Throughout the Covid-19 pandemic, we have blogged about the judicial decisions that have been rendered addressing parents withholding visitation from the other parent as a result of the pandemic.  When the courts are presented with an application seeking to enforce visitation while simultaneously faced with the health concerns surrounding Covid-19, they have to take into consideration the facts and circumstances of the individual case.  For example, the court may consider if there are health concerns of the children or other individuals in the home.  As a result, you are bound to see the courts issue varying decisions.  This blog post is to present you with yet another decision regarding parents attempting to navigate visitation schedules while also navigating the Covid-19 pandemic.

In a decision issued out of Nassau County Family Court, J.R. v. S.R., the court was faced with an application of the father seeking: (1) to hold the mother in contempt for her alleged failure to abide by the visitation schedule; (2) seeking to enforce the parties visitation schedule; (3) seeking “make-up” parenting time for the mother’s alleged failure to abide by the visitation schedule; and (4) an award of counsel fees.  The mother cross-moved seeking: (1) to dismiss the father’s application; (2) imposing sanctions pursuant to 22 NYCRR Section 130-1.1 against the father for making a frivolous application; and (3) an award of counsel fees in the sum of $3,500.

The father claimed that at the beginning of the Covid-19 pandemic the parties agreed that the children would remain with the mother.  However, the father contended that he notified the mother on May 7, 2020, that he planned to resume the regular visitation schedule on May 8, 2020.  The father further claimed that he was advised by the mother that if he planned on taking the parties’ son (as that is the only child he was pursuing visitation with) he would have to keep him indefinitely to ensure the health of her father, who resided with the mother and the children.  The father alleged that despite his attempts to resume visitation, the mother only permitted him to visit with the children for a few hours on May 26, 2020.

The mother opposed the father’s application, claiming that the parties made a joint decision that the children would remain with her during the Covid-19 pandemic for many reasons, which included the fact that her elderly father lived with her and that the father and his partner worked in the medical field.  The mother further argued that the father had access to the children throughout the pandemic, including overnight visits.  The mother maintained that the parties agreed to “pause” their visitation schedule due to the pandemic but that the father had resumed the regular visitation schedule before the filing of his application.  Additionally, the mother contended that the father had never requested “make-up” time for the visits he had missed during the pandemic and failed to respond to her attorney’s offers for any “make-up” time.

The mother went on to argue that the father’s request for counsel fees must be denied as he failed to serve her with a formal notice of default as required by article 13 of the parties’ stipulation of settlement.  Additionally, the mother claimed that the father failed to attach a copy of his retainer agreement or invoices which is required when seeking an application for counsel fees.  Instead, the mother alleged that she is the one entitled to counsel fees as a result of the father’s frivolous conduct.

The court denied the father’s request to hold the mother in contempt of court for violating the parties’ visitation schedule.  The court found that any missed parenting time on the part of the father was a direct result of the Covid-19 pandemic and the attempts of the parents to weigh the safety and health of their respective household during such unprecedented times.  The court noted that as the uncertainty of Covid-19 continued, strict adherence to the visitation schedule was close to impossible.  It was evident that there was no malicious intent on the part of the mother by withholding the children.  Instead, the parties made the mutual decision to adjust the visitation schedule based on the pandemic.

While the court did not find the mother in contempt, it did grant the father’s request to enforce the parties’ visitation schedule.  However, the court noted that the visitation schedule should be adhered to as strictly as possible while also taking into consideration the infection rates for Covid-19.  Specifically, the parties are to provide notice of any possible modifications that may need to be made to ensure the health and safety of the children due to the pandemic.  Additionally, the court granted the father’s request for “make-up” parenting time, which was to be agreed upon between the parties.

With respect to counsel fees, the court denied the father’s request.  The court found that the father failed to comply with the terms and conditions set forth in the parties’ stipulation of settlement which required him to send the mother a notice of default, a condition precedent to filing his application.  Additionally, the father failed to comply with the statutory requirements in seeking an award of counsel fees.

The court denied the mother’s request to dismiss the father’s application as well as her request for an award of sanctions pursuant to 22 NYCRR Section 130-1.1.  However, the court granted the mother’s request for counsel fees in the sum of $2,500, finding that the father’s failure to send a notice of default prevented the mother from being given the opportunity to cure any alleged default before being forced to incur litigation costs.

