Home » Speaking Engagements » Kathleen Donelli, White Plains lawyer, Divorce Law in New York State

Kathleen Donelli, White Plains lawyer, Divorce Law in New York State

DIVORCE LAW IN NEW YORK STATE

_________________________________________________________________________

Presented by:

Kathleen Donelli, Esq.

McCarthy Fingar LLP

11 Martine Avenue

White Plains, New York 10606

Tel. No. (914) 946-3700

Website: www.mccarthyfingar.com

_________________________________________________________________________

PACE WOMEN'S JUSTICE CENTER

July 27, 2004

_________________________________________________________________________

TABLE OF CONTENTS

I. GETTING STARTED

A. Litigation v. Alternative Dispute Resolutions........................................

1. Mediation ..................................................................................

2. Collaborative Law .......................................................................

B. JURISDICTION ........................................................................................

1. Supreme Court ...........................................................................

2. Family Court ...............................................................................

3. Concurrent Jurisdiction ............................................................

4. Referral Jurisdiction .................................................................. 2

5. Integrated Domestic Violence Court ("IDVC") ......................... 3

C. TEMPORARY ("PENDENTE LITE") RELIEF:

WHAT TO ASK FOR ...............................................................................

II. YOU'VE GOT TO HAVE FAULT (or An "Opting-Out Agreement") ………. 1

III. CHILD SUPPORT ………………………………………………………………… 13

1. Child Support Standards Act …………………………………………… 13

2. Mandatory Add-Ons……………..……………...................................... 13

3. Discretionary Add-Ons…………………………………………………... 14

4. Deviations from the basic child support obligation ........................ 14

5. Health Insurance ................................................................................ 15

6. Life Insurance..................................................................................... 15

7. College Expenses ............................................................................. 15

8. Who is Required To Pay Child Support

A. Sole and joint Legal and/or Physical Custody

B. Joint Physical Custody

C. Split Custody

9. Duration of Child Support ............................................................... 16

10. Enforcement ..................................................................................... 17

11. Modification of Child Support - Change of Circumstances......... 18

A. Test - Change of Circumstances ............................................. 18

B. Modification When Support Adequate

- Unforeseen Changes ............................................................ 19

C. Arrears Cannot Be Modified...................................................... 19

IV. MAINTENANCE (a/k/a alimony or spousal support) ……………………...... 12

A) Factors Considered …………………………………..................... 12

V. EQUITABLE DISTRIBUTION (applies to all divorce actions

commenced on or after July 19, 1980, under DRL § 236B,…………….. 3

A. Separate Property ………………………………………………… 3

B. Marital Property …………………………………………………… 4

C. Factors in Determining Spouse's "Equitable" Distribution…… 4

1. Statutory ………………………………………………………………. 4

2. Egregious Fault …………………………………………………

A. Domestic Violence Cases Awarding

Victim/Spouse More Than 50% ………………………… 9

B. Husband's Refusal to Grant A GET ………………….. 10

C. Cases Rejecting "Egregious Fault" Argument …….. 10

D. Compulsory Financial Disclosure ………………………… 11

E. Marital v. Separate Property .......................................

F. Date of Valuation

G. Retirement Benefits

H. Licenses and Degrees

I. Bankruptcy

J. Expert Valuations

K. Tax Impacting

L. Tort Actions……………………………………………….11-12



I. GETTING STARTED

A. Litigation v. Alternative Dispute Resolutions

1. Mediation

2. Collaborative Law

B. JURISDICTION

1. Supreme Court, 111 Grove Street, White Plains, New York 10601

Jurisdiction over matrimonial actions, which includes: actions for separation, annulment, or dissolution of marriage, divorce, declaration of the validity of a foreign judgment of divorce, and declaration of the validity or nullity of a marriage.

2. Family Court

Family Court has jurisdiction over child support and custody, except when prior "matrimonial actions" are pending.

Paternity actions and adoption proceedings in Westchester County must be brought in Family Court. A divorce action cannot be brought in Family Court.

