Divorce is quite possibly the hardest and most exhausting journey an individual will embark upon.  In the profession, divorce attorneys state that we see “good people at their worst.” I often encounter individuals languishing in pain due to destructive relationships that seem to strip their lives of joy and, most important to the divorce process, rational thought. I don’t mean to sound harsh but, in a typical high conflict divorce, tensions tend to run extremely high and runaway emotions cause people to make poor decisions that they often later regret.  The purpose of this blog post is to provide some examples of behavior to avoid during your divorce.

1. Do not read your spouse’s email. 

Please “for the love of God and all that is holy” (to quote my Grandmother) DO NOT READ YOUR SPOUSE’S EMAIL. I do not care if your spouse at one time gave you his or her password, or gave you consent to read their email.  FYI – The divorce filing revokes that consent. I do not care if they got a new device and didn’t disable the iCloud.  I do not care if they left their password in the browser and all you have to do is simply log-in by the stroke of the enter key.  Auto-populated passwords do not give you carte blanche authority to go on a fishing expedition.  I repeat that none of these reasons are acceptable situations to break the law. Yes, you read that correctly. Reading your spouse’s email by hacking into their account is illegal.

Additionally, those precious emails that you care so much about can be legitimately requested and obtained by your lawyer through the discovery process. If you decide to go on your mission and break the law, my job is infinitely harder and those precious but wrongfully obtained emails will never see the light of day.  It may be tempting but, please, step away from the computer and consult your attorney.

2. Do not post about your life on Facebook, Twitter, Instagram or TikTok.

Not only is your TikTok activity being fed to the Chinese government (allegedly), in the divorce world it is evidence. So, again, please step away from the computer and get your social media accounts under control.  Emotional posts on Facebook, Twitter, Instagram or TikTok, do nothing to further your case and, in fact, hand ammunition over to your adversary.  Why would you give your adversary bullets with which to shoot you? Only an individual whose judgment is impaired because of emotional turmoil would do such a thing. Find your friends in real life and ask them to meet you at a socially distant location, wear your mask (these are COVID times) and vent about all the woes. I’m serious. None of your emotions should be on display on any social media account.

3. Do not value another person’s experience over your lawyer’s advice.

Once you enter the divorce arena, everybody, and I mean everybody, suddenly has an opinion about the process.  There is a time and place for all information and, just like any other facet of your life, information gathering is essential in divorce. However, valuing the advice of your Aunt Gertrude’s best friend’s mother’s sister’s daughter’s divorce attorney in Tuscaloosa, Alabama over the advice of your attorney is an absurd proposition that you should seriously reconsider.

It is important at all stages of the divorce process that you regularly remember what your goals are and focus on how you can best achieve these goals.  In some circumstances, you will need to make concessions in order to reach your goals. Do not be afraid to place your goals and what may work for your family over what society measures a “victory,” or what someone else may (note the italics) tell you they somehow pulled off in their case.  Sometimes you have to roll the dice, and other times you need to make appropriate concessions. At the end of the day, this is your life and you are in the driver’s seat. Drive carefully and don’t value another person’s experience over your lawyer’s advice.

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. 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.

 

Divorcing parties and their attorneys take great care to reach a realistic valuation as to real property – hardly an easy feat.

What constitutes a realistic valuation for real property has, however, become even more difficult gauge in light of the pandemic, and legislation passed in response thereto.

In the early days of the lockdown, many homes were pulled off the market, with homeowners in certain states wary of (and in other states, including New York, unable to) host open houses.

Now, with certain of those same states entering into phased reopening and with a second stimulus bill on the table, there is talk of legislation that would lift the SALT Tax Cap, potentially driving another big shift in housing markets in New York and other high-income states.

What Is the SALT Tax and to Whom is it Relevant?

The SALT deduction is a tax provision that allows taxpayers who itemize their taxes to write off state and local taxes, including property taxes.

This much is nothing new. In fact, ability to deduct nearly all state and local taxes was part of the federal income tax code when it was first created, in 1913.

In certain states where property taxes range into the tens of thousands, the SALT deduction was, for many years, a significant source of savings for homeowners.

What Is the SALT Tax Cap?

In January 2018, the SALT deduction was eliminated by the Tax Cuts and Jobs Act, Republican-backed legislation that capped state and local deductions at $10,000 for all SALT income, property, and sales taxes combined.

Previously, there was no limit.

For many residents of high-income states like New York, which on average take high deductions for state and local taxes, the change was significant, and there was great concern about how the new cap on deductions would affect residential property sales.

How Might the Pandemic Impact New York’s SALT Tax Cap?

On May 15, 2020, the House passed the HEROES Act, the $3 trillion dollar follow up to this year’s first stimulus bill, the CARES Act. Among the many provisions therein is one that would suspend the SALT Tax Cap entirely for two years. With the Cap suspended, houses in areas with high property taxes become more marketable, since potential buyers can use the deduction to offset the financial impact of their purchase.

Before it becomes law, however, the HEROES Act must make its way through the Senate where, it is widely speculated, the two-year suspension of the SALT Tax Cap will be removed. Although many believe suspension of the Cap would provide the housing market with a much-needed boost, others see it as yet another tax break for the wealthy. More importantly, the states that would benefit most (those with the highest property taxes) are largely “blue” states, and the Republican-controlled Senate is in no rush to come to their aid.

