New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

In writing this blog, I always find it interesting to observe which articles are most viewed. Over time, I have observed that the articles I’ve written about broken engagements and the return of engagement rings are quite heavily trafficked.   So then, it came as no surprise to me that the New York Times contained a fairly comprehensive article about If  Things Fall Apart, Who Gets The Ring?  

 

While the law in New York regarding the return of engagement rings is well settled, the article points out that there is no uniform national rule about the return of engagement rings if the couple fails to marry.  

 

Most states, New York included, follow the rule that: 

. . . in recent years courts have almost always held that the ring goes back to the buyer, no matter the circumstances. The premise is that the engagement ring is a conditional gift — the condition being that a marriage take place. And if it does not, the agreement is rendered null and void. Furthermore, courts have ruled that it does not matter who broke the engagement, the donor or the recipient.

In New York, the exception to the to the rule is that if the man is married when he proposes and gives an engagement ring to his second bride-to-be, he cannot legally contract to marry. If the second marriage does not take place, he does not get the ring back.

 

For those who care, the law may be different from what is good etiquette or chivalrous. According to the article proper etiquette dictates that:

 

. . . the person who breaks the engagement is responsible for making good. “If the woman breaks it, she should send the ring back immediately,” Ms.[Letitia] Baldrige said. “If it is the man, he should say, ‘Of course you keep the ring.’ ”

As for the laws of chivalry, Raoul Felder questioned “I can’t understand how a man is not embarrassed to ask for his ring back. It always amazes me what happened to chivalry.”  

 

I wonder if Mr. Felder represents only women or, if he represents men, does he advise them that though legal entitled to the return of the engagement rings, they should not seek to recover it because they are being un-chivalrous?

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Litigants going through divorce become all consumed by it. They eat, sleep and live divorce. They complain about their soon to be ex to their friends, family, their neighbors, their hair dresser, their mailman, and anyone or everyone they speak to. (If they are to be believed, it really makes you wonder how they could have been married to such a flawed person).

While it is necessary to open up and express feelings of anger, grief, betrayal and jealously, it may be unhealthy to constantly obsess about the divorce so that it becomes the sole reason for being..

The Modern Women’s Divorce Guide offers six practical ideas to prevent divorce from all consuming:

1. Establish a daily schedule that allows you to spend approximately one hour per day discussing or dealing with your divorce, except, of course, when more time is absolutely necessary (i.e. attending a court hearing). Stick to your schedule.
2. Stop texting, emailing, messaging and writing about your divorce to anyone, especially your EX! (Notes to lawyers as requested are permitted, within reason.)
3. Limit your divorce communications to one hour per day (see above) and only share your thoughts with a select group of people. (This will prevent your divorce from seeping into and filling up every corner of your life.)
4. Exercise daily, limit your alcohol intake and get as much rest as possible.
5. Distract yourself with positive people and activities. Find a new hobby, go out with friends, watch upbeat movies or do anything else you love.
6. Take up meditation or yoga to free your mind, body and spirit..

 

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The Divorce Blog highlights the raging debate over “No-Fault” divorce; is no-fault divorce good or bad idea?   As I discussed before, New York is the only state without a no-fault grounds for divorce and proposals for it  are again before the state legislature.

Quoting a Newsday feature, the article voices the concern that no fault divorce is somehow “dangerous to women and children.”

No-fault divorce allows couples to end a marriage without assessing blame.   Neither spouse has to prove or accuse the other of marital fault.   Likewise, no-fault divorce prevents one spouse from seeking to take advantage of the other in cases where neither party has a cognizable grounds for divorce.

In the end, divorces become less acrimonious and less expensive as marital fault need not be considered.

The criticism of no fault divorce is that it would, somehow, put victims of domestic violence at a disadvantage. However, the criticism misses the point. The abused victim would no longer have to prove (at a needless and costly trial) that they are vcitims of  "cruel and inhuman treatment” in order to terminate the marriage. Iff, after trial, marital fault has not been established, the abusive relationship is not terminated. Doesn’t this put the abused spouse at far greater risk?

