January 26, 2012

NO FAULT DIVORCE IN NEW YORK: WHEN IS A MARRIAGE IRRETRIEVABLY BROKEN?

            Yesterday, the New York Law Journal  reported that the Supreme Court in Suffolk County recently concluded the first grounds trial in New York in which a defendant-spouse challenged a plaintiff's claim that the marital relationship was "irretrievably broken."  The fact that a trial as to the existence of irreconcilable differences occurred at all has, itself, engendered considerable controversy among New York divorce lawyers.  After all, the passage of a no fault basis for divorce by the New York legislature was specifically intended to avoid the type of lengthy and costly court proceedings that previously occurred when a spouse claimed that the party seeking divorce had not established sufficient "fault."  Such proceedings were widely viewed as anachronistic and embarrassing, and it was widely anticipated by divorce attorneys that the passage of no fault divorce would usher in a modern era, in which the sole emphasis by litigants and the courts would be upon financial issues (such as equitable distribution, maintenance, etc.) that arise in connection with the dissolution of a marital relationship. 

             Indeed, some courts have held (correctly, in my opinion) that the sole requirement for establishing the existence "irreconcilable differences" is a declaration, by one spouse in his or her complaint, that there are such differences.   The conclusion that the New York legislature specifically intended to eliminate even the possibility that a defendant-spouse would be able to challenge the existence of irreconcilable differences is, quite simply, inescapable.   In fact, when the legislature announced its enactment of no fault divorce, it explicitly stated in a press release (dated June 15, 2010) that it intended precisely that result, stating, "The requirement under current law to determine who is at fault for causing the divorce has significant financial and emotional costs, and unnecessarily forces couples in deteriorating relationships to rehash the bitter, painful and embarrassing reasons for divorce." The legislature's pronouncements, and the language of the law, could not possibly have been clearer: New York litigants would no longer be required to litigate the underlying reasons for their divorce. 

            It is has been approximately one and a half years since New York became the last state in the United States to enact no fault divorce.  Nonetheless, contested divorce cases continue to be expensive, stressful, and prolonged proceedings.  Because New York's courts have been forced to enact massive budget cuts, the waiting period for trials and decisions has become longer.  Quite simply, the process of divorce is generally slower than it was before the passage of the no fault statute.   Given the clear purpose and language of the no fault statute, and the overwhelming inefficiency and delays afflicting state courts throughout New York, the continued occurrence of grounds trials is, quite simply, incomprehensible.

             The refusal of some courts in New York to adhere to the language and intent of the no fault statute mandates further action on the part of the legislature.  Specifically, the legislature should amend Section 170(7) of the Domestic Relations Law with the addition of language stating that a spouse's declaration, under oath, that a marriage is "irretrievably broken" constitutes sufficient and incontrovertible proof of such irreconcilable differences.  With the addition of that single sentence, grounds trials will finally be relegated to the dustbin of divorce history.

January 09, 2012

NEW YORK'S NO FAULT DIVORCE LAW DOES NOT REDUCE THE COURT TO A RUBBER STAMP: OPPOSING A DIVORCE IN NEW YORK

On October 12, 2010, with much media fanfare, the legislature added a "no-fault" ground to New York State's divorce statute, Domestic Relations Law § 170. That section allows parties to seek a judgment of divorce when "the relationship between the husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath" (Domestic Relations Law § 170[7] ). The statute also provides that "no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts" fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into this judgment of divorce" (id.). 

 Many litigants wrongly assume that with the passage of the no-fault law, divorces are "automatically" granted in New York.  That is simply not true.  In his or her answer, a defendant may deny that there is has been an irretrievable breakdown.   A Plaintiff is then required to prove that there has been an irretrievable breakdown for a period of at least six months.  Schiffer v. Schiffer, 33 Misc.3d 795 (Dutchess County Supr. Court 2011).  The question of whether there has, in fact, been an irretrievable breakdown is an issue of fact that must be proven by the Plaintiff. 

 In the Schiffer decision, the Court observed:

 Since the sole means of procuring a divorce in New York is by judicial process (N.Y. Const., art. I, § 9), precluding a party from contesting a ground for divorce "must be regarded as the equivalent of denying [him or her] an opportunity to be heard ... and in the absence of a sufficient countervailing justification for the State's action, a denial of due process" (Boddie v. Connecticut, 401 U.S. 371, 380-381, 91 S.Ct. 780, 28 L.Ed.2d 113 [1971] ). A contrary finding would merely reduce the court to a rubber stamp whenever presented with an action for divorce under Domestic Relations Law § 170(7).

At bottom, it is entirely possible to defend against and stop a divorce in New York, even under the new no-fault divorce law.  Beyond challenging the ground (i.e., arguing that there do not exist irreconcilable differences), a defendant can demand a full adjudication of financial issues - a time consuming process that can involve years of litigation.