3. Concurrent Jurisdiction

The Supreme and Family Court both have jurisdiction over issues of child support, maintenance and domestic violence. However, once a divorce action is commenced in Supreme Court, a subsequent action for custody or support cannot be brought in Family Court while the divorce action is pending in Supreme Court.

4. Referral Jurisdiction

If a divorce action is commenced in Supreme Court after the commencement of a support proceeding in Family Court, the Supreme Court has the power to remove the prior Family Court proceeding to Supreme Court.

The Supreme Court may refer an issue of support or may exercise its jurisdiction over support even where the Family Court has previously issued an Order. In such a situation, the Family Court's Order terminates when the Supreme Court makes an order of support, unless the Supreme Court decides to continue the Family Court's order.

5. Integrated Domestic Violence Court ("IDVC")

This court is designed to allow one judge (in Westchester, Hon. Daniel Angiolillo) to hear all the legal issues, criminal - family court - matrimonial, that may arise when domestic violence occurs.

When a criminal case is pending in the Domestic Violence part of Supreme Court, the justice presiding in that part will transfer designated Family Court cases to the IDVC. The integrated court will handle petitions for: custody, visitation, paternity and family offenses. The court will also assume jurisdiction over a petition for support; although the support issue will still be heard initially by a Hearing Examiner. Any objections to the Hearing Examiner's determination will be filed with and determined by the justice presiding in the IDVC.

While the Family Court petition is pending in the IDVC, all inquiries or other communications regarding the petition should be directed to the staff of the IDVC. The staff may be reached by mail addressed to: IDVC Courtroom 1402, Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Blvd., White Plains, New York 10601; or by telephone to the following individuals: Ms. Jacky Green, Senior Court Office Assistant at 995-6531; Ms. Selene Jackson, Senior Court Clerk at 995-7416; Mr. Robert Nicolais, Esq., Project Director at 995-6038 and Ms. Cherron Condon, Case Manager at 995-3292.

C. TEMPORARY ("PENDENTE LITE") RELIEF: WHAT TO ASK FOR

A. Maintenance

B. Child Support

C. Custody

D. Law Guardian

E. Restraint of Assets

F. Exclusive Use and Occupancy

G. Experts' Fees

H. Attorneys' Fees

I. Retroactive to Date of Application

J. Credits

K. Effect of Denial of Relief

I. When To Make a Pendente Lite Motion

A. Before making a pendente lite motion, counsel needs a completed, thorough and accurate Statement of Net Worth and should consider the following:

the parties' financial status quo

is the motion necessary to maintain the financial status quo

could relief be agreed to by stipulation and/or at a preliminary conference

will a letter to opposing counsel proposing interim support be effective

will negotiations on interim support take more time than a pendente lite motion

is the financial cost of the motion justified

what is the likelihood of success on the merits

will the motion help or hurt the resolution of the matrimonial action

can the action be resolved quickly.

B. You must make a pendente lite motion if:

you need an immediate temporary order of protection

the payor spouse refuses to maintain the financial status quo or discontinues life and/or medical insurance

your client wants temporary support to be effective as early as possible (i.e., temporary support orders are retroactive to the date of application)

future events may be less favorable to your client's position (e.g., payor spouse's employment contract terminates in six months)

there is an emergency (e.g., need to restrain the transfer or dissipation of assets; car lease terminates; trip to Israel with the children; roof needs repair; child needs tuition)

II. YOU'VE GOT TO HAVE FAULT (or An "Opting-Out Agreement")

In New York, the only manner in which a spouse can obtain a divorce without proving fault against the other spouse is by living separate and apart for one year pursuant to a written agreement of separation (a/k/a "opting-out agreement," "stipulation of settlement," "separation agreement"). However, once the parties have entered into a written Separation Agreement, it is common to obtain an immediate uncontested default divorce on an agreed-upon fault ground, such as constructive abandonment.

