1. What is a Prenuptial Agreement?
2. What is meant by the term "uncontested divorce"?
3. Rules Regarding Return of Children Under the Hague Convention
4. Divorce and Taxes
New York
1. What are the residency requirements for a divorce in New York State?
2. What if my spouse will not sign the divorce papers?
3. What are the grounds for a divorce in New York?
4. Which "ground" is typically used for uncontested divorces in New York?
5. Will a prenuptial agreement that contains a waiver of spousal support be enforced in New York?
6. Will anybody have access to the papers filed in court?
7. The Relationship Between Distributive Awards for Enhanced Earnings and Child Support
8. The Separation Agreement As a Basis For a Divorce (DRL 170.6)
9. Until What Age Is a Parent Obligated to Support a Child?
10. What Procedures Can Be Used to Enforce Child Support Obligations?
11. The Impact Of Marital Fault In Alimony Determinations In New Jersey And New York.
12. Protection of Domestic Partnership Status Under The New York City Human Rights Law
13. Frequently Asked Questions Regarding Paternity Proceedings In New York
New Jersey
1. What factors do New Jersey courts consider in making determinations regarding the custody of children?
2. The Impact Of Marital Fault In Alimony Determinations In New Jersey And New York.
3. New Jersey Enters 2007 With More Liberal Grounds For Divorce: The Beginning of True No-Fault Divorce in New Jersey
1. What is a Prenuptial Agreement?
Answer: Prenuptial Agreements are contracts between prospective spouses who are contemplating to be married. These contracts define the property rights of each of the prospective spouses during marriage and in the event of death, separation or divorce. A Pre-Nuptial Agreement becomes effective upon marriage.
Domestic Relations Law Section 236, Part B, (3) states that such agreements include the following subject matters: "(1) a contract to make a testamentary provision of any kind, or a waiver of any right to elect against the provisions of a will; (2) provision for the ownership, division or distribution of separate and marital property; (3) provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, subject to the provisions of section 5-311 of the General Obligations Law, and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment; and (4) provision for custody, care, education and maintenance of any child of the parties
2. What is meant by the term "uncontested divorce"?
Answer: Generally, the term "uncontested divorce" refers to a divorce proceeding in which none of the issues, including the grounds for divorce, child support, title to property, equitable distribution, or maintenance, is in dispute.
3. Rules Regarding Return of Children Under the Hague Convention
Answer: Summary of the Basic Rules for the Granting of a Petition for Return of a Wrongfully Removed Child under the Hague Convention on the Civil Aspects of International Child Abduction
An action brought pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (the "Convention") is an action which, if successful, results in the physical return of a child to his or her habitual residence. The International Child Abduction Remedies Act (" ICARA") sets forth the procedures applicable to handling Hague Convention cases in the United States. Pursuant to ICARA, both State and Federal courts have original concurrent jurisdiction to hear Hague Convention cases. 42 U.S.C. 11603(a). Congress implemented the Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25, 1980, T.I.A.S. No. 11,670 ("Hague Convention") when it passed the International Child Abduction Remedies Act ("ICARA"). The United States ratified and implemented the treaty on July 1, 1988. The Hague Convention was enacted to "secure the prompt return of children wrongfully removed to or retained in any Contracting State" and to "ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1, T.I.A.S. No. 11,670, at 4. Under ICARA, a person may petition a court authorized to exercise jurisdiction in the place where a child is located for the return of the child to his or her habitual residence in another signatory country. 42 U.S.C. 11603; Hague Convention, art. 3(a), T.I.A.S. No. 11,670, at 4. The convention is intended as a rapid remedy for the left-behind parent to return to the status quo before the wrongful removal or retention. The court's inquiry is limited to the merits of the abduction claim and not the merits of the underlying custody battle. It may not consider the merits of the custody case. 42 U.S.C. 11601(b)(4).
The Convention provides for a return of a child less than sixteen years of age who has been (1) wrongfully removed or retained (2) from her or her habitual residence (3) in violation of the custody rights of a person or institution. Convention, Articles 1 and 3. A wrongful removal or retention requires a showing that rights of custody have been breached according to the law of the child’s habitual residence, and that those rights were actually being exercised, or would be exercised but for the wrongful removal or retention. The rights of custody may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State. Convention, Article 3.
In order for the Convention to apply, the child must have been habitually resident in a Contracting State immediately before any breach of custody or access rights. If the child was not removed from a country which was the child’s habitual residence, there is no right of return to that country. Convention, Article 31.
