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Recent Cases Affecting New York Divorce Law
Evolution of the Postnuptial and Prenuptial Agreement
August 13, 2022
The laws regarding New York prenuptial agreements as well as and post nuptial agreements and the application of these laws continues to evolve in New York State. Post postnuptial and prenuptial agreements are treated in the same way. The case law discussed herein tends to suggest that prior application of reasoning as to enforceability of prenuptial and postnuptial agreements has changed in the last twenty (20) years. In the case of Van KIPNIS versus Van KIPNIS, 11 NY 3rd 573 the Court of Appeals in New York court reiterated the importance of enforcing duly executed agreements because of the strong public policy favoring contracts between spouses. Contracts such as these are favored and encouraged by Public Policy and by the judiciary because agreements such as these between spouses lessen the burden of going through a costly and burdensome divorce. This is because the necessary issues of the agreement between the parties are resolved by the agreement and resolution of those issues are absolutely necessary to obtain a divorce.
As such, said prenuptial or postnuptial agreements must clearly set forth in the four corners of the agreement a resolution of such ancillary issues of equitable distribution, support, child custody and counsel and expert fees. If the Agreement neglects any aspect of those issues, those issues may still be litigated in a divorce action.
Thus, prenuptial agreements are contracts between spouses which are usually presumed valid and enforceable unless there are reasons to challenge them.
However, there are exceptions to the rule. One such important exception is where an agreement was not executed properly. In 2013, the New York Court of Appeals held that any prenuptial agreement must be acknowledged in the manner required for the filing of a deed and that a failure to execute this formality in entering into an agreement will bring into question the enforceability of a prenuptial agreement. That means that if the prenuptial agreement is not executed with all the formalities required for the filing of a deed, then the agreement is unenforceable in a divorce action, and it matters not whether or the parties signed the agreement.
There are other circumstances where a prenuptial agreement may not be enforceable. Some grounds that parties have traditionally used to set aside a prenuptial agreement might be fraud, unconscionability, unfair financial advantage and lack of independent legal advice and involvement. However, things are changing. In a first department case in 2016 coming out of Manhattan, the appellate division found that the prenuptial agreement was in fact enforceable even though it might not have been fair because the wife was not aware of the husband’s income that he was earning at the time she signed it. That case can be found at Gottlieb versus Gottlieb, 138, AD3d 30.
The courts also consider timing of execution of the agreement in evaluating whether they will enforce a prenuptial or post nuptial agreement. This is because courts are always interested in whether or not an agreement was procured by overreaching or duress.
However, recent case law suggests that in the First Department will not always follow these older notions of law. There, where the wife was of the belief that if she did not sign the prenuptial agreement the husband would not marry, and where the wedding was only 2 weeks away, the Court found the contract valid. Surely the Wife in that case must have felt that the husband was putting her under pressure to sign the agreement and that he was overreaching. But the Court felt otherwise, holding that said greement would be enforced even though the husband would get the vast majority of the property of the marriage under the terms of that agreement. You can read more about this in the case of Barocas versus Barocas, 94 AD3d (1st Dept). The Barocas case was decided in Manhattan in 2012 which gives you an indication as to the direction that the courts are taking with respect to the handling of enforcement of prenuptial and postnuptial agreements.
This means that parties residing in Manhattan should retain the very best attorney they can to negotiate their prenuptial agreement because in all likelihood absent extenuating or extreme circumstances the courts will enforce these agreements so long as they are properly executed.
That said, there are always interpretation issues in deciding what the parties meant by the language. This is because if an agreement is challenged in court as to its meaning, then the Court will be charged to apply contract interpretations to the agreement and that interpretation of the language might not be to your liking or might not be that which you anticipated when you signed the agreement.
To conclude, if you are engaging in the negotiation of a prenuptial or postnuptial agreement if would be wise to have your own attorney negotiate and draft it on your behalf so as to cover any contingency which might arise of which you lack awareness.
By Lisa Beth Older
Your Manhattan divorce lawyer
Recent Case dealing with Equitable Distribution and Child Support in New York, County of Rockland
December 26, 2021
In a recent case decision promulgated by the Supreme Court, County of Rockland on June 2, 2021, dealt with whether a gift of inheritance to one spouse, which was made as a loan to the parties by that spouse’s parents, would constitute up to a separate property credit to the spouse who received the advance on their inheritance. On these facts the Court stated that the gifted loan from her parents, which the parents had “forgiven” was paid off by the parties during the marriage and hence lost its separate property characteristics when the property became comingled such that the equity in the property subject to equitable distribution was solely marital. C.R. v L.R Supreme Court, Rockland County June 2, 2021, 71 Misc. 3d 1229•2021 N.Y. Slip Op. 50527•146 N.Y.S.3d 466. In the case of Renck v Renck , 131 AD3d at 1149 Court held that "[t]o overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest". In this instance, the court felt the Wife failed in her burden of proof to show by clear and convincing evidence that the property originated solely as separate property.
