THE FALLACY OF TRYING TO BE FAIR

"I just want what's fair!"  I have heard this refrain many times from clients in matrimonial litigation.  Sometimes, it is the litigant's rationalization for certain unreasonable behavior.  But more often, it is said in exasperation, when discussing the conduct of the other side.

The dirty little secret is that trying to be fair can be extremely hazardous to your financial health.  Because the other side has absolutely no interest in being fair.  The other side is acting out of emotion, and wants your head on a stick.  So when you offer something fair, the other side perceives it as the beginning of the negotiation.  In other words, your fair offer is only an opening offer.  You have now established the parameters of the negotiation, and the result will not be pretty.

Divorce is both an emotional and financial process.  If one party's main motivation is retribution, trying to be fair will only result in your offers to settle being rejected, over and over again.  In such a situation, the party seeking retribution is using the legal system not to be fair, but to punish.  The result is frequently financial ruin for both sides.

So what do you do when confronted with an ex-spouse who only wants to punish you?  Avoid early discussions of settlement.  Streamline the litigation as much as possible.  You will settle your case on the eve of trial, when the maximum amount of pressure is brought to bear.  With a good trial judge and some luck, you may get a settlement that is "fair" to both sides.

FIRST APPELLATE LEVEL DECISION ON TEMPORARY MAINTENANCE STATUTE

On February 7, 2012, the Appellate Division, First Department, decided the case of Khaira v. Khaira. The is the first appellate level decision which interprets the new temporary maintenance statute which became effective in October, 2010.

The enactment of the temporary maintenance statute in 2010 was an attempt by the legislature to create uniformity in maintenance awards. The legislation has been frequently criticized as creating a windfall for the recipient spouse. The statute provides a mathematical formula for awarding temporary maintenance during the pendency of a divorce action. A worksheet to calculate temporary maintenance can be found on the New York State Court’s website and can be viewed here.

Prior to the enactment of the temporary maintenance statute, it was routine for the court to order the monied spouse to pay such things as carrying charges on the marital residence, utilities and the like. Once the temporary maintenance statute was enacted, questions arose regarding whether the monied spouse could be compelled to pay both the maintenance derived from the formula and the carrying charges. Courts have gone both ways on this question, with some courts noting that after the maintenance award, the monied spouse is no longer the monied spouse.

In Khaira v. Khaira, the First Department held that under normal circumstances, the temporary maintenance award provided by the formula includes, carrying charges, utilities, etc. In other words, the temporary maintenance award is pretty much all the non- monied spouse is going to get in terms of a monthly payment (this does not include child support).

It will be interesting to see what the other Judicial Departments hold with respect to the temporary maintenance statute. Ultimately, this issue may be decided by the Court of Appeals. There are also various legislative initiatives underway to amend this statute, which many people feel is seriously flawed.

No Fault or Your Fault?

As most people know, the legislature amended the Domestic Relations Law to provide for true “no fault divorce” in 2010. New York’s version of irreconcilable differences is that the marriage is “irretrievably broken” for a period of six months or more. The legislature apparently envisioned a true no fault ground, so that if one party stated under oath that the marriage is irretrievably broken for a period of six months or more, there were grounds for a divorce.

So what happened? After the new statute was enacted, parties wishing to withhold the divorce tried to litigate the issue of whether the marriage was irretrievably broken. In other words, they wanted the opportunity to contest before the court whether or not the marriage was irretrievably broken. Various trial courts have been split on the issue, with some holding that all that is necessary is for one party to claim under oath that the marriage is irretrievably broken, while other courts holding that a party has the right to contest the issue. A recent decision from the Supreme Court in Suffolk County held that the party contesting the divorce had the right to contest the issue of whether the marriage was irretrievably broken, and gave the parties a trial on that issue. After the trial, the court found that the marriage was indeed irretrievably broken. I have spoken to the trial judge and he has advised me that the case probably will be appealed to the Appellate Division so that we will have an appellate level decision on this topic.

It seems that the more things change, the more they stay the same. If the legislature intended to enact true no fault divorce, perhaps it should have said so. Until then, New York will continue to have divorce blackmail (See my prior blog dated March 28, 2009).