The other concern, that the moneyed spouse could seek a no fault divorce, leaving the dependent spouse to fend for his or herself, is also unfounded. The current proposals for no fault divorce require all issues (i.e., grounds, equitable distribution, and child support) to be resolved prior to the entry of a judgment of divorce. If a trial is necessary, the parties could focus all of their resources on issues other than fault.

 

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In this time of economic turmoil, I anticipate the divorce rate will increase.  When money is available to fund a comfortable lifestyle, spouses are more forgiving of minor transgressions. But, when there is less cash available, it is more difficult of overlook a spouse’s foibles and failings.

So, as the marriages begin to unravel, the inclination of some disreputable spouses may be to hide or stash away marital assets. Divorce 360.com offers some tips to Know When your Spouse is Hiding Cash. Some of most common methods of hiding money are:

 

• moving money from a joint account to an individual one;
• putting assets into a family trust, offshore corporation or shell corporation;
• buying collectibles or other items that retain value but are not liquid;  
• purchasing insurance policies, cashiers checks and savings bonds.
• investing in certificate "bearer" municipal bonds or Series EE Savings Bonds. (These do not appear on account statements because they are not registered with the IRS.) or 
• colluding with an employer to delay bonuses, stock options, or raises until a time when the asset or income would be considered separate property.

The article identifies some of the indicia that a spouse may be attempting to hid assets. Tell tale signs of wrong doing include:

 
1. Significant and unexplained changes in the value of assets.   Unexplained changes could be a signal that something untoward has happened.  

2. Does your spouse's income suddenly seem lower? Some individuals can manipulate how they take their income, for example, deferring income. 

 

3. If your spouse travels internationally he could have hidden foreign ban k accounts   

4. Are family members whom your spouse previously ignored now being lavished with gifts? Or has your spouse decided to suddenly invest in a family business venture?

 

The common sense best protection –  stay fully informed about the marital finances. 

 

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I am back to blogging after a short break during my summer vacation.

While I was away, the Appellate Division in the case Karr v. Black, denied a grandparent visitation with her grandchild. The Court upheld a lower court’s finding that an intact family’s’ refusal to permit a mentally ill grandmother to have visitation with their child was sound; because the grandmother had no relationship with the child, there was no need for further inquiry to determine whether visitation would be in the best interest of the child.

In deciding this case, the court engaged in an extensive discussion of the law concerning grandparent visitation.

Analysis appropriately begins with the observation that "the courts should not lightly intrude on the family relationship against a fit parent's wishes. The presumption that a fit parent's decisions are in the child's best interests is a strong one" (Matter of E.S. v P.D., see also Troxel v Granville,   

 In the absence of automatic standing based on the death of one of the child's parents, the court must make a threshold determination that the grandparent has "established the right to be heard" (Matter of Emanuel S. v Joseph E., 78 NY2d 178, 181 [1991]) by demonstrating the existence of "circumstances in which equity would see fit to intervene.”

Only after standing has been established is it necessary or permissible to "determine if visitation is in the best interest of the grandchild" see Matter of McArdle v McArdle, 1 AD3d 822, 823 [2003]). In exercising its discretion to confer standing on the grandparent, the court is obliged to "examine all the relevant facts" among which are whether the family is intact, "the nature and basis of the parents' objection to visitation," and "the nature and extent of the grandparent-grandchild relationship."

The Court was not persuaded by the grandmother’s argument that that reason she did have a relationship with the children was because she was prevented from doing so by the child’s parents. The Court distinguished a parent’s effort to frustrate visitation from an effort to protect the child.

In this case, the parents were justified in limiting the grandmother’s access to the grandchild.  For not only did the grandmother suffer from mental illness, which required repeated hospitalizations, she also disregarded orders of protection, requiring her to “stay away” from her adult children.

Under these circumstances, the Court concluded, “the parents' actions to prevent contact between petitioner and their child was legally cognizable as protective, not obstructive.”
 

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Shannon Cavers in The Houston Texas Divorce and Family Law Blog details her observations of a litigant who retained one of the so-called “do-it yourself” divorce services to secure a divorce and then encountered problems.