In order to determine whether a wrongful removal has occurred, it is necessary to establish whether the country from which the child has been removed or retained is the child’s habitual residence. The term habitual residence is not defined in the Convention.
In a Hague case it is the Petitioners burden to prove that the child was wrongfully removed from his habitual residence by a preponderance of the evidence. 42 U.S.C. 11603(e)(1)(A). If the petitioner shows that the child was wrongfully removed, the court must order the child's return unless the respondent demonstrates that one of the four narrow exceptions apply." 42 U.S.C. 11601(a)(4)). Two of those exceptions, which must be established by "clear and convincing evidence," are either that "there is a grave risk that the child's return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation," Convention, Article 13(b), or that return of the child "would not be permitted by the fundamental principles . . . relating to the protection of human rights and fundamental freedoms." Convention, Article 20. 42 U.S.C. 11603(e)(2)(A). The other two exceptions to the presumption of repatriation, which must be established by a preponderance of the evidence, are either that judicial proceedings were not commenced within one year of the child's abduction and the child is well-settled in the new environment, Convention, Article 12, or that the Appellant was not actually exercising custody rights at the time of the removal, Convention, Article 13 (a). In addition to the four exceptions, the court may "refuse to order the return of the child if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views." Convention, Article 13.
The removal of a child from the country of his habitual residence cannot be 'wrongful' under the Convention unless the complaining parent was 'exercising lawful custody rights' to the child at the moment of removal. Whether a person was exercising 'lawful' custody rights at the time of the child's removal must be determined under the law of the child's habitual residence. Convention, Article 3.
The rights of custody may arise by operation of law or by reason of a judicial or administrative decision or agreement having legal effect under the law of the country of the child's habitual residence. Convention, Article 3.
The reference to the 'law of the State in which the child was habitually resident' includes that country's or state's conflict of laws rules. Thus, on the question whether the retention/removal breached a persons 'lawful custody rights,' the court must look to the choice of law rules of the child's habitual residence to see if it would apply its own internal law or defer to another country's or state's law.
The Convention does not define 'exercise.' However, it has been held that absent a ruling from a court in the country of habitual residence, courts must liberally find a parent is 'exercising' custody rights whenever a parent with de jure custody rights keeps, or seeks to keep, any sort of regular contact with the child. '[A]s a general rule, any attempt to maintain a somewhat regular relationship with the child should constitute 'exercise.' ... [I]f a person has valid custody rights to a child under the law of the country of the child's habitual residence, that person cannot fail to 'exercise' those custody rights under the Hague Convention short of acts that constitute clear and unequivocal abandonment of the child.'
The normal procedures for proving foreign law need not be followed in Hague Convention proceedings. The court may take direct judicial notice of the law of the habitual residence. Convention, Article 14. An attorney's declaration as to the application of another country's law generally will be acceptable.
Answer: The decisions that you make during the divorce process can have enormous tax implications. It is important that you retain an attorney with a thorough understanding of the tax implications of divorce. At RapaportLaw, strive to assist your clients with the complex yet vitally important tax issues that arise during the dissolution of a marriage.
Some of the often overlooked tax aspects of divorce and matrimonial law are discussed below:
1. What are the residency requirements for a divorce in New York State?
Answer: You may not commence a divorce proceeding in New York State unless you satisfy the residency requirements set forth in New York's Domestic Relations Law. You satisfy the following if one of the following applies:
Either you or your spouse has been a resident of New York for at least two years immediately preceeding the commencement of the divorce action. or
Either you or your spouse have lived in New York for the last year or more and:
a. The marriage ceremony was in New York State
b. You and your spouse have resided as husband and wife in New York State
c. The grounds for the divorce occured in New York State
or
Both you and your spouse live in new York State and the grounds occurred in New York.
2. What if my spouse will not sign the divorce papers?
Answer: Although it is helpful for your spouse to sign an "Affidavit of Defendant", it is not necessary. You may still obtain an uncontested divorce if your spouse does not file documents objecting to the divorce after having been served with the summons and complaint.
3. What are the grounds for a divorce in New York?
Answer: You must have grounds for a divorce in New York State. Unlike other jurisdictions, which allow for divorces based on "irreconcilable differences", New York State's Domestic Relations Law requires that you have one of the following grounds for a divorce:
1. Cruel and inhuman treatment: Your spouse engaged in conduct that was cruel and inhuman and endangered your physical and/or emotional well being.