Accordingly, it remains to be seen how the housing market will respond to the pandemic, and whether or to what extent legislation, such as the SALT Tax Cap and proposed suspension thereof, may impact that response. In the meantime, divorcing couples and others in New York looking to value their homes face as much, if not more, uncertainty than ever.

While New York State may slowly be “reopening,” New York courts continue to operate almost exclusively on a virtual basis. As a result, the Covid-19 Pandemic continues to impact the courts decisions in matrimonial cases. One example of Covid-19’s continued impact is highlighted in a recent case out of New York Supreme Court entitled Chu v. Lin.

In Chu v. Lin, Justice Matthew Cooper opened his decision with recognition to New York State courts commitment and ability to continue operations on a virtual platform. However, he further highlighted the difficulties that come with operating on such a platform, especially in high conflict matrimonial cases such as Chu v. Lin, where the conflict between the parties was only further incensed by the Covid-19 pandemic.

The plaintiff-father filed two separate applications due to the defendant-mother’s failure to comply with various court orders. The first application was brought seeking to compel the defendant-mother to comply with the parental access schedule that the court had put in place as well as compel the defendant-mother to vacate the former marital residence in order to effectuate the closing of the home in accordance with a previous so-ordered stipulation. The second application brought by the plaintiff-father sought to hold the defendant-mother in contempt for her failure to abide by the courts previous orders.

The court, through the virtual platform and without the need to hold a virtual evidentiary hearing, was able to resolve the issue of parental access during the Covid-19 pandemic in order to restore the plaintiff-father’s access to his children. However, the court found its ability to enforce the parties’ so-ordered stipulation and force the defendant-mother to vacate the martial residence in the middle of a pandemic to be a more challenging decision.

The court noted that the parties had previously entered into the so-ordered stipulation whereby they agreed to put the marital residence, their only marital asset, on the market as the parties lacked the financial means to continue to pay the mortgage and the carrying charges. In accordance with the so-ordered stipulation, the parties placed the marital residence on the market and later entered into a contract of sale with a third party purchaser, which required the home be vacant at the time of the closing. Despite the contract of sale and the various postponements of the closing date, the defendant-mother refused to vacate the marital residence, which was placing the closing in jeopardy and both the parties at risk to be sued for damages from the third-party purchasers.

While the court acknowledged that the defendant had in fact violated a lawful court order and that her actions had prejudiced the rights of plaintiff, Justice Cooper stated, “it strikes me as highly problematic, and perhaps even impermissible, to conduct a virtual hearing in a proceeding that could result in defendant being sentenced to jail.” The court identified an array of issues in holding a virtual contempt hearing including, but not limited to, the impossibility of the defendant’s need for a Mandarin interpreter to take place over Skype for Business, the inability of attorneys and clients to converse privately and the courts inability to control the virtual “courtroom” in the same manner he would if this proceeding was able to be held in person. The court noted that a contempt proceeding “is far too serious a proceeding to operate under these less than optimum conditions.”

In addition to finding a virtual contempt hearing problematic, the court also stated that the potential of the defendant being sent to jail as a result of a contempt finding was problematic. The plaintiff had requested that the defendant be sent to jail until she abide by the court’s order and vacate the former marital residence. However, the court stated “it would be unthinkable to incarcerate anybody for an offense like this during the COVID-19 outbreak, with the serious threat of infection rendered even more acute by the inevitable conditions of incarceration.” The court further highlighted the effort being made to decrease the population of the jails not increase the population.

The court further denied the plaintiff’s request to compel the defendant to vacate the former marital residence. The court noted that it was reluctant to force defendant out of the former marital residence as the defendant claimed that she and the parties’ children would end up in the streets in the middle of a pandemic. Regardless of whether the court found the defendant’s claims to be truthful, the court, pursuant to Executive order 202.8, found that it was unable to evict the defendant from the premises.

Although the Covid-19 pandemic influenced the court’s finding that a contempt proceeding was impossible and that the defendant could not be forced out of the former marital residence, the court found that the defendant could be held financially accountable for her behavior. As such, court held that the plaintiff’s share of the proceeds would be increased and the defendant’s share would be decreased in accordance with whatever loss in the selling price was attributable to defendant preventing the closing from taking place on April 20, 2020. The court further found that defendant would be solely liable for all damages sought by the purchaser or any other aggrieved third party due to her refusal to vacate the residence.

In closing, the court stated, “[w]hatever the virtues of virtual justice, I remain convinced that a case such as this is better suited for disposition in an old-fashioned, brick and mortar courthouse.”

Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are monitoring the courthouse operations and are available via email, phone, or video-conferencing to answer your questions and concerns. 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, 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.

In my blog last week, I noted how quickly developments concerning the operations of New York courts have been occurring during the COVID-19 pandemic.  In fact, I concluded by noting that, on May 18, 2020, several upstate court houses would open and operate under strict safety precautions.