So, what’s the moral of the story?  Covid-19 has added another layer to co-parenting relationships that may already be difficult and the courts are issuing decisions based on the facts and circumstances presented in each individual case.  There are no hard and fast rules when it comes to navigating visitation issues during a pandemic especially considering the fact-intensive nature of family law cases.  The one persistent theme in the decisions addressing visitation during the pandemic is that the courts will continue to put the best interest of the children at the forefront of any determination.

The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  In the event that you need legal assistance, please contact Hanna E. Kirkpatrick at hkirkpatrick@jaspanllp.com or (516) 393-8259.

If you have been following along with our blog posts, you will know that we recently posted about adultery. Luckily for us, five (5) days after our adultery blog was published, the Appellate Division, Second Department published a decision discussing this exact topic. In Agulnick v. Agulnick[i], the Second Department was presented with a case in which the wife alleged that the husband committed adultery with their children’s babysitter.

You might ask, well why would the wife even allege adultery? Didn’t you previously tell us New York became a no-fault divorce state in 2010? And you would be correct. New York is a no-fault divorce state; however, a person may still maintain an action for divorce based upon the commission of the act of adultery. In Agulnick, the wife had a lot to gain if she was able to prove adultery on the part of her husband.

The parties in Agulnick had a post-nuptial agreement from 2006 wherein the husband had admitted to committing prior acts of infidelity. As a result, in the parties post-nuptial agreement, the husband agreed that if he engaged in certain sexual contact with a third party thereafter, the wife would receive: (1) 80% of his future gross lifetime earnings from all sources (minus FICA); and (2) 80% of all marital assets. He further agreed to pay 100% of certain defined liabilities and pay the wife her marital share of the value of his medical license. In other words, the wife would make out like a bandit if she could prove that her husband cheated.

So what happened? Well, the wife, in her verified amended answer included a counterclaim for adultery alleging that the husband cheated on her with the babysitter and the husband immediately moved to dismiss the wife’s counterclaim. When the husband’s motion to dismiss was denied, he wasted no time and shortly thereafter filed a motion for summary judgment again seeking the dismissal of the wife’s counterclaim. The supreme court initially denied the husband’s motion, but on appeal, the Second Department reversed. Importantly, the Second Department visited the old law related to adultery and attempted to bring the 1877 decisional authority into the 21st century.

Since approximately 1877, courts have held that adultery may be circumstantially proven using a three-part test consisting of (1) a lascivious desire, (2) the opportunity to gratify the desire, and (3) acting upon the desire.

In Agulnick, based on the allegations of the wife, the court took issue with the “opportunity” prong of the test. Due to the ever-changing status of our society, the court refused to allow the “opportunity” prong to continue to mean mere “proximity.” In other words, just because a man and a woman are in close proximity to each other (i.e. working at desks next to each other), should not mean the man (or woman) has the opportunity to engage in an extramarital affair. The court noted that the elements for adultery date back to a time when women were rarely in the workplace, and if they were, they were not side-by-side with men like they are today. Particularly relevant to this case is the fact that today, certain employees, such as nannies and babysitters, may reside at their employers’ homes. Additionally, when the elements for adultery were created, society was not as mobile as it is today. People could not simply jump on a plane and be in another state or another country in a mere few hours.

Instead, the court found that “opportunity” must mean “proximity plus.” The court gave examples of what the “plus” could be. The court’s examples included a hotel receipt for two, two plane tickets to a destination out of the norm, suspicious or incriminating e-mails or other writings, flirtatious behavior, frequent get-togethers in non-professional settings, or even a suspicious conversation overheard by a witness. But note, proving any of the above mentioned things does not mean you will ultimately prove adultery; it just means that an inference may be drawn that a “party’s acts are more consistent with guilt than with innocence,” which is sufficient to overcome summary judgment[1].

Ultimately, the court held that the husband met his burden of proof and granted him summary judgment dismissing the wife’s counterclaim for adultery. Both the husband and the babysitter submitted written affidavits in which they swore under oath that they, amongst other things, “never engaged in a sexual relationship of any kind or nature” with each other and that their relationship was “at all times . . . in a professional working capacity.”  Further, the wife could not point to a single fact or piece of evidence to show any adulterous conduct between the husband and the babysitter. She gave no dates, no witnesses who observed behavior, no photographs, no texts, emails, etc. Instead, it seems as though the wife’s suspicions existed only because of what she could have gained as a result of the terms of the post-nuptial agreement.

