Home » Publications & Outlines » Kathleen Donelli, White Plains Divorce Lawyer, Initial Contact with Matrimonial Clients - 2-8-06

Initial Contact with Matrimonial Clients

Pace University School of Law

February 8, 2006

Kathleen Donelli, Esq.*

McCarthy Fingar LLP

11 Martine Avenue

White Plains, New York 10606

_______________________________________________________________________

"INITIAL CONTACT WITH MATRIMONIAL CLIENTS"

_______________________________________________________________________

Table of Contents Page

I. JURISDICTION

II. Grounds

III. Retainer Agreements

IV. Pendente Lite Motion

V. Custody and Visitation

VI. Child Support

VII. Equitable Distribution

VIII. Maintenance

IX. EXHIBITS

a. Client informaTION SHEET AND PACKET (INTAKE SHEET)

b. sAMPLE sTATEMENT OF cLIENTS rIGHTS

C. jones garneau, llp sample retainer agreement

d. Child support standards chart

e. custody questionaire

I. JURISDICTION

1. Supreme Court DRL 240

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 FCA 651

Family Court has ancillary jurisdiction in Article 4 child support, Article 8 family offense 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. Subject Matter Jurisdiction DRL 75

Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA)

4. Concurrent Jurisdiction

The Supreme and Family Court both have jurisdiction over issues of child support and maintenance. 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.

5. 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.

6. Integrated Domestic Violence Court ("IDVC")

This court is designed to allow one judge (in Westchester, Hon. Samuel Walker) 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.

7. Residency Requirements DRL 230

Either party has been a resident for a continuous period of at least one (1) year preceding the date of commencement (“DOC”), and the parties:

1) were married in New York; or

2) have resided in New York as Husband and Wife; or

3) cause of action occurred in New York; or

4) Cause of Action occurred in New York and both parties are New York residents at the DOC; or

5) Either party has been a resident for a continuous period of at least two (2) years preceding the DOC.

8. Connecticut or New Jersey: Consider if issues may involve grounds, licenses or degrees, separate property

II. GROUNDS

1. Cruel and Inhuman Treatment

Archibald v. Archibald, 15 A.D.3d 431, 791 .Y.S.2d 565

2. Abandonment

· Physical

· Constructive at 186 

3. Adultery

· Conversion Divorce at 188

III. A) RETAINER AGREEMENTS IN DOMESTIC RELATIONS MATTERS:

Part 1400 of the Joint Rules of the Appellate Division (22 NYCRR 1400, Ex. I)

Effective as of November 30, 1993, attorneys in domestic relations matters MUST:

· give prospective clients a statement of clients rights and responsibilities under §1400.2,

· have a written retainer agreement complying with the conditions and containing the information set forth in §1400.3,

· if the attorney wants to charge a "minimum fee", this provision must be included in the retainer agreement under §1400.4,

· if the attorney wants the option of seeking a security interest for unpaid legal fees, this provision must be included in the retainer agreement under §1400.5,

Under DR 2-106(C)(2), attorneys must have a written retainer agreement in domestic relations matters.

Under §202.16(c) of the Uniform Rules for the New York State Trial Courts, a signed copy of the retainer agreement must be attached to the Statement of Net Worth that under §202.16(f) is to be filed with the court 10 days prior to the preliminary conference which is to be held within 45 days after the matrimonial action has been assigned to a judge.

B) FAILURE TO OBTAIN A RETAINER AGREEMENT IN DOMESTIC RELATIONS MATTERS BARS AN ATTORNEY FROM COLLECTING LEGAL FEES

Bishop v. Bishop, 743 N.Y.S.2d 724 2002 N.Y. App. Div. LEXIS 5976 (2d Dep't 2002):

It is well settled that a "[matrimonial] attorney is precluded from seeking fees from his or her client where the attorney has failed to comply with 22 NYCRR 1400.3, which requires the execution and filing of a retainer agreement that sets forth, inter alia, the terms of compensation and the nature of services to be rendered." (Mulcahy v. Mulcahy, 285 A.D.2d 587, 588, 728 N.Y.S.2d 90; see Kayden v. Kayden, 278 A.D.2d 202, 717 N.Y.S.2d 908; Potruch v. Berson, 261 A.D.2d 494, 688 N.Y.S.2d 897). Likewise, an attorney's failure to provide a prospective client with a statement of rights and obligations will also preclude collection of a fee (see Hunt v. Hunt, 273 A.D.2d 875, 876 , 709 N.Y.S.2d 744), as will the attorney's failure to provide itemized bills at least every 60 days (see Julien v. Machson, 245 A.D.2d 122, 666 N.Y.S.2d 147; Kaplowitz v. Newman, 185 Misc.2d 205, 206, 713 N.Y.S.2d 115). The failue to abide {**3] by these rules, "'promulgated to address abuses in the practice of matrimonial law and to protect the public,'" will result in preclusion from recovering such legal fees (Mulcahy v. Mulcahy, supra at 588, quoting Julien v. Machson, supra).

Settembrini v. Settembrini, Unpublished, Hon. Fred Shapiro (N.Y. Sup. Ct. August 19, 2002).

Attorney sought unpaid legal fees from client he represented in a matrimonial matter. Attorney represented client in prior estate and tax matters but did not ask the client to sign a retainer agreement. Attorney also did not ask client to sign a written retainer agreement until after beginning representation in the matrimonial action. Attorney was allowed to recover fees earned subsequent to the time he provided the client with a Statement of Client’s Rights and Responsibilities and executed a retainer agreement for the matrimonial action, because there was substantial compliance with the matrimonial rules, which is a prerequisite to recovering unpaid legal fees. The court disallowed fees of over $20,000 for work attorney completed prior to the date client signed the written retainer agreement.

C. AN ATTORNEY CAN CHARGE FOR AN INITIAL CONSULTATION WITHOUT A RETAINER AGREEMENT BUT MUST HAVE A SIGNED STATEMENT OF CLIENT’S RIGHTS AND RESPONSIBILITIES

NYSBA Opinion 685 3/19/97

Prospective clients in matrimonial matters must be provided with the Statement of Client’s Rights and Responsibilities, but need not be asked to sign retainer agreements, at consultations that occur before the attorney has agreed to undertake the representation. An attorney can charge the client for the initial consultation so long as he or she provides the client with a clear understanding of the cost of the consultation and the method by which it will be calculated.

D. MAY NEED A NEW RETAINER AGREEMENT WHEN PARTNER CHANGES

LAW FIRMS

Esanu Katsky Korins & Siger, LLP v. Stoessinger, N.Y.L.J. 9/20/01 at 17 (Civil Ct. N.Y. Co. September 2001)

Attorney was retained in June 1993, prior to the November 30, 1993 effective date of 22 NYCRR 1400 et seq. and Part 136.5(c) (the "Matrimonial Rules") and continued to represent the client when he changed law firms in 1995. The court denied his claim for legal fees in the amount of $17,613.61 incurred while at his former law firm, reasoning that the client had retained the attorney's former law firm and without evidence of an assignment of rights from his former law firm, the attorney lacked standing to pursue a claim for legal fees owed to his former law firm.

The court then denied his claim for legal fees in the approximate amount of $53,000 incurred while at his current law firm because the attorney failed to obtain a written retainer from the client after he changed law firms in 1995. Citing Flanagan v. Flanagan, 267 A.D.2d 80 (1st Dep't 1999) and Julien v. Machson, 245 A.D.2d 122 (1st Dep't 1997), the court reasoned that the attorney was not entitled to recover attorneys fees incurred at his new law firm because he had not substantially complied with the Matrimonial Rules.

Lesson: Get a written assignment of rights and a new retainer letter for each active client when changing law firms.

Koeth v. Koeth, 2002 NY Slip Op 40046U (Sup. Ct. Nassau Co. 2002)

Attorney sought enforcement of his charging lien. A retainer agreement had been executed between the attorney’s law firm and his client in 1995 in compliance with 22 NYCRR 1400.3 and client received a Statement of Client’s Rights and Responsibilities in compliance with 22 NYCRR 1400.2. Attorney left his law firm several months later and continued to represent client in her matrimonial action without executing a new retainer agreement or tendering a Statement of Client’s Rights and Responsibilities. The court held that the attorney was entitled to the fees earned after leaving his law firm. Client-defendant cited in support of its position Potruch v. Berson, (Supreme Ct., Nassau Co. Index No.29881/1997) [aff’d, 261 A.D.2d 494; 688 N.Y.S.2d 897 (2d 1999)], in which the plaintiff-attorney was denied legal fees for failing to comply with 22 NYCRR 1400. 

The court distinguished Potruch from this case. In Potruch, the retainer agreement was signed between the law firm and the client before the attorney seeking the fees became affiliated with the firm. The attorney in Koeth, however, was employed at the firm at the time of the execution of the retainer agreement, which was executed on firm letterhead on which the attorney’s name was printed as a “name” partner. The attorney in Potruch transferred to second and third firms as well, and still no retainer was executed. In Koeth, the court found that the attorney’s second firm adopted the retainer of the former firm and that the attorney, in two subsequent motions filed on behalf of client, also adopted the original retainer agreement. In addition, the attorney sent out all bills to the client on his letterhead.

Finally, and most compelling, is that the client, on three occasions, ratified the original retainer agreement in her motions to the court and acknowledged her awareness of the status of the legal fees paid on account. The court, in allowing the fees, stated that the attorney’s conduct did not violate the “spirit and purpose” of the rules.

Distinguished: Esanu may be distinguished from Koeth, because in Esanu, the client never signed a Retainer Agreement, while in Koeth, the client signed a Retainer Agreement with the first firm.

E. NEED A NEW RETAINER AGREEMENT WHEN SCOPE OF LEGAL SERVICES CHANGES

Hunt v. Hunt, 273 A.D.2d 875, 709 N.Y.S.2d 744 (4th Dep't 2000).

The Wife's motion papers were stricken due to her attorney's failure to file the requisite certifications pursuant to 22 NYCRR 202.16(e) and 130.1.1a.

Wife's attorney was not entitled to attorney's fees because the attorney also violated the Matrimonial Rules by not providing a statement of client's rights and responsibilities and a written retainer agreement. The court rejected the attorney's argument that the Matrimonial Rules did not apply because the attorney was retained before November 30, 1993, reasoning that the "motion brought by plaintiff was a new 'claim' within the meaning of 22 NYCRR 1400.1."

Lesson: Get a Statement of Clients Rights and Responsibilities, as well as a written retainer agreement, when representing a client on what a court might determine to be a new "claim" or a "substantial" change in the scope of legal services.

