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 manner 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.

In a highly-connected world of Instagram, Twitter, Facebook, Tik Tok, family locators and smart phones, the reality of being tracked with every move you make is all too real.  This is even more real for victims of domestic violence who as part of their safety planning must and should consider technology safety.  The goal of this article is to identify tech safety tips that can help prevent abusers from accessing victim accounts, tracking victim locations, and monitoring victim devices.  While this post is a good starting point for recently separated victims, we caution our readers that this list is not all-exhaustive and strongly suggest that any victim speak with a trained domestic-violence advocate about safety planning and other available resources to assist with leaving an abusive relationship.

1. Implement All Safety Tips From a New Computer and Delete your Browsing History

It is strongly suggested that the implementation of these safety tips occurs by utilizing a trusted computer of a family member or friend.  If a family member or friend cannot help implement these tips, then it is suggested that the victim utilize a computer at a local public library or community center.  In addition, if an individual is reaching out for help or resources, including visiting websites that contain safety planning resources, utilizing a different computer is essential.

Individuals should also get in the habit of deleting their browsing history, which can be done from any Chrome, Firefox, Internet Explorer, Microsoft Edge or Safari browser.  In addition, you can initiate a private mode in Internet Explorer, Microsoft Edge or Safari browsers.

Finally, if you are protecting your computer and browsing history, you should be staying safe on your cell phone as well.  Make sure you are aware of all applications (“apps”) that are downloaded on your phone.  An unknown application could be a monitoring program that was installed without your knowledge or consent. New York City has Family Justice Centers which assist individuals with a phone security check.  Additionally, you could restore your phone to factory settings in order to remove any installed monitoring programs.

2. Change all Passwords, PINS, and Security Questions

All passwords, PIN numbers and security questions should be changed including those for your Wi-Fi account.  Make sure that you use multiple passwords instead of the same password for all accounts.  Also, with security questions it might be best to have random answers or to mix up answers. For instance, if the question asks for your childhood best friend instead of putting your childhood best friend’s name, you should list the name of your favorite band.  Then, when the question is asked for the name of your favorite band, you can list the name of your childhood best friend.  Either way, be mindful of the answers you select.

Touch ID features to lock your devices can be helpful as they make it harder for someone to access your accounts or install a tracking program without your knowledge.

3. Create New Email Accounts, Turn off Location Sharing and Turn off Bluetooth

 If leaving a relationship will result in interaction with the legal system, new email accounts should utilized. One email should be for all legal related matters and should be provided to the Court system and your attorney for service of court documents.  There should also be a second account used for all other non-law related purposes.  You should never leave your email account logged-in on any device.

Access the settings of your smartphone and turn off location sharing.  You can also utilize airplane mode or turn off your phone if you will be accessing a location where you are seeking safety.

Finally, you should not connect your device to Bluetooth as it can cause your calls to be intercepted.  You should only have Bluetooth on when you need to connect to another device, like a printer or hands free in your car. Be mindful of automatic connections via Bluetooth.

4. Secure Your Cell Phone

 If you do not purchase a new cell phone, make sure that your wireless carrier account is completely secure.  Your online carrier account has access to your call and text logs and may provide access to email or social media accounts, Google Play, Apple App Store or iCloud accounts.  As indicated above, you should change all passwords, PINS and security questions to secure your cell phone.

5. Be Vigilant for Electronic Devices

Cameras, audio devices and trackers can be added to everyday items. Do not accept toys or items from your abuser.

This article incorporates and relies on data made available from the New York City Domestic Violence Hope Project, which is available at NYC Domestic Violence Hope Project .

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.

 

The Matrimonial and Family Law Group at Jaspan Schlesinger proudly joins the nation in recognizing October as Domestic Violence Awareness Month (“DVAM”).  Once just a “Day of Unity” beginning in 1981, the entire month of October is recognized as Domestic Violence Awareness Month in New York and across the nation.

As we recognize Domestic Violence Awareness Month, we will be updating our blog with relevant and timely information and resources regarding Domestic Violence and the interplay with matrimonial and family law.