2. Abandonment: Your spouse left you without your consent or any good reason and stayed away for more than one year.
3. Constructive Abandonment: Your spouse refused to have sexual relations with you for more than one year and there was no physical or mental reason to prevent sexual relations.
4. Confinement: Your spouse was confined to prison after the marriage and more than three years of incarceration have elapsed.
5. Adultery: Your spouse had sexual intercourse with another person during your marriage (you are generally required to present the court with the name of the party with whom your spouse had sexual intercourse, and the dates and location(s) where the adultery occurred. For these reasons, the ground for divorce is disfavored.
6. Conversion of a Judgment of Separation: You and your spouse have lived separate and apart for more than one year after the granting of a judgment of separation.
4. Which "ground" is typically used for uncontested divorces in New York?
Answer: Abandonment and Uncontested Abandonment are the grounds most often used for uncontested divorces in New York State. These are by far the least offensive grounds, and are therefore most likely to encourage the cooperation of your spouse in obtaining a divorce. Conversely, allegations of cruelty or adultery are inherently offensive, and may motivate your spouse to contest your divorce.
5. Will a prenuptial agreement that contains a waiver of spousal support be enforced in New York?
Answer: A duly executed prenuptial agreement is accorded the same presumption of legality as any other contract. Bloomfield v. Bloomfield, 97 NY2d 188 (2001). The spouse seeking to set aside an agreement has the burden of establishing fraud, duress, or other impediment, attributable to the other spouse (e.g. the agreement's proponent). Matter of Greiff, 92 NY2d 341, at 344 (1998).
The mere fact that an agreement provides for a waiver of maintenance, this alone does not render an agreement unconscionable. Siclari v. Siclari, 291 AD2d 392 (2nd Dept. 2002) [unfair and unreasonable agreement resulted in unconscionable maintenance waiver]. Even in a very long marriage, the fact that a spouse waived maintenance years ago, but she has never worked outside the home since then, does not automatically render the waiver of maintenance unconscionable. See, Bloomfield v. Bloomfield, supra. [26 year marriage, children, homemaker, no skills, no maintenance]. Parties can always agree to waive maintenance. Such waiver provisions are routinely enforced, unless they render either party a public charge. GOL § 5-311.
6. Will anybody have access to the papers filed in court?
Answer: No. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. The law prohibits the clerk of the court and the court reporter from allowing anyone, other than a party, or the attorney or counsel of a party, except by order of the court, to examine or copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum, or testimony.
7. The Relationship Between Distributive Awards for Enhanced Earnings and Child Support:
Answer: In 2004, the New York Court of Appeals provided much needed clarification on whether a child support award must be adjusted to account for the potential "double dipping" when a court also orders the distribution of future enhanced earnings. This issue flows from the acceptance in New York of the idea that a party's enhanced earning capacity may constitute an asset that is subject to equitable distribution.
In Holterman v Holterman, No. 73, (June 10, 2004) the New York Court of Appeals, in a 5-2 opinion, held that the Supreme Court did not err by declining to adjust defendant’s child support obligation to account for the distributive award payments he was obligated to pay plaintiff for her share of the future enhanced earnings attributable to his medical license. The majority, in an opinion by Judge Graffeo, agreed with the Appellate Division, and found no statutory authority for deducting enhanced earning contributions from the child support calculus. The opinion held that "... the husband's proposed reallocation formula -- or any formula that requires a deduction of a distributive award paid over a period of years from the licensed spouse's income for purposes of calculating child support -- is impermissible under the CSSA," the Child Support Standards Act. Judge Graffeo wrote. "Had the Legislature intended to make distributive awards deductible from one parent's income and includable in the other's, it could easily have so provided."
Notably, the Court agreed with husband that a distributive award to be paid by one parent to the other pertains to the financial resources of the parties and is an appropriate paragraph (f) factor that the trial court may consider, in determining whether the application of the child support guidelines amount is "unjust or inappropriate" when awarding child support. Consequently, although the distributive award does not lead to an automatic reduction of child support, it is a factor that they Court may consider in determining the propriety of applying the child support guidelines.
8. The Separation Agreement As a Basis For a Divorce (DRL 170.6)
Answer: Pursuant to Domestic Relations Law Section 170.6, a separation agreement may be used as the basis for a divorce on or after its 1 year anniversary. The 1 year time period runs from the proper execution of both husband's and wife's signatures before a notary public, not from the filing date. An agreement cannot take into account, for purposes of calculating its maturity, any time spent already separated prior to the agreement.