Just days later, downstate attorneys and litigants received they news they have been waiting for: beginning on May 25, 2020, by administrative order of the Chief Administrative Judge, courts in the New York Metropolitan area (including Nassau, Suffolk and Westchester counties) will permit the commencement of new non-essential cases by electronic filing only. Although court houses in the region remain closed, this is an important step towards the resumption of the judicial system’s normal operations.

It is important that the new guidelines are understood by all interested stakeholders. For all downstate court houses still shuttered by the virus, all new case filings by parties who are represented by counsel must be made through the court’s electronic filing system, or “ECF” as it is known to practitioners. If a party is unrepresented (i.e., pro se) they can opt to file, serve and be served with papers through non-electronic means. By making this alternative permissive rather than mandatory, it appears pro se litigants or parties that have not yet retained counsel can register to file and receive papers through ECF.

Despite this move towards digitizing litigation, it remains the case that a defendant must be served with a summons and complaint through personal service within 120 days of the electronic filing of the new matter. However, the defendant’s attorney may agree to accept service, by electronic means or otherwise, on behalf of his or her client.

For matters that are already pending and were not considered e-filing cases prior to the pandemic, the rules set out in my previous blog still stand. Specifically, both parties must file through the court’s electronic delivery system (EDDS) a consent to utilize the ECF system in order for the case to be converted to an e-filing case.

It is clearly possible, if not likely, that additional changes will be forthcoming. We will continue to keep our clients and colleagues apprised of developments in real-time.

If you have any questions about the commencement of a new matter or the impact of these changes on a pending matter, please contact me at jlebowitz@jaspanllp.com.

Divorce causes not only emotional turmoil but places financial strain on parties that they are often not prepared for. Divorce is also a costly endeavor and parties may make financial mistakes that end up costing them more in the long run.

The commencement of a divorce action triggers what is known as “automatic orders”. The purpose of the automatic orders is to preserve the marital estate and to avoid disposing of assets during the pendency of a divorce action.

With these “automatic orders” as our guiding posts in divorce litigation, I have outlined below four (4) key money mistakes not to make in your divorce action.

1. Do Not Dispose of Property
The automatic orders prohibit individuals from disposing of property, whether held individually or in joint names, in any manner absent agreement of both parties in writing. While this may sound simple enough, property is an all-encompassing term. The term property, includes, but is not limited to, real estate, personal property, stocks, bank accounts, mutual funds, boats and cars.

However, there is an exception to this rule. Parties may “dispose” of property if it is being done in the usual course of business, if you are simply paying for household expenses or if you need to pay for attorney’s fees in connection with your pending divorce action. The exception to the general rule that you are not to dispose of property has a number of gray areas. Thus, it is best to consult with legal counsel if you are considering of disposing of any property.

2. Do Not Touch Retirement Funds
A divorce action has the potential to cause financial strain on parties. Individuals may wish to dip into their retirement funds as a way to ease this financial strain. Aside from the penalties and tax consequences that may occur, the automatic orders prohibit parties from encumbering, assigning, withdrawing, transferring or disposing of retirement funds in any manner.

3. Do Not Incur Debt in Joint Names
Once the divorce action is commenced, parties should not incur any unreasonable debts. Specifically, parties should not be taking a line of credit against the martial residence or further encumbering assets in any manner. Moreover, parties should not incur unnecessary credit card debt.

As with disposing of property, there is a general exception that parties may incur debt in the normal course of business, for usual or customary household expenses or to pay reasonable attorney’s fees in connection with their pending divorce action.

4. Do Not Change any Insurance Benefits
This rule is straightforward. Do not change any insurance benefits. This includes life insurance, health insurance, dental insurance, car insurance, homeowners insurance or any other insurance policies that were in place prior to the commencement of the divorce action. One thing parties often attempt to change is their life insurance beneficiary. However, this is a violation of the automatic orders and is prohibited. Additionally, if you carried your spouse on your health insurance benefits prior to the commencement of the divorce action you are required to maintain that policy.

Violating the automatic orders may result in a contempt application being made by your spouse, causing you to incur legal fees that could have and should have been avoided. As such, it is imperative you consult with an experienced attorney regarding the automatic orders and your compliance with them.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. If you have specific questions regarding this article or general questions regarding your divorce, Hanna Kirkpatrick may be reached at 516-393-8259 or by e-mail at hkirkpatrick@jaspanllp.com.

Matrimonial and family law matters, always a difficult endeavor for both lawyers and clients, have become even more so with the rapid rise of the novel coronavirus pandemic. This blog will explain the many changes in the way New York courts, particularly those in Nassau, Suffolk and Queens, are handling these cases during this trying time.

The New York State court system is among the busiest in the world. While many other jurisdictions have transitioned entirely to electronic case filing systems, New York has not done so. E-filing is only available in some counties and, as a result, many cases, including matrimonial cases, require hard copy filings of all papers. Thus, our courts have never been in a position to operate remotely on a full-scale basis, a necessity now that social contact and physical visits to the court house have been widely curtailed.