We have decided to blog about this case because it provides both an interesting fact pattern and provides a recent court’s analysis of adultery in the context of today’s society.  That being said, every matrimonial matter is fact specific with its own unique history and circumstances, especially when allegations of adultery are raised. For this reason, the material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Samantha M. Guido can be reached at sguido@jaspanllp.com or (516) 393-8250.

[1] Summary Judgment is a procedural device utilized to allow for the speedy disposition of a controversy without the need for a trial.

[i] 2020 NY Slip Op 07333 (2d Dep’t 2020).

Every client that I meet has a different set of circumstances and goals.  From the initial consultation until the final stage of a client’s divorce, I am constantly focused on my client’s goals and how to achieve those goals efficiently and with the least amount of stress.  Anyone who has gone through divorce knows the tumult that comes with ending a relationship.  This is so especially if a divorce will involve the day-to-day parenting of young children and most recently – navigating a global pandemic.

Often times, people develop their conception of divorce based on either their previous experiences, their perceptions as a child of divorce, or as I previous mentioned in my blog post entitled “Three Mistakes To Avoid During Your Divorce”, the advice of their Aunt Gertrude’s best friend’s mother’s sister’s daughter’s divorce attorney in Tuscaloosa, Alabama.

Setting aside humor, after over a decade of matrimonial law experience, it is my firm belief that in order to best navigate your divorce, one must understand that they can customize their divorce and in doing so take control of what can often be a highly stressful and emotional time.

So without further ado, the options that are available to divorce clients are:

Collaborative Divorce Process:  Collaborative Divorce entails a series of “four-way” meetings, which will occur on a regular basis.  Everyone involved, including the attorneys, are committed to an “out of court” resolution.  This commitment includes the execution of what is often called a “no court” agreement that directs any attorney to withdraw from the case should it proceed to litigation.  Collaborative divorce requires a collaboratively trained attorney and less of a zealous advocate whose typical courtroom persona may not be suited well to settlement.  Collaborative Divorce also frequently utilizes neutral professionals, such as child therapists and forensic accountants.  These individuals are hired collectively by the parties and thus do not represent either side’s agenda.  If you value confidentiality and preserving relationships you may want to learn more about the Collaborative Divorce Process.

Divorce Mediation:   I previously blogged about mediation during the lock-down phase of the COVID-19 pandemic in New York.  Mediation is a form of alternative dispute resolution (ADR) which is a consensual, informal process that is designed to help individuals resolve disputes.  It is a process by which parties identify issues, explore creative solutions and negotiate the terms of an agreement.  In the age of COVID-19, mediation can offer a viable alternative to resolving your family law matter.  Mediation also offers parties control, creativity and the ability to continue relationships between co-parents.  Mediation can be attorney-assisted with each party obtaining counsel to guide them through the process and provide legal advice.  Alternatively, the parties can meet with a mediator to resolve disputes and then provide the written settlement agreement to individual counsel.  The necessity of having an attorney review a mediated settlement agreement is because a mediator (often times an attorney) does not give legal advice.  The role of the mediator is to facilitate and occasionally evaluate each party’s position (and goals) but not to give legal advice.  The mediator at all times must remain neutral.  Mediation can also involve experts such as forensic accountants, real estate appraisers, investment professionals and parenting and mental health experts.

Divorce Litigation:   Often times despite a party’s best efforts, they find themselves in litigation. Contentious divorces are the divorces that you find splashed all over the tabloids or in the movies.  These divorces typically involve certain key components: a high conflict personality of one or both parties, an overzealous attorney directing a doe-eyed litigant or where one party continually violates orders or judgments of the court with little to no regard for the consequences of their behavior.  If you find yourself headed toward the litigation highway, it is imperative that you have experienced counsel to navigate the court system and its intricacies.

Consulting: I am lucky to be mentored by a retired Supreme Court Justice who often times shares with me his experiences as a sitting Justice.  At the onset of a divorce or when a collaborative or mediation process fails, it may be necessary to consult with an attorney to re-evaluate and re-assess your goals and legal strategy.  Do not be afraid to consult with experienced attorneys, financial consultants, investment advisors, mental health professionals or parenting experts during the course of your divorce.  Well-informed and reasoned decision making is essential to moving forward from the emotional and financial consequences of divorce.

