Entries Tagged as 'divorce'

New Year’s Resolutions for Divorced Parents

The Huffington Post has a nice article on New Year’s resolutions for divorced parents.  Some are obvious, but not everyone may be thinking about these things.

Happy New Year to all my clients and readers!

 

New York Finally Embraces Irreconcilable Differences

New York state was the last state in the United States not to offer its citizens a no fault cause of action for divorce.  In August 2010, Governor David Paterson signed into law a bill which adds irreconcilable differences as a cause of action.  Property division, alimony, parenting and child support will need to be resolved before one party can swear under oath that the marriage has been irretrievably broken for 6 months.

Still no No-fault Divorce in NY

New York is the only state that does not have a no-fault cause of action for divorce.  A cause of action is what needs to be proven for your divorce action to prevail.  Most states have an irreconcilable differences cause of action, where one side does not have to prove the other side committed some unsavory act such as adultery or cruel treatment.

New York currently has four fault-based grounds for divorce:

  1. Adultery (which is still a criminal offense in the Empire State and hard to prove since you cannot testify against your spouse)
  2. Cruel and inhumane treatment (so as to affect the physical or mental health of the charging party such that it is not safe to remain in the marriage)
  3. Abandonment (one spouse intentionally leaves the other or refuses sexual relations for more than one year)
  4. Incarceration of one spouse for more than 3 years

In addition to these, the parties can agree in a written separation agreement to live apart for one year.  The agreement must contain the terms of the separation and ultimately the divorce.  This is the closest NY comes to no-fault.

Davis v. Davis, a recent NY case stated that mere social abandonment was not sufficient to prove constructive abandonment.  The wife in this case did not plead sexual abandonment.   The appellate court saw the pleadings as nothing more than a way to get around NY’s lack of a no-fault ground for divorce and that the courts would not usurp the legislature’s power to determine law for the people of New York.

Is Hiring a Detective to Spy on Your Spouse Harassment? In NY, no.

The case of Anonymous vs. Anonymous (so captioned by the court to protect the identities of all involved) recently asked and answered this question.  This case involved a wife who filed for divorce in November 2008.  The husband filed a counterclaim, alleging that the wife was having an affair.  In February 2009, the court entered a protective order requiring the husband to keep 1000 feet away from the wife’s residence and place of employment (excepting visitation and church attendance). In August 2009, the husband hired a private detective to spy on his wife.  The detective followed her to a hotel where the detective recorded proof that the wife was having an affair with their priest.  The matter became a little more public when the husband told another priest during a confessional of the affair, causing the church to launch an investigation (during which the DVD was given to church officials).  While the wife did not contest the affair, she asserted she was being harassed and that her husband had violated the protective order by hiring the detective.

Family Court Judge Debra J. Kiedaisch ruled that “under the circumstances, the hiring of the private investigator, in and of itself, was not an unlawful intrusion upon the rights of the wife secured by the order of protection.”  She said that the husband had the right to “gather evidence up to the date of trial in defense of the matrimonial action and in support of his own counterclaims.”

“If the husband had the wife followed and recorded … for the purpose of gathering embarrassing material to deliver to her employer with the intention to cause her to lose her employment,” that might rise to “conduct which alarms or seriously annoys another person, and serves no legitimate purpose” — second-degree harassment under New York law — Kiedaisch wrote.

NJ Supreme Court Allows Arbitration for Parenting Arrangements…with some Caveats

I previously have written about a New Jersey appellate decision in the case of Fawzy vs. Fawzy.  In that case, the appellate panel disallowed the use of binding arbitration to determine parenting arrangement for children in a divorce, arguing that the court can not delegate to others its own parental obligations of making sure things are done in the best interests of the children.  Arbitration is the use of a private judge to determine the outcome of a dispute.  It is optional for the parties.  Parties usually choose to arbitrate a matter because you can engage an “expert” judge who can render a decision far more quickly (and hopefully less expensively) than the court.  The disadvantage is that arbitration decisions are appeal-able only on very narrow grounds.

Last week, the NJ Supreme Court unanimously overturned the appellate panel’s decision, but added several caveats when arbitration is used in a parental setting.  The court held:

  • The constitutionally protected right of parental autonomy includes the right of parents to choose the forum in which to resolve their disputes over child custody and parenting time — including arbitration.
  • An agreement to arbitrate must be in writing or recorded and must establish that the parties are aware of and have knowingly and voluntarily waived their rights to a judicial determination. A record of documentary evidence adduced during the proceedings must be kept; testimony must be recorded; and the arbitrator must issue findings of fact and conclusions of law in respect of the award.
  • The arbitrator’s award is subject to review under the NJ Arbitration Act, except that judicial review is also available if a party establishes that the award threatens harm to the child.
  • Parental autonomy includes the right to submit any family controversy, including child-custody and parenting time issues, to a decision maker of chosen by the parents. The right of parents to make decisions regarding custody, parenting time, health, education, and other child-welfare issues between themselves, without state interference, does not evaporate when a marriage breaks down. It is only when the parents cannot agree that the court becomes the default decision maker. There is no basis to carve out of the right to parental autonomy the decision to submit child-custody and parenting-time matters to arbitration. Just as parents choose to decide those issues among themselves, they may opt to sidestep the judicial process and submit their dispute to an arbitrator whom they have chosen. The right to arbitrate serves an important family value by allowing parents the opportunity to choose an arbitrator based on her familiarity with the family or her understanding of the values that the parents hold dear and have tried to follow in raising their child.
  • A guardian ad litem may not simultaneously or sequentially serve as an arbitrator for the parties.

This ruling gives parents a greater latitude in choices while still protecting the best interests of the children.

