Foreign Divorce | Divorce Lawyer Long Island

Will a foreign divorce be recognized in the state of New York?  The first question that must be answered is what is a foreign divorce?  A foreign divorce is one granted from another state in the union or another country.  With respect to divorces from a sister state, under full faith and credit clause of the U.S. Constitution, New York will give grant full faith and credit to judgments from sister states. What if the judgment came from another country?  That was the issue presented to the Court in Ahmad v Khalil.

In this case, the parties were married in Jordan.  After two years, they moved to New York.  After approximately eight years, the mother moved back to Jordan with the children.  Father continued to provide financial support to his family.  A court in Jordan granted the Wife’s petition for divorce.  That divorce action dissolved the marriage but did not address issues relating to child support and distribution of assets.  The Husband commenced an action in Jordan relating to the custody of the children.  The Wife then starts an action in New York, seeking maintenance and child support.

Courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the Courts to judgments of sister states.   Absent a showing of fraud or some showing that recognizing a divorce from a foreign state would be against some strong public policy.  With respect to public policy, this exception is rarely used and only considered when the divorce in the foreign country is counter to fundamental notions of what is decent and just.  Therefore, for a court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that he decree violates some fundamental principle of justice, some prevalent conception of good morals or some deep-rooted tradition of the common good.  Essentially, Courts will generally look to validate and enforce foreign judgments.

In this case, the Wife attempted to set aside the Jordanian divorce decree by arguing a lack of due process.  She argued that in Jordan, a husband is allowed to obtain a divorce unilaterally without notice or consent of the wife.  The Court did not give much credit to this argument.  It appears that the wife actually started the divorce in Jordan and then withdrew her action there when she discovered that it was to her financial best interests to obtain a divorce decree in the State of New York.   Thus, the Court recognized the Jordanian divorce.

Though the divorce decree was recognized by the Court, there was martial property that was located in New York.  The Court allowed the wife to litigated the issue regarding the equitable distribution of the New York property as this court would be the most convenient court to hear this matter.  The Court declined to hear issues related to child support, maintenance and distribution of property in Jordan.  The Court reasoned that the children had lived and current live in Jordan.  There is Jordanian property to be disposed of and there are procedures in Jordan which the wife can avail herself to address these issues.

When faced with a foreign divorce, the going in position of the Courts will be that the divorce will be enforced absent a showing of fraud in the procurement of said divorce.  If your spouse comes home one day and announces that you have been divorced through a judgment from another country, see us immediately.  Typically we see this issue arise from divorce decrees granted in the Dominican Republic.  Swift motion practice will be needed to protect your rights.

Equitable Distribution Isn’t Necessarily Equitable Distribution

Many people believe that when you get divorced, especially after a long term marriage, your assets are split equally.  This is not true.  New York is an equitable distribution state, meaning that equity, or fairness, will decide how assets are to be split.  Who determines what’s fair or equitable? Well if the parties cannot amicably settle their dispute and come up with an accommodation between them, the Court will make that determination.   If you leave it to the Court, you may or may not get what you deem is appropriate at the parties in Cornish v. Cornish recently discovered.

The parties in the Cornish matter were married in 1991 with three children.  The wife was the monied spouse in this case and the husband was awarded, amongst other things, 30% of his wife’s pension, vice 50%.  He was also awarded 50% of the parties credit card debt.   The husband appeals seeking to modify the trial Court’s ruling increasing his share of the wife’s pension to 50%.  The first thing the husband needed to realize is that the Courts are accorded substantial deference in determining what distribution of the marital property is equitable.  Note the equitable standard which is based upon considerations of fairness and the respective situations of the parties.

The trial Court looked at the marriage.  Here, the husband was a stay at home father.  However, as the wife testified, the once the children reached school age, the wife implored the husband to find employment, which he declined despite the financial difficulties the family faced.  In addition to his refusal to earn a living and contribute financially to the family, it was ascertained that husband was an alcoholic and his alcoholism was contributing to his ability to find employment.  Additionally, the husband had inherited money.  Instead of using this money to assist the family, the Court found that he wasted his inheritance and in a few short months, it was gone.  Finally, the Court did not find the husband’s testimony regarding his job search credible.  Thus the Court, taking all of this into consideration, believed it was only fair that 30% of the pension go to the husband vice 50%.

In the same vein, the Court determined that the family’s finances were compromised by their use of credit cards to pay for family expenses.  However, the Court also found that the credit card was not only used for daily expenses, but that the husband used the cards for unnecessary expenses unduly burdening the already precarious family financial picture.  As a result, the Court awarded half of the debt to the husband.