If you are interested in learning more about the collaborative process, mediation process, litigation or consulting and how to customize your divorce in order to help you resolve your family matter, you can reach me at mpullano@jaspanllp.com or (516) 393-8297. The material appearing in this blog is meant to provide general information only and is not a substitute for nor is it legal advice to you. Readers of this article should seek specific advice from legal counsel of their choice.

Marissa Pullano is a partner in Jaspan Schlesinger’s Matrimonial and Family Law practice group. She is a collaboratively trained attorney and a certified mediator. Marissa believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict, but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.

 

Divorce often brings out the worst in people. The process of divorce for some may be long and drawn out and cause not only financial stress but take a serious toll on one’s mental and emotional well-being. It is during these stressful times that many spouses are under the wrong impression that while in the midst of their divorce it is the perfect time to try and put their spouse through the proverbial wringer. However, you should not allow your anger to take over as often times the outcome will not be worth the temporary satisfaction you may have and your conduct has the potential to create serious financial implications. Pursuant to New York Court Rules and Regulations (“NYCRR”), in civil matters, such as divorce proceedings, the court has the ability to impose financial costs and sanctions upon parties and attorneys if they engage in frivolous conduct.[i]

Pursuant to 22 NYCRR 130-1.1(c), conduct is frivolous if:

  • It is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
  • It is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
  • It asserts material factual statements that are false.

While you may be under the impression that costs and sanctions may be one lump sum payment this is not always the case. The courts have the broad discretion to impose financial costs and sanctions as they see fit based upon the facts and circumstances of the case. A perfect example of just how broad the courts discretion may be in imposing sanctions pursuant to 22 NYCRR Part 130 is highlighted in a recent decision from the Supreme Court, Suffolk County, entitled Jessica T. v. Kieth T.[ii]

In Jessica T., the defendant made it his mission to prolong the litigation and attempted to use the legal system to abuse the plaintiff. In his efforts to delay the case and further terrorize the plaintiff, defendant manipulated the court process by blatantly lying under oath, set forth frivolous and specious arguments and allegations, presented witnesses with uninformed opinions, caused drawn out conferences and examinations of witnesses that were not probative, refused to pay timely support payments, refused to help save the marital home from foreclosure, harassed and annoyed plaintiff and their child and refused to pay for court-ordered expenses. The defendant attempted to do anything and everything that would inflict further harm on plaintiff. In the end, his actions may have allowed him to prolong the case but as a result, he suffered financial sanctions imposed by the court.

The court noted that this case stands out to be one of the most insidious cases of domestic violence it has ever seen. As a result, pursuant to 22 NYCRR Part 130, the court compensated the plaintiff for the injuries she suffered due to defendant’s malicious, vexatious, and abusive litigation tactics by imposing sanctions upon the defendant in accordance with 22 NYCRR Part 130. The court, as a form of sanctions, directed the defendant to pay plaintiff ten (10) years of maintenance and refused to credit the defendant for any payments of maintenance he made during the pendency of the case which spanned over approximately six (6) years.

So what’s the moral of the story? When you are involved in civil litigation of any kind, especially a divorce proceeding, do not allow your emotions to negatively influence your behavior. Your divorce is not a game and if you treat it as such, you may be the one who loses.

Every matrimonial matter is fact specific with its own unique history and circumstances. For this reason, the material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Hanna E. Kirkpatrick at hkirkpatrick@jaspanllp.com or (516) 393-8259 or Samantha M. Guido at sguido@jaspanllp.com or (516) 393-8250.

[i] 22 NYCRR 130.

[ii] 2020 NY Slip Op 50673(U) (Sup. Ct. Suffolk Cty 2020).

My Dad was a big fan of the Eagles. Long after he passed away, I would listen to his old Eagles albums. The 1975 hit “Lyin’ Eyes” took on a new meaning after I began to practice matrimonial and family law and began to regularly have people come into my office and share the most intimate details of their lives, including on occasion, their lyin’ eyes. Dare I sound like a jaded divorce lawyer, but lots of people cheat and some of them get caught. There is the occasional reconciliation but far too often the cheating is a symptom of a relationship that has long ago ended. Then, inevitably, someone is in my office heading straight for divorce, whether the other party wants it or not.

A Walk Down “The Fault Divorce” Lane

At one point, adultery was the only way to obtain a divorce in New York. At that time, courts were very wary of couples conspiring to obtain a divorce even when adultery did not exist, leading to onerous evidentiary hurdles to prove adultery. The 1966 reforms to the Domestic Relations Law eventually added additional grounds for divorce.