 

I remember sitting in my Family Law class in law school and listening to the professor discussing the distinction between marital property (property acquired during the marriage) and pre-marital property (property acquired by parties individually prior to any marriage). I found myself questioning how many people actually contemplate their legal rights while in the throes of love. My answer, you may ask, after over a decade of work in the divorce arena? Not many.  There are a few reasons why. Reason number one: most people spend more time planning their wedding than contemplating the day-to-day mechanics of marriage (ya know, the boring stuff) and reason number two: Shakespeare was right when in Henry VI, Part 2, Act IV, Scene 2 he wrote, “First, Let’s Kill all the Lawyers.”  But I digress.

The reality is that more and more of the millennial generation is waiting longer to get married. And, when millennials do get married, they are more likely to have both assets and debt.  The below list of things to consider before you say “I Do” are derived from over a decade of being a matrimonial attorney.  Every so often I say “my goodness, I have seen everything”– and then another client comes in and tells me a story that is even more unbelievable than the last.  My main point, above all else, is to give your full time, attention and contemplation to the mechanics of marriage before you spend even a second lamenting about what will be served at your Viennese hour (post COVID-19, of course). And, if you’re questioning just what exactly a Viennese hour is, you’re not from Long Island.

  1. Discuss your respective finances.

Buckle up friends! Finances matter. You should have a clear understanding of your prospective spouse’s debt (ahem, student loans and pesky credit card debt).  It is not unreasonable to ask about your prospective spouse’s credit score. Thinking of buying a house together? Your spouse’s credit card score will determine if financing can be secured.

Finances are even more important when you are marrying someone that has been married before.  Consider that person’s payment of maintenance or child support and do not be afraid to ask about how that will affect your new household’s budget.  Each party should be fully aware of what it costs to run your joint household, and what each party will take from the income earned during the marriage to pay down debt from before the marriage. These discussions matter and I am truly shocked at the number of times a person has sat across from me and disclosed that he or she was not aware of the depth of their spouse’s debt or lack of credit.

  1. Discuss your spending habits.

If you are a spender and your spouse is a saver, these discussions must occur prior to walking down the aisle.  It is suggested that you consider your long-term financial goals and determine what your five (5) and ten (10) year plans are. It might even be worth sitting down with a certified financial planner to consider how to move forward together to meet your financial goals.  Again, it is important to consider how a person’s spending habits can affect the dynamics of a relationship, especially if the spender will also leave the work force to raise a child or children, which leads me to my next item.

  1. Discuss children and raising a family.

I am consistently amazed at young people that seek out an uncontested divorce when they realize that a spouse is not on the same page with respect to starting a family. Whether a person wants to become a parent is a monumental and life-altering decision that should occur before rings are exchanged in my humble opinion, or IMHO for all you millennials. One should also consider infertility, and the possibilities of surrogacy or adoption. These hard but necessary discussions will put you and your partner on the same page if, and when, you are faced with any of these circumstances.

  1. Consider a Pre-Nuptial Agreement.

A Pre-Nuptial Agreement is a perfect avenue to discuss finances, spending, and children. It is also an incredible opportunity for individuals to exchange financial data and information in order to reach an agreement that meets their future financial goals and provides security in the event that the relationship deteriorates. A Pre-Nuptial Agreement does not need to be a scary circumstance where one person seeks a strategic advantage over the other.  With the assistance of a lawyer, it can be an amicable way for spouses to develop a joint plan for the most important aspects of their life together.

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.

 

 

 

 

 

Contested child custody cases are among the most difficult cases set before a judicial system. This is largely because the attorneys and judges steering the proverbial “ship” are not mental health practitioners.  Additionally, the dynamics of each family unit vary greatly. Clients often want to know if their child’s expressed wishes will matter to a court. This blog will examine the current status of the law regarding a child’s express preferences.

The Multi-Faceted Best Interests Test

In order to determine the best interests of the child, the court may take into consideration a variety of factors, including the child’s wishes. However, a child’s wishes are not determinative, as it is but one factor a court may consider in determining whether to allow visitation. In fact, a court may issue a decision that is the complete opposite of the express wishes of the child.