Your behavior during the marriage is important when it comes to equitable distribution.  Keep in mind that marital property is divided between the parties and that not only will the Court divide property/assets, it will also divide liabilities. If you have a spouse, like in this case, who is wasting marital assets coupled with refusing to contribute to the marriage, the Court will take that into consideration when determining how to fashion an equitable distribution award.

Annulments in New York | Long Island Divorce Lawyer

Annulments are commonly sought when a marriage has lasted for a short period of time and there are no children of the marriage. With the passage of the “no fault” grounds for a divorce, annulments are less sought out.  However, if you do wish to pursue an annulment, here is what you need to know.

There are five grounds for an annulment of a marriage. (1) failure of a party to have reached the age of consent; (2) lack of understanding of our actions (generally seen when one party is mentally challenged in some fashion); physical incapacity to consummate the marriage; (4) consent to marry was obtained by force, duress or fraud; and (5) an incurable mental illness for five or more years. The important thing to remember here is that you need more than you and your spouse to agree to an annulment.  You will need corroborating evidence to bolster your case. In other words, you’ll need third party testimony to assisting you in your annulment action.

The Court of Appeals in Brillis v. Brillis, addressed an action for an annulment based on fraud.   In this case, the husband was an immigrant and his visa was about to expire and he had to leave the country.  He convinced his wife to marry him with promises of returning and remarrying within the Greek Orthodox Church, to which they were both members. He also promised to provide for her and live together as husband and wife.  The parties then married in a civil ceremony.  Upon the husband’s return, he did not follow through on his promises to get married in the church.    The Court held that when a person, in order to induce a marriage, makes a promise of a subsequent religious ceremony, without intending to keep it, an annulment will be granted where there was no cohabitation and consummation of the marriage.

Annulments are hard to obtain, especially where the marriage was consummated.  The previous example shows how it may be done however, as one would imagine, there will rarely be a scenario which fits the Brillis fact pattern.    If you are contemplating an annulment, call a Long Island Divorce Lawyer at Divins & Divins, P.C. to make an appointment to see us immediately.  With the no fault divorce statutes, and the stringent requirements for an annulment, you may not satisfy the grounds for an annulment and may be better off seeking a divorce through the new no fault grounds.

Separate Property and Maintenance on Long Island

On June 13, 2013, the appellate court decided the case of Owens v. Owens.  At issue in this case was the maintenance awarded to the wife.  The parties were married in 1985 and had two children.  Before the parties were married, the husband owned, through an inheritance, an apartment building in New York City.  He sold this property during the marriage netting six million dollars.  He promptly placed that money in separate account however the parties were living off the proceeds.  Further, the husband owned the marital residence which the parties shared throughout the marriage.  The couple divorced and the wife argued that the husband had wasted his inheritance and the separate property he owned.  As a result, the wife wanted the Court to take into consideration this wasteful dissipation of assets when awarding maintenance.

When dealing with property in a marriage, the first step the Court will take is to classify all property.  Domestic Relations Law defines separate property as that acquired before the marriage or by bequest, devise or descent or gift from a party other than a spouse. Separate property also includes the increase in value of the separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.

The crux of the wife’s argument wasn’t that she was directly entitled to the separate property, she argued that the Court should consider the husband’s willful dissipation of his assets when determining what if any maintenance she is entitled.  The Court agreed.  The Court held that evidence of egregious economic fault in mismanaging, dissipating and wasting separate assets can and should be considered under the statutory catchall “just and proper” factor for equitable distribution and maintenance.  In addition the Court will take into consideration separate property as part of a spouse’s income, property, present and future earning capacity and ability of each party to become self-supporting.  Thus, the Court, in determining a maintenance award—with an eye to her ability to be self-supporting—must take into account her pre-divorce standard of living, which in this case, was provided mainly by the separate property income of the husband.

Separate property on its face may be a simple determination, however as this case illustrates, classification of property is only the first step.  How that property was used and the effect on the marriage can and will be used as a factor when the Court is contemplating a maintenance award.

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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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Sale of the Marital Estate in New York

One of many issues which must be dealt with when getting divorced is what to do with the marital estate.  For purposes of this article, we are going to assume the martial estate was purchased during the marriage from marital funds.  Future posts will deal with a marital estate that was either originally separate property or separate property was used to purchase the estate.