Domestic Relations Law of the State of New York (McKinneys) (hereinafter "DRL"), § 170(1)-(6) lists the following grounds for divorce:

(1) cruel and inhuman treatment (more than mere incompatibility; must be serious misconduct, Hessen v. Hessen, 33 N.Y.2d 406 (1974); Brady v. Brady, 64 N.Y.2d 339 (1985)); also, 5-year Statute of Limitations;

(2) abandonment for more than one year (constructive abandonment is probably the most often used ground for an uncontested default divorce if the parties do not want to wait for one year after their written agreement is signed to obtain a divorce);

(3) prison for three or more consecutive years;

(4) adultery;

(5) decree or judgment of separation (rare); and

(6) written separation agreement (very common).

A jury trial is permitted to contest grounds for divorce.

III. CHILD SUPPORT

1) Child Support Standards Act ("CSSA")

Domestic Relations Law ("DRL") §240- 1-b

Family Court Act ("FCA") §413

A. Standard and Factors for Determining the Amount of Child Support

1. Basic Child Support

Under New York's Child Support Standards Act (CSSA), a court must always determine the basic child support obligation, even if the court ultimately deviates from this amount in formulating the final child support award. A court may deviate from this basic child support obligation only under extraordinary circumstances, as described in the statute.

Child Support percentages:

17% for one child

25% for two children

29% for three children

31% for four children

no less than 35% for five or more children.

In Cody III v. Evans-Cody, 435 N.Y.S.2d 1181 (2d Dep't 2001), the mother left her three children and husband to become a "wrangler" at a ranch in Arizona, spending part of her $130,000 inheritance (i.e., separate property) on a $19,000 Jeep and a $15,000 mortgage. The father earned $40,000 and the mother earned $21,455 per year. The Second Department increased the mother's child support obligation from $484.37 to $900 per month, reasoning that it is proper to consider her inheritance in computing child support.

2. Mandatory Add-Ons

Pro rata share of reasonable child care expenses while the custodial parent is working, attending school, job training. Summer camp should be specified in lieu of childcare.

Pro rata share of reasonable health care expenses that are not covered by health insurance (i.e., "unreimbursed medical insurance").

In Gentner v. Gentner, 736 N.Y.S.2d 431 (3rd Dept. 2001), the Appellate Division ruled that the trial court did not err when it failed to apportion add-on expenses in proportion to the parties’ income. The Court held that a pro rata sharing of uninsured/unreimbursed medical expenses and childcare expenses is appropriate only when the non-custodial parent’s basic child support obligation has been calculated pursuant to the CSSA, and not when the court decides that the formula is unjust or inappropriate and sets child support under DRL §240 (1-b)(g). (See paragraph 4 below)

3. Discretionary Add-Ons

Childcare expenses while the custodial parent is looking for work.

Child's educational costs, such as private school or college tuition.

Child's educational enrichment costs, such as tutoring.

UNCLEAR: If Court can direct the non-custodial parent to pay child's extracurricular expenses, such as piano lessons, horseback-riding lessons

4. Deviations from the basic child support obligation

Factors to be considered to determine if the non-custodial parent's pro rata share of basic child support would be "unjust or inappropriate."

Financial resources of both parents and the child

Physical/emotional health of the child; any special needs or aptitudes

Standard of living the child would have enjoyed had the household not dissolved

Tax consequences to the parties

Non-monetary contribution of the parents toward the care of the child

Educational needs of either parent

Substantial differences in gross incomes of the parents

Needs of other children under the care of the non-custodial parent (but only if the financial resources of those children are less then the child requesting support)

Extraordinary expenses of the non-custodial parent in making visitations, or expenses of non-custodial parent in extended visitations (but only if the extended visitations substantially reduce the custodial parent's expenses)

Any other factor which the court deems relevant.

5. Health Insurance

6. Life Insurance

7. College Expenses

A court may, as part of an award of child support, require a non-custodial parent to contribute his share of the cost of a college education (see, DRL § 240 [1-b] [b] [2]; FCA § 413 [1] [c] [7]).

