The Good News – The Bad News – and the Statistics

The number of divorces is increasing!

Well, that’s good news to those economists who see the increase in the number of divorces as evidence of an improving economy. Since the 2008 economic crises and the Great Recession many couples simply could not afford to divorce. During the recession, in 2009, the U.S. divorce rate hit a 40-year low. Locally, 2009 marked a low in Westchester and Dutchess counties and a near low in Putnam County. It was not the cost of the divorce process itself that forced unhappy marrieds to stay together; it was the hard reality that post-divorce life was just too expensive to manage. It was often considered impossible to stretch limited family income to cover the costs of two separate households. So the number of divorces decreased as the economy tanked. But for the past three years, the divorce rate locally, statewide and nationally is on the rise so it now appears that the economy has improved.

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Equitable is Not Equal and Temporary is Not Permanent

Equitable Is Not Equal

In a recent trial court decision the ruling reinforced the principle that marital assets need not be distributed on a 50/50 basis to the divorcing couple. The court in distributing marital assets must determine on an asset-by-asset basis what a fair distribution would be. That determination is based upon a number of factors. While one asset (for example the marital residence) may be distributed 50/50, another asset (for example a business owned by one or both of the parties) may be distributed on some other percentage basis. The court in V.M. v. N.M. held that the business owned by the husband should be distributed in the divorce judgment on a 30/70 basis. The wife was held to a 30% interest in the business based upon the following facts and circumstances: a marriage of 23 years, 2 children for whom the wife was the primary caregiver and the wife was actively engaged in the husband’s business until their first child was born.

Temporary is Not Permanent

The court in V.M. v. N.M. also held that temporary maintenance guidelines are inapplicable to an award of permanent maintenance. Maintenance is spousal support – what a financially independent spouse is required to pay to a financially dependent spouse. Temporary maintenance is what must be paid during the pendency of the divorce action (which is typically between nine and eighteen months but can often be for shorter or longer periods). Permanent maintenance is what must be paid pursuant to a judgment of divorce after the case has been resolved. Permanent maintenance may be for a specified period of time (durational maintenance) or for the life of the recipient (non-durational maintenance). By NY statute there is a formula which is used to calculate the amount of temporary maintenance. This case makes clear that the formula is not applicable to determining the amount of permanent maintenance. Consequently, what you may be paying or receiving during the pendency of the action is not determinative of what you will be paying or receiving once the case is concluded.

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GET REAL: What to Expect in Collaborative Divorce

Look Before You Leap

Collaborative Divorce is a wonderful alternative to traditional litigation but it’s not for everyone. Before making a commitment to proceed through the Collaborative Divorce process, parties should understand how the process works. Entering the Collaborative Divorce process with realistic expectations is crucial to the success of that process.

You Have to Speak and You Have to Listen

Collaborative Divorce is designed as a process where the parties, themselves, speak directly to one another. The attorneys will facilitate those discussions and will protect their respective clients and advocate for their clients but the process requires that the parties speak for themselves rather than through their attorneys. Unless both sides can not only speak with clarity and specificity but also listen with attentiveness and open-mindedness, the process can get bogged down. Most people are hesitant and many are frankly intimidated by the idea that they are expected to speak for themselves but nearly everyone is capable of doing so very effectively with the support and guidance of the Collaborative professionals.

It’s All About the Meetings

In collaborative divorce the parties are actively and directly involved in negotiations which occur in face-to-face meetings attended by the parties, their attorneys, and either a coach or a financial specialist or both. Meetings that result in meaningful progress towards a comprehensive resolution require careful and thorough preparation. So parties have to attend meetings on a regular basis throughout the entirety of the process (with their own attorney to prepare and with the other party and his or her attorney to negotiate).

It Ain’t Cheap and it Ain’t Quick

The Collaborative Divorce process is nearly always more cost-effective than litigation but to think that it provides for a “cheap divorce” would be a mistake. Any resolution that is fair and as positive as possible for everyone involved takes some time to craft. So don’t expect to reach agreement quickly. Understand that you will need time to gather information, consider what is most important to you and your family, devise creative suggestions for your spouse to consider, review the needs and concerns of your spouse, weigh your spouse’s proposals and then finally reach consensus.