December 13, 2011

END-OF-THE-YEAR DIVORCE CHECKLIST PUBLISHED BY FORBES.COM
PART 1: GATHER AND COPY FINANCIAL RECORDS BEFORE YOU START A DIVORCE CASE

            Today, the financial website, Forbes.com, published a year-end "End-of-the-Year Divorce Checklist for Women."   The bulk of the items on the divorce checklist are matters of basic commonsense, and are equally applicable to both men and women who are facing the prospect of divorce.   During the next week, I will be addressing each item contained on the Forbes list, with insights based on my experience as a divorce lawyer who has been in the trenches of New York courts for 18 years. This article is the first installment of my New York divorce checklist series.  The information and advice contained in these articles involves an overriding mandate: you must begin the process of basing your actions on strategy, rather than uncontrolled emotion, before you start your divorce case. 

             As a divorce lawyer for 18 years, I have helped several thousand clients make the difficult transition from being emotional overwhelmed to proactive, strategic action.  Divorce involves essential legal and financial rights that will affect you for the rest of your life. You cannot afford to wallow in anger, shame, resentment or despair.  You must act proactively and strategically.  An important role of any divorce lawyer involves helping his or her client make this difficult - yet essential - transition.   Acting and thinking in a proactive and strategic manner will lead to unexpected benefits.  Beyond helping you with your case, this new paradigm of thought will actually help you in dealing with the emotional effects of your failed relationship, and the psychological challenge of re-defining yourself. 

             Item No. 1 on the "To-List" of Anyone Contemplating Divorce: Gather Financial Records, and be Prepared.

             The first item on the Forbes "divorce checklist" is to begin the process of gathering and reviewing financial records.  Compiling and preserving financial records is a matter of utmost importance.  If divorce is even a remote possibility, it is essential for you to thoroughly familiarize yourself with all financial records, including bank records, credit card accounts, retirement accounts, and investment accounts.  It is equally essential for you to photocopy all of the records relating to such matters. Regrettably, after a divorce case is commenced, it may be too late.  Your spouse may selectively withhold certain items (such as information about his or her retirement benefits).  Although nearly all jurisdictions require full disclosure by both parties of their respective (and joint) financial records and information in connection with divorce, many spouses attempt to evade their disclosure obligations, or only selectively disclosure partial information so as to distort the actual value of assets in their name. 

             In New York, all contested divorce actions begin with full financial disclosure by each side, in the form of a Statement of Net Worth.  According to New York's Domestic Relations Law, a Statement of Net Worth is supposed to be an exhaustive and comprehensive statement of all assets, liabilities, income, and other financial data, of both parties.  In practice, many spouses try to withhold information.  New York's matrimonial judges are overburdened, and do not always demand full compliance with financial disclosure mandates of NY's Domestic Relations Law.  The result is that divorce proceedings in New York sometimes feel like the "Wild West".  Accordingly, you must protect yourself, and not assume that a judge will compel your spouse to comply with his or her obligations under the law.  Beyond preserving financial records, you must retain a New York divorce lawyer who is experienced and will fight hard for you in the trenches of the courtroom. 

             I recently concluded a case in which my client had virtually no information about her husband's retirement assets (401k) and income.  Despite the fact that this case involved a long-term marriage, my client spent years in the dark.  Unfortunately, despite multiple court orders requiring him to provide financial disclosure, the husband remained noncompliant and secretive.

             As a result, my client and I had to undertake time-consuming discovery and legal proceedings to uncover the truth about the husband's financial conditions.  Among other things, we issued subpoenas to the husband's employer and banking institutions in which the husband maintained accounts.  We arranged for asset searches, and undertook an exhaustive deposition (oral questioning under oath) of the husband.  As a result, we were able to uncover certain assets that the husband had tried to conceal.  Did we get the whole truth?  We will never really know. 

             Divorce seems to bring out the worst in human nature.   Not surprisingly, many marriages fall apart because one or both parties has unresolved psychological issues.  These same issues are sometimes manifested - during the divorce proceedings - by vindictiveness, bitterness, and rage.  In the worst case scenario, a spouse resorts to physical violence.  If you are concerned that your spouse (or former spouse) presents a physical danger to yourself or your children, a Family Court Order of Protection may be required.  An experienced New York divorce lawyer should be fully familiar with the legal standards and procedural mechanisms for obtaining an order of protection under New York's Family Court Act.  Sadly, dealing with the threat of domestic violence is part of a divorce attorney's job. 