2010 Enactment of “No Fault Divorce” – A Long Time Coming

Believe it or not, despite being considered a progressive state, New York has a long history of being conservative on issues regarding marriage. This is mirrored in the history of New York’s reluctance to enact No-Fault Divorce.

In October of 2010 (yes, you read that right), the great state of New York became the last state in our union to become a “no fault” jurisdiction.

Although New York is now a no-fault divorce state (where a court need not find fault on the part of either spouse to grant a divorce), a person may still maintain an action for divorce based upon the commission of the act of adultery.

Do Lyin’ Eyes Matter?

The answer to this question depends on the specific facts and circumstances of your case. If you’ve been following along with my blogs, you’ll find this to be a common and favorite answer of mine. Adultery may still be relevant to the financial portion of your case. As set forth more fully in our previous posts about wasteful dissipation (Part I and Part II), whether a spouse engaged in an extramarital affair and used marital funds to support the extramarital relationship and his or her paramour can be considered wasteful dissipation and can impact both maintenance and equitable distribution awards.

The Bottom Line

Most judges are not terribly interested in reading about the sordid details of an extramarital affair and who did what to whom, but a longstanding extramarital affair or egregious financial spending on an extramarital relationship over a sustained period of time should and must be brought to the attention of the court.             

Also, it is important to understand that a divorce that begins as a result of adultery often, and not surprisingly, can set the tone for a long and drawn out case.

Finally, it’s worth noting that adultery is still a class B misdemeanor pursuant to Section 255.17 of the New York Penal Code.

The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice.

Marissa Pullano focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement. She also has experience drafting prenuptial, postnuptial and separation agreements. Marissa believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict, but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.  She can be reached at mpullano@jaspanllp.com or (516) 393-8297.

 

 

In last week’s blog post, we identified and examined what is considered wasteful dissipation. We made the important distinction between positive action taken to dissipate assets (example: gambling with marital assets) and inaction (example: failure to reasonably manage investments). We also identified a non-exhaustive list of eleven (11) factors the court can consider in determining whether wasteful dissipation has occurred. In this week’s post, we consider the effect of a finding of wasteful dissipation on equitable distribution and maintenance

Wasteful Dissipation and Equitable Distribution

Although whether a party wastefully dissipated marital assets is only one (1) factor a court must consider, courts have frequently reduced a party’s share of marital assets due to their wasteful dissipation.  Below are summaries of cases from various appellate departments and trial courts explaining the effect of wasteful dissipation on the distribution of assets.

Unequal Division of Debt and Furnishings:

In a 2010 case, a husband was apportioned all debt associated with his businesses and was not entitled to an equitable share of the marital home furnishings as a consequence of his wasteful dissipation of marital assets.[i] In this case, the husband engaged in excessive spending, made various unsecured loans without his wife’s knowledge, and invested in two (2) businesses that resulted in no economic benefit for the parties.

Unequal Division of Marital Residence:

In a 2015 case, the court found that the equity in the marital residence should be disproportionately distributed because the plaintiff proved that the defendant committed wasteful dissipation of marital assets by financially supporting a second family.[ii] The husband conceded that he used his income earned during the marriage to support his second family by paying his paramour’s rent, cable television bill and other expenses for many years. In the end, the wife received, among other awards, sole and exclusive title and possession to the marital residence and 100% of the equity because of the husband’s wasteful dissipation.

Unequal Division of Marital Assets (60% / 40%):

Similarly, a court upheld an award of 60% of certain marital assets to the wife and 40% of certain marital assets to the husband, where the husband wastefully dissipated assets.[iii] The record showed that at the date of commencement of the matrimonial case, the marital assets, excluding the value of the marital residence, totaled $251,818.11 and by the time of trial, this sum was diminished to $208,995.02. The reduction was due mostly to the husband’s refusal to obtain employment during the two (2) years before trial and his withdrawal of large sums of money for his expenses.

These cases illustrate how a court can use its discretion to limit a spouse’s share of marital assets when he or she engages in behavior that prevents the court from making a fair and equitable distribution of certain assets.