In the First, Third and Fourth Departments, the application of a credit for college expenses is discretionary and generally limited to the cost of room and board (see, Finkelstein v. Finkelstein, 268 A.D.2d 273, 275 [1st Dep't 2000]; Paro v. Paro, 215 A.D.2d 965, 966 [3d Dep't 1995]; Houck v. Houck, 246 A.D.2d 905, 906 [3d Dep't 1988]; Burns v. Burns, 233 A.D.2d 852, 853 [4th Dep't 1996]). On a case-by-case basis, where appropriate, trial courts in these departments may order a reduction in basic child support commensurate with the non-custodial parent's pro rata share of the costs of food and lodging at college.

However, in the Second Department, the rule is that the trial court is to give the non-custodial parent a credit against child support for any amounts he or she contributes toward college expenses when the child lives away from home while attending college. In Sheridan v. Sperber, 269 A.D.2d 432, 702 N.Y.S.2d 894 (2d Dep't 2000), the court left no room for doubt that the "college credit" is both mandatory and coextensive with the non-custodial parent's contribution to any college expenses, including tuition. See also, Jablonski v. Jablonski, 25 A.D.2d 692 [2000]; Justino v. Justino, 238 A.D.2d 549 [1997]; Vainchenker v. Vainchenker, 242 A.D.2d 620 [1997]).

The dollar-for-dollar mandatory credit for college expenses does not apply where there is an agreement between the parents that does not provide for the downward modification of child support if the non-custodial parent contributes to college expenses. Thus, the court in Maurer v. Erdheim, 738 N.Y.S.2d 885 (2d Dep't 2002) held that the non-custodial parent does not get a credit against child support for his contribution toward college expenses because the Stipulation of Settlement did not provide for it.

8. WHO IS REQUIRED TO PAY CHILD SUPPORT

A. Sole Custody or Joint Legal Custody and the children reside with the Custodial Parent

In most instances, the custodial parent (i.e., the parent with whom the children live) receives child support.

B. Joint Physical Custody

In Baraby v. Baraby, 250 A.D.2d 201; 681 N.Y.S.2d 826 (3d Dep’t 1998) the court explained how to calculate child support in equal share physical custody situations. As indicated on page 827 of the case, the court held that:

where, as here, the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the "noncustodial" parent for the purpose of support regardless of the labels employed by the parties [citations omitted]. That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless "statutory formula yields a result that is unjust or inappropriate".

C. Split Custody

Courts have determined each parent's basic child support obligation and subtracted the lower from the higher child support obligation.

9. Duration of Child Support

1. Parents are required to support their child until the child has reached the age of 21, or has become emancipated.

2. Emancipation may include any event that indicates that the child is living separately and independently from a parent, or is self-supporting, for example:

a. Completion of four years of college

b. Child's marriage

c. Permanent residence away from either parent (excluding residence at school)

d. Child's enrollment in the armed forces of the United States

e. Child's full-time employment (excluding employment during vacation and summer periods).

10. Enforcement

1. Attorneys' Income Execution - CPLR § 5241

2. Income Deduction Order by Court - CPLR § 5242

3. Support Collection Unit (only when order is combined with child support) - FCA § 440(b)(1)

4. Suspension of driving privileges, state professional, occupational, business and recreation licenses - DRL § 244-a, 244-b, 244-d.

11. Modification of Child Support - Change of Circumstances

Custody and support provisions can be annulled, modified, or amended on notice motion. DRL §240. The child is not bound by the terms of the parents' Separation Agreement. The court must take into account the child's best interests; the assets, earnings, and liabilities of the noncustodial parent; and the financial condition of the custodial parent.

