Proposing to your significant other is a huge step in any relationship. When making the decision to propose, the last thing that you’re probably worried about is what will happen to the engagement ring in the event of a divorce. But alas, one can never plan for every possible outcome and so this blog will address what happens to the engagement ring in the event of divorce.

I have both good news and bad news—all depending on whether you were the one that was down on one knee. The good news: if you were proposed to with a nice, sparkly engagement ring and have since gotten married and find yourself in the midst of divorce, that ring is all yours! The bad news: if you were the one down on one knee and proposed with that nice, sparkly engagement ring and have since gotten married and find yourself in the midst of divorce, you have no claim to that ring.

If you have gotten to the point where you are considering divorce or are in the midst of a divorce, what may happen to the engagement ring does not seem like something that should matter in the grand scheme of things. However, the engagement ring may be a big deal to the spouse who proposed if the ring is a family heirloom. In cases such as this, there is great sentimental value to the engagement ring that cannot be replicated and it is now the property of your ex-spouse. Thus, before deciding to propose with the diamond ring that has been in your family for hundreds of years, perhaps you should consider how you would feel if that ring ends up with your spouse in the event of divorce.

The moral of the story—diamonds really are a girl’s best friend.

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 516-393-8259 or hkirkpatrick@jaspanllp.com.

 

The decision to get divorced is not an easy one. Once a party has decided to get divorced they may not even know what the process looks like. While there are many different approaches that spouses may choose to take when getting a divorce (we have previously blogged about them here), often there is no other option but court.

One of the first questions we get asked is what does litigation look like? The short answer is that each case is different and there is no way to predict what your divorce litigation may look like. However, the purpose of this blog is to provide you with a framework of what the divorce process may look like if you are forced to bring your case before a judge.

  1. Commencement of the Divorce Action: The first step in any divorce action is to file for divorce. This is done by the filing of a summons and complaint. Once the summons and complaint are filed, you will have your date of commencement.
  2. Serving your Spouse: After you have filed the summons and complaint you are required to serve your spouse. However, it is important to note that you have 120 days from the date of filing the summons and complaint to serve your spouse.
  3. Court Intervention: This is typically the next step after serving your spouse. However, what type of court intervention a party is seeking will vary case by case. Perhaps you just want to get a preliminary conference to set a discovery schedule and to get your case moving. In cases that have time-sensitive concerns that need to be addressed immediately, this may mean seeking court intervention by way of filing a pendente lite motion asking for interim (short-term) relief for finances and/or custody/visitation.
  4. Discovery: The discovery process can be long and tedious. In New York State parties are required to make full and complete disclosure of their finances to their spouse. This requires both parties to exchange all financial documentation concerning their assets (bank accounts, brokerage accounts, retirement accounts, real property, etc.) as well as all debts (mortgages, student loans, credit card, etc.). All tax returns must be exchanged, including business tax returns if one or both parties own a business.
  5. Depositions: Depositions are part of the discovery process but typically are held after the exchange of documents from both parties. During a deposition, parties are questioned, under oath, about finances. In some cases, there may be reason to depose third parties, such as business partners.
  6. Expert Reports/Appraisals: In cases where one or both parties own a business or assets that need to be valued expert reports/appraisals may need to be obtained. Parties to litigation can choose to have a neutral expert and/or to retain their own expert. The process of obtaining an expert is typically done in the early stages of the case as parties want the report to be completed and ready to review prior to depositions.
  7. Court Conferences: From the time you seek court intervention until a trial is held, the court will hold status conferences on your case. During these conferences certain issues may be addressed with the court and the purpose of these conferences is to ensure the case is staying on track to reach a resolution whether it be by way of settlement or trial.
  8. Trial: If you have gone through the discovery process, held depositions, and exchanged expert reports (if applicable) and are still unable to resolve your case, the last step is to have a trial. It is important to note that trials are a time-consuming task for both you and your attorney.

We conclude with a reminder that the above is merely a framework of what the divorce process looks like. Not all divorce ends in settlement and not all divorce ends in a trial. Each case has its own unique set of facts and circumstances which will set the stage for whether the case can be resolved amicably or will need to be tried before the court.

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 516-393-8259 or hkirkpatrick@jaspanllp.com.

We recently blogged regarding the third round of stimulus payments which was one of the many provisions included in the American Rescue Plan.  As highlighted in that blog, eligible taxpayers will receive up to $1,400 for each dependent claimed on their tax returns.  In addition to eligible taxpayers receiving a stimulus for dependents, the American Rescue Plan made changes to the Child Tax Credit and the Child and Dependent Care Credit which will further benefit eligible taxpayers with children.

Child Tax Credit

For the tax year 2021, the following changes have been made:

  1. The credit has been increased from $2,000 per child to $3,000 per child.
  2. Children 17 years old and younger are now covered by the Child Tax Credit.
  3. Those eligible for the 2021 Child Tax Credit will receive advance payments which will be made periodically from July 1, 2021, through December 31, 2021.
  4. The Child Tax Credit is now fully refundable, meaning if you have no income you would still be eligible for the Child Tax Credit.
  5. The Child Tax Credit is now extended to Puerto Rico and the U.S. Territories for the first time.

Child and Dependent Care Credit

For the tax year 2021, the American Rescue Plan has raised the dollar limit on employment related child and dependent care expenses and increased the maximum reimbursement percentage for eligible taxpayers.  The dollar limit has been raised from $3,000 to $8,000 for one qualifying child or dependent and from $6,000 to $16,000 for two or more qualifying children or dependents.  Additionally, the maximum reimbursement has increased from 35% to 50%.  As a result, the maximum reimbursement percentage has increased from $4,000 for one qualifying child or dependents to $8,000 for two or more qualifying children or dependents.