The marital estate is marital property and must be disposed of in accordance with the Domestic Relations Law.  The first option is to simply sell the home. Once the sale is complete, any profits or losses are to be shared equally between the parties.  If you have been following these posts you know by now that nothing is that simple.  The other option is to have one party buy the other party’s interest.  You simple decide on a fair price and the party wishing to remain in the home must buy the other party’s interest in the home.  Yet another option is to trade your interest in exchange for other marital property or responsibilities.

For instance, we recently had a case where our client, wife, was to retain physical custody of the children.  The husband did not want to pay child support and we were heading straight to a trial.  We began discussing the marital estate.   There was significant equity in the house.  We agreed to have the husband waive his interest in the house in exchange for his child support obligation.  We simply calculated what his child support obligation would be and compared it to his equity in the house.  As both numbers were close, this was a creative way to have the wife keep the marital residence, the children stay in the home they were used to and dispose of the marital estate.

The most challenging aspect of the marital residence is when one party does not want to sell the asset yet wants to be divorced.  Fear not, the house will be sold however if you cannot get the parties to agree, then you must look to the Court for assistance.  In our example, the marital estate is own by the parties as tenants by the entirety.  Therefore, the Court will lack the authority, absent the consent of the parties, to order a sale of the marital estate while the parties are married.   If your spouse stands their ground, the Court can order a sale after you are divorced.  The Court can and will order how the net proceeds or liabilities are to be split.

Then there is the hybrid case, where both parties want to sell the house but there are young kids involved.  Another possibility that is often used is to allow the spouse who retains physical custody of the children to remain in the house.  That spouse will be responsible for all the bills related to the marital estate and will agree to indemnify the spouse who is moving out in the event any liabilities relating to the house arise.  Normally in the separation agreement, there is language which provides that the spouse who remains in the house shall pay all bills relating to the estate and that in the event the mortgage is not paid for a certain amount of months, the house will be automatically put up for sale.

Disposing of the marital estate can be complicated and is not as easy as simply selling off the estate.  If you are contemplating divorce and you believe the marital estate may be an issue, contact us immediately to begin preparing your matter.

Calculating Child Support

Contrary to the common perception, the child support calculation is really a black and white issue.  The Child Support Standards Act (“CSSA”) found in Domestic Relations Law §240 (1-b) explains exactly how child support is to be calculated.  Pursuant to the CSSA, child support is a percentage of combined parental income, minus FICA /Social Security taxes, capped at $136,000.00.  The relevant percentages are:  17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children. So when considering what the child support obligation is going to be in any particular case, the first thing the Court will do is determine what the obligation is pursuant to the CSSA.

For example, if Spouse A earns $60,000.00 a year and Spouse B earns $50,000.00 a year, and there are two children of the marriage, the following calculations apply

Spouse A: Gross Income is $60,000.00. Subtracting FICA/Social Security, for CSSA purposes, Spouse A’s income is $55,410.00.

Spouse B: Gross Income is $50,000.00.  Subtracting FICA/Social Security, for CSSA purposes, Spouse B’s income is $46,175.00

Next, the Court combines the incomes: $55,410.00 + $46,175.00 for a total of $101,585.00  As there are two children in this example, the percentage set by the CSSA is 25%.  Thus, the child support obligation in this example is $25,396.25  a year.  Now that the obligation is determined, that number is split between the spouses on a pro rata basis.

Spouse A: $55,410.00/$101,585 = 55%.  So Spouse A’s obligation is $25,396 * .55= $13,967.80 a year, or  $268.61 a week ($13,967/52 weeks a year) or $1,155.00 a month ($268.61 * 4.3—the average weeks a month).

Spouse B: $46,174/$101,585= 45%.  So Spouse B’s obligation is $25, 396.25 * .45 = $11,428.20 a year or $219.77 a week ($11,428.20 / 52 weeks a year) or $945.02 a month ($219.77 * 4.3—the average weeks a month).

Here is where the battle usually occurs.  The spouse who has residential custody of the children will get child support.  So, in our example, if Spouse A retains residential custody, Spouse A will receive $945.02 a month in child support.  If Spouse B retains residential custody, Spouse B will receive $1,155.00 a month in child support.