Britain Holds its First Divorce Fair

First there are wedding fairs, now ones for divorce.  According to AP News:

Breaking up is hard to do. But lawyers, counselors, astrologists and lifestyle coaches at Britain’s first divorce fair this weekend will aim to make the process easier.

The fair — cheerily named the “Starting Over Show” — takes place Sunday at a cozy hotel in the seaside resort town of Brighton.

Organizer Suzy Miller said the event would aim to focus on the positive, starting with a warming cup of tea and a chunk of homemade cake. Musicians will play live and there will be play areas for kids.

Though Britain has one of the highest divorce rates in Europe, Miller said the Brighton event would be unlike the continent’s first divorce fair in Austria two years ago, which featured private investigators and companies offering paternity tests.

Instead, psychics would offer to heal people’s minds and bodies, and one company suggests boosting finances by selling a healthy version of chocolate, she said. Many of the 30 or so exhibitors, who have paid up to 1,600 pounds ($2,245) for a stall, plan to focus on having fun.

“Sometimes people just need someone to talk to,” said exhibitor Martina Mercer-Hall, who uses astrology and alternative therapies to advise on designing one’s home after divorce.

One exhibitor promises to organize the footwear equivalent of Tupperware parties, selling stilettos instead of food storage tubs. Another plans art appreciation vacations. On a more pragmatic note, the fair offers debt counselors and mediators to help couples navigate divorce without lawyers.

In Britain, 2.6 people of every thousand are divorced, compared with a European average of 1.8, according to EU statistics gathered in 2001. A 2002 report from the Center for Policy Studies think-tank says Britain offers few tax or welfare advantages to being married, and suggests younger people do not view a marriage commitment as seriously.

Divorce lawyers say business is booming, as the country’s recession puts pressure on marriages.

Divorce is a painful experience.  I can’t see how some of these things (bringing your kids?) to this convention will be productive.  At least they will be having mediators.

Bill to ban alimony, inheritence to Abusers, Murderers and other Criminals moving through NJ Legislature

A bill which would prohibit people from receiving alimony who are convicted of crimes such as murder, manslaughter, criminal homicide, aggravated assault or similar crimes if the crime results in the death of a family member and the crime was committed after a marriage or civil union is moving through the legislature.  Under the bill, someone  convicted of an attempt or conspiracy to commit murder may not receive alimony from the person who was the intended victim of the attempt or conspiracy.  The bill also proposes that the court may not order a retainer or counsel fee of a party convicted of an attempt or conspiracy to murder the other party to be paid by the party who was the intended victim of the attempt or conspiracy.

The bill is S-1645, introduced by Senators Loretta Weinberg (D-Bergen) and Fred Madden, Jr. (D-Camden/Gloucester).  The bill also removes a parent’s intestate (will-less) succession inheritance rights and rights to administer the minor’s intestate estate if they have refused recognition of the child,or been convicted of sexual assault or contact, attempted murder or conspiracy to murder, abandonment or endangerment against their deceased minor child.

The proposed law change on alimony stem from the case of Calbi vs. Calbi.  In that case, Mrs. Calbi was granted alimony in her divorce against Mr. Calbi after she was convicted of killing their son.  The payments are supposed to start when she is released from jail.  The court noted there was no prohibition in the law.  The proposed inheritance change is the result of a recent New Jersey Appellate Decision, which ruled that a mother of an abused, abandoned child was not entitled to inherit the $1 million inheritance paid by the State to her son’s estate.   The court invoked its power of equity, noting that awarding the mother the money would be “cruel, ironic and inequitable,” since that abuse and neglect contributed to the child’s death.

The Supreme Court confirms…make sure you follow up after your divorce

In an earlier post,  I related a case (Kennedy vs. Plan Administrator) where a divorcing husband failed to change the beneficiary on his retirement plan.  His ex-wife was listed as the beneficiary despite the fact they had a divorce decree in which she was entitled to that money.  An appeals court upheld the payment to the ex-wife under the ERISA law (the law that regulates retirement plans).  Other cases in the federal courts had opined that the divorce decree could amount to a waiver of benefits, even without a  qualified domestic relations order (QDRO).

The case rose to the U.S. Supreme Court and yesterday they rendered an opinion in order to clear up the different rulings.  The Court said “the question remains whether the plan administrator was required to honor [the ex-wife's] waiver [in the divorce] with the consequence” that the benefits should have been paid to the estate.  “We hold that it was not, and that the plan administrator did its statutory ERISA duty by paying the benefits to [the ex-wife] in conformity with the plan documents.”   The court further stated, “[the ex-husband's] designation of [the ex-wife] as his beneficiary was made in the way required; [the ex-wife's] waive was not.”

The court, in a footnote to the opinion, added that the ex-husband’s estate could sue the ex-wife (actually, now her estate as she’s passed away as well) to obtain the money since the waiver agreement was contractual; this would not violate ERISA since the money in question would have already been paid out.

Again, the bottom line is make sure you’ve changed all of your beneficiaries during the divorce process.  The burden is on you.

Mediation is helpful for more than divorcing…it can help couples stay together

When most people think of mediation in the family context, they think of divorce.  However, mediation is valuable in other ways than dissolving a marriage.  It can help the parties communicate better and stay together.  It is not therapy in the traditional sense.  It helps the parties communicate better.  Breakdowns in communication are often the cause of strife.  Actually, many family issues can be resolved with mediation.  View this video (and read the article) for more .

Another pants Appeal…

Roy Pearson won’t go away quietly.  He is now asking for an en banc hearing of his appeal on the $54 million lawsuit over his lost pants.  Previously, 3 appellate judges rejected his appeal and now he wants all 9 judges on the circuit to hear his appeal.