F. ADDITIONAL CASES INVOLVING A FAILURE TO OBTAIN A RETAINER AGREEMENT AND/OR COMPLY WITH ADDITIONAL MATRIMONIAL RULES

In the Matter of Melinda Pollard, 2001 N.Y. App. Div. Lexis 12186 (2d Dep't 2001)

Attorney suspended from the practice of law for one year because when she was retained in September 1998 to obtain an uncontested divorce for client, she failed to provide a written retainer agreement and did not file the necessary documents to procure the divorce until November 1999 (after the client filed a complaint).

Anne R. Mueller, Plaintiff v. Thomas Pacicca, Defendant, 179 Misc.2d 392, 684 N.Y.S.2d 753 (City Court of New York, White Plains) (1998) (Friia, J.). 

Attorney directed to refund legal fees where she failed to serve a notice to arbitrate under 22 NYCRR 136.5(a) and (c) until 8 days after commencement of action for unpaid legal fees and where she failed to obtain a written retainer agreement under 22 NYCRR 1400.3.

K.E.C., Plaintiff v. C.A..C., Defendant, 173 Misc.2d 592, 661 N.Y.S.2d 175 (Sup. Ct., Kings Co.) (1997) (Yancey, J.). 

Denying charging lien for failure to timely provide Statement of Rights to client and otherwise comply with Matrimonial Rules.

Susan Moraitis, Plaintiff v. Dean Morris, Defendant, 181 Misc.2d 510, 694 N.Y.S.2d 588 (Sup. Ct., Nassau Cty.) (1999) (Jonas, J.). 

Denying retaining lien for failure to provide notice of right to arbitration. Denying charging lien, without prejudice to renew once notice of right to arbitration was served.

L.H., Claimant v. V.W., Defendant, 171 Misc.2d 120, 653 N.Y.S.2d 477 (Civil Ct., Bronx Cty.) (1996) (Ling - Cohan, J.C.C.). 

Dismissing Civil Court action of matrimonial lawyer to recover fees for failure to plead compliance with the Matrimonial Rules.

George Phillips, Plaintiff v. Carlota Phillips, Defendant, 178 Misc.2d 159, 678 N.Y.S.2d 24 (Sup. Ct., Nass. Cty.) (1998) (Cozzens, J.). 

Signature on retainer agreement by individual holding client's power of attorney does not comply with Matrimonial Rules. Charging lien denied.

G. RETAINER AGREEMENT FOR REDUCED FEE

NYSBA Opinion 739 4/16/01:

A lawyer who has agreed to represent a low or moderate income individual in a matrimonial action for a reduced fee may include in the retainer a provision contemplating an application to the court for counsel fees from the client's spouse at the lawyer's customary rate, provided that in the making of an application, the lawyer informs the court of the terms under which the lawyer has accepted the engagement.

H. MISLEADING RETAINER AGREEMENTS

NYSBA Opinion 719 7/28/99:

A lawyer may not incorporate into the retainer agreement additional grounds for withdrawal other than those specified in 22 NYCRR 1400 if the lawyer does not specify the requirements under DR 2-110 of the Code of Professional Responsibility. Specifically, DR 2-110 forbids a lawyer from withdrawing until the lawyer obtains the consent of the tribunal, if required, and takes appropriate steps to avoid foreseeable prejudice to the rights of the client. Withdrawing without doing so would contravene DR 2-110 by misleadingly implying that a lawyer may terminate the representation without complying with these requirements.

A retainer agreement is also misleading if the agreement contains grounds for withdrawal not specified in 22 NYCRR 1400 and incorporates the statement that such circumstances “shall be good cause for withdrawal.” The use of “shall” implies to the client that the lawyer has an absolute right, and perhaps even a duty, to withdraw under any of the additional enumerated circumstances. The statement “may be good cause for withdrawal” is less misleading. 

Additionally, it is improper to enumerate in the retainer that in the event a client fails to pay a bill within 30 days, the client agrees that the firm may terminate the representation. Such clause does not address whether the client’s nonpayment was deliberate. Disciplinary rule DR 2-110(C)(1)(f) permits a lawyer to withdraw only if the client “[d]eliberately disregards an agreement or obligation to the lawyer as to expenses or fees.”

I. WRITTEN TERMINATION LETTER TO COMMENCE THREE-YEAR STATUTE OF LIMITATIONS FOR ATTORNEY MALPRACTICE; LAST INVOICE TO COMMENCE TWO-YEAR TIME PERIOD WITHIN WHICH A CLIENT MUST COMMENCE A FEE DISPUTE ARBITRATION

Shumsky v. Eisenstein, 96 N.Y.2d 164, ­750 N.E.2d 67, 726 N.Y.S.2d 365 (2001).

The rule of "continuous representation" tolls the three-year statute of limitations on legal malpractice actions, but only where the attorney's representation pertains specifically to the matter in which the malpractice was committed. In this case, an attorney was retained to sue a home inspector for breach of contract. The attorney failed to commence the action before the statute of limitations expired in March 1994. He thereafter failed to tell plaintiffs this, and when they called to inquire about the status of the case in October 1996, the attorney put off responding to the inquiry because he was embarrassed.

Fourteen months later, plaintiffs sued the attorney for malpractice. The attorney argued that the plaintiffs were time-barred because the malpractice occurred when the statute of limitations expired on plaintiffs' contractual claim against the home inspector (March 1994) and plaintiffs did not file their malpractice action until December 1997, more than 3 years later.

The Court of Appeals applied the continuous representation rule, stating that upon signing a retainer agreement, plaintiffs and defendant "reasonably intended that their professional relationship would continue." Plaintiffs' attempt to contact their attorney in October 1996 confirmed that understanding. Plaintiffs reasonably thought at the time that their attorney was working on their case. When he failed to return their calls, that put them on notice that their attorney's representation had ceased. This ended the "continuous representation" toll. Since plaintiffs commenced their malpractice action within the three-year limitations period for malpractice actions, their action was held to be timely.

Lesson: Consider ending a possible "continuous representation" toll by sending clients a letter formally terminating representation. Also consider that under the new fee dispute arbitration rules (§ 137.1(b)(6)), the client cannot commence an arbitration where “no attorney’s services have been rendered for more than two years” (i.e., two years after receiving the final invoice).

IV. Pendente Lite Motions

A. When To Make a Pendente Lite Motion

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.

Preliminary Conference

The Rules specifically provide that motions for interim relief may be made at the preliminary conference. 22 NYCRR Sec. 202.16(f)(2). See, 22 NYCRR Sec. 202.16(k)(1): "Such motion shall be made before or at the preliminary conference, if practicable." Although the Rules provide for motions to be made at these conferences, the Rules do not suspend the formalities of motion practice. 

You should make a pendente lite motion if:

· your client needs 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)

B. What To Ask For

a. Temporary Maintenance

1. The general purpose of a temporary award of maintenance is to address the reasonable needs of the parties. The primary consideration should be the actual financial needs of the moving party. Ferdinand v. Ferdinand, 215 A.D.2d 350, 625 N.Y.S.2d 650 (2d Dept. 1995).

2. The Court is not required to consider the statutory factors in DRL 236(B)(6)(a) in determining an application for interim maintenance, which is designed to meet the reasonable needs of the needy spouse. Basch v. Basch, 114 A.D.2d 829, 494 N.Y.S.2d 740 (2d Dept. 1985).

3. While the prior standard of living is a relevant factor in determining a temporary award, the movant's actual financial need is also a significant factor. Aron v. Aron, 216 A.D.2d 98, 628 N.Y.S.2d 102 (1st Dept. 1989).

4. The fact that the parties continue to reside in the same household after the commencement of a matrimonial action does not preclude temporary maintenance or child support. Salerno v. Salerno, 142 A.D.2d 670, 531 N.Y.S.2d 101 (2d Dept. 1988); Koerner v. Koerner, 170 A.D.2d 297, 566 N.Y.S.2d 23 (1st Dept. 1991).

5. Is temporary maintenance taxable to the recipient and tax deductible to the payor? Court can direct in order that maintenance payments are not taxable to the recipient.

"If the spouses are subject to temporary support orders (as described in Sec. 71 (b)(2)(C)), the designation of otherwise qualifying alimony or separate payments as nondeductible and excludible must be made in the original or a subsequent temporary support order." Treas. Reg. Sec. 1.7 1 -IT, A-8

See, Lasry v. Lasry, 180 A.D.2d 488, 579 N.Y.S.2d 393 (1st Dept. 1992): "Finally, it was within the sound discretion of the IAS court, pursuant to Internal Revenue Service Temporary Regulation (26 CFR) Sec. 1.71-IT(a) to provide that the maintenance payments be neither deductible to him nor taxable to the plaintiff."

b. Temporary Child Support

1. The Child Support Standards Act does not strictly apply to temporary orders of child support as it does in final orders. The structure of temporary child support is entirely within the discretion of the Court. Rizzo v. Rizzo 163 A.D.2d 15, 558 N.Y. S.2d 12 (1st Dept 1990).

c. Temporary Custody

1. Ex parte orders of temporary custody are generally granted only if there is a compelling reason for the Court to do so (e.g., domestic violence, child's special needs).

2. If the situation is serious and requires intervention before the return date of the Order to Show Cause, consider requesting the ex parte appointment of a law guardian.

3. The general rule is that temporary orders of custody and visitation should not be granted without a hearing. Hizme v. Hizme, 212 A.D.2d 580, 622 N.Y.S.2d 737 (2d Dept. 1995); Alberts v. Alberts, 168 A.D.2d 1004, 565 N.Y.S.2d 945 (4th Dept. 1990). However, I've never had a hearing because temporary custody is usually ordered ex parte and then continued by stipulation.

d. Restraint of Assets

1. The purpose of restraining orders on assets in a matrimonial action is to preserve the status quo of marital property pending equitable distribution. The movant must illustrate that his or her spouse is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution. Kroteya v. Kroteya, 170 A.D.2d 371, 566 N.Y.S.2d 265 (1st Dept. 1991).

2. DRL Sec. 234 authorizes a Court to issue pendente lite injunctive relief in a marital action without requiring the movant to make the requisite showing normally required by CPLR Article 63: irreparable harm and a likelihood of success on the merits. However, a prerequisite to the issuance of such an order is a showing by the movant that the party to be restrained is attempting or threatening to dispose of marital assets so as to adversely affect the movant's ultimate rights in equitable distribution. Loderhose v. Loderhose, 216 A.D.2d 275, 627 N.Y.S.2d 453 (2d Dept 1995). Maillard v. Maillard, 211 A.D.2d 963, 62 N.Y.S.2d 715 (3d Dept. 1995).