In a recent First Department case, In re Byron M. v. Sasha A[i], the court upheld an award of three (3) therapeutic supervised visitation sessions between the father and the child; despite the child’s express wishes to the contrary. The court found that “[w]hile the child’s wishes are some indication of what is in her best interests and ‘are entitled to great weight,’ those expressed wishes are only one factor to be considered and do not dictate a certain result in determining the best interests of the child.”[ii] There was no evidence before the court that the child would be in any physical danger or that the visitation would produce serious emotional strain of disturbance to the child.

A Child’s Age and Maturity Matter

A court will also consider the child’s age and maturity when assessing the weight of the child’s wishes. The preference of a young child to not have visitation with a parent will be taken into consideration, but is not dispositive. In contrast, a teenager’s preference to not have visitation with a parent, while still not dispositive has been held to carry great weight as a teenager is more mature making his or her input particularly meaningful.

For example, in Matter of Susan LL. v. Victor LL[iii], an eight (8) year child expressed his opposition to having visitation with his father. The court noted that “[t]he preference of this relatively young child to have no visitation with the father is a factor to be taken into account in determining his best interests, but is not dispositive.”[iv] The court, despite the child’s wishes, upheld the denial of the mother’s modification petition seeking suspension of the father’s visitation. In contrast, in Matter of Coull v. Rottman[v], the court upheld a suspension of the father’s visitation where, inter alia, the thirteen (13) year old child was vehemently opposed to any form of visitation with the father. The court noted that “while the express wishes of the child are not controlling, they are entitled to great weight, particularly where the child’s age and maturity would make his or her input particularly meaningful.”[vi]

While it must be noted that other factors were also taken into consideration in determining whether to suspend visitation in these cases, it is clear that a child’s wishes will be given great weight, especially when the child is a teenager with the maturity to express his or her wishes.

Be Informed – Seek Guidance from Your Attorney

It is always best to consult with your attorney who can give case-specific advice with respect to your legal matter. We encourage you to do so.  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 Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297 or Samantha Guido at sguido@jaspanllp.com or (516) 393-8250.

[i] 2020 N.Y. App. Div. LEXIS 2262, 2020 NY Slip Op 02243 (1st Dep’t April 9, 2020).

[ii] Id. at *2 (internal citations omitted), citing Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408 (1st Dep’t 2014).

[iii] 88 A.D.3d 1116 (3d Dep’t 2011).

[iv] Id. at 1119.

[v] 131 A.D.3d 964 (2d Dep’t 2015).

[vi] Id.

[1] 2020 N.Y. App. Div. LEXIS 2262, 2020 NY Slip Op 02243 (1st Dep’t April 9, 2020).

[1] Id. at *2 (internal citations omitted), citing Melissa C.D. v. Rene I.D., 117 A.D.3d 407, 408 (1st Dep’t 2014).

[1] 88 A.D.3d 1116 (3d Dep’t 2011).

[1] Id. at 1119.

One question almost every divorce attorney has received from their female client is, “When I can go back to using my maiden name?” Well, the answer is, once the final judgment or decree in your divorce case is entered. Under the law, it is mandatory that a final judgment or decree contain a provision that “each party may resume the use of his or her premarriage surname or any other former surname.” However, it is important to note that this provision only applies to New York divorce decrees. In other words, if you have an out-of-state divorce decree, you cannot get a New York court to add this decretal paragraph.

In a 1979 case out of Orange County, the court was faced with exactly this issue. The petitioner sought to amend a Santo Domingo divorce decree to provide an additional decretal paragraph authorizing her to resume the use of her maiden name. However, the court denied her application finding that the Legislature only intended DRL § 240-a to apply to New York divorce decrees.

So what does this all mean? Basically, if you are getting a divorce in New York, you will have the ability (but you are not obligated) to revert back to using your maiden name once the court enters the final judgment or decree.

Jaspan Schlesinger is committed to helping our clients make their way through this very trying time. Our offices are 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 matrimonial and/or family law matters, please contact Samantha Guido at sguido@jaspanllp.com or (516) 393-8250