The agreement must be filed in the County of residence of either Plaintiff or Defendant. Filing of the agreement is normally done prior to the commencement of the action, but may be done simultaneously; it may also be done simultaneously with submission for placement on the Uncontested Calendar (filing of Note of Issue). In any case, the circumstances under which the agreement was filed must be accurately stated in the pleadings. If a separation agreement is used as the basis for a divorce, the pleadings and other court papers should contain the following language:
"Plaintiff and Defendant have lived separate and apart pursuant to a written agreement of separation. The agreement has been acknowledged by both parties in the manner required for a deed to be recorded. The agreement has been filed with the County Clerk of ________ County on (prior date) or has been filed simultaneously with the summons and complaint, or has been filed simultaneously with the note of issue. Plaintiff has substantially performed according to the terms of the agreement."
A single copy of the agreement must be attached to the pleadings when submitted to for placement on the uncontested calendar.
9. Until What Age Is a Parent Obligated to Support a Child?
Answer: In New York State, a child is entitled to be supported by his or her parents until the age of 21. However, if the child is under 21 years of age, and is married, or self-supporting, or in the military, the child is considered to be "emancipated" and the parents' support obligation ends. A child may also be considered "emancipated" if he or she is between 17 and 21, leaves the parents' home and refuses to obey the parents' reasonable commands.
10. What Procedures Can Be Used to Enforce Child Support Obligations?
Answer: Child support enforcement proceedings are often commenced in the Family Court. The petitioner may file a "violation petition" asking the court to take action against a respondent who fails to pay a support order. The petition must be served upon (delivered to) the respondent. A hearing is then held to decide whether the respondent has violated the court's order. The hearing examiner may enforce the order by directing SCU to take the payments directly from the respondent's paycheck, order the respondent to pay a lump sum toward back monies owed, or take other steps to collect the money owed. A respondent who falls behind in payments also risks having his or her driver's license or professional and business licenses suspended. If the respondent is found to have willfully and voluntarily failed to pay a child support order, he or she may be jailed for up to six months, for contempt of court.
11. The Impact Of Marital Fault In Alimony Determinations In New Jersey And New York
Answer:
Most people begin the process of divorce with the mistaken believe that marital fault will strongly influence a court’s determination of the financial issues ancillary to divorce. As discussed below, except in the most extreme circumstances, marital fault will play no role whatsoever in determining financial issues in divorce.
New Jersey:
In April, 2005, in a much awaited and major decision (Mani v. Mani), the New Jersey Supreme Court defined what role fault, even adultery, has on the amount of alimony. The dilemma the Court faced was that the New Jersey divorce statutes permit a Court to consider fault in fixing alimony. On the other hand, New Jersey trial courts and divorce attorneys have, for decades, refused to consider fault in determining either the entitlement to or amount of alimony.
The Court held that fault should be considered in determining alimony in only two narrow circumstances:
(1) If the fault impacted upon the parities financial status, or
(2) the fault "violates societal norms...and would confound notions of simple justice"
New York:
Under New York law, determinations with regard to alimony (referred to in New York as “Maintenance”) are controlled by Domestic Relations Law (DRL) § 236. This Statute sets for 10 specific factors that the court must consider in decisions pertaining to maintenance. There is an eleventh, catch-all provision that directs the court to consider “any other factor which the court shall expressly find to be just and proper”.
The primary consideration in determining alimony is the parties’ pre-separation standard of living. Courts will also focus on the length of the marriage, the parties’ respective earning capacities, income disparities, and the tax consequences that would arise from a maintenance award.
Despite the broad discretion afforded to a trial court in making decisions with regard to equitable distribution and maintenance, marital fault is generally not a factor that may be considered. In its now famous decision entered in the matter O’Brien v. OBrien, the New York Court of Appeals held that marital fault is not relevant to the financial issues decided in divorce except in them most extreme and shocking situations. The Court reasoned as follows
marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues
Conclusion:
New York and New Jersey have reached similar conclusions with regard to the issue of the role that marital fault should play in considering the financial aspects of divorce. In both jurisdictions, marital fault will not be explicitly considered by the court except in most extreme of circumstances. This is not the approach that most litigants expect. Typically, individuals facing divorce begin the process focuses solely on what wrongs their spouse committed. They are often shocked to hear that the issues that affect them the most emotionally may have minimal, if any, impact on the outcome of the divorce.