3. It is error for the Court to issue sua sponte a preliminary injunction restraining a party from transferring or encumbering property other than in the course of ordinary business, as due process requires that the party so enjoined receive notice that the court will consider such a remedy. Holmes v. Holmes, 151 A.D.2d 911, 542 N.Y.S.2d 884 (3rd Dept. 1989); Monroe v. Monroe 108 A.D.2d 793, 485 N.Y.S.2d 310 (2d Dept. 1985).

e. Exclusive Use and Occupancy

1. The movant must demonstrate that a directive for the exclusive possession of the marital home pendente lite is necessary to protect the safety of persons (i.e., the movant and/or the children) or of property. Goodson v. Goodson, 135 A.D.2d 604, 522 N.Y.S.2d 182 (2d Dept 1987); Tessitore v. Tessitore, 140 A.D.2d 786, 527 N.Y.S.2d 888 (3rd Dept. 1988).

2. Under appropriate circumstances, a court may award exclusive possession of the marital residence pendente lite where one spouse has caused domestic strife and has voluntarily established an alternative residence. Annexstein v. Annexstein, 202 A.D.2d 1062, 609 N.Y.S.2d 132 (4th Dept. 1994).

3. The general rule is that exclusive possession, pendente lite should not be granted without a hearing. Formato v. Formato 173 A.D.2d 274, 569 N.Y.S.2d 665 (1st Dept. 1991). However, exclusive use and occupancy may properly be awarded without a hearing upon a sufficient showing of abuse that is supported by uncontroverted medical evidence. Preston v. Preston, 147 A.D.2d 464, 537 N.Y.S.2d 824 (2d Dep’t 1989), see also Fakiris v. Fakiris, 177 A.D.2d 540, 575 N.Y.S.2d 924 (2d Dep’t 1991); Harrilal v. Harrilal, 128 A.D.2d 502, 512 N.Y.S.2d 433 (2d Dep’t 1987); King v. King, 109 A.D.2d 779, 486 N.Y.S.2d 291 (2d Dep’t 1985).

4. Is domestic strife sufficient to obtain exclusive occupancy of the martial residence?

f. Experts' Fees

1. DRL §237 provides the statutory authority for the Court to award counsel fees and expenses upon proper application.

2. DRL § 237(d) defines "expenses" to include accountant fees, actuarial fees, etc. The four factors to be considered by the Court in determining the propriety of an application for "expenses":

a. The nature of the marital property involved;

b. The difficulties involved, if any, in identifying and evaluating the marital property;

c. The services rendered and an estimate of the time involved; and

d. The applicant's financial status.

3. Thus, a proper application for expert fees must include an affidavit of the expert satisfying the four elements of DRL § 237(d). Failure to set forth the required elements will result in the denial of the motion. Coppola v. Coppola, 129 A.D.2d 760, 514 N.Y.S.2d 754 (2d Dept).

4. The Matrimonial Rules provide the authority for the Court to appoint an expert to give testimony with respect to equitable distribution or custodial issues. The cost of such expert witness shall be paid by a party or parties as the court shall direct. 22 NYCRR § 202.18.

5. The Court may direct at the preliminary conference that a list of expert witnesses be filed with the Court within thirty days of the conference from which the Court may select a neutral expert to assist the Court. 22 NYCRR § 202.16(f)(3).

6. Upon any application for an award of counsel fees or appraisal/accounting fees made prior to the conclusion of the trial, the Court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision. 22 NYCRR § 202.16(k)(7).

g. Attorneys' Fees

1 The requirements and authority for the application for counsel fees in found in DRL § 237(a) and 22 NYCRR § 202.16(k)(3). DRL §237 provides:

“a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2)for a separation, or (3) for a divorce, or (4) to declare the validity or nullity of a judgment of divorce rendered against a spouse who was the defendant in any action outside the State of New York an did not appear therein where such spouse asserts the nullity of such foreign judgment, or (5) to enjoin the prosecution in any other jurisdiction of an action for a divorce, the court may direct either spouse…to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding, as, in the court’s discretion, justice requires, having regard to the circumstances of the case and of the respective parties.”

Sec. 202.16(k)(3) provides that:

No motion for counsel fees shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf the movant, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee.

2. Submit an affidavit revealing billing rate, justification for the rate, professional standing and experience in the field. Describe in brief detail the work already done and that which you expect to do. Argue the rough rule of equality inherent in DRL § 237: you should be paid at least as much as the propertied spouse paid his/her counsel.

h. Procedural Aspects

1. DRL Sec. 236(B)(6)(a) and 236(B)(7)(a) require that a pendente lite order for maintenance and child support be effective as of the date of application therefor. The date of the application is the date of service of the application. Dooley v. Dooley, 128 A.D.2d 669, 513 N.Y.S.2d 167 (2d Dept. 1987).

2. A temporary award is extinguished when the permanent award is made. No order fixing arrears can be made after the permanent award. McLaughlin v. McLaughlin, 143 A.D.2d 941, 533 N.Y.S.2d 581 (2d Dept. 1987).

3. Where the underlying action is dismissed, a hearing has to be held if the financial award is to be continued. Sass v. Sass, 129 A.D.2d 622, 514 N.Y.S.2d 257 (2d Dept. 1987).

i. Applicable Statutes and Rules

1. The CPLR

Article 22 of the CPLR is entitled "Stay, Motions, Orders and Mandates" and contains the fundamental rules applicable to all motions, regardless of the subject matter of the case. The basic rules are:

· CPLR 2214 (a): what a Notice of Motion must state

· CPLR 2214 (b): timetable for serving moving, answering and reply papers

· CPLR 2214 (e): what the Court must receive from the parties

· CPLR 2214 (d): Order to Show Cause (timing of answering papers and return date are in Court's discretion, and are thus not subject to same time constraints as noticed motions)

· CPLR 2215: cross motions; timetable (Caution: no right of reply)

· CPLR 2217(b): affidavit on ex parte motion (i.e., order to show cause) must state if there has or has not been a prior request for the same relief and, if there bas, explain why a new application.

2. The New York Code, Rules and Regulations (NYCRR)

· Certification of Papers. 22 NYCRR 130-1.1-a is entitled "Signing of Papers". This section pertains to all papers served in every kind of case, matrimonial or otherwise, and requires that every pleading, written motion and other papers, served on another party or filed or submitted to the court must be signed by an attorney. By signing a paper, the attorney or party is certifying that, to the best of his or her knowledge, information and belief, formed after a reasonable inquiry, the submission of the paper or the contentions contained in the paper are not frivolous as defined in 22 NYCRR 130-1.1 (c). 22 NYCRR 130-1.1 defines "frivolous" conduct as being (a) completely without merit in law; or (b) designed to create delay or to harass; or (c) the assertion of false factual statements. See also 202.16 (e).

· Briefs and Affidavits. 22 NYCRR 202.8(c) provides that "affidavits shall be for a statement of the relevant facts, and briefs shall be a statement of the relevant law." Thus, attorney affirmations should not contain legal citations and arguments. (Note: this rule is widely ignored in matrimonial practice.)

· Matrimonial Rules. 22 NYCRR 202.16 is entitled "Matrimonial Actions; Calendar Control of Financial Disclosure in Actions and Proceedings Involving Alimony, Maintenance, Child Support and Equitable Distribution; Motions for Alimony, Counsel Fees Pendente Lite, and Child Support, Special Rules." The provisions relevant to motions are:

· 202.16(f)(2): At the preliminary conference, the court may consider applications for pendente lite relief. Be prepared; either make your motion (i.e., serve the papers) prior to the preliminary conference, or come prepared to discuss, in detail, the merits of the issues. Some judges will try to "conference" the issue and avoid a motion. See also, 202.16 (k)(1): "Such motion shall be made before or at the preliminary conference, if practicable."

· 202.16(k)(2): All motions for temporary support and counsel fees must have attached a statement of net worth. Failure to attach the statement of net worth is a fatal defect that cannot be cured in reply papers.

· 202.16(k)(3): All motions for counsel, accounting and expert fees must contain a submission by the professional seeking fees explaining money received, work to be done and fee agreement. This means you must attach your retainer agreement if you are seeking counsel fees.

· 202.16(k)(4): For the purposes of the motion (not the balance of the case) any fact set forth in the moving party's statement of net worth that is not contraverted in the responding party's statement of net worth or sworn affidavits is deemed to be true.

· 202.16(k)(5): In the court's discretion, non-compliance with any of the provisions of Sec. 202.16 may be the basis of the Court's either making inferences favorable to the adverse party or denying the motion outright, without prejudice to renewal upon compliance with the provisions of the section.

· The Individual Judges’ Rules

Virtually every Judge publishes his or her own rules. You can find them in each Judge's courtroom, the New York Law Journal, or on the web at www.courts.state.ny.us.

j. Credits

A pendente lite award is retroactive to the date of application, with the payor spouse being entitled to a credit against the retroactive sums for amounts voluntarily paid by him/her for maintenance and support during that period for which s/he has canceled checks or other similar proof of payment, including payments of real estate taxes on marital residence, charge accounts and car insurance paid for the payee. Mamet v. Mamet, NYLJ, 11/5/87, p.13, col.2 (Sup. Ct., N.Y. Co.); West v. West, 151 A.D.2d 475,542 N.Y.S.2d 265 (2d Dept. 1989).

k. Effect of Denial of Relief

The fact that temporary maintenance was denied during the pendency of the action does not preclude an award of retroactive maintenance in the final order. DeBergalis v. DeBergalis, 156 A.D.2d 335, 496 N.Y.S.2d 311 (4th Dept. 1989).

l. Oral Arguments

The most important rules for oral argument are:

· Be on time!

· Bring your client.

· Be prepared by thoroughly knowing the facts and the law.

· Be succinct. The court’s calendar is usually full, and judges do not lave the time or the patience for repetitious arguments. Explain your main points to the judge as concisely as you can.

· Make the record clear. Ask the judge for a clarification of his or her ruling if you must.

· Do not be argumentative with the judge. Make your points, and take exception to an adverse ruling if necessary, but be respectful at all times.

· Listen to the judge and your adversary.

· Know when to stop talking! If the judge is ready to rule, or has ruled in your favor, do not belabor the point.

· Make arrangements with the court reporter to purchase a copy of the transcript. This is essential for preparing and filing the judge’s order.