On March 22, 2020, the court system’s initial response to the pandemic was announced by Chief Administrative Judge Lawrence Marks. Judge Marks barred all new filings of any kind, in any court, with the exception of certain matters deemed essential or emergent. As it relates to family law and matrimonial proceedings, the following matters were designated essential:

1. Emergency family offense petitions /temporary orders of protection in Family Court.

2. Orders to show cause and stipulations on submission in Family Court.

3. In Supreme Court, temporary orders of protection (including but not limited to those relating to domestic violence) and emergency applications related to the coronavirus.

4. Any other matters the court deems “essential” on a case-by-case basis.

Except for these limited types of cases and filings, current and prospective litigants were left without judicial recourse.

Each county then developed its own mechanisms for dealing with essential filings. On March 26, 2020, Nassau courts, in keeping with the policy of limiting personal contact and encouraging social distancing, announced that all matters would be processed and heard in the Nassau County court house at 260 Old Country Road, with a rotating roster of judges to hear each type of matter. In-person filings were strongly discouraged. Matrimonial proceedings were to be conducted via Skype, with the judge, each attorney, and possibly the parties appearing from separate locations.

Suffolk courts followed suit, designating the same types of matrimonial and family law matters as essential. Additionally, all matters were consolidated in the John P. Cohalan Court Complex in Central Islip with a skeleton staff of dedicated court officers and clerks assigned to the building.

On April 8, 2020, Judge Marks issued a directive expanding court access by instituting a virtual court model beginning on April 13th. His order directed courts to render decisions on fully submitted motions, and to identify and conference, by Skype or telephone, cases that might be the subject of possible resolution.

In response, the Nassau County Supreme Court set up a protocol for conferences with the court for pending matters. Each matrimonial Judge was given a dedicated email address specifically for that purpose. Additionally, a form was made available on the court website for attorneys to use to request a court conference. If a request is granted, the assigned judge e-mails a Skype link to the attorneys, and parties may be directed to attend. These conferences may or may not be on the record in the court’s discretion.

Suffolk County soon followed suit with dedicated emails for matrimonial judges, all of which are publicly available on the court’s website. Queens and New York counties set up similar protocols to allow attorneys to request conferences in pending matters.

Subsequently, Judge Marks directed that, effective May 4th, parties would be permitted to file new motions in (again) only pending cases, and opposition or reply papers in connection with motions filed prior to the pandemic. Despite the unavailability of the official e-filing system in certain counties, the directive provides that all filings must be done electronically and provides for the use of an alternative electronic delivery system (EDDS) in cases that are not presently maintained through the e-filing system. User instructions for EDDS are available on the courts’ website.

Justices Jeffrey Goldstein and Andrew Crecca, the supervising judges of the matrimonial parts in Nassau and Suffolk, respectively, have kept practitioners apprised of the courts’ operations through virtual town halls. Both have advised that the matrimonial judges of their counties have been hearing hundreds of cases through virtual means. In Nassau, judges are reaching out to counsel on previously submitted motions in the hopes of resolving the matters without further delay. If unsuccessful, these judges are working on decisions with such swift efficiency that Judge Goodstein advised that the pre-existing backlog of motions will be all but eliminated.

As to the filing of new motions in pending cases, Nassau judges require the parties to first request permission before moving, after which a conference will be held before the motion may be filed. If the subject of the motion cannot be resolved during the conference, all motion papers must be served electronically. Then, both parties must consent to use of the official e-filing system by filing a request on EDDS, after which all motion papers will be electronically filed.

Judge Goodstein also addressed whether post-judgment applications will be permitted, given that cases in which a judgment has been entered may not be considered pending. Fortunately for litigants in Nassau, the answer is yes. As such, where a payor spouse has lost his job, he/she can seek relief by a post judgment motion. Similarly, if a payor spouse opts for self-help by stopping or reducing support or maintenance payments, the payee spouse can seek relief.

Courts in Nassau will also entertain as essential and/or emergent new proceedings concerning issues of parental access to children, for example where informal visitation schedules have been upended because of concerns over Covid-19. However, parents who seek to abrogate custody agreements based on pandemic-related concerns would be wise to heed the advice of Judge Jeffrey Sunshine, presently the statewide administrative judge for matrimonial matters, who opined in the New York Law Journal that conduct by a non-compliant parent or parents during the pandemic will be considered in any future applications when the courts reopen on a wider scale. (NYLJ 3/27/20).

Suffolk, by and large, follows the same protocol described above with the exception that judges there do not require permission to file a new motion in a pending matter, and at present will continue to use EDDS with the county-wide use of the ECF system on the horizon. Queens and New York counties at this time do not seem to have uniform protocols, perhaps because each lacks a supervising matrimonial judge. However, those counties are entertaining motions on pending matters, conferences on active cases and emergency orders to show cause.

Just to illustrate how quickly changes are occurring within the New York court system, on the eve of this article’s publication it was announced that courts in several upstate counties will be opening on May 18, though with strict health guidelines in place. None of these changes affect our downstate courts.

Clearly, navigating the court system has become more complex than ever before. Given the ever changing nature of matrimonial and family law proceedings during this pandemic, and the fact that that COVID-19 is expected to impact our lives for months to come, it is essential that litigants have competent counsel.