Normally, has this loan not been paid off and forgiven by the wife’s parents the case law would support a separate property credit to the Wife if she used an advancement on her inheritance to acquire the property. But here, it was a “loan” to both parties. The Court has tremendous discretion to characterize property as being marital or separate.
Separate property is described as follows: Separate property is defined as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse ...". DRL § 26(B)[d]). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL § 236(B)[d](3)
As such, if you are using your inheritance as a down payment for the purchase of the marital residence be sure you do not take out a loan against the property that is used to pay off the mortgage because that payment on the loan may be construed as having stripped the inheritance of its separate property characteristics. Also, if your parents are gifting you your inheritance in advance, make sure the check is written out in your name only otherwise it might be considered a gift to the marriage subject to equitable distribution in the event of a divorce. More importantly so not mix and mingle your separate or joint accounts by depositing that money into those accounts used during the marriage. Keep that money in a separate bank account.
This case also briefly dealt with child support and the rules governing modification of same and the collection of child support arrears which accrued prior to the divorce action. Domestic Relations Law § 236(B)(9)(b)(2) stated that child support arrears cannot be reduced or annulled.
New York Domestic Relations Law §§ 236(B)(7)(d) and 236(B)(9)(b)(2) clearly states that either party may move to modify a child support award if there has been 1. a substantial change of circumstances; or 2. three years have passed since the order was entered, last modified, or adjusted; or 3. there has been a change in a party's gross income by 15% since the order was entered, last modified, or adjusted, provided that the reduction in income was not on purpose and the offending party has made good faith attempts to secure employment equal to his or her education, ability, and experience. The law also states that unless the parties in their agreement or divorce judgment expressly opts out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party may petition the court to modify the underlying support order upon a showing of those facts suggested in subsections “1.” “2.” or “3.” above. The Family Court also follows suit in this regard.
In all events, a petition to modify child support in New York may be filed upon a showing of a substantial change in circumstances especially where it is in the best interests of the child that the child support be adjusted. However, it is up to the Court to determine whether it will grant such modification after a New York Family Court fact-finding hearing.
This decision is also interesting because it was written this year and sets forth this court’s understanding of equitable distribution and how it is to be applied to each case. Under Equitable distribution law "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker." O'Brien v O'Brien, 66 NY2d 576, 585 .”
Under the case of Price v Price, "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of un-remunerated services to the joint enterprise, such as homemaking, raising children and providing for emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." Price v Price , 69 NY2d 8, 15 .
Equitable Distribution does not always mean equal distribution. If it is fair to divide the assets up differently the courts will do so if it is equitable. Each case is different, and each case is treated uniquely. In the cases of Conner v Conner, 97 AD2d 88, 96 [2nd Dept 1983] the Court held that "modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case." Conner v Conner, supra at 96 (citing 11C Zett-Kaufman-Kraut, N.Y.Civ.Prac., Appendix B, at 8).
As such, the Court has substantial discretion to divide up the property in a fair way, even though most of the time the court will start out with the premise that it should be an equal distribution. However, look at NY Dom. Rel. Law § 236. There you will see all the enumerated factors a court should and must consider in arriving at its decision as to equitable distribution.
"In determining equitable distribution , the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker." Loria v Loria , 46 AD3d 768, 770 [2nd Dept 2007] ; DRL § 236(B)(d).
While I hope you find this information useful, it was not intended as legal advice, and as such seek legal counsel if you are going through a divorce or child support or child custody matter.
Can I get my ACS records in a Manhattan Custody case
November 27, 2021
Do I have a right to see the ACS Records in my New York Custody case?