V. CUSTODY AND VISITATION

1) Terms

· Custody- parent's supervisory relationship with children

· Physical/Residential Custody- the right of a parent to reside with their child

· Legal Custody- the right of a parent to make decision's for their child

· Visitation/Access/Parenting Time- the right of a parent to spend time with their child

· Sole Custody- one parent enjoys the right to reside with and make decisions for their child

· Joint/Shared Custody- both parents share legal and or physical custody

· Split Custody- dividing residential custody of siblings between parents

· Spheres of Decision Making- the right of each parent to exercise sole and final decision-making authority in specific discreet areas of decision-making

· Married parents share legal and physical custody as of right (DRL 81). When a biological father and biological mother marry after the child's birth, the child becomes the legitimate child of the now-married parents (DRL 24). The State may not deprive a parent of the custody of a child absent surrender, abandonment, persisting neglect, unfitness or other like extraordinary circumstances. If any of such extraordinary circumstances are present, the disposition of custody is influenced or controlled by what is in the best interest of the child. Bennet v. Jeffreys, 40 NY2d 543 (1976).

2) STANDARD FOR DETERMINING CUSTODY between parents is the court's discretion having regard for the circumstances of the case, parties and best interests of the child. DRL 240(1).

A. Parental Fitness

· Mental health - Although the defendant mother has a character disorder, and has tended toward emotional flare-ups in the past, these flagrant shortcomings in her nature do not make her too unstable to [*891] care for the child. Testimony adduced at the trial revealed that the infant was well cared for while in her custody. In view of the wealth of testimony adduced at the trial, and the extensive examination into the qualifications and background of each parent, full consideration was given to "whether the mother is an adequate parent, in capacity, motivation, and efficacious planning". Gorra v. Gorra 54 AD2d 890 (2d Dept 1976).The Court did not eff in requiring the mother undergo psychotherapy part of any expanded or overnight visitation. Landau v. Landau, 214 AD2d 541 (24 Dept 1995),

· Physical health - Despite mother's paraplegia resulting from a car accident, the court determined it was in the best interests of the child to remain with her mother. Hatz v. Hatz, 97 AD2d 629 (3d Dept 1982).

· Substance abuse - The court took notice of father's alcohol dependency problem despite its recognition that he was a loving parent and custody was awarded to mother MM M v. Albert JM, 154 AD2d 354 (2d Dept 1989)

· Neglect or abuse of subject or other children such as lack of supervision, excessive school absences, excessive corporal punishment, etc. FCA Art 10. The requisite "extraordinary circumstances" existed to justify depriving the father of custody of his son based on his sexual abuse of said child. The Court awarded custody to a non-biological parent. Parliament v. Harris, 697 NYS2d 694 (1999). However, false allegations may be viewed as interference with the parent/child relationship warranting a custody award to the other parent Turner v. Turner, 260 AD2d 953 (3d Dept 1999) -

· Abuse of spouse - DRL 240 (1) requires an allegation in a sworn pleading proven by a preponderance of the evidence JD v. ND, 170 Misc2d 877 (Fam Ct West Co 1996) and ER v. GBR, 648 NYS.2d 257 (Fam Ct West Co 1996). The presence of a child during domestic abuse often warrants the denial of custody to an abuser. In any action concerning custody or visitation where domestic violence is alleged, the court must consider the effects of such domestic violence upon the best interests of the child. Wissink v. Wissink, 749 NYS2d 550 (2d Dep't 2002). The court held that domestic violence committed in the presence of the children was sufficient to establish neglect per se In Re Lonnell J., N.Y.L.J. May 21, 1998, p. 25, col. 3 (Vt Dep't 1999). The courts determined that a change in circumstances warranting a custody modification was shown when the children were repeatedly exposed to domestic violence against their mother by her new husband. Bishop vs. Livingston, 475 N.Y.S.2d 588 (3rd Dep't 2002). Although the court-ordered clinical evaluator and the law guardian recommended awarding custody of the children to the father, the court's analysis of the impact of the father's domestic violence on the mother resulted in the court granting custody to the mother ER- v. GBR, 649 NYS2d 257 (Fam. Ct West Co 1996).

B. Primary Caregiver

Parent who had primary responsibility for the day-to-day care of their child. This factor acknowledges an implied pre-divorce de facto agreement between the parties as to the parties' respective child rearing responsibilities. Carr v. Carr, 171 Ad2d 776 (2d Dept 1991). Practice tip: argue on behalf of the primary care taking parent that this division of responsibilities constitutes evidence that the other spouse considers the primary care-taking spouse fit.

C. Psychological Parent

Examines the quality of interaction between a parent and child; who the-­child looks to for comfort, guidance and assistance; the parent with, whom the child is most bonded. This factor is best assessed by a mental health professional such as the forensic evaluator.

D. Child's Preference

This factor is not determinative, but is accorded weight see Eschbach; with the amount of weight depending on the child's age, maturity, the potential for pressure exerted by a parent upon the child's stated preference see Spetter v. Spetter, 133 Ad2d 750 (2d Dept 1997); Clara L v. Paul M., 251 AD2d 22 (1' Dept 1998) and the reason for the preference McCrocklin v. McCrocklin, 77 AD2d 624 (2d Dept 1990). Generally, courts will give great weight to wishes of an older child (13 -17 years), Bergson v. Bergson, 414 NYS2d 593 (1979) The law guardian or forensic evaluator can present the child's preference. Also, the child may be interviewed in camera see Lincoln v. Lincoln NY2d 270, 24 (1969) where the court recognized that interviewing a child, who is the subject of custody litigation, in private and out of the presence of the parties and their counsel, will limit the psychological danger to the child and will also be far more informative than the traditional procedure of the adversary system.

E. Stability

Because there is a preference for stability in the lives of children, the Court will give weight to the informal physical custodial arrangement of already physically separated parents see Lobo v. Muttee, 196 Ad2d 585 (2d Dept 1993). This factor is of primary importance in modification of custody proceedings. Practice note: this is a factor in advising clients seeking custody to remain in the marital residence.

F. Home Environment

The relative quality of the homes and the care-taking plans of each parent; including physical safety and adequate space see Lyons v. Lyons, 112 AD2d 232 (2d Dept 1985), inappropriate relationship between parent and paramour or parent's paramour and child; financial fitness Welman v. Dutch, 198 AD2d 791 (4h Dept 1993); employment history see Lukaszewicz v. Lukaszewicz, 256 AD2d 1031 (3d Dept 1999) and child care arrangements see Del Pgpa v. Del Papa, 172 AD2d 799 (2d Dep't 1991).

G. Parental Interference

Any interference in the parent/child relationship is so inconsistent with the best interests of the child, that it raises fitness issues regarding the interfering parent see Young v. Young, 212 AD2d 114 (2d Dept 1995). Parental Alienation Syndrome does not meet the Frye test of being a generally accepted scientific theory, see People v. Fortin, 289 AD2d 11590 (2d Dept 2001). The court changed custody and ordered supervised visitation for the father upon discovering during an in camera interview that the children, who had been living with that father, viewed the mother as "the enemy". Zafran v. Zafran, 745 NYS2d 587 (3rd Dep't 2002)

H. Siblings

Courts have overwhelmingly strong policy for keeping siblings together to promote familial bonds. Eschbach v. Eschbach, 56 NY2d 167 (1982). However, the best interests of the children may outweigh reluctance to separate siblings. People ex rel Repetti, 377 NYS 571 (1975). In Copeland v. Copeland, 232 AD2d 922 (3d Dept 1996), the court determined that given the dynamics of family life, the rule that it is best to keep siblings together is not absolute and need not be applied where the record indicated that the best interest of each child lies with a different parent.

3. LEGAL CUSTODY

A. Joint Custody Joint legal custody envisions a form of shared decision-making on specified issues; usually including health, education, religion and welfare. Although there is no legal presumption in favor of joint custody in NYS, there is often a judicial preference in favor of joint legal custody. The Court does have the authority to order joint custody where there is a history of mature and civilized decision-making in the best interests of the children see Guarnier v. Guarnier, 155 AD2d 744 (3d Dept. 1989) but see Voelker v. Keptner, 156 AD2d 144 (4th Dept 1989).

B. Spheres of Decision-Making

­Where the Court awards sole decision-making authority regarding different issues to each parent; (i.e. father medical, mother educational) because the Court recognizes a particular parent's superior ability to deal with a particular issue, in their child's life see Frize v. Frize, 266 Ad2d 753 (3d­ Dept 1999) or the Court is concerned that an award of sole legal custody to the residential parent may result in the exclusion of the non-residential parent from a meaningful relationship with the child see Hugh L v. Fhara N.Y.L.J. June 1, 2000, p. 29, col. 6. In Tran v. Tran. 716 NYS2d 5 (1st Dep't 2000), the court vested decision-making authority in the non-residential parent with respect to the child's therapy.

C. Levels of Parental Involvement in Decision-Making

1 . Joint decision-making on all decisions

2. Joint decision-making on specified important decisions with day-to-day decision-making reserved to the parent present.

3. Joint fact gathering, consultation and decision-making and in the event of deadlock; mediation, arbitration or final decision-making to a particular parent.

4. Joint fact gathering and consultation with sole decision-making to a particular parent.

5. Sole decision-making by a particular parent after consultation.

6. Each parent exercises sole decision-making on a specific sphere of issues.

D. Delineation of Issues for Joint Decision-making/Consultation

1. change in access schedule

2. decisions resulting in expenditures in excess of $

3. activities which take place on other parent's time

4. change in child support plan

5. educational decisions including private v public school, selecting a college, and hiring tutors.

6. health-related decisions including selecting physicians, following treatment recommendations; obtaining mental health services, and orthodontia, teaching about birth control and emergency treatment.

7. religious training and education

8. miscellaneous decisions such as discipline, vacations, driving and extra­-curricula activities.

E. Given Joint Decision-making, Resolving Deadlock

1. divide "spheres of influence" among parents

2. divide "spheres of influence" among third parties

3. use mediation, arbitration, court

4. input by child

F. Communication Including Exchanging Information

1. periodic face-to-face scheduled communication

2. having third parties (doctors and teachers) provide information directly

3. obtaining information directly from child (but not using child as a messenger)

4. using electronic or written communication

4. PHYSICAL CUSTODY

There is a presumption that access to both parents is in the best interests of a child. Access is both a parent's and child's right. see Gerald D. v. Lucille S., 188 AD2d 650 (2d Dept 1992).

