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New York Decisions of Interest
Degree of Proof in a Divorce Action

In Brady v. Brady. 64 NY2d 339 (1985), the Court of Appeals said that a high degree of proof is required to terminate a marriage of long duration when a divorce is sought on the grounds of cruel an inhuman treatment. The court reaffirmed Hessen v. Hessen, 33 NY2d 406 (1974) (pre-EDL) which stood for the same proposition. Apparently the Court of Appeals does not want to put a "dead marriage" to rest. A rather strange decision in light of the equitable distribution law. If a divorce is denied, there can be no equitable distribution of property and the parties remain husband and wife, presumably in name only. Of course, the party who is denied a divorce in New York can always establish a bona fide residence in a no-fault state (Conn. or New Jersey, for example) and obtain a divorce in that state.

Degree and Certification

An accounting degree and certification as a certified public accountant obtained during the marriage are marital property, Duspiva v. Duspiva, 181 AD2d 810 (2nd Dept. 1992). In this case, however, the nonprofessional spouse was not awarded any part of the value of the degree and certification since the professional spouse was the main support of the family at all times, obtained the degree and certification unaided, and the nonprofessional spouse did not sacrifice her career. Duspiva clearly indicates that not all marital property will be distributed. This case however, must be limited to the facts in the case.

Pension Options

In McDermott v. McDermott, 119 AD2d 370, (2nd Dept. 1986) the Appellate Division upheld the lower court's ruling directing a spouse to select certain pension options offered by the New York City Fire Department. The options to be selected were those that gave the non-pensioned spouse survivorship benefits. The pensioned spouse in McDermott was precluded from selecting the two pension options that would pay him benefits for his lifetime only. The marriage was of 33 years duration and the non-pensioned spouse was a 58-year-old housewife. The Court of Appeals did not rule on this issue since the case was settled prior to reaching that court.

Pensions and Insurance

In Weiner v. Weiner, 253 AD2d 428, (2nd 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.

Indefinite Maintenance

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, 1998), Schildkraut v. Schildkraut, 223 AD2d 585 (2nd Dept 1996.) If the divorce were successful, the court could award maintenance for a definite period of time.

Child Support Standards Act Applies to Shared Custody

The CSSA only speaks in terms of custodial parent and non-custodial parent and does not address how child support should be determined in "shared custody" situations. Some courts have awarded child support based on the time each parent had custody of the child. The Court of Appeals rejected this approach in Bast v. Rossoff, 91 NY2d 723 (1998). The court stated that in shared custody law, the court must apply the traditional three-step formula set forth in the Child Support Standards Act and then if it finds the amount is unjust or inappropriate, make an award that is just and appropriate. The "custodial parent" is the parent who has custody for the greater period of time.

Burden of Proof Shifts to Proponent of Pre-Nuptial Agreement

In Matter of Grieff, 90 NY2d 341 (1998), the Court of Appeals held that if a party to a pre-nuptial agreement shows by a preponderance of the evidence that the other party had an undue or unfair advantage, the burden of proof shifts to the proponent of the agreement to show that the agreement was free from fraud or undue influence.

No Waiver of Past Due Child Support By Inaction

A delay of 11 years in requesting child support or attempting to enforce the child support provisions of the judgment of divorce does not give rise to an implied waiver of the child support, Dox v. Tynon, NYLJ June 6, 1997 p.25 col. 1. (Court of Appeals)

Ed Note: There is a 20 year statute of limitations for Orders or Judgments entered after August 7, 1987, CPLR 211 (e). For orders or judgments entered before August 7, 1987, the statute of limitations is six years.

Credit Toward Child Support for College Contribution

In Reinisch v. Reinisch, 226 AD2d 615 (2nd Dept. 1996), it was held that it was improper to direct the husband to pay child support and contribute to the expenses of the children's education without including any provision reducing the level of support or crediting the husband for the amounts contributed to the costs of their college education during periods when the children live away from home while attending college. See also Guiry v. Guiry, 159 AD2d 556.

Nuptial Agreements

Agreements made pror to the marriage (pre-nuptial) or during the marriage (post -nuptial) must be acknowledged in order to be enforceable, so says the Court of Appeals in Matisoff V. Dobi, NYLJ May 9, 1997 p. 25 col 1. The court said that S236B(3) of the Domestic Relations Law is unequivocal in its wording that all agreements made before or during the marriage must be acknowledged to be valid and enforceable. An agreement, with each party waiving his/her rights to equitable distribution, made 11 years before the divorce action was commenced was held to be unenforceable.


The standard to be applied in all child relocation cases is "the best interest of the Child" The court must weigh all of the factors, including: reasons for the move; the impact of the move on the quantity and quality of the child's future contact with the non-custodial parent; the degree to which the custodial parent's and child's life may be enhanced. A geographical restriction included in an agreement might be an additional relevant factor. Tropea v. Tropea, 87 NY2d 727 (Court of Appeals 1996).

Equitable Distribution

The court held that the husband was precluded from asserting an equitable distribution claim to two houses and various bank accounts (marital assets) in a pending divorce action since he had failed to list those assets in a bankruptcy proceeding filed prior to the divorce action. Gelber v. Gelber, NYLJ 12/17/96 p.28 col. 3 (Sup, Ct. Kings City).


In awarding temporary maintenance or maintenance the court must consider, among other things, the standard of living established during the marriage. Hartog v. Hartog, 85 NY2d 36 (Court of Appeals 1985).

Religious Divorce

A Supreme Court Justice in Kings County upheld the constitutionality of Domestic Relations Law S236(B) (5) (h) wherein a court may consider the withholding of a removal of barriers to marriage in it's determination of equitable distribution or maintenance, Becher v. Becher, NYLJ 3/18/97 p. 29 col. 1 (Sup. Ct. Kings City). A removal of barriers is especially important to Jewish women who want a religious divorce ("Get") in order to remarry in religious ceremony.

Child Support

In Cassano v. Cassano, 85 NY2d 649 (Court of Appeals 1995) The court held that a trial court may apply the child support percentages to combined parental income over $80,000.00 provided that there is some record articulation of the reasons for the court's choice to apply the percentages.

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