Jeffrey D. Lebowitz is a retired NYS Supreme Court Justice who for many years presided over the Matrimonial term in Queens County. He is presently Special Counsel at Jaspan Schlesinger LLP. Retired Justice Lebowitz is a member of the NYSBA Family Law Executive committee and a member of the Statewide Matrimonial Practices committee, chaired by the Honorable Jeffrey Sunshine. He appeared on the Super Lawyers list in 2019. He can be reached at jlebowitz@jaspanllp.com or (516) 746-8000.

                 On May 7, 2020, a Bronx County Family Court Judge held that the Coronavirus pandemic in and of itself was no excuse for a parent to engage in self-help and prohibit a parent from exercising court ordered parenting time.

                 In Matter of S.V. v. A.J., the father brought a motion before the court seeking to enforce a January 16, 2020 order directing that he have alternate weekend visitation with the parties’ children. The mother failed to produce the children from weekend visitation on the weekends of March 27, April 10, and April 24. Instead, the parties arranged through their respective counsel for daily video conference visits between the father and the children.

                 The father, who lived in a two-story home in New Jersey, argued that he has been practicing social distancing and has not tested positive for COVID-19. The mother argued that the visits were suspended once New York and New Jersey issued “stay at home” orders in March, 2020. The mother opposed the father’s request for in-person visits due to the risk of spreading the Coronavirus. She argued that it would be “irresponsible” to make parents comply with court-ordered in-person visitation because it may impact the children’s safety. Further, the mother argued that the exchanges between the parties must occur at a precinct given the history between the parties, which further endangers the parties’ and the children’s safety. The attorney for the children did not oppose the in-person visits so long as social distancing and other safety measures were being followed.

                The court granted the father’s motion and held that in-person visitation was to commence immediately. The court stated,

We are now in a time of disruption, fear, uncertainty, and uncharted territory, and the Court appreciates how this stressful time may impact families, particularly those in conflict. However, to the greatest extent possible, we must ensure stability and comfort for children.

The court went further to state,

While public health crises such as the one we face may impact children’s lives, and all of our lives, in many ways and for an unknown period of time, there is a presumption that continued connection and time with both parents is critical and in the best interest of children.

Finally, and perhaps most impactful, the court stated,

This pandemic is not to be used to limit access by a parent or to flout valid orders of the court. Rather, valid orders of the court must be followed during this crisis unless a parent can articulate a specific health or safety risk, and can demonstrate to the court that suspension of visits is warranted, which may be a heavy burden. In any event, in such a case a parent must then affirmatively move the court for emergency relief in order [sic] suspend any visitation order and may not resort to self-help by failing to produce children for visits.”

                As shown above, the court made clear – a parent cannot simply decide not to produce a child for an exchange of parenting time in violation of a court order and blame the Coronavirus as an excuse. While we are living in a time of uncertainty, as the Court in S.V. stated, a parent must show that a suspension of visits is warranted and outweighs the benefits of continued connection and time with both parents. This does not, however, mean that parents cannot enter into an agreement limiting the number of exchanges and put into place certain precautions to limit exposure to the disease. While we continue to face unprecedented times, it remains vital that parents keep effective communication channels open in order to make joint decisions that will serve the best interest of their children.

                Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are virtually open and we are monitoring the courthouse operations and are available via email, phone, or video-conferencing to answer your questions and concerns. 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 custody matters during COVID-19, please contact Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250

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, I submit that mediation, now more than ever, can offer a viable alternative to resolving your family law matter. In this blog post, I have identified four (4) reasons to choose mediation.

  1. Control:

Control and certainty seem to be eluding us all as we continue to face an uncertain return to what we previously knew as “normal.” The day-to-day uncertainty that parties face as they contemplate separate lives is compounded by the fact that, at present, the courts in New York State are only addressing what have been deemed “essential” matters.  This means that the majority of individuals with family law disputes are left in limbo until “normal” court operations resume. Unlike the traditional litigation route, the mediation process allows parties to have control over the outcome of their case now – not at some undetermined time in the hopefully, near future.

When the parties select the mediation process, the parties or their counsel mutually agree upon a mediator. The mediator is an impartial facilitator without authority to designate a resolution or decide any aspect of the case.  The mediator is there to facilitate dialogue and help the parties reach resolution.  Each mediator has a different level of experience and skill so it is important to choose a mediator that best suits the needs of your family.  Selecting the appropriate mediator often times will increase the chance of reaching an amicable resolution.  Some mediators are experienced in financial issues whereas others focus primarily on issues of child custody and may have a mental health background.

  1. Creativity:

Mediation gives the parties the ability to be creative when reaching a settlement, whereas the court may be limited in its powers.  This creative benefit of mediation is especially apparent now in the midst of the novel coronavirus pandemic which has all but brought normal court operations to a screeching halt.

  1. Confidentiality:

The mediation process is private, confidential, and entirely voluntary, meaning it can be terminated at any time by a party or a mediator.  Individuals who choose to mediate their family law matters may never have to enter a court room or hand their matters over to a judge, a virtual stranger, who has no real day-to-day knowledge of the fabric of their family.