             Regardless of how well you think you know your spouse, do not assume that he or she will be cooperative or forthcoming.  Prepare for the worst.  Gather all documents relating to the assets, debts, income, retirement assets, and any other aspect of the financial affairs, from the beginning of your marital relationship to the present.  Copy those documents, and place them in a secure place (for example, the office of your divorce attorney, or some other place to which your spouse does not have access).  If you are facing divorce, you should consult with an experienced New York divorce lawyer at the earliest possible stage.  New York divorce lawyer Marc Rapaport has 18 years of experience, and handles all NY family law and matrimonial matters.  Call us today for an appointment: (212) 382-1600.

 

All Rights are Reserved.
Rapaport Law Firm, 2011.

December 02, 2011

REFLECTIONS OF A NEW YORK DIVORCE LAWYER OF TRENDS AFFECTING DIVORCE AND FAMILY LAW IN 2011

            As a New York divorce lawyer, an important part of my job involves identifying the economic and social trends that affect divorcing couples.  In this article, I will try to summarize some of the most significant trends and factors currently affecting New York divorce cases.

(1) The Continuing Stagnation of the Economy Affects All Families, and is both a Cause of and Complicating Factor in New York Divorce Cases:

 In 2011, the continued stagnation of the economy has been the dominant issue affecting divorcing families.  The stagnant economy affects divorce on a number of different levels.  Economic pressures sometimes fuel (or at least contribute to) the pressures and tensions that lead to marital distress (and, consequently, divorce).  The loss of a job, and protracted unemployment, often cause emotional distress and physical ailments, which, in turn, affect all family members.  Sometimes, families are left without quality medical insurance coverage.  In addition, declining income and net worth have profound impacts on how a variety of legal and factual issues in New York matrimonial cases are resolved.  Previously, it was assumed that in nearly every case, the role of a New York divorce lawyer was to protect a client's interest in the seemingly ever-increasing equity in a marital residence.  Today, many New York couples are saddled with homes in which they have little or no equity.   Sometimes, divorce is made more difficult by the inability of the one of the spouses to obtain medical insurance, or the parties' inability to sell their marital residence.

 Because New York law requires a full and final resolution of financial issues prior to the issuance of a final judgment of divorce, even the most simple New York divorce case involves a review of the divorcing couple's financial condition.  If nothing else, the assets and liabilities of each spouse must be tallied and apportioned.  Sometimes, that process is as simple as reviewing the parties' most recent credit card and bank statements. In other instances, valuations of pensions, retirement accounts, and real estate must be performed, sometimes with the involvement of outside experts.  Regardless, each case provides a window into the financial trends and conditions affecting New Yorkers.   During the past year, the view from that window has been particularly bleak. 

(2)  Increasing Frequency of New York Divorce Among Baby Boomers:

More than 25% of people who get divorced are over the age of 50.  Researchers at Bowling Green State University recently released a report that details what divorce lawyers already know from first hand experience: the rate of divorce among older people has dramatically increased in recent years.  The report predicts that the rate of divorce among baby boomers (people who were born between 1946 and 1964) will continue to rise.  As a New York divorce lawyer, I have noticed, during the past several years, that an increasing proportion of divorce cases involve couples whose children have already left the home.  Divorce cases involving baby boomers present unique challenges.  Because many baby boomers have been married for the duration of their careers, their pensions and other retirement assets are often of greater value and importance than is the case among younger couples who get divorced.  In addition, because they are nearing retirement, baby boomers are often relying on their retirement assets as essential - and sometimes their only - financial resources.  If you are a baby boomer facing divorce, it is essential for you to retain a divorce lawyer who is thoroughly familiar with the complex laws, such as ERISA, relating to the division of retirement accounts.  Pensions and other qualified retirement accounts are distributed through a specific type of decree, called a Qualified Domestic Relations Order (QDRO).  Your lawyer must be familiar with federal and state laws pertaining to QDRO's, as well as New York's unusually complex divorce laws.  The law relating to distribution of retirement benefits is complex, and requires the involvement of an experienced New York divorce lawyer.  A lawyer who does not specialize in New York divorce may be unaware that specific language must be included in a marital separation agreement and QDRO to protect a client's interest in death benefits and other aspects of retirement accounts.

(3) The Increasing Number of Pro Se Divorce Litigants:

The financial crisis has also led many more people to file their divorces pro se (without hiring an attorney).   The dramatic increase in the number of people handling their own divorces has led to the rise of a new industry, do it yourself divorce forms.  Particularly in cases that do not involve distribution of valuable property or other complex financial issues, many litigants find that they are able to avoid hiring a divorce lawyer.  However, in divorce cases that do involve contested financial or other issues, pro se litigants are oftentimes confused about their rights and the appropriate procedures. 

If you are facing the prospect of divorce, it is important that you get advice and guidance from an experienced New York divorce attorney.  Rapaport Law Firm has assisted New York residents in divorce and family law matters since 1995.  We are located in Manhattan's Empire State Building.