The Results Are Amazing

The results of a successful Collaborative Divorce are mutually rewarding for the parties and their children. The terms of settlement are those the parties themselves negotiate and are never imposed upon the parties by a judge. The settlement always addresses the real needs and concerns of both parties and never rests upon arbitrary positions. To resolve conflict through mutual problem-solving rather than through adversarial battle always results in more creative, positive and thoughtful solutions.

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Everything Old is New Again

There are some ideas and principles in matrimonial and family law that seem to be tested over and over again only to be confirmed time and time again. For example, if you try to interfere with the relationship between your child and the other parent, you’re going to lose.

On Modifying Custody Agreements – Fostering the Parent-Child Relationship

There’s a hefty price to pay if you interfere with the relationship between your child and the child’s other parent: loss of custody.

In Fargasch v. Alves the court found that the mother had made unsubstantiated allegations of sexual abuse against the father which showed that the mother placed her own self-interest above the interests of her child and consequently held that the best interests of the child required a change in custody from the mother to the father.

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How Extraordinary! and… How Much is Too Much?

How Extraordinary!

Extraordinary circumstances can warrant placement of a child with a non-parent even though a biological parent has a superior right to custody in litigation between a parent and a non-parent.

Extraordinary circumstances may be found when a parent relinquishes his or her parental rights through surrender, abandonment, persistent neglect or unfitness. A court must exercise sound discretion in determining whether or not extraordinary circumstances exist.

Two cases decided in May, 2014 deal with this issue:

In Braun v. Decicco, the court found that the mother’s living conditions, both unstable (moving with the children 6 times in a 9 month period after being evicted from her apartment) and unsanitary (as proven by the testimony of the non-parent based upon first-hand observation) rendered the mother unfit.

In Ray v. Eastman, the court found that the mother had a history of unstable housing which, together with the mother’s not having had a driver’s license for more than two years after an unpaid parking ticket, supported an earlier court determination of extraordinary circumstances that resulted in temporary custody to non-parents.

How Much is Too Much?

How much child support should be paid by a parent earning over $10 million per year?

Is $23,120 per year (the statutory CSSA formula calculation) the appropriate amount of child support? Is $68,000 per year (the payer’s proposed child support amount) appropriate? How about $637,175 per year (the recipient’s proposed child support amount)?

The court in Sykes v. Sykes, decided in May, 2014, held that $102,000 is the appropriate amount of basic child support under the circumstances. In addition the court required the parent earning over $10 million per year to pay 100% of all child support add-ons for medical and educational expenses of the children.

Alas, very few of us are likely to be wrestling with calculations based upon such sizable income figures but we can all learn from the court’s ruling nonetheless:

In Sykes, the recipient parent had been awarded $2.4 million dollars for her interest in the business owned by the payer and thus had substantial income potential from that distribution. Thus the standard of living the children would have enjoyed had the marriage remained intact was not impaired.

Also, payers earning substantially more than the statutory income cap for calculating basic child support need not expect to have child support calculated with no income cap whatsoever. In the Sykes case the court set the cap at $600,000 despite the fact that income was actually more than 15 times that amount.

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The Relocation of a Parent May Support a Change in Custody (or Not!)

Several recent cases have addressed the overlapping questions of modification to an existing custody and visitation order and the relocation of a parent. The courts have consistently held that modification of an existing custodial arrangement is possible upon a showing of a change in circumstances warranting a modification in the child’s best interests.

Thus the inquiry initially requires proof of a change in circumstances since the issuance of the order which is sought to be modified. The relocation of a parent can be a sufficient change in circumstances to warrant modification. If relocation is held to be a sufficient change in circumstances then the inquiry shifts to a consideration of the child’s best interests. Those best interests could involve economic, educational or emotional considerations.

One court recently held that where a father’s relocation offers the child economic and educational benefits and the child’s contact with his mother will not be substantially impacted because the father has offered liberal access to the mother, the child’s best interests are served by a change in custody to the father. However, another court held that a father’s relocation closer to the home of the mother and the school of the child was an insufficient change in circumstance to warrant a change of custody to the father, particularly in light of the child’s need for stability and the impact of uprooting the child from the mother’s residence. Finally, a third court has held that where a mother’s relocation to another state was not shown to enhance the economic, emotional or educational life of the child, no change of custody to the mother was granted.