A. Test - Change of Circumstances

A child has a right to receive adequate support. When a request for increased support is based on the fact that the support is inadequate (i.e., the child's needs have increased), modification will be made upon a showing (i) of a change of circumstances warranting the increase, and (ii) that the modification is in the best interests of the child. Factors that are insufficient by themselves to warrant a modification, but are considered by the court in determining adequacy of support and the best interests of the child are:

(i) Increased needs of the child due to special circumstances or additional activities;

(ii) Increased cost of living;

(iii) Loss of income or assets by a parent or a substantial improvement in financial condition of a parent; and

(iv) Current and prior lifestyle of the child.

[Brescia v. Fitts, 56 N.Y.2d 132 (1982); Michaels v. Michaels, 56 N.Y.2d 924 (1982)]

B. Modification When Support Adequate

- Unforeseen Changes

When modification of support is sought for reasons other than that it is inadequate to meet the child's needs (i.e., to redistribute burden between parents), the party seeking the change must demonstrate that there are unforeseen and unreasonable changes in circumstances warranting the modification. Boden v. Boden, 42 N.Y.2d 210 (1977); Brescia v. Fitts, supra.

C. Arrears Cannot Be Modified

By statute, arrears for child support cannot be reduced or canceled, even if they have not been reduced to a money judgment. Note: The court may reduce or annual arrears of maintenance that have not been reduced to final judgment.

IV. MAINTENANCE (a/k/a alimony or spousal support)

Absent an agreement between the parties, the court may order temporary maintenance or maintenance to meet the reasonable needs of a party as determined by the parties' pre-separation standard of living. [DRL §236B(6)].

A. Factors Considered

Factors that must be considered in determining the amount and duration of maintenance include the following:

(i) Income and property of respective parties after distribution of marital property, and tax consequences of award;

(ii) Duration of the marriage;

(iii) Health and age of the parties;

(iv) Capacities for self-support, and time and training required to become self-supporting;

(v) Custody of children;

(vi) Tax consequences to each party;

(vii) Contributions as a spouse, parent, wage earner, and homemaker; and to the career of the spouse by the potential maintenance recipient;

(viii) The wasteful dissipation of marital assets by either spouse, or any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(ix) Present and future earning capacities of both parties;

(x) Lost lifetime earning capacity as a result of foregoing or delaying education, training, employment, or career opportunities during marriage; and

(xi) Any other factor that the court expressly finds just and proper.

V. EQUITABLE DISTRIBUTION (DRL § 236B)

A. Separate Property includes:

1) Property acquired before marriage;

2) Property acquired by bequest, devise, descent, or gift from a nonspouse;

3) Compensation for personal injuries;

4) Property acquired in exchange for or by increase in value of separate property (less contributions by other spouse); and

5) Property described as separate by written agreement of the parties.

B. Marital Property is all property (except for Separate Property) acquired by the parties after the date of the marriage and before the commencement of the divorce action.

Marital Property includes:

1) Enhanced Earning Capacity from Academic Degrees or Professional Licenses. O'Brien v. O'Brien, 66 N.Y.2d 576 (1985) (medical degree); McSparron v. McSparron, 87 N.Y.2d 275 (1995) (masters degree);

2) Pensions (Majaukas v. Majaukas, 61 N.Y.2d 481 (1984));

3) Gifts between or to both spouses (Ackley v. Ackley, 100 A.D.2d 153 (1984));

4) Commingled Separate Property where Party asserting Separate Property cannot meet burden of tracing asset to Separate Property;

5) Active appreciation of Separate Property is subject to equitable distribution; passive appreciation is not.

C. Factors In Determining Spouse's "Equitable" Distribution

1. Statutory

RULE: The court in deciding equitable distribution must set forth the factors it considered in its decision and such requirement may not be waived by either party or counsel. (DRL §236(B)(5)(g)). The court must set forth these factors in a clear and comprehensive manner. Dunne v. Dunne, 172 A.D.2d 482, 567 N.Y.S.2d 838 (2d Dep’t 1991).

1. The specific factors found in DRL §236 (B) (5) (d) are as follows:

(1) The income and property of each party at the time of the marriage and at the time of the commencement of the action.

