Typically one asks for temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers. Recently, in Woodford v. Woodford, a Second Department decision, the Court attempts to shed some light on temporary maintenance.

In Woodford, the wife moved pendente lite, for temporary maintenance, 100% of the carrying costs of the marital estate and for her attorney’s fees. The Supreme Court ruled that the husband was to pay 100% of the carrying costs, temporary maintenance and to pay $10,000.00 as and for attorney’s fees, with leave to apply for more money should the need arise. As you may know, carrying costs are essentially the costs associated with maintaining and running the household. It includes the mortgage or rent, utilities, cable, internet, phone, the other costs associated with the home. Husband appeals to the Second Department arguing that temporary maintenance should include the carrying costs, thus he should not have to pay both carrying costs and additional monies for maintenance.

Domestic Relations Law §236(B)(5-a) sets for formulas in which the Court is to use to determine the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover. The Court held in this case, that it is reasonable and logical to think that the temporary maintenance statute was intended to cover all of the wife’s basic living expenses. Therefore the Court vacated that part of the ruling which ordered the husband to pay for both the carrying costs and temporary maintenance and directed the Supreme Court to reconsider the wife’s motion.

This ruling seems to say that carrying costs are part of temporary maintenance. One would think then that the Court, if it wants to award both temporary maintenance and have the “monied” spouse pay for the carrying costs, the Court would then award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. Ultimately, since the statute is vague and ambiguous as to this point, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.

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Person In Need Of Supervision


A person in need of supervision, or PINS, covers youthful misbehavior which does not amount to a crime. The Family Court Act §712 defines PINS as a male less than sixteen years of age and a female less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority or who violates the provisions of section 221.05 of the penal law. So what does this mean? Truancy or any other acts which parents and/or local authority are unable to control. Important requirement under PINS is that the acts be habitual. A single act of truancy, incorrigibility or disobedience does not suffice. Essentially a significant pattern must be present before a PINS case may be made. Of course, with most things, there is an exception. Acts involving marijuana need not be habitual and one act will be enough to make out a case for PINS.

A PINS case is formally originated by filing a petition in the Family Court which possesses exclusive original jurisdiction over PINS matters. There is a long list which can be found in the Family Court Act §733 of who can file or initiate a PINS petition. Examples of people authorized to file such a petition include a police officer, a peace officer, a parent or guardian or any person who has suffered injury as a result of the child’s activity. In reality, the overwhelming majority of PINS cases are filed by parents. Before a PINS case can be filed, it must first be referred to probation services. At probation services, a determination will be held to ascertain whether there are treatment programs which the child in question may be eligible. Probation services has 90 days or 180 days with leave of the Court, to assess and enroll a child in specific services. If these services fail, a statement must be filed along with the PINS petition informing the Court of what if any services were provided and the reason for failure. In the event that probation services fail to act within the allotted time frame, then you are allowed to file your PINS petition.

There are specific elements which must be pled in the petition. Specifically, the petition must show that the child in question meets the age requirements as mentioned above. Second, the child in question is in need of services. In addition, the child, and/or their guardian must be notified no less than 24 hours before the initial hearing. Once the petition is filed, upon the child’s first appearance, a law guardian will be appointed. Of importance is that the Court, in its discretion can order the release or detention of the child pending a hearing on the issues.

LEARNING POINT: PINS is a detailed and complicated process for children in need of services. Before filing a petition seek our assistance in preparing the petition and preparing the case. If the petition or case is not properly prepared, there will be a delay in providing the child in question with the services they may need.

Pendente Lite Motion


pendente lite motion divorce lawA common question that arises when people come in for their initial consultation is: how they are going to survive the process!? Typically, a spouse walks in and has decided to get divorced.  Their first concern is that they have not been working and are one hundred percent reliant on their spouse.  As I’ve written in past blogs, the law is gender neutral when it comes to divorce.  There are only two types of people in a divorce, the “monied” spouse and the “non monied” spouse.  As you can guess, it’s the non monied spouse that walks in with the concern that they will not be able to survive if they file for divorce.  That is when we explain the Pendente Lite motion.  Pendente Lite is Latin for “pending the litigation”.  It is a motion that you can make where you, as the non monied spouse, requests that the monied spouse pay for the following: (1) temporary maintenance; (2) temporary child support; (3) your counsel fees; and (4) exclusive use of the marital property.  There are many other things that you can ask in the Pendente Lite motion.  This blog will focus on the request for the exclusive use of the marital property.

Courts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital premises to one of the parties. (Domestic Relations Law §234).  Generally, exclusive occupancy of the marital residence should not be awarded to a party prior to trial without a hearing unless there is sufficient evidence to show an award is necessary to protect the safety of persons or property.  If a spouse has voluntarily established an alternative residence, the existence of an acrimonious relationship between the parties and the potential turmoil which might result from a spouses return may lead to the Court to grant a petition for exclusive use of the marital residence.  The question becomes how one defines the key terms of “necessary and safety?”  The Courts have not given much guidance however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting judicial intervention.

divorce attorney pendent lite motionWhat type of evidence would be persuasive to Court?  The following is a non-exhaustive list which would carry considerable weight with the Court: (1) a police report showing complaints by one spouse about the other; (2) the existence of an order of protection/non harass order; (3) medical evidence of abuse; (4) corroborative third-party affidavits of harassment.  Typically, a hearing is necessary when there exists contradictory affidavits.  When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse.  When addressing safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing of the moving spouse.  Thus, what typically happens is that one spouse moves for exclusive possession of the marital residence and the other spouse argues that this remedy is unnecessary because he or she is not doing whatever the moving spouse is alleging.

Start keeping a journal. When going through a divorce, you will want to be able to communicate to your attorney and eventually the Courts of all the incidents you believe substantiate your claim to the marital residence pending the divorce.  If you have been abused, file a police report.  Seek medical treatment.  If the abuse is mental, file for a Non Harass Order from the Family Court.  The goal is to amass evidence which can be sued in the motion to help substantiate your need for judicial intervention.

If a Court does grant exclusive possession of the marital residence, a common argument made by the spouse who now must move out of the martial residence is that he or she may not be able to afford two households.  The Courts uniformly hold the same way on this response: the appropriate remedy to resolve an apparent inequity with the Court’s pendente lite award is a speedy trial.

LEARNING POINT: Once you decided to file for divorce, immediately seek the guidance of an attorney.   Your attorney will be able to advise whether you have a legitimate claim to the exclusive possession of the marital residence and whether the pendite lite motion is something you should file.

pendente lite motion