Wasteful Dissipation and Maintenance Awards

Similarly, a party’s wasteful dissipation of assets may also affect an award of maintenance. The theory is that a dependent spouse (the spouse to receive the maintenance award) should not suffer because the other spouse wasted marital property rendering him or her less capable of paying maintenance. Appellate Courts have modified maintenance awards after taking into consideration the payor’s wasteful dissipation of marital assets. For instance, a case from the Third Department modified a lower court’s holding that plaintiff was not entitled to maintenance.[iv] The Third Department modified the award to $25 per week after taking into consideration, amongst other things, the payor’s wasteful dissipation of marital assets.

In a Kings County decision authored by the Honorable Jeffrey S. Sunshine, the court held that the husband, who purposefully concealed his unemployment from the wife for more than seven (7) years, was not entitled to the presumptive amount of pendente lite maintenance because such conduct constituted wasteful dissipation. The presumptive amount of pendente lite support was $3,612.47; reduced by the husband’s fifty percent (50%) share of the daily living expenses paid by the wife, for a total of $674.47 per month. However, due to the husband’s wasteful dissipation, the court awarded him $400.00 per month in pendente lite support instead.

Every matrimonial matter is fact specific with its own unique history and circumstances. For this reason, the material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.

[i] Noble v. Noble, 78 A.D.3d 1386 (3d Dep’t 2010).

[ii] G.M. v. M.M., 50 Misc. 3d 956 (Sup. Ct. Westchester Cty. 2015).

[iii] Southwick v. Southwick, 202 A.D.2d 996 (4th Dep’t 1994).

[iv] Reed v. Reed, 93 A.D.2d 105 (3d Dep’t 1983).

A Brief History Regarding Equitable Distribution

In 1980 the New York Legislature enacted the Equitable Distribution Law (DRL § 236B) (“EDL”) which required courts to equitably divide marital property based on a consideration of several factors. At the time, the courts had ten (10) factors to consider.[i] Pursuant to the statutory law, courts became tasked with deciding whether marital fault should be considered under what is commonly referred to as the “catchall factor.”

Shortly after the enactment of the EDL in 1984, the Second Appellate Department in Blickstein v. Blickstein found that only marital fault so egregious and in such blatant disregard of the marital relationship that it “shocks the conscience” can be considered by the courts under the catchall factor. This rule was adopted by the Court of Appeals in 1985 in the O’Brien v. O’Brien case. See 66 N.Y.2d 576 (1985).

While the changes to equitable distribution appeared to allow domestic violence victims a way to receive more in equitable distribution, unfortunately, that was generally not the case. Not many cases in the past thirty-six (36) years have found that egregious conduct actually existed. Further, there is no concrete definition of what egregious conduct even is, leaving it up to the court’s discretion to decide whether a spouse was a victim of egregious conduct that “shocks the conscience.”

Recent Amendments To Include Domestic Violence

On April 3, 2020 the legislature amended the Domestic Relations Law (“DRL”) by adding a new factor to be considered in making a distributive award – domestic violence. This recent change is significant because DRL § 236B(5)(d) was previously silent as to whether a court could and should consider domestic violence as a factor in making an equitable distribution decision.

The new addition to DRL § 236(B)(5)(d)(14), provides, “In determining an equitable disposition of property under paragraph c, the court shall consider: . . . (14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts . . .”

Domestic violence is already considered by courts in determining what is in the best interests of a child and in determining both temporary and post-divorce maintenance. For purposes of determining maintenance, the courts considers “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law.”

DRL § 236(B)(5)(d)(14) is slightly different than DRL § 236(b)(5-a)(h)(1)(g) and DRL § 236(b)(6)(e)(1)(g)[ii] as it does not include the “include but are not limited to” language, thus indicating that courts may be more restrained in their determination of what constitutes domestic violence for equitable distribution purposes. What makes this issue even more difficult is that Social Services Law (“SSL”) § 459-a does not actually define “an act or acts of domestic violence”; instead, it defines a “victim of domestic violence.” A “‘[v]ictim of domestic violence’ means any person over the age of sixteen, any married person or any parent accompanied by his or her minor child or children in situations in which such person or person’s child is a victim of an act which would constitute a violation of the penal law, including, but not limited to acts constituting disorderly conduct, harassment, aggravated harassment, sexual misconduct, forcible touching, sexual abuse, stalking, criminal mischief, menacing, reckless endangerment, kidnapping, assault, attempted assault, attempted murder, criminal obstruction of breathing or blood circulation, strangulation, identity theft, grand larceny or coercion; and (i) such act or acts have resulted in actual physical or emotional injury or have created a substantial risk of physical or emotional harm to such person or such person’s child; and (ii) such act or acts are or are alleged to have been committed by a family or household member.”