A. Scheduling Issues

1. importance of child being in same home on the night before school

2. importance of a particular parent accompanying a child to a particular activity (sports practice, church)

3. the ability of a child to travel to and from school from either home

4. the maximum period of time that the child can tolerate separation from one or both parent

5. geographic distance between homes, transportation issues

6. accommodating child care arrangements

7. need to duplicate belongings

9. transfer problems, lateness

B. Access Schedule Alternatives

1 . alternating weekends (Fri through Sun or Mon) and midweek dinner(s) or overnight visit(s)

2. alternating periods (split week, whole week) equally or unequally

3. two week rotation: 4-3-3-4;5-2-4-3

4. one week rotation: 6-1;5-2;4-3

5. flexible schedule to accommodate variable work shift

C. Scheduling Holidays, School Recesses and Vacations

1. holidays which are important to each parent or the child; if same day; alternate or share

2. do holiday celebrations entail travel to distant relatives?

3. availability of parent(s)/child care on school holidays and recess periods

4. child travel (with or without parent) during school recesses

5. summer camp plans

6. foreign travel

7. if holiday on Monday, Sunday overnight?

9. flexibility v specific rules

D. Suspended, Restricted and Supervised Access

1 . Suspended - Visitation may be suspended if it is inimical to the child' welfare see Licitra v. Licitra, 255 AD2d 394 (2d Dept 1999) and Weiss v. Weiss, 52 NY2d 170.

2. Restricted - The court may place restrictions on visitation based on the needs of the child and or parental fitness. In Lozada v. Lozada., 270 AD2d 422 (2d Dept 2000) the Court limited visitation with an incarcerated parent to 6 time per year. In McNenny v. McNenny, 159 AD2d 440 (1st Dept 1990) the court restricted visitation with a two year old to no overnights, but see Shink v. Shink, 140 AD2d 506 (2d Dept 1988). In Landau the Court conditioned expanding visitation on a parent's cooperation with therapeutic services. In Monahan v. Monahan, 178 AD2d 829 (3d Dept 1991) the Court refused to restrict midweek visitation. In Zion v. Zion, 201 AD2d 404 (1st Dept 1994) the court restricted contact to telephonic communications.

3. Supervised - The courts have also restricted visitation by requiring supervision as recommended by a psychological professional see Laura AK v. TiMpthy M, 204 AD2d 325 (2d Dept 1994) and due to safety issues see D'Errico v. D'Erric-P,, 158 AD2d 503 (2d Dept 1990). For a case which awards restricted, supervised and suspended visitation see Allen v. Farrow, 197 AD2d 327 (1st 1994).

i. Family Court has a contract with the YWCA to provide onsi~e supervision at no cost to the client.

ii. The following agencies provide supervision including therapeutic supervision, on and off-site at fees of up to $75/hour:

1. Little Angle Protective Services

2. Family Resolutions

3. Family Connections

4. Supervised Visitation Experts

5. Relocation

When relocation is proposed, the courts begin with the proposition that the child's best interest generally lie in being nurtured and guided by both natural parents. Although divorced custodial parents may ordinarily pursue their lives as they see fit, they are bound by the fundamental principle that it a decision to have a child imposes on each parent the obligation to protect the child's relationship with the other parent. Weiss v. Weiss, 52 NY 2d 171, (1981). In Tropea v. Tropea, 87 NY2d 727 (1996) the Court found that the relocation preserved regular and meaningful visitation and was in the best interests of the children. This case signals a departure from the prior "exceptional circumstances" standard.

6. Miscellaneous Access Issues

1. Sibling Visitation DRL 71. While it is true that a petitioner in a sibling visitation proceeding has no absolute right to a hearing where, there is a factual dispute as to the best interests of the petitioner's half-siblings, a hearing should be held. Gregston v. Amatulli, 709 NYS2d 599 (2000)

2. Grandparent Visitation DRL 72 and Troxel v. Granville, 120 S.Ct. 2054 (2000)

3. Involvement of a Paramour. The court determined that the presence of the father's paramour during visitation was beneficial and supportive to the child. Hummel v. Hummel, 191 AD2d 296 (It Dept 1993) and Ulmet v. Ulmer, 254 AD2d 591 (3d Dept 1999)

4. Telephone Contact

5. advantages and disadvantages of splitting up children

6. accommodating child's schedule and activities (i.e.; birthday parties and 11 homework)

See sample Petition For Custody annexed as Exhibit "G"

See sample Interim Order of Visitation annexed as Exhibit "H

See sample Custody and Visitation Stipulation annexed as Exhibit "I

7. ROLE OF THE FORENSIC EXAMINER

A. Mental Condition at Issue

A party places their mental condition in issue by contesting custody. Rosenblitt v. Rosenblitt, 107 AD2d 292 (2d Dept 1995). Accordingly, the physician and therapist/patient privileges are waived in a custody trial. Baecher v. Baecher, 58 AD2d 920 (2d Dept 1977)

B. Court-Appointed Versus Party's Expert

The Courts routinely appoint a "neutral" forensic examiner to conduct the custody evaluation. Additional examinations may only be ordered upon a showing that the prior evaluation was inadequate or the party's subsequent behavior raises new issues. Rosenblitt. The forensic examiner" s credentials should be evaluated as to whether his background or specialty is tailored to the specific case, i.e. substance abuse, domestic violence, child abuse.

C. Preparation for Forensic Interview Once a forensic examiner is either appointed or hired it is important to prepare the client for the forensic examiner's role in the litigation which will include his interview with the child(ren), the client and opposing party, psychological testing, reviewing documentary evidence/records and contacts with collateral sources.

D. The Weight Accorded Expert Recommendations The Court does not have to follow the expert's recommendations. Bgye:r; v. Bpyer, 102 AD2d 879 (2d Dept 1984); however, the opinions of Court­appointed experts must be accorded some weight unless they are biasedi,~ based on inadequate information or contrary to the record. Young v. Young, 212 AD2d 114 (2d Dept 1995.).

8. THE ROLE OF THE LAW GUARDIAN

A. Law Guardian's Role The role of a law guardian in disputed custody litigation is to act as champion of the child's best interests, to advocate for the child's references, to conduct an investigation seeking the truth on controverted issues and to recommend alternatives for the Court's consideration, Koppenhoefer v Koppenhoefer, 159 AD2d 113 (2d Dept. 1990).

B. Selection of Law Guardian The lawyer should evaluate the background of the law guardian, reputation and relationship to litigating attorneys.

C. Representing Best Interests versus the Child's Position

1 . Representing Best Interests - A child may choose not to assert a position on the ultimate issue of custody or their position, due to their age, maturity or undue influence by a parent may be incompetent. Under these circumstances it is the responsibility of the law guardian to develop a position in the best interests of her minor client. According to Cannon 7 of the LgMer's Code of Professional Responsibilities, adopted by the New York State Bar Association, when a [anyl client is unable to make considered judgments on his or her own behalf, the lawyer has additional responsibilities to consider all the circumstances then prevailing and act with care to safeguard and advance the interests of the client, including making decisions on behalf of the client.

2. The Law Guardian Investigation - The Law Guardian conducts an investigation in order to assist the minor client in developing a position, which usually includes interviewing the parties, interviewing the children, observing the child with each parent, reviewing legal documents, reviewing educational and therapeutic records, interviewing third parties such as paramours, teachers, therapists, child care givers, etc., and making home visits. The New York State Bar Association's Committee on Juvenile Justice and Child Welfare's Law Guardian Representation Standards direct the law guardian to be a full an d vigorous participant, to ascertain facts, to evaluate whether the child may have been influenced, to participate fully, to interview anyone with relevant information, etc. A law guardian may be removed for their failure to take a sufficiently active role in the proceedings, Elizabeth R. v. Catherine S., 155 AD2d 666 (2d Dept. 1989), Matter of Jasmine H., 98 AD2d 996 (2d Dept. 1982).

3. Representing the Child's Position - If the child is of sufficient age and maturity to assert a position and does so, it is the responsibility of the law guardian to vigorously assert that position.

VI. 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.

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.

B. WHO IS REQUIRED TO PAY CHILD SUPPORT

In most instances, the non-custodial parent must pay child support pursuant to CSSA.

1. Sole and Joint Legal Custody

2. Joint Physical Custody:

In Baraby v. Baraby, the court explained how to calculate child support in equal shared 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" [citations omitted].

3. Split Custody

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

VII. Factors In Determining Spouse's "Equitable Share"

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).

(iv) 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). 

(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) 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).

III. Marital v. Separate Property

1) Definitions

"Marital Property" is defined in Domestic Relations Law ("DRL") §236[B][1](c) as follows:

"c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined."

"Separate Property" is defined in DRL §236[B](1)(d) as follows:

"d. The term separate property shall mean:

(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse (emphasis added);

(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part."

2) Burden of Proof

Judson v. Judson, 255 A.D.2d 656, 679 N.Y.S.2d 465 (3d Dep't 1998)

"Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property."

Pullman v. Pullman, 176 A.D.2d 113, 573 N.Y.S.2d (1st Dep't 1991). There is a presumption that assets commingled with other property acquired during the course of the marriage are marital property.

3) Commingling and Transmutation

A. Financial Accounts

While the act of depositing separate funds into a joint account creates a presumption of an intent to convert those funds into a marital asset, this presumption may be rebutted. The party claiming the funds to be separate bears the burden of rebutting the presumption. In order to rebut the presumption, the party seeking to have the asset classified as separate must prove, by clear and convincing evidence, that the commingling of funds was solely for his or her own convenience.

Failure To Rebut Presumption of Marital Property

Imhof v. Imhof, 259 A.D.2d 666, 686 N.Y.S.2d 825 (2d Dep't 1999) - "Separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital [ . . . .] Here, there is every indication that the husband intended to commingle his funds by depositing the proceeds of the sale of his separate property into joint the accounts and by sharing the proceeds for family and business purposes."

Geisel v. Geisel, 241 AD.2d 442, 659 N.Y.S.2d 511 (2d Dep’t 1997) - By placing the assets in both parties' names as joint tenants with the right of survivorship, the husband demonstrated his intent to transform the character of the asset to marital."

Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 736 N.Y.S.2d 453 (3d Dep’t 2002) –“While an inheritance acquired by one spouse during a marriage and retained separately from marital funds would be considered separate property, the transfer of these assets into a joint account raises a presumption that the funds are marital property to be disbursed among the parties according to the principles of equitable distribution. This presumption cast[s] the burden on defendant to establish, by clear and convincing proof, that the joint account was created only as a matter of convenience [citations omitted]. Defendant conceded that he placed his wife's name on the accounts with the express purpose of making those funds available to her, for her convenience, not his. Thus, Supreme Court properly held that defendant failed to rebut the presumption and we find no reason to disturb the court's determinations regarding the distribution of assets." 