You may very well have a right to see the ACS records if you have been a target of an ACS investigation brought on by a spouse in a child custody case. But there are strict procedures you must go through to get the records. Federal law requires the state’s child protective agencies to maintain records of the investigation and you can usually access these records if you were the subject of an ACS investigation. But these records are not readily available without following formalities set forth in the law. Requesting Child Protective Records Child protective records are not available pursuant to the Freedom of Information Law. A request for your child protective records must be written, notarized request and should include your full name and date of birth. You can also request the records by fax to the Records and Compliance Unit at (212) 341-0726 OR
If you're seeking someone else's records or if your records involve the records of other parties in a New York custody case that is also different as you will probably need to obtain a court order. And if you require the records to be certified then you will also need to get a court order before the records are released. Due to the nature of the confidentiality of these records you must have been the target of the investigation and usually the case is already closed before you can ask for the records.
Another way to secure the records is to subpoena them. It is well-settled under New York law that if an agency’s case record meets the requirements of a business record, it may be entered into evidence. The law is clear that your attorney may do this if relevant to your case. See: Matter of James M.B., 155 A.D.3d 1027, 1030, (2017) in which the Appellate Division Second Department held that “The mother's contention that the Family Court erred in admitting the agency's case record into evidence as a business record is without merit. A proper foundation for the admission of the case record was laid by the testimony of the agency administrative supervisor, who was familiar with the agency's record-keeping practices (cf. Cadlerock Joint Venture, L.P. v. Trombley, 150 A.D.3d 957, 959). Each participant in the chain producing the record was acting within the course of regular business conduct (see Matter of Leon RR, 48 N.Y.2d 117, 122). The court providently exercised its discretion in limiting the records admissible to those entries made contemporaneously with the events reported or within a reasonable time thereafter (see CPLR 4518[a]; cf. Matter of Dustin H., 40 A.D.3d 995, 996). Also see In re R., 264 A.D.2d 423, 423–24, (1999), in which the same Court held, “we find no merit to the appellant's contention that the Family Court committed reversible error by admitting the entire case file of the child protective agency into evidence. The agency established a proper foundation for admission of the file into evidence as a business record by establishing that it consisted of entries made by case workers who were under a business duty to timely record all matters relating to the welfare of the subject children (see, CPLR 4518 [a]; Matter of Dept. of Social Servs. v. Waleska M., 195 A.D.2d 507, 510; cf., Matter of Leon RR., 48 N.Y.2d 117, 123). Furthermore, as required by principles of “fundamental fairness”, the appellant's counsel was afforded an opportunity to review the case file prior to its admission into evidence (see, Matter of Rosemary D., 78 A.D.2d 889; Matter of Melanie Ruth JJ., 76 A.D.2d 1008, 1009).Here, the production of the requested documents via subpoena duces tecum would be a mechanism to allow you to review the files prior to their expected admission into evidence, as set forth above.
By: Lisa Beth Older, Esq.
Your Manhattan Custody Lawyer
What must I know about Virtual Trials in New York Custody and Divorce cases?
November 7, 2021
The Covid-19 pandemic has caused many courts to go virtual and many of the courts still try cases virtually using Microsoft Teams technology. In my estimation, long after the pandemic has ended, the Courts will probably continue to use this virtual technology for certain cases, especially where parties live out of State or where there are other safety risks. This is yet to be seen.
In preparing for a virtual trial that is coming up soon, I ran across a very useful article I wish to share that was written by the Hon. Norman St. George, J.S.C. District Administrative Judge 10th Judicial District County of Nassau.
The article has to do with the protocols the parties are expected to adhere to and follow in a virtual bench trial, whether it be a New York Family Court trial a New York Divorce trial or a criminal trial.
Here we will focus on the virtual trial as it relates to family law in New York and as it relates to bench trials in New York Family Court and as it relates to divorce matters held in Supreme Court.
For more detailed instructions and information please go to:
This is particularly important information to have, especially if you are appearing pro se and have not yet familiarized yourself with introducing evidence over the Microsoft Teams Meeting application used by the Court.
The Microsoft Teams platform may be employed at the Court’s election, to hear trials as well as court conferences, preliminary conferences, and arguments on motions.
The Honorable Chief Judge DiFiore was the Judge who spearheaded this virtual innovation.
The virtual trial will mirror the traditional trial in all respects, except for the technological aspects which must be employed to ensure fairness during trial. It is supposed to be as formal as if you are standing in person in front of the judge. Participants shall make best efforts to provide no audio or visual distractions when in attendance at their virtual trial.
As a litigant, you are expected to dress in an appropriate manner because this trial will be as formal a proceeding as it gets.
Like any other trial, all testimony shall be taken down by a Court Reporter (or by a court authorized recording device) and this will provide a record of the trial so do not speak over another participant. That is, one person should speak at a time. A Judge has the power to mute your microphone if you attempt to speak over another party. This is one tool that I like since in live court a Judge can not manually mute an obstreperous party or an overzealous attorney.