The Potential Impact on Domestic Violence Victims in Divorce Litigation

Unfortunately, we will not know how this amendment will actually affect victims and their abusers until cases begin being litigated on this issue. However, transparency with your attorney is of the utmost importance in divorce proceedings.

If you are a victim of domestic violence, please contact a domestic violence hotline and/or your local law enforcement.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, please contact Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.

[i] To date, that list has grown to fifteen (15), including the most recent addition.

[ii] DRL § 236(B)(5-a) addresses temporary maintenance awards while DRL § 236(B)(6) addresses post-divorce maintenance awards.

Unfortunately, as matrimonial attorneys we often hear many tales of woe, including how one spouse either spent a large sum of money immediately before commencing a divorce action or eliminated their assets to avoid having to give their spouse any piece of the proverbial marital property pie. In legalese, we refer to this as “wasteful dissipation.” In this first installment of a two-part series, we will identify and examine what is considered wasteful dissipation, which can be considered by a court in its determination of equitable distribution (the division of marital and non-marital property in a divorce) and maintenance (the payment of support for the benefit of a non-monied spouse by a monied-spouse).

What is Wasteful Dissipation?

Wasteful dissipation is exactly as it sounds, it is the wasteful dissipation or depletion of marital assets (generally, assets obtained during the marriage). Although there is not a hard and fast rule as what constitutes wasteful dissipation, it is clear that wasteful dissipation of assets can occur through both positive conduct and as a result of inaction. Examples of positive conduct that has been found to be wasteful dissipation of assets are:

  • Active efforts to diminish the value of a business;
  • Gambling with marital assets;
  • Using marital assets to further an extramarital affair;
  • Abandoning a lucrative professional career; and
  • Making payments of marital money to emancipated children.

While these are just a few examples, it gives you an idea of what will likely be deemed as wasteful dissipation in the context of a divorce. In addition, the following are examples of ways a party can dissipate assets without taking any positive action:

  • Failure to take reasonable steps to preserve the value of assets;
  • Failure to reasonably manage investments;
  • Refusal to reduce mortgage payments on a marital residence by agreeing to refinance the home; and
  • Refusal to obtain employment during the latter part of the marriage.

However, just because a spouse undertakes, or fails to undertake certain actions, does not necessarily mean that a court will hold that the spouse wastefully dissipated marital assets. For example, just because a spouse used marital funds to gamble, does not automatically mean a court will find wasteful dissipation. In a 1998 case, the Third Department found that the wife’s argument that the husband’s gambling activities resulted in dissipating $110,000 in marital assets was not supported by the record, even though the husband admitted that prior to the parties’ separation he unilaterally took and used marital funds to gamble.[i] The court held that there was no evidence that he lost those funds gambling.[ii]

Factors Considered by Courts Prior to Determining Whether Wasteful Dissipation Occurred

            As shown above, simply because a party gambles, or engages in certain behavior, does not necessarily mean a court will find that he or she wastefully dissipated assets. Instead, courts will often consider a variety of factors prior to making its determination, including:

  • the intent involved in the commission of the act;
  • Concealment of a wasting of assets;
  • Use of the asset by one spouse only or by both spouses for marital purposes;
  • Joint dissipation of property, regardless of purpose;
  • Time of commission of act (i.e., before or after commencement of the divorce action);
  • Access to the asset by one or both parties;
  • Existence of the asset at the time of distribution;
  • Whether the act constitutes waste in hindsight only;
  • Whether the “guilty” party obtained a profit by the act;
  • Failure to support the family due to the alleged wasteful dissipation;
  • The relationship between the alleged waste and the parties’ overall financial status.

While this list is not all inclusive, it also provides some insight as to certain criteria courts will consider.

So what does this all mean?

            Wasteful dissipation, when it exists, can have serious effects on equitable distribution and maintenance awards. Stay tuned for our next installment in this series to understand how wasteful dissipation can affect the equitable distribution and maintenance components of a divorce case.

The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.

[i] Treffiletti v. Treffiletti, 252 A.D.2d 635, 636-37 (3d Dep’t 1998).

[ii] Id. at 637.

Domestic Violence is a serious issue that requires awareness each and every month, not only in the month of October. If you or anyone you know is a victim of Domestic Violence below are important resources and organizations which will be able to provide assistance.