Relocation of a parent, then, may be held to constitute a sufficient change in circumstances but custody will not be modified even then if the change is not warranted by the best interests of the child.

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I Take it Back….

To rescind a separation agreement on the ground of overreaching, a plaintiff must demonstrate both overreaching and unfairness but actual fraud need not be shown.

So, it is possible to “take back” a separation agreement but it is not an easy task. The party looking to undo what has already been done must show that the other party secured unfair terms by exploiting a situation through unconscionable conduct. What is considered “unfair” and what is considered “unconscionable” is for the judge to decide. An individual judge’s discretion in making those calls may not be consistent with your own or that of another judge so looking for consistency or clear-cut, easily identifiable parameters will not be possible. The outcome will depend upon the skill of your attorney in presenting the argument and the discretion of your judge in ruling upon the issue.

To vacate a default in a matrimonial action, the defendant must demonstrate a reasonable excuse for the default and the existence of a potentially meritorious defense. So don’t give in to temptation and “take the easy way out” by simply ignoring the process… as many are tempted to do. The problem does not go away if it is ignored; it gets worse. This may seem all too obvious to most but the defaulting party is not some specimen rarely seen. Many defaults are taken every year and reversing the default (“vacating,” as the lawyers say) is a very difficult undertaking which most often fails.

It is simply a losing strategy to default in the first instance thinking that the default can later be vacated if the terms of the initial divorce are more onerous than you would wish. It is not easy (and often not even possible) to take it back and get a “do-over.”

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Parenting Coordinators – A Better Alternative

Even in the most contentious and acrimonious circumstances, divorcing and divorced parents and their children may nevertheless benefit from utilizing the services of a parenting coordinator. A parenting coordinator may be either a mental health professional or an attorney who has the requisite training and experience to assist the parents in implementing a custody agreement or order and resolving those disputes that the parents themselves cannot.

In the heat of their own dispute and the fog of their own fury with one another, parents cannot always agree upon what is in the children’s best interests. An important, useful and positive alternative to bringing such disputes to court for resolution is the use of a parenting coordinator. The role of the parenting coordinator may be broadly defined or narrowly constrained but must be clearly defined.

Courts may order that parties utilize the services of a parenting coordinator before seeking judicial intervention. Parties may enter into an agreement to submit parenting issues to a parenting coordinator for resolution. Coordinators can certainly make recommendations and often that is sufficient to enable parents to resolve their dispute. Coordinators may even be given decision making authority but those decisions remain subject to oversight by the court. While parents will generally follow the parenting coordinator’s decision, they nevertheless reserve the right to seek a judicial determination in the final instance.

The use of a parenting coordinator can produce resolutions more efficiently and economically than bringing such disputes before a court and the expanding utilization of parenting coordinators reflects the utility of the services they provide.

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A Potpourri of Recent Legal Rulings

In Taylor v. Taylor, the court held that even in a marriage of long duration, equitable distribution need not be equal distribution on a 50/50 basis. The court found that the economic partnership marriage creates generally was not, in fact, present in this specific case because the parties themselves had not functioned as economic partners for many years.

In Baker v. Baker, the court ruled that a knowing and voluntary admission of paternity is sufficient to deny a motion to vacate an order of filiation.

In Weiss v. Rosenthal, the court held that the amount of child support may be based on the child’s needs where the parent required to pay support fails to provide adequate information regarding his or her income and assets.

In Baxter v. Borden, the court noted that in determining geographic relocation cases the unilateral removal of the children to a new residence is a relevant factor to consider but is not determinative by itself and held that the children’s best interest is still the controlling determination.

In Cid v. DiSanto, the court held that a significant deterioration in the relationship between parents can suffice as a change in circumstances warranting a modification of an existing custody arrangement.

Santiago,, v. Henderson stands for the proposition that a biological aprent has a superior right to custody absent a showing that the parent relinquished parental rights through surrender, abandonment, persistent neglect unfitness or other extraordinary circumstances.

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