Gundlach v. Gundlach, 223 A.D.2d 942, 636 N.Y.S.2d 914 (3d Dep't 1996) - "Although compensation for personal injuries is, as defendant alleges, usually considered separate property, a presumption that each party was entitled to an equal share of the deposit arose when defendant deposited the settlement money into a joint account (see, Banking Law §675[b]; Krinsky v. Krinsky, 208 A.D.2d 599, 600, 618 N.Y.S.2d 36; Giuffre v. Giuffre, 204 A.D.2d 684, 685, 612 N.Y.S.2d 439). This presumption cast the burden on defendant to establish, by clear and convincing proof, that the joint account was created only as a matter of convenience (see, Krinsky v. Krinsky, supra; Giuffre v. Giuffre, supra). Defendant failed to meet this burden. The evidence of various transfers from the joint account into and out of other accounts confirms plaintiff's testimony that all of the parties' money was handled jointly, regardless of the source."

Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 (2d Dep’t 2000) - "The Supreme Court properly found that the plaintiff commingled separate funds with marital funds, and that he failed to overcome the presumption that those assets available for distribution constituted marital property."

Chambers v. Chambers, 259 A.D.2d 807, 686 N.Y.S.2d 199 (3d Dep’t 1999) - "Defendant concedes that the amounts sought by him were placed in a joint account and then later placed in certificates of deposit or other accounts in his own name. In such instance, a party will not be credited for separate property if he fails to establish by clear and convincing evidence that the account was created only as a matter of convenience."

Krinsky v. Krinsky, 208 A.D.2d 599, 618 N.Y.S.2d 36 (2d Dep’t 1994) - "As the wife correctly asserts, the husband's one-half interest in a joint account which he held with his father should be deemed a marital asset. It is well settled that both depositors named on a joint account presumptively have an undivided one-half property interest in the moneys deposited [.... ] That presumption may be refuted by direct proof or substantial circumstantial proof, which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience."

Presumption of Marital Property Rebutted Because Separate Property Placed In Joint Names Merely As A Matter of Convenience.

McGarrity v. McGarrity, 211 A.D.2d 669, 622 N.Y.S.2d 521 (2d Dep’t 1995) - "The husband testified at trial that he inherited in excess of $250,000 from his mother and his brother. The major portion of those inheritances was received subsequent to the parties' physical separation. The husband deposited certain of these funds into the parties' joint accounts. As a result, the wife argues, these funds were transmuted into marital property, of which she is entitled to her equitable share. The husband sufficiently traced the funds from his inheritances to deposits into the parties' joint bank accounts. Moreover, he established that he simply deposited the money into whatever bank account was most convenient, whether near his office in Manhattan, or near the marital residence. Significantly, the bulk of the inheritance money was not received by the husband until after the parties were living separately, thus demonstrating the absence of any donative intent by the husband despite the wife's continued access to the accounts."

Giuffre v. Giuffre, 204 A.D.2d 684, 612 N.Y.S.2d 439 (2d Dep’t 1994) - "Pursuant to Banking Law §675(b), when one spouse places separate property in a joint account, a presumption arises that the parties are entitled to equal shares of the account. See, Di Nardo v. Di Nardo, 144 A.D.2d 906, 534 N.Y.S.2d 25. However, this presumption may be overcome when a spouse creates a joint account as a matter of convenience, without the intention of creating a beneficial interest, and when the funds for the account came solely from that spouse's separate property."

Brugae v. Brugae, 245 A.D.2d 113, 667 N.Y.S.2d 180 (4th Dep’t 1997) - "The court did not err. .. in finding that money deposited by defendant in the parties' joint bank account constitutes her separate property. Defendant established that the joint account was used only as a conduit for the transfer of her capital interest from one business owned by her family to another, thus rebutting the presumption that, by depositing the funds into a joint account, separate property was transmuted into marital property."

The Mere Use by the Party of His or Her Separate Account or Funds To Pay Joint or Marital Expenses Does Not Itself Convert the Separate Account Into a Marital Asset.

Spencer v. Spencer, 230 A.D.2d 645, 646 N.Y.S.2d 674 (1st Dep’t 1996) - "The fact that the plaintiff may have made withdrawals from his separate account to pay marital expenses does not alter this conclusion, as there was insufficient evidence of commingling to conclude that this account was transmuted into marital property."

The Presumption of Marital Property not Extended to Subsequently-Received Inherited Funds Deposited into Individual Bank Accounts.

Feldman v. Feldman, 194 A.D.2d 207, 605 N.Y.S.2d 777 (2d Dep’t 1993) - ". . . the fact that a portion of the husband's inherited funds were deposited into a joint account does not support the further inference that the husband intended to treat all subsequently-received funds, which were placed in his individual bank accounts, as marital property."

B) Marital Residence

The presumption of marital property in financial accounts is sometimes similarly applied to real property. In the matter of Schmidlapp v. Schmidlapp, 220 A.D2d 571, 632 N.Y.S.2d 593 (2d Dep’t 1995), the court determined that the marital residence was fully transmuted to marital property when the wife transferred title to herself and her husband as tenants in the entirety, notwithstanding the fact that the unimproved lot was the wife's separate property prior to the marriage.

However, most cases involving a marital residence give a credit for separate property even if title is in joint names. When the transmuted asset is real property, the courts tend to unanimously factor into the calculation any separate contribution towards the attainment of that asset. That portion of a down payment, for example, which is comprised of separate assets, is typically backed out of the value of the property and returned to the party who contributed the separate asset, even where the property is deemed marital.

Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 (2d Dep’t 2000) - "However, in the exercise of our factual review power, we modify the defendant's equitable share in the marital residence from $72,250 to $50,667 to properly reflect the plaintiff's contributions to that asset, and the parties' circumstances. We note that the house was purchased by the plaintiff and his father in 1966, and was placed in the parties' names in 1979. The plaintiff, by placing the marital residence in both names, changed the character of the property to marital property (see, Schmidlapp v. Schmidlapp, 220 A.D.2d 571, 632 N.Y.S.2d 593). However, each item of marital property need not be distributed on an equal basis (see, Coffey v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74). In view of the plaintiff's contributions of separate property, and the circumstances of the parties, an award to the defendant of one-third of its value is appropriate (see, Butler v. Butler, 171 A.D.2d 89, 574 N.Y.S.2d 387; Denholz v. Denholz, 147 A.D.2d 522, 537 N.Y.S.2d 607)."

Koehler v. Koehler, 285 A.D.2d 582, 727 N.Y.S.2d 913 (2d Dep’t 2001) - Where the parties took title to the marital residence as joint tenants before they were married, and where the wife paid for the house solely with her own funds, it was improper for the court to adjudge the property to be marital property and direct that it be sold. Nevertheless, any appreciation in the value of the property may be deemed marital property. In Koehler, the court determined that even where real property was titled jointly in the parties' names, the husband's lack of any contribution to the property precluded a distribution of the asset, and effectively returned to the wife her 100% investment of seed money into this marital asset.

Coffee v. Coffey, 119 A.D.2d 620, 501 N.Y.S.2d 74 (2d Dep’t 1986) - Where the husband conveyed the marital residence held as separate property to himself and his wife as tenants by the entirety, the husband was entitled to the value of such residence at time of conveyance as a credit for the contribution of his separate property to creation of residence as a marital asset, and the wife was entitled to one-half of increase in current value of house due to addition to house made after conveyance and to one-half of appreciation in value of original structure attributable to her efforts as homemaker and parent.

Carr v. Carr, 291 A.D.2d 672, 738 N.Y.S.2d 415 (3d Dep’t 2002) - Husband allowed $195,000 credit for down payment and payments on principal of mortgage made with non-marital funds.

Gonzalez v. Gonzalez, 291 A.D.2d 373, 737 N.Y.S.2d 111 (2d Dep’t 2002) - "The record indicates that the appellant contributed $54,000 in separate property to the purchase of the residence. The Supreme Court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset."

Robertson v. Robertson, 186 A.D.2d 124, 588 N.Y.S.2d 43 (2d Dep’t 1992) - "The marital residence, an apartment, was purchased after the parties' marriage and was therefore subject to equitable distribution. It is undisputed that the wife contributed $45,633.75 in separate property toward the purchase of the apartment. The trial court thus erred in failing to give her a credit for that amount prior to the equitable distribution of the asset."

Daisernia v. Daisernia, 188 A.D.2d 944, 591 N.Y.S.2d 890 (3d Dep’t 1992) – Real property was deemed a gift to the wife alone from her parents, where the husband’s name was added only as a matter of convenience to enable the parties to obtain a construction loan.

McSparron v. McSparron, 190 A.D.2d 74, 597 N.Y.S2d 743 (3d Dep’t 1993) Where money and assets contributed by Wife’s mother during the marriage was co-mingled in parties’ joint account or used to purchase jointly held property, such use evidenced intent to gift to both parties.

In Alessi v. Alessi, the court declined to award any portion of an increase in value in real property, finding that there was no transmutation of the asset, but did indicate that the non-titled spouse was entitled to a return of her share of marital funds contributed towards the mortgage on the property.

Alessi v. Alessi, 289 A.D.2d 782, 734 N.Y.S.2d 665 (3d Dep’t 2001) (citations omitted) - ". . . plaintiff offered no competent evidence and Supreme Court made no findings concerning any enhancement of the value of this property as a result of plaintiff's efforts during the marriage. Under the circumstances, plaintiff's interest in that property is limited to her equitable share of the marital funds applied toward repayment of the mortgage on the residence, which we determine to be 12 payments of $290 or $3,480."

Mica v. Mica, 275 A.D.2d 765, 713 N.Y.S.2d 545 (2d Dep’t 2000) - "The Supreme Court also properly credited the plaintiff in the amount of $4,050 for his separate contribution to renovations on the marital residence prior to the marriage, since the defendant also received a credit for her separate contribution towards the purchase of the marital residence."

Barnes v. Barnes, 106 A.D.2d 535, 483 N.Y.S.2d 358 (2d Dep’t 1984) - "the facts of this case strongly oppose granting the husband any share in the marital premises or household furnishings therein. At best, defendant's contributions and efforts, both economic and noneconomic, to the acquisition, maintenance and appreciation in value of the marital residence were minimal."

Butler v. Butler, 171 A.D.2d 89, 574 N.Y.S.2d 387 (2d Dep’t 1991) - Where wife's separate property constituted approximately 86% of down payment for marital residence and husband's separate property constituted approximately 14% of down payment, it was appropriate, upon the sale of marital residence after eighteenth birthday of parties' child, for each party to receive a dollar-for- dollar credit equivalent to amount of their original contribution of separate property, with remainder of proceeds being divided, after satisfaction off mortgage, 75% to wife and 25% to husband.