The purpose of this article is to provide victims of domestic violence with the necessary information they may need to assist them in seeking in an order of protection in Family Court. While individuals may be granted an order of protection from Criminal Court, this post will only focus on obtaining an order of protection in Family Court.

Brief Overview

             An order of protection is a document issued by the Family Court which prohibits an individual from engaging in certain behaviors. The most extreme example of this would be a complete “stay-away” order of protection. What this means is that the offending party may be prohibited from going to the victims residence, school, business, place of employment, or any other location that the court specifically designates and prohibiting any contact with the victim by way of phone, text message, e-mail or any electronic means. Most “stay-away” orders of protection will further prohibit the offending party from engaging in family or criminal offenses, including but not limited to, assault, harassment, stalking, threats, intimidation, menacing and reckless endangerment.

The Family Court also has the ability to issue what are known as “refrain from” orders of protection. What this means is that the Family Court will issue an order which requires the offending party to “refrain from” certain behaviors. Such behaviors may include, but are not limited to, assault harassment, stalking, threats, intimidation, menacing and reckless endangerment.

How to Obtain an Order of Protection

When seeking an order of protection in Family Court you first must ensure that the court has the ability to hear your case. In order to file for an order of protection in Family Court your relationship with the offending party must fall into at least one of the following categories:

  • Current or former spouse;
  • Relation by blood or marriage;
  • You and the individual have a child in common; or
  • You and the individual have or have had an intimate relationship.

It must be noted that proving that you have or have had an intimate relationship with the offending party does not necessarily mean a sexual relationship. It depends on various factors, such as if you have lived together or have dated. If you allege that you are seeking an order of protection based on the intimate relationship with another individual, the court will decide if it has the ability to hear your case based on the nature of your relationship with the other party.

Once you have established that your relationship has fallen into one of the above listed categories, the next step is to fill out a petition, which in Family Court is referred to as a Family Offense Petition.

Significant Information to include in the Petition

The petition will provide the court with the relevant facts and circumstances surrounding your case and why you are requesting an order of protection. As such, it is important to provide the court with as much detailed facts as possible. As stated above, it is imperative that you include your relationship with the offending party. Additionally, some questions you would want to ask yourself in preparation for completing your petition are as follows:

  • Details about the abuse, is it physical or emotional abuse or both?
  • Has the abuse gotten any worse?
  • Have you had any injuries or hospitalizations?
  • Is there a history of abuse?
  • Has the individual you are seeking protection from been arrested?
  • Have you ever called the police or have any police reports?
  • Does the individual own any guns or weapons?
  • Has the individual ever threatened you with weapons?
  • Has the individual threatened your life?
  • Are you in fear for you safety, if so, why?
  • Has the individual sent threatening messages (i.e. voice, text, e-mail)?
  • Do you have children together, if so, have there been threats made to the children?
  • If you have children together, have the children witnessed any violence?

The above questions are merely generalizations that you should think about when filling out your petition seeking an order of protection and is not all inclusive. If any or all apply to you, make sure to include details in your petition so that you have provided the court with as much information as possible. Also, it must be noted that while you do not need to hire counsel in order to file for an order of protection, we always recommend that you seek legal advice from an experienced attorney of your choice.

Points to Remember

When you are seeking an order of protection in Family Court, which is a civil matter, you will be required to face your abuser in court and they will be given an opportunity to respond to the allegations set forth within your petition. While the case is pending, the court will have the authority to issue a temporary order of protection which will have an expiration date. However, the temporary order of protection may be renewed if it is set to expire prior to the close of the case.

After what is called a fact finding hearing, where the judge will hear all the relevant facts and be provided with the pertinent evidence, the court will decide on the disposition of your case and determine if you are entitled to a permanent order of protection. If the court finds that you are entitled to a permanent order of protection, the court will designate the length of time that the order of protection will remain in place, which is based on the facts and circumstances of your case.

While an order of protection may be one way to protect a victim, it does not guarantee a victim’s safety. It is imperative that you implement a safety plan and seek out the assistance of Domestic Violence organizations, such as L.I. Against Domestic Violence at 631-666-8833.

Finally, the material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. If you have specific questions regarding this article, Hanna Kirkpatrick may be reached at 516-393-8259 or by e-mail at hkirkpatrick@jaspanllp.com.