Due to the changes made to the Child Tax Credit and Child and Dependent Care Credit for 2021, many eligible taxpayers may receive a tax refund that they do not normally receive.  In the event that you are in a pending divorce action and you have children, it is important to take the changes to the Child Tax Credit and Child and Dependent Care Credit for 2021 into consideration.

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 need legal assistance, Hanna Kirkpatrick can be reached at 516-393-8295 or hkirkpatrick@jaspanllp.com.

 

As matrimonial attorneys, we often face many new and complicated fact patterns or legal issues that often times could not have been anticipated. Whether it is litigating custody in the middle of a pandemic, or the unfortunate circumstance of having a spouse pass away before the entry of a judgment of divorce – no two divorce cases are the same.

We have blogged extensively about custody and visitation battles that have occurred throughout this pandemic. But what about the other issues that have become unfortunate consequences of this pandemic? Sadly, the country has seen well over 500,000 people pass away. Those individuals had families, lives, careers, friends, the list goes on. Unfortunately, some of those individuals that passed may have had divorce proceedings pending. Some may have even settled those divorce proceedings and were merely waiting for the entry of a judgment of divorce. This blog post will address the legal ramifications of a party’s death after the parties enter into a stipulation of settlement, but before a judgment of divorce in New York.

Some of you may be asking, why is this even important? Well, in many divorce agreements, spouses give up certain rights that they would be entitled to upon the death of the other spouse.  For example, a spouse in New York can contest a will and seek to inherit a certain percentage or amount of assets from the deceased spouse’s estate. Or, let’s say the deceased spouse doesn’t have a will, the surviving spouse will be entitled to receive assets from the estate.[1] So, how does this relate to divorces? Well, technically, even after spouses execute a settlement agreement, distributing assets, setting maintenance and child support obligations, etc., they are not divorced. In fact, parties are not officially divorced until a judge has signed the Judgment of Divorce. So, if a spouse dies after the execution of a settlement agreement, but before the judge signs the judgment of divorce, technically the spouse died as a married individual.  As a result, issues surrounding the deceased spouse’s estate may arise that may not have otherwise existed.

So what can be done? Well, it turns out this issue is not a new one. It did not arise with the onset of the Covid-19 pandemic and will not end when the pandemic does. Case law out of this state has made it clear that courts can sign and enter a judgment of divorce after the death of a spouse if all other issues have been resolved (grounds for divorce, equitable distribution, maintenance, child support, custody, etc.) and the only remaining issue is ministerial, i.e. signing the judgment of divorce. This is because if all issues of the divorce have been resolved prior to the death of a spouse, technically a judgment of divorce would have been able to be entered while both spouses were living.

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. Samantha Guido can be reached at 516-393-8250 or sguido@jaspanllp.com.

[1] Please note that this discussion of estates and a spouse’s rights under New York Law to inherit assets from their deceased spouse is in general terms. All estate litigation cases are different and any individual who may have a question regarding estate planning, contesting a will, or any other question regarding wills, trust, etc., should seek advice from a trusts and estate attorney of their choosing. Nothing in this blog post is meant to be legal advice to you.

On Thursday, March 11, 2021, President Joe Biden signed the $1.9 trillion American Rescue Plan into law in an attempt to further combat the disastrous financial impact as a result of the Covid-19 Pandemic.  One of the most talked-about features of the American Rescue Plan is the third round of stimulus payments (aka “Economic Impact Payment”) which will be sent directly to taxpayers.  As with the previous rounds of stimulus payments, the amount you receive is dependent on your adjusted gross income.  To determine if you may be eligible to receive the third stimulus payment, click here.

For the third stimulus payment, eligible taxpayers will receive up to $1,400 for individuals or $2,800 for qualifying married couples, together with $1,400 for each dependent.  Unlike the first stimulus payment, eligible taxpayers will receive a check for all of their dependents claimed on their tax return whereas the first stimulus payment applied only  for dependents under the age of seventeen (17).

While one would assume that the third round of stimulus checks that are being dispersed creates more good than harm, this may not be the case for parties that have just finalized their divorce or are going through the divorce process.  Instead, the third round of stimulus payments potentially adds to the list of battles for parties and their attorneys to fight over.  We previously addressed some of the potential issues that may arise for those parties who have recently divorced or are in a pending divorce action in our blog post discussing the first round of stimulus checks.  Those same issues in that blog post with respect to the first stimulus payment may also apply to the third stimulus payment.  However, the third stimulus payment has the potential to create more issues as a result of the change of the dependency requirement.

For parties in a pending divorce action that may be eligible for the third stimulus payment one of the main issues that may arise is how parties are going to equitably distribute the money received for claimed dependents.  The first stimulus payment only provided $500 for a dependent child who was under the age of seventeen (17).  In contrast, the third stimulus payment provides that eligible taxpayers are to receive $1,400 per dependent claimed on their tax return regardless of their age.  Based on this, eligible parties with three (3) dependents could receive $4,200 ($1,400 per dependent).  Ultimately this means there is more money to be fought over in a pending divorce action, creating the potential for more problems.  If parties cannot determine on their own how the third stimulus payment will be equitably distributed, which includes any money they may receive for their claimed dependents, they will need to seek out the assistance of their counsel and/or guidance from the Court.

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 need legal assistance, Hanna Kirkpatrick can be reached at 516-393-8295 or hkirkpatrick@jaspanllp.com.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

[i] 22 NYCRR 130.

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

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

A Walk Down “The Fault Divorce” Lane

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

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

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

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

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

Do Lyin’ Eyes Matter?

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

The Bottom Line

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

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

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

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

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