  1. Continuing Relationships Between Co-Parents:

Many litigants who have successfully navigated the mediation process have reported a decrease in levels of tension and conflict in their relationship with their ex or soon-to-be ex-spouse especially when children are involved.  Given these unprecedented times, the mediation process, which is non-adversarial in nature, will allow the parties to sit down (whether virtually or in the same room) and have hard discussions about what life will look like when they decide to separate their households.  This joint decision to embrace communication with a joint goal of moving on with each other’s lives can be critical when parties’ incomes and lifestyles, and even their own mental and physical health may be profoundly altered.

In these unprecedented times where our very livelihoods and health are threatened by an “unseen” danger, it may be a breath of fresh air to choose a path less taken that could as they say, make all the difference.

If you are interested in learning more about the mediation process, and how it may help you resolve your family matter in the midst of COVID-19, 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.

 

 

 

The financial crisis that the COVID-19 pandemic has caused has been devastating to many individuals and businesses.  It is likely that there will be a large influx of bankruptcy filings in the coming months due to the financial destruction of this pandemic.  If you have a pending divorce action or a final judgment of divorce and your spouse or ex-spouse has chosen to file for bankruptcy, you should be aware of the definition of “domestic support obligations” (“DSO”) and how DSO’s are treated in bankruptcy.

In this post we will define DSO’s and further explain whether one’s DSO obligation survives the debtor’s bankruptcy (i.e. whether the debt is able to be discharged as a result of bankruptcy).

The dischargeability of an obligation created by a divorce decree, separation agreement, property settlement agreement, court order, or administrative determination depends on whether the obligation is classified as a DSO and whether the debtor filed for bankruptcy under Chapter 7 or Chapter 13 of the federal bankruptcy code (the “Code”).

In this post we will only address dischargeability in the context of Chapter 7 bankruptcy cases.

Statutory Definition of a Domestic Support Obligation

In 2005, Congress revised the federal bankruptcy code and introduced the term “domestic support obligation.”  Pursuant to section 101(14A) of the Code, a DSO is a debt that accrues before, on, or after the date of the order for relief in a case under this           title, including interest that accrues on that debt as provided under applicable   nonbankruptcy law notwithstanding any other provision of this title, that is—                       

(A) owed to or recoverable by—

(i) a spouse, former spouse, or child of the debtor or such child’s parent, legal guardian, or responsible relative; or

(ii) a governmental unit;

(B) in the nature of alimony, maintenance, or support (including assistance provided by a governmental unit) of such spouse, former spouse, or child of the debtor or such child’s parent, without regard to whether such debt is expressly so designated;

(C) established or subject to establishment before, on, or after the date of the order for relief in a case under this title, by reason of applicable provisions of:

(i) a separation agreement, divorce decree, or property settlement agreement;

(ii) an order of a court of record; or

(iii) a determination made in accordance with applicable nonbankruptcy law by a governmental unit; and

(D) not assigned to a nongovernmental entity, unless that obligation is assigned voluntarily by the spouse, former spouse, child of the debtor, or such child’s parent, legal guardian, or responsible relative for the purpose of collecting the debt.

In short, a DSO is any debt incurred before or after a bankruptcy case is filed that is:

  • owed to or recoverable by a spouse, former spouse, child or governmental unit;
  • “in the nature of alimony, maintenance, or support”; and
  • established pursuant to the terms of a divorce decree, separation agreement, property settlement agreement, court order or administrative determination, including interest that has accrued.

“In the Nature of Support” Obligations

One reoccurring question that arises in the context of bankruptcy filings is whether an award made in a party’s matrimonial case meets the statutory requirement of being “in the nature of support”.

This is a factual determination that is made by the bankruptcy court as it is a question of federal law and requires a fact intensive, case specific analysis.  See Ning Yen Yao v. Kao (In re Kao), 612 B.R. 272, 281 (Bankr. S.D.N.Y. 2020); In re Dudding, No. 10-10557, 2011 Bankr. LEXIS 1128, 2011 WL 1167206, at *5 (Bankr. D. Vt. Mar. 29, 2011); Grinspan v. Grinspan (In re Grinspan), 597 B.R. 725, 737 (Bankr. E.D.N.Y. 2019).

In order for the bankruptcy court to make its determination it must determine the intent of the parties and consider as relevant “[a]ll evidence, direct or circumstantial, which tends to illuminate the parties’ subjective intent.” Brody v. Brody (In re Brody), 3 F.3d 35, 38 (2d Cir. 1993). Bloch v. Bloch, No. 09-CV-3963(RRM), 2010 U.S. Dist. LEXIS 99891, at *6-7 (E.D.N.Y. Sep. 23, 2010).

For example, the court will look at the substance and not just the form of payments to determine whether an obligation is considered to be a DSO.

Courts have found that “the nature of the debt is more important than the identity of the payee.”  In re Mason, 545 B.R. 462, 466 (Bankr. S.D.N.Y. 2016).

In fact, after looking into the intent of the parties the Court may determine that payments to third parties, such as payments made to the mortgage on a former marital residence, may constitute alimony or support.

A debtor’s duty to pay for the education expenses of a minor child and to provide medical coverage for a minor child are usually deemed to be “in the nature of support” and cannot be discharged in bankruptcy, as well as a debtor’s duty to maintain life insurance with the minor children as beneficiaries.