Friederich v. Savaae, 138 A.D.2d 955, 526 N.Y.S.2d 411 (4th Dep’t 1988) - "the trial court correctly determined that the original value of the marital residence ($55,000), purchased by the parties as joint tenants prior to their marriage, is separate property. Thus the sum of $55,000 is to be divided equally between the parties and the remainder is to be distributed in accordance with the formula established in the judgment."

Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 (2d Dep’t 2001) "Subtracting the outstanding mortgage balance of $69,000 from the appraised value of the home of $124,800 leaves $55,800 in total equity. The defendant's $50,000 separate contribution towards the purchase price of the marital residence is to be subtracted from this amount, resulting in the sum of $5,800. The plaintiff is then entitled to a one-half interest in this sum, amounting to an award of $2,900."

Burgio v. Burgio, 278 A.D.2d 767, 717 N.Y.S.2d 769 (3d Dep’t 2000) - ". . . the residence was constructed prior to the marriage, and evidence that defendant assisted in the cleanup of the property and that payments were made on plaintiff's mortgage during the marriage will not support a transformation of the marital residence into marital property. Defendant's interest in such property is therefore limited to her equitable share of (1) the moneys received by the parties as wedding gifts and used to repay plaintiff's separate debt of $2,000 to his siblings, and (2) the marital funds used to pay the mortgage on the residence."

Friedman v. Friedman, 309 A.D.2d 830, 766 N.Y.2d 82 (2d Dep’t 2003) – finding that the Supreme Court should have credited the Husband with fifty (50%) percent of the amount that he paid to reduce the principal balance of the mortgage on the parties’ marital residence.

Calandra v. Calandra, 303 A.D.2d 704, 757 N.Y.S.2d 574 (2d Dep’t 2003) - Husband was credited with half of the mortgage and home improvement loans that he paid on the marital residence.

Beece v. Beece, 289 A.D.2d 352, 734 N.Y.S.2d 606 (2d Dep’t 2001) – Supreme Court should have credited the Husband with his fifty (50%) percent share of the amount he paid towards the mortgage while the parties were separated.

4) Active v. Passive Appreciation

The Appreciation in Value of a Separate Asset May Also Become Marital Property if the Increase Was Due to the Direct Efforts of the Titled Spouse (and the Indirect Efforts of the Non-Titled Spouse).

Separate property may increase in value during the marriage. This increase in value may itself be considered a marital asset subject to equitable distribution between the parties. The long-standing law in connection with this concept was first elaborated by the Court of Appeals in Price v. Price. The court held that an increase in value of a separate asset may become marital property if that increase was due, in some part, to the direct or indirect efforts of the non-titled spouse.

Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219 (1986) - "an increase in the value of separate property of one spouse, occurring during the marriage and prior to the commencement of matrimonial proceedings, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property."

Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537 (1995) - "In Price v. Price, this Court set forth the (active/passive) test, which established the guidelines for determining whether the appreciation in a titled spouse's separate property has been transmuted into marital property based on the indirect contributions of the nontitled spouse (69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684, supra; Domestic Relations Law §236[B][1][d][3]; [5][d][6] )."

The Court of Appeals in Price and Hartog established what has since become known as an "active/passive test" in determining whether the increase in value should be considered a marital asset. In short, this test requires the non-titled spouse seeking distribution of the increase in value to demonstrate that the increase occurred as a result of some active contribution, either directly or indirectly, to that increase in value, and that it did not occur as a result of "passive" market forces. However, even active contribution, must be demonstrated to have had a direct causal link to the increase in value.

Zielinski v. Zielinski, 289 A.D.2d 1017, 735 N.Y.S.2d 302 (4th Dep’t 2001) - "The court properly concluded that one half of the appreciation of plaintiff's interests in the businesses during the marriage was attributable to plaintiff's efforts, not to unrelated factors such as inflation or other market forces, and thus constituted marital property."

In Wegman v. Wegman, 123 A.D.2d 220, 509 N.Y.S.2d 342 (2d Dep’t 1986) the wife was awarded a share of the increase in value of her husband's separate 25% ownership interest in the business. The evidence presented was that the value of the husband's interest appreciated considerably during the parties' marriage, that wife "contributed to the appreciation of that interest and she is therefore entitled to an award of a percentage of the appreciation of that separate asset, having shown that her direct and indirect contributions to the marital relationship were causally related to the enhancement in value of the business." The court reasoned that the wife "was required to totally support her husband and herself until January 1949 and always contributed all of her earnings toward the expenses of the household. She claimed she had suggested new products to be sold and sought out new employees, including her cousin's husband, who had worked in a medical laboratory. She also stated that she entertained large numbers of business guests on an average of twice per month, doing all of the planning, preparing, and cooking herself. She testified that she obtained investors from among her acquaintances and became active in civic affairs in order to meet people who might be helpful to her husband in his business." The court found this to be a significant contribution towards the growth of the husband's business interests and the increase in value thereof.

In the matter of Spencer v. Spencer, 230 A.D.2d 645, 646 N.Y.S.2d 674 (1st Dep’t 1996) the court held that the wife's indirect contribution as housewife and homemaker were a sufficient indirect contribution to the appreciation of brokerage account, which the husband had inherited. The court held that "the appreciation of this account, due to the plaintiff's management during the marriage, must be credited to the defendant, who is entitled to a fifty percent share of such appreciated value during the marriage as part of the marital estate. [. . . . ] Here, the plaintiff used his experience in accounting and taxation to manage the investments in the inheritance accounts with his son. Since the defendant indirectly contributed to the appreciation of this asset by handling the household matters, thereby permitting her husband the freedom to devote energy to his financial endeavors (Price, supra, at 16, 511 N.Y.S.2d 219, 503 N.E.2d 684), her contribution should be given consideration in the distribution of the appreciated value of this asset."

A Non-Titled Spouse's Active Management of a Separate Asset Does Not Always Result in Any Increase in the Value being Deemed Marital Property Because The Non-Titled Spouse Made No Direct Or Indirect Contribution or Failed to Demonstrate a Nexus.

In the matter of Elmaleh v. Elmaleh, 184 A.D.2d 544, 584 N.Y.S.2d 857 (2d Dep’t 1992), where the husband claimed that the value of the wife's interests in real property increased during the marriage, and where he had managed the properties on a full-time basis for nearly 20 years, he was denied distribution of any portion of the increase in value as he failed to demonstrate the manner in which his contributions resulted in the increase in value and the amount of the increase which was attributable to his efforts. The evidence at trial established that the increase in value was caused by an upturn in the real estate market.

A Titled Spouse's Active Management of a Separate Asset does not always Result in the Appreciation being Deemed Marital Property.

Lawson v. Lawson, 288 A.D.2d 795, 732 N.Y.S.2d 753 (3d Dep’t 2001) - Husband's interest in two real estate holding companies, owned by himself and relatives, was passive, allowing for exclusion of increase in value of husband's interest during marriage as marital property for equitable distribution purposes, despite claim that husband did some bookkeeping, prepared estate succession computer program involving one company, developed computer data base, and discussed business matters regarding companies with his mother from time to time.

The Court Sometimes Suggests that the Increase in Value Is Presumed Marital from the Date the Separate Asset Is Transmuted To A Marital Asset.

Rugen v. Rugen, 289 A.D.2d 218, 734 N.Y.S.2d 465 (2d Dep’t 2001) - "Contrary to the plaintiff's contentions, the Supreme Court properly applied the relevant factors of Domestic Relations Law §236(B)(5)(d) when it awarded her 50% of the appreciation in the marital residence from May 2, 1990, the date that the residence was transformed from the defendant's separate property into marital property, through January 21, 2000, the date of the trial."

5) Debts

Marriage is viewed as an economic partnership where spouses share in profits and assets of the partnership as well as in the losses and liabilities incurred in pursuit of marital wealth. (Gelb v. Brown, 163 A.D.2d 189, 558 N.Y.S.2d 934).

Liabilities, as well as assets, are valued and allocated between the spouses. Savage v. Savage, 155 A.D.2d 336, 547 N.Y.S.2d 306; see, e.g., Cook v. Cook, 237 A.D.2d 891, 656 N.Y.S.2d 1000.

IV. Date of Valuation

BASIC RULE (that's never followed): As soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset. The valuation date or dates may be anytime from the date of commencement of the action to the date of trial. (DRL §236 (B) (4) (b)).

The court has wide discretion and flexibility in selecting appropriate valuation dates. (Maddelina v. Maddelena, 217 A.D.2d 606, 629 N.Y.S.2d 463). Generally, passive assets, whose values are affected by outside influences such as inflation or market forces, should be valued as of date of trial and active assets, whose values are affected by participation of the titled spouse, should be valued as of date of commencement. (Heine v. Heine, 176 A.D.2d 77, 580 N.Y.S.2d 2311.) However, such formulations should only be regarded as helpful guideposts and not immutable rules of law. (McSparron v. McSparron, 87 N.Y.2d 275, 639 N.Y.S.2d 265 (1994)).

Pensions are valued as of the date of the commencement of the action. Cohn v. Cohn, 155 A.D.2d 412, 547 N.Y.S.2d 85 (2d Dep’t 1989).

Marital Residence is generally valued as of the trial date. Lerardi v. Lerardi, 151 A.D.2d 548, 542 N.Y.S.2d 322 (2d Dep’t 1989).

V. Retirement Benefits

1) Defined Benefit v. Lump Sum

Need to either "present value" the defined benefit plan or transfer 50% of the portion that accumulated during the marriage pursuant to a QDRO using the formula set forth in Majauskas, 61 N.Y.2d 481 (1984).

2) Statutory Requirements of QDRO's - IRC (414)(p)

a. Name and address of participant and Alternate Payee,

b. Amount or percentage of benefits payable to Alternate Payee,

c. Number of payments or period for which payments are required,

d. Each plan to which Order applies,

e. Must not alter form of benefit and

f. Same benefits only to one Alternate Payee: the one who files the QDRO first.

You do not need a QDRO to rollover IRA's but you do need a divorce judgment.

3) Disability Pensions

The issue to be determined in the case of disability pensions is to what extent these payments represent deferred compensation or compensation for personal injuries. Deferred compensation is marital property and compensation for personal injuries is separate property. (Mylett v. Mylett, 163 A.D.2d 463, 558 N.Y.S.2d 160).

(Stuart v. Stuart, 140 Misc.2d 494, 531 N.Y.S.2d 194): For equitable distribution purposes, a veteran's disability pension constituted separate property.