(i) An unequal award of equitable distribution was justified in view of the parties' respective financial circumstances, including the husband's substantial separate property assets. Glasberg v. Glasberg, 162 A.D.2d 586, 556 N.Y.S.2d 772 (2d Dep’t 1990).

2. Duration of the marriage and the age and health of both parties.

(i) Wife awarded eighty percent of the proceeds from the sale of the marital residence where the wife was forty-­two years old, lacked any formal education and had an inability to achieve financial independence. Pagan v. Pagan, 138 A.D.2d 685, 526 N.Y.S.2d 498 (2d Dep’t 1988).

3. Need of the custodial parent to occupy or own the marital residence and to use or own its household effects.

(i) Ordinarily there is a preference to award the custodial parent exclusive use and occupancy of the marital residence. Leabo v. Leabo, 203 A.D.2d 254, 610 N.Y.S.2d 274 (2d Dep’t 1994).

(ii) The preference that the custodial parent remain in the marital residence may be overcome by proof that alternate housing is available in the general area at a more affordable cost, or the party to remain is incapable of maintaining the home or that either party is in immediate need of the sale proceeds. Kalisch v. Kalisch, 184 A.D.2d 751, 585 N.Y.S.2d 476 (2d Dep’t 1992); Waldmann v. Waldmann, 231 A.D.2d 710, 647 N.Y.S.2d 827 (2d Dep’t 1996).

(iii) Even where a husband has substantial income, if it would be unduly burdensome to force him to bear the cost of maintaining the marital residence in the face of financial obligations and his child support obligations, it should be sold. In essence, the need of the custodial parent to occupy the marital residence is outweighed by the financial need of the parties to sell the house. Lauer v. Lauer, 145 A.D.2d 470, 535 N.Y.S.2d 427 (2d Dep’t 1988).

(iv) Sale of the marital residence was directed where immediate and paramount concerns of providing for the children's college education outweighed the preference for continuing occupancy. Ricciardi v. Ricciardi, 173 A.D.2d 807,571 N.Y.S.2d 41 (2d Dep’t 1991).

4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution.

5. Any award of maintenance under DRL §236 (B) (6) (a).

6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker and to the career and career potential of the other party.

(i) An equal distribution of assets was proper where the husband was essentially the sole wage earner in the course of a nineteen year marriage and the wife was a full-time parent, spouse and homemaker. Dawson v. Dawson,152 A.D.2d 717, 544 N.Y.S.2d 172 (2d Dep’t 1989).

(ii) Wife's comparatively small financial contributions earlier in the marriage were held to be very significant since they enabled the husband to pursue his own education and career opportunities. Anderson v. Anderson, 153 A.D.2d 823, 545 N.Y.S.2d 335 (2d Dep’t 1989).

7. The liquid or non-liquid character of all marital property.

(i) It was error to award virtually all liquid assets to one spouse while leaving the other spouse with only pension interests, the full value of which was not subject to immediate realization. Petrie v. Petrie, 143 A.D.2d 258, 532 N.Y.S.2d 283 (2d Dep’t 1988).

(ii) It was also error to award virtually all marital property to one spouse while leaving the other spouse with merely a distributive award, the full value of which would not be immediately received and which might not be received in the future. Filax v. Filax, 176 A.D.2d 1194, 576 N.Y.S.2d 692 (4th Dep’t 1991).

8. Probable future financial circumstances of each party.

(i) A distribution in excess of fifty percent was justified upon consideration of all the statutory factors, particularly the probable future financial circumstances of the parties. The likelihood that the husband would continue prosperous growth in his medical practice was compared to the wife's modest financial prospects. Megally v. Megally, 142 A.D.2d 721, 531 N.Y.S.2d 301 (2d Dep’t 1988).

9. Impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party.

10. The tax consequences to each party.

(i) Where husband failed to present any evidence of tax consequences of distribution, equitable distribution without consideration of tax consequences was appropriate. Malin v. Malin, 172 A.D.2d 721, 569 N.Y.S.2d 743 (2d Dep’t 1991).