These services routinely advertise over the internet about how they are the supposed low cost alternatives to a divorce lawyer. Typically, these services prepare the divorce papers so the litigant can appear “pro se” (without legal representation) and file the papers in court as an accommodation.

I have long wondered why these services are not prosecuted for the unauthorized practice of law. Although these services claim to be nothing more than “form preparers,” in reality, they do all of the legal and clerical work in connection with the divorce. In every sense, they function as divorce law firms, though there may be no lawyer on staff. I even wonder if the operators have paralegal training.

My concern is that “clients” or customers of these firms are at risk. Unlike lawyers, who are trained in the law and who’s legal and ethical conduct is regulated by the courts, these services operate without standards or oversight. My guess is that they do not even have liability coverage for when they make mistakes.

There is no substitute for competent legal representation, who is retained to protect your rights and interests. A skilled matrimonial lawyer knows not only the black letter of the law, but its nuances as well.

If you opt do-it-yourself, but require help, the courts have “pro se” offices to assist unrepresented litigants, the divorce forms and instructions are online and many of the local Bar Associations offer clinics. Avail yourself of this help.
 

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The New York Times ran a front page story detailing how the availability of medical insurance has become a major consideration in the decision to divorce or to wed.

In a poll conducted this spring by the Kaiser Family Foundation, a health policy research group, 7 percent of adults said someone in their household had married in the past year to gain access to insurance. The foundation cautions that the number should not be taken literally, but rather as an intriguing indicator that some Americans “are making major life decisions on the basis of health care concerns.”

The issue of medical coverage has long been a consideration in divorce. In fact, many couples, after negotiating their settlement agreements, delay seeking an immediate divorce and, instead, opt to divorce on the basis of their living separate and apart for a year pursuant to a written separation agreement. The one year separation allows a party who would otherwise be without access to medical insurance to remain eligible for medical coverage on the basis of the marriage. Some couples put off the divorce for even more than a year for this very reason.

Amplifying this consideration, New York requires parties to acknowledge that they are aware that they will no longer be allowed to receive health coverage under their former spouse's health insurance plan once the divorce is granted.

Following the divorce the parties may be eligible to continue medical coverage under COBRA (which can be prohibitively expensive) or purchase insurance on their own
 

 

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A preliminary conference will be, for most, the first, if not the only court appearance in a contested divorce in New York.

I like to think of the preliminary conference as the first opportunity to formally eliminate and identify issues in the case. Once the issues in dispute are identified, the timeline is set for their final resolution at trial.

Like all court appearances in a matrimonial action, the parties and their attorneys must appear in court.  At the conference, the parties sign a binding agreement (a " Preliminary Conference Order") detailing  what issues (marital fault [grounds], equitable distribution, maintenance, child custody, support and visitation)are in dispute.   If, for instance, the grounds for divorce are unresolved, the court will immediately schedule a grounds trial.

If grounds are not in dispute (both parties agree that there will be a divorce upon some ground), the preliminary conference order will address discovery for those issue which are unresolved. For example, the order will provide for the exchange of financial documents and may address the appointment of necessary experts to value property, businesses, professional licenses, degrees and pensions, etc. The order may also address how the experts will be paid.

If there are issues involving children, the court may appoint a law guardian for the children and may also order a forensic examination.

This conference gives judge his first taste of the case. At the conference, the judge will be able to meet and assess the parties and informally judge the merits of the case. The Court will also be able to address any immediate issues like temporary maintenance, child support or anything else that may require the judicial resolution.

As I said at the outset, for many, the preliminary conference will be their only court appearance in the divorce. Many cases are resolved at the preliminary conference. Most contested divorces settle some time after the preliminary conference during the discovery phase of the divorce.

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Massachusetts will soon allow same sex couples from other states to wed reports theSteven Ballard in the Massachusetts Divorce & Family Law Blog.

As I previously reported, while New York will not allow same sex couples to wed, it will recognize as valid, marriages performed in jurisdictions that allow same sex marriage.

I guess New England will soon become a popular wedding andhoneymoon destination for New York’s same sex couples.

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