Dolan v. Dolan, 78 NY2d 463, 577 NYS2d 195, (1991): Portion of ordinary disability pension which represents deferred compensation related to length of employment occurring during marriage constitutes marital property subject to equitable distribution.

Dolan v. Dolan, 167 AD2d 654, 562 NYS2d 875, 877-878 (3d Dep't 1990): Because husband's disability benefits, payable under NYC Administrative Code, were partially compensation for his years of service, as evidenced by fact that one must have been employed for at least 10 years to qualify for same, trial court properly determined that the portion attributable to compensation for personal injury, i.e. the disability portion, was husband's separate property, but that the portion attributable to deferred compensation was marital property in which wife entitled to share.

VI. Licenses and Degrees

1. A professional license acquired during the marriage is a marital asset subject to equitable distribution. O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743.

2. Other types of licenses:

(a) License as practical nurse held marital property. Morales v. Morales, 230 A.D.2d 895,646 N.Y.S.2d 884 (2d Dep’t 1996).

(b) License as school guidance counselor also held to be marital property. Holihan v. Holihan, 159 A.D.2d 685, 553 N.Y.S.2d 434 (2d Dep’t 1990).

(c) However, uncompleted studies that might lead to a license in the future are not to be treated as marital property. Kyle v. Kyle, 156 A.D.2d 508, 548 N.Y.S.2d 781 (2d Dep’t 1989).

(d) Physician's assistant and certification as a physician's assistant is marital property. Morimando v. Morimando, 145 A.D.2d 609, 536 N.Y.S.2d 701 (2d Dep’t 1988).

(e) Fellowship in the Society of Actuaries earned during the marriage and any corresponding enhanced earning capacity is marital property. McAlpine v. McAlpine, 176 A.D.2d 285, 574 N.Y.S.2d 385 (2d Dep’t 1991).

3. An academic degree is marital property to the extent that it has been earned through a course of study undertaken during the marriage. McGowan v. McGowan, 142 A.D.2d 355, 535 N.Y.S.2d 990 (2d Dep’t 1988).

(a) Bachelor's degree in Technology Computer Science Program earned during the marriage is a marital asset, which a share of the enhanced earning capacity resulting therefrom should be distributed to the spouse without such degree. Smith v. Smith, 227 A.D.2d 891, 643 N.Y.S.2d 274 (4th Dep’t 1996).

(b) Master's in Business Administration deemed marital property, of which the enhanced earning capacity attributable to same should be valued for purposes of equitable distribution. Miyake v. Miyake, N.Y.L.J., Oct. 5, 1998, at 29.

Board certification in internal medicine held to be marital property. Savasta v. Savasta, 146 Misc.2d 101, 549 N.Y.S.2d 544 (Sup. Ct. Nassau Co. 1989).

Certification as a Chartered Financial Analyst (CFA) acquired during the marriage is a marital asset. Murtha v. Murtha, 264 A.D.2d 552, 694 N.Y.S.2d 382 (1st Dep’t).

Police officer's two degrees and successful completion of civil service examinations for promotions up to Lieutenant enhanced his earning capacity is and should be marital property. Alloco v. Alloco, 152 Misc.2d 529, 578 N.Y.S.2d 995 (Sup. Ct. N.Y. Co. 1991).

However, a police officer's promotion to Sergeant without obtaining an educational degree in the process did not constitute an ascertainable asset to which an enhanced earning capacity could be attached. Bystricky v. Bystricky, 177 Misc.2d 914, 677 N.Y.S.2d 443 (Sup. C. Nassau Co. 1998).

THE HOUGIE ISSUE: Is "Exceptional Earnings Capacity" Not Resulting from a Degree or License Marital Property?

The First Department has held that enhanced earning capacity as an investment banker is subject to equitable distribution regardless of whether such career requires a license. Hougie v. Hougie, 261 A.D.2d 161, 689 N.Y.S.2d 490 (1st Dep’t 1999).

The career and celebrity status of a well known opera singer is marital property, where the non-celebrity spouse contributed. Elkus v. Elkus, 169 A.D.2d 134, 572 N.Y.S.2d 901 (1st Dep’t).

Enhancement of a medical license by emergency room employment, without a formal certification for this specialty, is marital property. Madori v. Madori, 151 Misc.2d 737, 573 N.Y.S.2d 553, aff'd on other grounds, 201 A.D.2d 859, 608 N.Y.S.2d 331 (3d Dep’t 1994).

The skills of an artisan, actor, professional athlete or any person whose expertise has enabled them to become an exceptional wage earner should be valued as marital property subject to equitable distribution. Golub v. Golub, 139 Misc.2d 440, 527 N.Y.S.2d 946 (Sup. Ct. N.Y. Co. 1988).

Hougie Rejected

Absent a degree or license, attendance at the Harvard Advance School for Banking did not constitute marital property subject to equitable distribution. West v. West, 213 A.D.2d 1025, 625 N.Y.S.2d 116 (4th Dep't 1995).

In Spence v. Spence, 287 A.D.2d 447 (2d Dep't 2001), the Second Department rejected Hougie, plainly stating: "The husband's enhanced earning capacity as an investment banker is not marital property subject to equitable distribution. The husband earned his MBA, Series 7 license, and Series 63 license four years before the marriage. Accordingly, his increased earning capacity is not attributable to a professional license or degree acquired during the marriage (citing O'Brien, McSparron and West). To the extent that the decision of the Appellate Division, First Department in Hougie v Hougie (261 A.D.2d 161), holds to the contrary, we decline to follow it."

In Halaby v. Halaby, 289 A.D.2d 657 (3d Dep't 2001), the Third Department cites Hougie, but found insufficient evidence to conclude that the Husband's postdoctoral fellowship earned during the marriage increased his earning capacity.

In J.C. v. S.C., N.Y.L.J., Oct. 31, 2003, at 20 (Sup. Ct. NY Co., Drager, J.), the Supreme Court rejected the wife's contention that the husband's "exceptional earning capacity" from being an assistant controller to chief financial officer constituted marital property.

In Moll v. Moll, 187 Misc.2d 770 (S. Ct. Monroe Co. 2001, Lunn, J.), the court held that the husband's book of business or personal goodwill inherent in his career as a stock broker or financial advisor was a marital asset subject to equitable distribution. The court "distinguished" West because, unlike Mr. West (a 54-year old banking executive with no "book of business"), Mr. Moll was a 40-year old financial advisor with Morgan Stanley Dean Witter with a "book of business."

In Fanelli v. Fanelli, 191 Misc.2d 123, 2002 Westlaw 764589, N.Y.L.J., Apr. 23, 2002 (S. Ct. Westchester Co., Spolzino, J., Mar. 20, 2002), on a pre-trial motion for partial summary judgment, the enhanced earnings enjoyed by the husband due to his engineering license (parties married in 1973 and license was earned in 1978) were valued (by Gary Karlitz) at $18,400, based upon the husband's actual earnings history, as opposed to a theoretical value of $296,000. The husband had various jobs between 1978 and 1999, none of which required his engineering license. It was undisputed that the husband "never entered into a true professional engineering practice or otherwise obtained any meaningful remuneration from the direct use of his license." 

VII. Bankruptcy

Maintenance and child support are not dischargeable in a bankruptcy proceeding. A distributive award (i.e. property award) is dischargeable in bankruptcy. However, the characterization of an award "by the divorce court or the parties is not by itself, dispositive." "Distributive awards" under New York law can be found to be in the nature of support, and an award labeled as maintenance, may be found to be a "dischargeable property settlement." In Re Bonheur, 148 B.R. 379, 1992; Bank v. Lexis, 2019 (E.D.N.Y. 1992). Practice Tip: In Separation Agreement or Stipulation of Settlement, state that the obligation is not dischargeable in bankruptcy.

Finfer v. Finfer, NYLJ May 3, 1994 at 22, col. 3. Having failed to disclose assets in Bankruptcy Court, the husband was precluded from recovering the same in a matrimonial action.

VII. Equitable Distribution

VIII. Spousal Support / Maintenance / Alimony

DRL § 236, Part B(6) 

FCA § 412, 416, 437

A. Standard and Factors for Determining the Amount and Duration of Maintenance

1. Amount: Case of Steinberg v. Steinberg, 18 N.Y.2d 492, 277 N.Y.S.2d 129 (1966)

2. Whether to Award Maintenance: Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537

3. Reasonable Needs vs. Preseparation Standard of Living. Cassano v. Cassano, 111 A.D.2d 208 (Second Dep't 1985).

4. Statutory Factors.

DRL § 236, Part (B)(6)(a) sets out the statutory factors to be considered by a court in determining maintenance, and in determining the amount and duration of maintenance.

The Statutory Factors:

· Income and property of the parties

DiCaprio v. DiCaprio, 556 N.Y.S.2d 1011 (4th Dep't 1990)

· Duration of marriage and health of the parties

· Present and future earning capacities of the parties

· Whether the spouse could become self-supportive with the necessary training

Neumark v. Neumark, 120 A.D.2d 502 (Second Dep't 1986)

· Reduced capacity of earning for the spouse who started career late due to the marriage and child raising

· Where the children reside

· Tax implications

· Contributions of the party seeking maintenance to spouse's career and earning ability. Saxton v. Saxton, 564 N.Y.S.2d 216 (Third Dep't 1991)

· Wasteful dissipation of the marital property by either spouse ("economic fault")

· Any transfer or encumbrance made in contemplation of marriage without fair consideration

· Any other factor that the court deems just and proper.

5. Duration of Maintenance

Court's Discretion - DRL § 236(b)(1)(a) provides that maintenance may be awarded for a definite or indefinite period of time to meet the reasonable needs of a party to a matrimonial action.

Terminates upon death of either party or upon remarriage of recipient. DRL § 236, Part B, (6)(c).

In Mazzone v. Mazzone, 736 N.Y.S.2d 683 (2d Dep't 2001), the court upheld nondurational maintenance for disabled wife.

In Schenfeld v. Schenfeld, 289 A.D.2d 219, 734 N.Y.S.2d 465 (2d Dep't 2000), the court modified nondurational maintenance to wife so that it would cease when wife reaches 65 years.

6. Basis for Determination - DRL §236(B)(5)(g) (Exhibit B)

7. Marital Fault

8. Stipulation of Settlement

The parties' agreement must provide that the maintenance will terminate upon the happening of a certain event such as remarriage; if not, maintenance will continue. Slagsvol v. Schenck, 213 A.D.2d 537, 624 N.Y.S.2d 182 (2d Dep't 1995).

9. Enforcement

· Attorney's Income Execution - CPLR § 5241

· Income deduction Order by Court - CPLR § 5242

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

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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.