(ii) However, where no evidence of taxable consequences was presented at trial and was only raised in post-trial memos, the Appellate Division, as a matter of discretion, considered the taxable consequences of the equitable distribution since to refuse to do so would have resulted in a fundamental injustice. Teitler v. Teitler, 156 A.D.2d 314, 549 N.Y.S.2d 13 (1st Dep’t 1989).

(iii) Tax Impact: Where husband paid taxes in connection with sale of stock, wife was entitled to fifty percent of the net proceeds after taxes. Hackett v. Hackett, 147 A.D.2d 611, 538 N.Y.S.2d 20 (2d Dep’t 1989).

Failure to Sign Joint Tax Return: Any adverse financial consequences of a party's refusal to sign a joint and/or amended tax return proffered by the other spouse can be taken into account in distributing the marital property. Teich v. Teich, 240 A.D.2d 258, 658 N.Y.S.2d 599 (1st Dep’t 1997).

See, IX. "Tax Impacting" and Tax Indemnification Letter (Ex. D).

11. The wasteful dissipation of assets by either spouse.

(i) Where a wife dissipated marital assets and attempted to conceal same, at least a portion of the amounts she dissipated should be charged against her share of the marital assets. Lenczycki v. Lenczycki, 152 A.D.2d 621, 543 N.Y.S.2d 724 (2d Dep’t 1989).

(ii) Where a spouse transferred assets to trusts and other corporations which were, in essence, his alter ego, a distributive award was necessary to achieve an equitable result in the distribution of property. Goldberg v. Goldberg, 172 A.D.2d 316, 568 N.Y.S.2d 394 (1st Dep’t 1991).

(iii) The shared liability caused by a spouse's failure to properly report income to the taxing authorities. Moody v. Moody, 172 A.D.2d 730, 569 N.Y.S.2d 116 (2d Dep’t 1991).

(iv) Wife awarded seventy percent of the marital property where husband had tangled financial records, dissipated marital assets through gambling, was evasive and attempted to secrete moneys. Conceiaco v. Conceiaco, 203 A.D.2d 877,611 N.Y.S.2d 318 (3d Dep’t 1994).

(v) Wife awarded sixty percent of the marital assets where husband refused to obtain employment for a two year period prior to trial and withdrew large sums of cash for his expenses. Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S. 2d 704 (4th Dep’t 1994).

(vi) Wife awarded sixty-five percent of the marital property where husband secreted assets into foreign bank accounts and squandered sizable sums on luxury items and admitted adulterous affairs. Maharam v. Maharam, 245 A.D.2d 94, 666 N.Y.S.2d 129 (1st Dep’t 1997).

(vii) Wife awarded seventy-five percent of the value of the marital residence where husband wastefully dissipated marital assets. Ferdinando v. Ferdinando, 236 A.D.2d 585, 654 N.Y.S.2d 652 (2d Dep’t 1997).

12. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration.

13. Any other factor which the court shall expressly find to be just and proper.

2. "Egregious Fault"

A. Domestic Violence Cases Awarding Victim/Spouse More Than 50%

1. Havell v. Islam, 301 A.D.2d 339, 751 N.Y.S.2d 449 (1st Dep’t 2002).

Wife was awarded 95% of the marital assets which had a value of approximately 20 million dollars, where the Husband broke into the Wife's room, pinned her to the bed with his knee and beat her viciously with the barbell on her face, neck and hands. Her screams brought the parties' three daughters into the room and the oldest called 911, which resulted in the Husband renewing his attack with a pipe. The Wife's injuries were severe and in addition to facial and dental surgeries, she suffered pain, dizziness, headaches, nightmares, sleeplessness and post-traumatic stress syndrome.

The Husband's contention that egregious fault requires interference with the spouse's ability to be or to become self-supporting was wrong. Impairment of economic independence is not a requirement of a finding of egregious fault. There is a requirement that the conduct grievously injures some highly valued social principle.