Chapter 7 Bankruptcy and Discharge – Obligations or Debts That a Party May Incur in the Course of Divorce or Separation  

Obligations that qualify as DSOs are exceptions to the debts that are discharged under Bankruptcy Code § 523(a)(5), and therefore survive bankruptcy and are not dischargeable.

Similarly, pre-petition alimony, maintenance and child support (i.e. spousal and child support) are not dischargeable.

Further, pursuant to the language of Bankruptcy Code § 523(a)(15), an individual may not discharge “any debt to a spouse, former spouse, or child of the debtor and not of the kind described in paragraph (5) that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court of record, or a determination made in accordance with State or territorial law by a governmental unit.”

What this means is that in a Chapter 7 bankruptcy case, obligations or debts that a party may incur in the course of a divorce or separation cannot be discharged.  Such obligations or debts may include, among others:

  • equitable distribution payments,
  • lump sum distributions and payments,
  • credit card and charge account obligations,
  • mortgage and HELOC payments,
  • homeowner’s association dues,
  • income tax obligations,
  • automobile loan payments,
  • indemnification and hold harmless obligations, and
  • medical bills.

Therefore, determining whether a debt qualifies as a DSO or some other type of obligation resulting from a divorce or separation is of no consequence as all are non-dischargeable either under Bankruptcy Code § 523(a)(5) (for DSOs) or Bankruptcy Code § 523(a)(15) (for different types of obligations resulting from a divorce), as applicable.

In Tarone v. Tarone (In re Tarone), the court found that it was “irrelevant” whether maintenance and attorneys’ fees awarded by the state court in the course of the divorce proceedings “constitute[d] true support obligations” because even if not encompassed within Bankruptcy Code § 523(a)(5), they are nondischargeable pursuant to Bankruptcy Code § 523(a)(15). 434 B.R. 41, 49 (Bankr. E.D.N.Y. 2010).

However, it is important to keep in mind that in the context of a case filed under Chapter 13 of the Bankruptcy Code, debts incurred during the partition of the marital property are dischargeable.  Therefore, a detailed analysis of how a debt was incurred is necessary in a Chapter 13 bankruptcy case to determine whether the debt will survive the bankruptcy.

Bankruptcy is a unique area of law for which individuals should get detailed legal advice and counsel.  Jaspan Schlesinger attorneys are available to provide comprehensive legal services in both bankruptcy and matrimonial family law to help you make smart decisions about what matters to you when it most matters to you.  We are also committed to guiding our clients through these unprecedented and trying times.

The material provided 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.  You can reach Sophia Perna-Plank at spernaplank@jaspanllp.com or (516) 393-8270 or Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297.

Last week we blogged generally regarding the COVID-19 pandemic and custody matters with the intent of providing our readers general tips and strategies for dealing with this unprecedented time.  This week, the New York Law Journal published two recent cases in which New York courts have issued rulings on parenting disputes during the COVID-19 pandemic. A third case from King’s County Family Court was also published on Lexis Advance dealing with a parenting dispute during this pandemic.  In this blog post we have summarized the recent decisions, including quotes from the decisions themselves for the benefit of our readers.

Bronx Supreme Court

In R.M. v. B.S., the father, a first responder in New York City, moved for an order directing, in part, that the mother adhere to the terms of a 2019 stipulation between the parties granting him parenting time during April 17 – April 25, 2020 and directing the mother to adhere the parenting schedule for the rest of the year.  The mother and the children are residents of Massachusetts.  In order to exercise parenting time with their Father, the children would need to travel to New York, widely considered the epicenter of the COVID-19 pandemic. The mother argued that the father is a first responder with high exposure to COVID-19 and the father had not been quarantined for fourteen days.  The mother further contended that she had been sheltering in place with the children in Massachusetts and one of the children has underlying respiratory issues and uses an inhaler.  The mother was concerned about the father’s ability to ensure the safety of the children and also advised the father that she was indefinitely suspending parental access at that time and would allow the father to exercise his parental access when she deemed it appropriate. In the interim, the mother asserted that she had offered the father face time and telephone access to the children and the father had chosen not to participate in those modalities. The father contended that the mother ignored his communication that he works at the World Trade Center, which has been closed since March 13, 2020 and he would have virtually no interaction with the public and that he does not take public transportation to work. Further, the father argued that he had not seen his children in forty days.

In its’ decision and order, Justice Martin stated:

“The Court clearly recognizes the rights of the plaintiff as non-custodial parent to exercise his previously agreed upon parental access.  Unfortunately, this current public health crisis has upended the lives of us all. However, in light of the unprecedented Covid-19 virus pandemic throughout the nation the Court shall temporarily set forth a new parental access schedule for the plaintiff. It is in the best interest of the parties’ children for their safety at this time to implement the new, although temporary access schedule. Based upon the record provided herein, the plaintiff shall be entitled to daily telephonic/skype access at 6 p.m. The defendant is hereby ordered to facilitate but not to interfere at all with said access.”

The Court having denied the father’s request for in person parental access during the children’s April 2020 recess indicated that it would entertain an application for “additional time” at a later date.  Additionally, the Court reserved decision on the father’s application directing the mother to adhere to the parenting access schedule for the remainder of the year setting a conference in late May to address the outstanding issues.