If the combined income of the spouses exceed $136,000.00, then the Court will decide on what number to use to determine child support.  It is completely in the Court’s discretion and the Courts  look at a variety of factors in determining where to cap the child support obligation.  However, this will give you the basic idea on how child support is calculated.  There are numerous other factors which can come into play which will effect a person’s income for CSSA purposes.  For example, what if Spouse A must pay child support, but the reality is, even though Spouse A makes $55,410.00 for CSSA, that spouse is already paying child support to another child?  What if Spouse A’s income is not sufficient to provide child support pursuant to the CSSA and be above the poverty line?  These are common questions which need to be addressed when contemplating child support obligations.  Call for an appointment and discuss your options to ensure you are either receiving or paying the proper amount for child support.

Inheritance Rights in a Divorce on Long Island

A common question raised by clients of long term marriages—generally longer than ten years—is what happens with my inheritance which I received during the marriage?  The answer is: it depends what you did with said inheritance.  When the Court looks to make a distributive award of the assets of the marriage, the first thing it does is it defines marital property.  Marital Property, pursuant to DRL§236, is defined as all property acquired by either or both spouses during the marriage and before the commencement of an action for divorce or the signing of a separation agreement.  So, the initial question becomes, when did you receive this inheritance?  If you received your inheritance during the marriage, the presumption is that it is marital property.  Thankfully, there are four exceptions to this general rule.

Relevant to this issue, if property is received by bequest, devise or descent it is considered separate property.   So it seems as if your inheritance is protected as separate property.  Yet, nothing is that simple.  Once you received your inheritance, the question now becomes what did you do with it?  Did you open up a separate bank account and deposit said inheritance in that account which is strictly in your name?  If you did, then the Courts will probably consider this separate property.   If you’re like most people, you placed your inheritance in a joint account, and there lies the problem.

Once you placed your inheritance into a separate account, you have comingled funds, and thus the money is now marital property.  (The subject of another blog is the comingling for convenience—all is not lost if you comingle—however the presumption will be that the comingled account is now marital property).   A far more complicated and common issue is what happens when you take your inheritance and purchase a house?  Is that house now marital property?  Probably.  Lets say that you received a three hundred thousand dollar inheritance and you placed it all as a down payment for the martial estate.  Did you lose the inheritance?  In this scenario, you will get a separate property credit of $300,000.00.  If you sell your house and there is a profit of $600,000.00, you can then petition the court to designate the first $300,000.00 as separate property, the money being an inheritance and originally separate property.  The balance of the estate will then be split by the parties.  Of course, what if the house is sold and you break even?  What if you sell your house and there is only a $50,000.00 profit?  Arguably, that money should be designated as separate property.  Either way, your spouse will not be responsible for paying back the down payment.

Inheritance issues are not black and white and can be tricky.  If you are contemplating a divorce and you have concerns about your inheritance, contact us for a free consultation.

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How Much Maintenance Will a Court Award?

In 1980, New York moved from an “alimony” state to a maintenance state with the enactment of the Equitable Distribution Law.  Unlike child support and temporary maintenance, which one can look to a specific formula to determine how much money you can expect to be awarded, the legislature has not delineated a specific way to determine maintenance. Maintenance may be awarded in such amount as justice requires having due regard for the standard of living of the parties established during the marriage, whether the recipient lacks sufficient property and income to provide for his or her reasonable needs, and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.   So how is a judge to determine whether maintenance is appropriate and if so, in what amount?  There are twelve factors for a court can use.

The factors are: (1) income and property of the respective parties including marital property distributed; (2) the duration of the marriage; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to be just and proper.

While all factors are theoretically given equal weight, the overwhelming consideration by the courts is the rehabilitative aspect of maintenance.  Thus, the Courts will lean heavily on the duration of the marriage and the recipient’s ability to become self-supporting.  In other words, the first thing the Court will look to is the length of the marriage.  So if you were marred twenty-two months, the Court is almost guaranteed not to award maintenance.  On the other hand if you were married twenty-two years, the Court will continue its analysis. What about a seven year marriage?  How about a ten? Again there is not set rule and the Court can essentially rely on any factor it deems relevant to make its determination.

Next the Court will look to the finances of the parties.  If the length of the marriage is such that the Court is considering maintenance, the income of the parties will be the next factor.  Was one spouse living at home while the other spouse worked?  Are they both working?  Are they both working but one spouse makes $40,000.00 a year and the other makes $200,000.00 a year?  These are the factors which the Court must balance and your attorney must argue.

As mentioned above, there are twelve factors the Court will consider however, each case will bring its own set of circumstances and facts which will be weighed by the Court.  As of today, there isn’t a set formula for maintenance.  Your attorney will have to make your argument based on the circumstances of your case.