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New York Decisions and Legislation of Interest
In Baraby v. Baraby, 250 AD2d 201 (3 rd Dept, 1998) it was held that when a trial court makes a determination of child support, it has no authority award recoupment for payments. made in excess of the award. This applies when there is a temporary order of child support and the trial court orders a lower amount. Conversely, when the trial court orders an amount greater than the temporary award, the difference is considered arrears.
An application for pendente lite (temporary) child support may be made at the time of the commencement of a matrimonial action or after the commencement of the action. Any order for child support must be made effective as of the date of the application therefor [DRL §236(7)(a)]. Some courts have applied the CSSA to pendente lite applications while others have declined to do so, basing temporary child support on the needs of the children and the financial ability of the parties to meet those needs. In Krantz v. Krantz, 1.75 AD2d 863 (2nd Dept. 1991), it was held to be error for court, in a pendente lite application, to direct the husband to pay both child support and the carrying charges on the marital residence without deducting the full amount of the carrying charges from the husband's gross income before calculating child support.
A court may rely upon the Child Support Standards Act for guidance in fixing pendente lite child support, but is not required to apply those guidelines, Nordgren v, Nordgren, 237 AD2d 498 (2nd Dept. 1997); Stanton v. Stanton, 211 AD2d 781 (2nd Dept. 1996).
In 1997 the Legislature amended §240 DRL, effective January 1, 1998, to provide that all court orders for child support payable through Support Collection Unit must contain on their face specific language advising the parties of the right to request a review and cost of living adjustments of child support 24 months after the issuance of the order. If it is determined that the Consumer Price Index has increased 10% or more there will be an administrative calculation of the increased support order.
§ 3113 Insurance Law provides that in any case where a policy owner has, pursuant to an Order of separation or divorce, designated his or her spouse or children as the irrevocable beneficiary of a policy of insurance, and a copy of such Order has been served, by registered mail on the home office of the insurer, specifying the name and mailing address of the spouse or children, such insurer shall: (a) prohibit the policy holder from borrowing from the cash value or changing the named beneficiary of such insurance policy without the written consent of the irrevocable beneficiary; and (b) provide written notification to the irrevocable beneficiary in the event that such insurance policy is scheduled to lapse due to non-payment of premium.
Although the Court of Appeals in Braiman v. Braiman, 44 NY2d 584 (1978), stated that a court has the authority to award joint custody, most judges are reluctant to do so unless the parents are amicable and cooperatives See Laura A.K. v. Timothy M., 204 AD2d 325 (2 Id Dept. 1994). The authority to award joint custody was an inference from the language found in §240 DRL. The parties are free to agree to a joint custodial arrangement; however, the court does not have to accept the agreement of the parties and can award sole custody to one of the parents. If joint custody is awarded by the court or by agreement of the parties, either party can make application at a future time for sole custody. A parent who seeks a change in custody is not automatically entitled to a hearing, but must make some evidentiary showing sufficient to warrant a hearing.
A court can make a determination, prior to trial, as to whether or not an item is an asset subject to equitable distribution. In Hougie v. Hougie, 261 AD2d 161 (1st Dept. 1999) the court held that that even though a license was not involved, the enhanced earning capacity as an investment banker was a marital asset. On appeal, in his reply brief, the husband for the first time acknowledged that he obtained a Series 7 license, which is necessary to trade securities. The court said that this license should also be taken into account in determining his enhanced earning capacity.
If a divorce action is unsuccessful, the trial court is authorized to award permanent maintenance to a party. However, the duration of the maintenance must be for an indefinite period of time, Garver v. Garver 253 AD2d 512 (2nd Dept. 1999); Schildkraut v. Schildkraut, 223 AD2d 585 (2nd Dept. 1996)
In Nappi v. Nappi, 256 AD2d 558 (2nd Dept. 1998) the Appellate Division said it was error for the trial court to refuse to provide the wife with survivorship benefits and a pre-retirement survivorship annuity of the husband's pension.
In Weiner v. Weiner, 253 AD2d 428, (2 nd Dept. 1998), the Appellate Division held that since the husband's selection of the maximum allowance pension option creates the risk that there will be no funds remaining in the pension if he dies before he has reached his life expectancy, the trial court should have directed the husband to purchase a life insurance policy naming the wife as beneficiary to ensure that she receives her share of the pension.
In Matter of Grieff, 92 NY2d 341 (1998) the Court of Appeals held that a party to a pre-nuptial agreement who contests the agreement has the threshold burden of proving by a fair preponderance of the evidence that the other party had an undue influence or had an unfair advantage. Once this is shown, the burden of proof shifts to the proponent of the agreement to show that the agreement was free from fraud or undue influence. The challenger to the agreement stills bears the initial burden of proving a fact-based particularized inequity between the parties that manifests probable undue influence and unfair advantage.
Termination of Maintenance
The first part of §248 DRL provides that a court must terminate support for a wife upon proof by the husband that she has married. termination of support (maintenance) under this part of the section is mandatory.
The remainder of §248 provides that the court, in its discretion, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto, by annulling the provisions for the support of the wife. (Note the term "support" has not been changed to "support or maintenance," although support in this statute includes maintenance.) This part of the statute is discretionary and requires the husband to prove not only that the wife is habitually living with another man but also that she is holding herself out as his wife. This latter requirement is often very difficult to prove and without such proof the court cannot terminate the provisions for support, Northrup v. Northrup 43 NY2d 566 (1978). A long-standing relationship will not give rise to a presumption of a holding out as husband and wife, Bliss v. Bliss, 66 NY2d 382 (1985). In Bliss, the former wife resided with her male friend for over 14 years, but there was no proof adduced at the hearing that the former wife and her friend were holding themselves out as husband and wife, and accordingly the husband's support was not terminated. Ed. Note: The result in the Bliss case is the very reason why §248 should be amended either to eliminate the "holding out" requirement or change "and" in the statute to "or".
§248 DRL only applies to orders and judgments of a court and does not apply to a written agreement unless specifically made a part of the agreement. If a husband and wife enter into a separation agreement, which provides that spousal support shall terminate only upon death or remarriage of the recipient spouse, §248 cannot be used as a defense against the spouse who brings an action on the contract (separation agreement or stipulation of settlement) for non-payment of spousal support. Many agreements incorporate language similar to that found in §248, except that the term "holding out" is usually not included as one of the requirements to be proved before maintenance terminates for a spouse who habitually resides with another person.
New York does not automatically give custody of children to any one parent. In deciding custody, the court only considers what is in the best interest of the child. It considers who gave primary care during the marriage, scheduled doctors' appointments, and attended school meetings. Generally, the court allows the non-custodial parent ample visitation with the child and even awards joint custody. Visitation is often only limited in circumstances where there is abuse.
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