2. Brancoueanu v. Brancoveanu, 145 A.D.2d 395, 535 N.Y.S.2d 86 (2d Dep't 1988).

Wife was awarded 60% of the net proceeds of the marital residence because the Husband's attempt to hire a person to murder the Wife constituted "particularly egregious and shocking" marital misconduct.

The court also held that a "great injustice would result if the Husband, who unsuccessfully contrived to have his Wife murdered" were to be awarded a portion of the value of the Wife's dental practice.

3. Wenzel v. Wenzel, 120 Misc.2d 1001, 472 N.Y.S.2d 830 (Sup. Ct. Suffolk Co. 1984).

Wife was awarded 100% of the marital residence and the Husband's police pension, taking "into consideration" the Husband's vicious attack and "partly to compensate the Wife for child support and maintenance, which were uncollectible due to the Husband's incarceration."

Husband stabbed the Wife numerous times and fled the marital residence "leaving her for dead." The Wife required extensive hospitalization, surgery and therapy. The Husband was arrested 5 months later, convicted of attempted murder and at the time of the decision was serving an 8-1/2 to 25-year prison term.

B. Husband's Refusal to Grant A GET

(1) By withholding a Get to extract economic concessions, the husband forfeited his right to a distributive award. Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 (2d Dep’t 1996).

(2) The trial court properly awarded the Wife all property listed on the parties' statements of net worth if the husband did not grant her a Get within a specified time period. Pinto v. Pinto, 260 A.D.2d 622, 688 N.Y.S.2d 701 (2d Dep’t 1999).

C. Cases Rejecting "Egregious Fault" argument

1. Generally, marital fault is not a relevant consideration unless the conduct is so egregious that it shocks the conscience of the court. Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 (2d Dep’t 1984.

(a) Wife's involvement in an adulterous relationship did not rise to the level of such egregious or uncivilized conduct as to warrant depriving her of an equal share of the marital assets. Lestrange v. Lestrange, 148 A.D.2d 587, 539 N.Y.S.2d 53 (2d Dep’t 1989).

(b) Husband's fraudulent promise to have children, resulting in Wife having passed the age of child bearing, did not constitute egregious marital fault. McCann v. McCann, 156 Misc.2d 540, 593 N.Y.S.2d 917 (Sup. Ct. N.Y. Co. 1993).

D. Compulsory Financial Disclosure

Financial Disclosure is compulsory in all Supreme Court divorce actions (DRL § 236(4)) and Family Court proceedings (Family Court Act ["FCA"] § 424-a) involving support. Each party must provide the other with a sworn Net Worth Statement, certified by the party's attorney (together with a current and representative paycheck stub and the most recently filed state and federal income tax returns) within the earlier of 10 days after issue is joined or 20 days after a written demand is served.

E. Marital v. Separate Property

1) Definitions

2) Burden of Proof

3) Commingling and Transmutation

A. Financial Accounts

B. Marital Residence

4) Active v. Passive Appreciation

5) Debts

F. Date of Valuation

The Court has discretion to select any date between the

commencement of the divorce action and the date of trial.

G. Retirement Benefits

1) Defined Benefit v. Lump Sum

2) Qualified Domestic Relations Orders

3) Disability Pensions

H. Licenses and Degrees

- The Hougie Issue: "Exceptional Earnings Capacity" Not Resulting

From A Degree or License

I. Bankruptcy

J. Expert Valuations

1) Real Property

2) Pensions

3) Businesses

K. Tax Impacting

L. Tort Actions

Ms. Donelli, a partner in McCarthy Fingar LLP, practices primarily in the area of matrimonial law. She is the President of the Westchester Women's Bar Association (www.wwbany.org) and a former Vice-President of the YWCA of White Plains and Northern Westchester.

Contact Me

If you think you may require the assistance of Kathleen Donelli in any matter, email (kdonelli@mccarthyfingar.com) or phone her (914-385-1010) with any question you may have.