Objections to a question may be raised orally or by using the raise hand option provided in the Teams application.
Counsel may ask the Court to pause the proceeding to request that they speak to their client off the record, In that instance, the Breakout Room on Microsoft Teams may be used to ensure that no one hears what the attorney is saying to their client during a sidebar.
To protect against ex-parte communication when there is a pause in the trial all parties should mute their computer sound and shut off their video camera until the trial resumes.
It is important to note that the same rules apply in virtual trials with respect to third party access to the trial. It will be up to the Judge to ensure that witnesses that will be called at trial not be allowed to be present during that part of the trial where they are not testifying. All people present at a virtual trial will need to identify themselves on the record.
The Court System has worked hard to ensure secure connections but if security is an issue, try to us a protected internet password rather than a public wifif connection.
You can expect that technical setbacks can occur. As such, if there are internet connection problems it is important to share your email and contact information before hand to facilitate swift expedient reconnection onto the internet.
Counsel, parties, and witnesses should exchange back-up contact information, such as cell phone numbers and/or e-mail addresses, with the Court prior to the Virtual Bench Trial and discuss a protocol on how to reconnect in case the Virtual Bench Trial itself or a party is disconnected, or other technical issues arise. If appropriate, the contact information for technology support should also be shared. All participants should immediately notify the Court if it appears anyone has dropped from the Virtual Bench Trial. Sometimes there a computer technical support staff will be on hand in the court room to aid the court with technological issues as they arise and this person will identify themselves.
Some but not all virtual bench trials will be live streamed so that the public can have access to the courtroom. It is yet to be seen how family court matters will be handled, such that if there are matters that require a closed court the court will so advise.
Pro se litigants that have no access to virtual technology should so advise the Court and the Court shall allow a safe place at the courthouse where the pro se litigant can participate in their trial.
You can expect that a Court may want to have a pretrial court conference ten days before trial so that issues of stipulation as to trial exhibits and other such procedures can be ironed out.
Like in al trials it is expected that the attorneys discuss the identity of their witnesses and the order in which they expect each witness to be called. Normally the Court will request the exchange of exhibit slists and witness lists at least ten days before trial and counsel are expected to raise any objections as early as possible.
If a party has a problem with securing a witness to appear at trial the Court may still execute SO ORDERED subpoenas at the request of counsel unless there is an objection.
As for proposed Exhibits, the attorney and pro se litigants are required to file them electronically through the EDDS system. If one exhibit has more than one page it is necessary to bate stamp each page so that it is easier to refer to that page when using an exhibit.
If you are Plaintiff, or Petitioner, you are to number your exhibits. If you are the Defendant, you are to use letters to mark your family court or Supreme Court exhibit.
If you wish to present audio or video, these cannot be downloaded onto the EDDS system so you must submit these items directly to the court and counsel at least 15 days in advance of trial. The Court will expect you as attorneys or pro se litigants to try to stipulate to as many exhibits as possible in advance of the trial date so that you can avoid time consuming objections.
Any exhibit presented at trial must be presented per the same evidentiary rules which means that each attorney must lay an appropriate foundation for each exhibit. Once marked and offered into evidence the Court reporter will properly notate the exhibit.
As to witness testimony, the court will send a link to the witness at least one half hour before they are called to testify. The attorney calling the witness will instruct their witness to log in at the allotted time.
Like all trials, any recording of the trial is prohibited.
It is important to note that as in all trials there shall be no communication allowed between a witness or party during the Virtual Bench Trial testimony. The party and his or her attorney may not independently speak to a witness until their testimony has concluded
When you testify, you are not allowed to refer to documents of any kind other than that presented to them at trial in the form of a marked exhibit.
The Court will also expect that each witness display the room where they will be testifying from and there shall be no other computer phone or other electronic device in the room other than the computer they are using for purposes of the virtual trial.
No one other than the party or witness shall be in the room during trial other than someone that is needed to help with technology. In the case of technological assistance the person in the room must identify themselves to the Court.
No party is permitted to turn off their screen or audio without the express permission of the court.
If counsel requests a sidebar, the court may wish to accommodate counsel through the use of a what is referred to as a “BREAK OUT”. room provided in the teams platform. In the alternative a court may request a cell phone conference at which point all parties must mute their cameras and audio on Teams.
I hope that this article has proven to be helpful in your child custody or New York divorce matter.
By: New York Divorce Lawyer Lisa Beth Older, Esq.