Each case has to be reviewed based on its unique facts. However, the odds are that in both New York and New Jersey, marital fault will not be the defining factor with regard to the financial aspects of divorce.
By: Marc A. Rapaport, Esq. (350 Fifth Avenue, New York, NY 10118; (212) 382-1600
12. Protection of Domestic Partnership Status Under The New York City Human Rights Law
Answer:
In October, 2005, Mayor Bloomberg signed the Local Civil Rights Restoration Act of 2005 (the "LCRRA") into law, amending the New York City Human Rights Law ("NYCHRL").
The LCRRA adds "partnership status" to the list of classes protected under the NYCHRL. The amendment defines "partnership status" to mean the status of being in a domestic partnership under the New York City Administrative Code (the "Code"). The Code, in turn, considers a domestic partnership to exist when two people share "a close and committed personal relationship" and "live together and have been living together on a continuous basis." While domestic partners must generally register their partnerships with the New York City Clerk, the Code makes clear that the City will recognize a marriage, domestic partnership or civil union lawfully entered into under the laws of another state.
At bottom, the amendments to the NYCHRL grant civil rights protections to individuals who believe that they have been discriminated against for sharing a close, committed relationship with another person. Individuals who believe that they have been discriminated against for being in a domestic partnership (which is broadly defined under the law) need not establish that they were terminated or demoted. The law only requires that they suffer action that is “reasonably likely to deter a person from engaging in protected activity”.
13. Frequently Asked Questions Regarding Paternity Proceedings In New York
Answer:
1. What factors do New Jersey courts consider in making determinations regarding the custody of children?
Answer: The principle guiding courts in custody determinations is that the best interests of the children is served. The standard has been described as one that protects the safety, happiness, physical, mental and moral welfare of the child. M.P. v. S.P., 169 N.J. Super. 425 (App. Div. 1979).
There are a number of factors that bear upon the determination of what is in a child's best interest. These factors include, but are not limited to, the following, by the express statutory mandate of N.J.S.A. 9:2-4.
1. The parents' ability to agree, communicate and cooperate in matters relating to the child;
2. The parents' willingness to accept custody and any history of unwillingness to allow visitation not based on substantiated abuse;
3. The interactions and relationship of the child with its parents and siblings;
4. The history of domestic violence, if any;
5. The safety of the child and the safety of either parent from physical abuse by the other parent;
6. The preference of the child when of sufficient age and capacity to reason so as to form an intelligent decisions.
3. New Jersey Enters 2007 With More Liberal Grounds For Divorce: The Beginning of True No-Fault Divorce in New Jersey
Answer: In December, 2006, the state Assembly of New Jersey gave final legislative approval to a bill that allowed couples to obtain divorces based on irreconcilable differences. Previously, couples seeking a divorce had to either allege fault or wait out an 18-month period of separation. The new legislation added a new cause of action for “irreconcilable differences which have caused the breakdown of the marriage” for six months” and which “make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.” The bill had the broad support of the New Jersey matrimonial bar, including the State Bar Association.Subsequently, in January, 2007, Section 2A:34-2 of the New Jersey Statutes, which sets for the causes of action for divorce, was amended to include the newly enacted provision. Section 2A:34-2 now has a subdivision (i), which provides that a divorce may be obtained when:
Irreconcilable differences which have caused the breakdown of the marriage for a period of six months and which make it appear that the marriage should be dissolved and that there is no reasonable prospect of reconciliation.The New Jersey Legislature’s bill, and the resulting changes to Section 2A:34-2, puts New Jersey at the forefront of the increasing number of states that have sought to enable spouses to pursue divorce without resorting to allegations of “bad behavior”. Hopefully, this change in the law will enable more couples to avoid the vitriolic, personal attacks that typically serve little or no practical purpose, and that add to the already considerable pain faced by couples who have decided that their marital relationship cannot be salvaged.
As a matrimonial attorney with fourteen years of experience, I share the view expressed by many of my colleagues that the reduction of hostility in divorce matters will promote the best interests of both the litigants and the courts. Couples who seek judicial intervention to end their marriages do not benefit from artificial barriers designed to slow their divorces or limit their options. I believe that Section 2A:34-2(i) will assist in reducing needless emotional suffering, and increase the ability of the litigants, their attorneys, and the Courts to focus on the important financial, custodial, and other issues that must be resolved.
By: Marc A. Rapaport, Esq., 350 Fifth Avenue, Suite 4400, New York, NY 10118 All Rights Reserved.