ERASED follow up

The following comment was sent to me via email by Patricia Manzo, Esq., an attorney in private practice in Jericho, NY who is frequently a court appointed Attorney for the Child. I reproduce it here with her permission:

I agree. There are an awful lot of Moms who will swear they are the best Moms in the world yet they fail to see how destructive they are truly being by doing everything they can to put a wedge between their soon to be ex-husbands and their kids and they do have the upper hand because they usually are the custodial parent. As you have heard me say many, many times: a girl learns how to be a Mom and a wife by watching her own Mom. A boy learns how to be a Dad and husband by watching his own Dad. The very same people who revile drunks, drug addicts or abusers (usually because they grew up in an alcoholic/drug/abusive environment) are the same ones who marry the very same type because it is a familiar and comfortable place to be. They just don't "get it" that the very destructive behavior they are exhibiting in the "best interest" of their children is the very thing that will send their children into that very same type of "familiar" relationship and the dysfunction will continue. And people wonder why the cycle continues? Its because the parents are too selfish to permit their own children to freely love them both. They would rather expend every last cent and shred of strength into grinding the other parent into the earth. On top of it all, these are the same people who run up extraordinary legal fees in this sick process, blame their own lawyer for having the nerve to bill them and then reneg on the payment of their outstanding debt! People who sink to this level truly get what they deserve. So when their kid is pregnant at 16, or addicted to weed, or in a gang (because its a "real" family and "they" understand), in jail or worse, they'll look at each other and say "What happened? We loved them so much. How could they do this to us?" Once again making it about them and putting themselves first. The truly good parent will do everything possible to insure the kids know, love, interact with and respect the other parent. Children who are free to love both their parents, who have free and unhampered access to both whenever he or she wants it, is able to move freely between both parents without guilt or anxiety is the success story of the future. Why? because he had parents who gave a damn. Thanks for listening.

ERASED: THE ELIMINATION OF FATHERS BY DIVORCED WOMEN

As a divorce attorney, I often ponder the social implications of this horrible process. I have observed (and experienced myself) the marginalization of fathers from their children by mothers hell bent on revenge. Because of the powerful influence a mother (who today is still usually the custodial parent), has on the children, children often adopt their mother’s cause and cast off the father. The father, frustrated, tries harder to get back the relationship he used to have with his children. This only serves to further anger the children, who pull further and further away until they have no relationship at all with the father. The father is confused that the children who with whom he once had a close, loving relationship, now treat him poorly or with contempt. Eventually, the father gives up. He has been erased - he is no longer a factor in their lives.

Experts call it parental alienation. But parental alienation has not been generally accepted in the scientific community. For instance, it has not been adopted in the DSM, the diagnostic manual used by the mental health community. New York courts have rejected it, instead preferring to look at each case individually. The problem with this approach is that more often that not, the father is put under the microscope to determine why the children now revile him. Did he raise his voice at them during visitation? Say something inappropriate? Unless the father is like Jesus himself, there is usually something that a judge can call a reason. And unless the father is proactive and pushes the court to order visitation, nothing will happen. Although there is case law that holds that a mother should encourage visitation, there are a million ways a mother can show her children that she disapproves of the father.

The social implications are severe. The father has been ripped away, and the children suffer in a number of ways. Girls, in particular, are at risk. The literature is replete with studies showing that girls are at greater risk for teen pregnancies, drug abuse and other destructive behaviors. (See, e.g., http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2764264/). So why would women intentionally harm their children?

The answer is that some women hate their ex-spouse more than they love their children. And that is nothing less than child abuse.

On The Road Again - Relocation After Divorce

We live in an increasingly mobile society. It is no longer common for a person to work for one employer for his or her entire career. People seek to relocate to another state, or even another country. There is no doubt that a relocation seriously disrupts the relationship between the non-custodial parent and the children. But such a relocation may be beneficial to the children for financial reasons. So what happens when the custodial spouse wants to relocate?

The answer is it depends. In 1996, the New York State Court of Appeals, in Tropea v. Tropea, overruled existing precedent and made it easier for the custodial parent to relocate. In Tropea, the court decided that the existing test of "exceptional circumstances" would no longer suffice. From now on, the party seeking to relocate must only show that the proposed move would be in the best interests of the children.

So what is the best interests of the children? Good question. There appears to be agreement among the trial courts that a desire to obtain a fresh start, or some other vague reason, is insufficient. On the other hand, a job offer coupled with increased financial security may be all that is needed. The trial court will look at the reason for move and whether the custodial parent has an actual plan, as well as the relationship between the non-custodial parent and the children. A new spouse or family in another state may be a factor, but certainly not a determinative one.

The bottom line is that the trial court has a huge amount of discretion is deciding this issue. The best interests of the children is, like art, in the eye of the beholder.

New York has No Fault Divorce - At Last

Governor Patterson has just signed the no fault divorce bill, bringing New York in line with the other 49 states in the U.S. The bill establishes a ground for divorce based upon one spouse averring that the marriage has "irretrievably" broken down for at least six months. The text of the bill can be found here. This law will eliminate the legal blackmail described in an earlier post.

Two other bills were also signed by the Governor. The first requires payment of counsel and expert fees to the non-monied spouse. The text of the bill can be found here.

Finally, the Governor signed a controversial measure that provides guidelines for temporary maintenance payments while a divorce case proceeds in court. For the full text of that bill, click here.

I will be providing an in depth analysis of these new laws in a future post. Stay tuned.