Suffolk Supreme Court

In Waldorf v. Waldorf, the parties’ child attended boarding school in Maryland.  The mother requested an order temporarily modifying an interim order of parenting time which the father opposed.  The Court ruled that it was unable to issue a decision with respect to the issues on the papers submitted to the Court alone requiring a hearing.  The Court also took judicial notice of the national pandemic and the fact that the schools are currently closed until further notice reasoning that the mother’s argument would likely be rendered moot as the child could recommence attendance at boarding school in Maryland in September 2020.  Therefore, the Court held the mother’s application in abeyance.  The Court also noted in the footnotes to its decision that the mother previously had moved for a Writ directing that the child be returned to her. However, the same Court was sitting as special term emergency judge on the return date of the mother’s Writ and ruled that the child could remain with the father during the national pandemic until further Order of the Court.

Kings Family Court

In Jennifer R. v. Lauren B., a same-sex couple divorced and entered into a settlement agreement which was incorporated into their judgment of divorce. Amongst other things, the judgment of divorce awarded the parties joint legal and physical custody of the parties’ nine year old child. During the pendency of the divorce proceeding, the mother moved for permission to relocate with the child to New Jersey, which was denied after a two-day hearing. Notwithstanding, the mother moved to New Jersey with her new fiancée and the ex-wife remained in Brooklyn, New York. Since the judgment of divorce was entered in 2018, the mother filed numerous applications to modify the judgment of divorce to obtain sole custody of the child, all of which were denied.

As is relevant to this post, on March 14, 2020, due to the Coronavirus Pandemic, the parties agreed, during the pendency of a post-judgment proceeding, to temporarily modify their parenting schedule to alternate their parenting time with the child every two weeks, with the mother to have parenting time from March 28, 2020 to April 5, 2020. However, the mother again filed an Order to Show cause with Immediate Relief on April 6, 2020 for the immediate grant of temporary sole custody and final decision making, arguing that the child should remain with her in New Jersey during the pandemic because New Jersey and the county she resides in pose significantly less risk of infection and transmission than that of New York. The mother further argued that the ex-wife lived in the Coronavirus “hotspot” of Brooklyn which is dangerous for the child.

Due to the mother’s actions, the ex-wife filed an Emergency Order to Show Cause on April 7, 2020 seeking a Writ of Habeas Corpus for the mother to immediately return the child to the ex-wife and for enforcement of the March 14, 2020 modified parenting schedule. The ex-wife argued that the mother is merely using the COVID-19 risks as “the latest subterfuge to misappropriate her custody.” The ex-wife’s Emergency Order to Show Cause was signed on April 7, 2020 granting the Writ and ordering the mother to return the child to the ex-wife for the duration of her parenting time.

In an Affirmation in Response, the attorney for the child supported the mother’s application for the child to temporarily reside in New Jersey based upon the child’s statement to her as to his preference and because New Jersey is a safer location during the pandemic.

Despite the attorney for the child’s input, the court denied the mother’s motion for the immediate transfer of sole custody to her without a hearing. The court found that the mother failed to prove a change in circumstances sufficient to warrant an immediate change in custody. The mother failed to cite to anything in specific which the ex-wife has done to place the child in risk of exposure to COVID-19. Additionally, the parties communicated and had an appropriate plan for the child to lower risk of exposure by reducing the number of exchanges. Further, the court stated:

Although the Mother makes much of the fact that New York is a “hotspot” of Coronavirus cases, she lives in New Jersey which is second in the Nation in terms of infections and wherein the New Jersey Governor, only two days before the Governor of New York did, also declare a State of Emergency on March 9, 2020.

In sum, the mother was required to return the child to the ex-wife in Brooklyn so the ex-wife could exercise her two-week parental access time, despite the mother’s concerns about Brooklyn being a hotspot for the Coronavirus pandemic.

Concluding Remarks

The cases set forth above highlight both the emotionally devastating circumstances parents face as they lose the right to see their children and the conflicting outcomes that can occur depending on the fact-intensive nature of family law cases.  Some overarching themes seem to persist in the review of all cases as follows:

  1. Due Process must be adhered to in all circumstances – this means, like the Court in Waldorf, a matter may be held in abeyance until a full hearing can be held.
  2. Custody Arrangements – especially those entered into solely due to COVID-19 – must be abided by.
  3. “Make-up,” “Substitute,” or “Additional” Parenting Time may be ordered now or in the future – Courts are scheduling quick-return dates to address “make-up” parental access and how the parental access will take place once the stay-at-home orders are lifted.

Courts in New York State have wide discretion in family law matters which requires each court to make its determination on a case-by-case basis. As these are truly unprecedented times for everyone, judges, lawyers and litigants alike, it is important, to the extent possible, that parents put their differences aside, communicate effectively, and make decisions that will serve the best interests of their children. If the litigant parents are unable to do so, what is clear is that the courts will continue to put the best interests of the children at the forefront of their decisions while recognizing the due process rights of each litigant.

Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are virtually open and we are monitoring the courthouse operations and are available via email, phone or video-conferencing to answer your questions and concerns. 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 custody matters during COVID-19, please contact Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.