Decisions of Interest

How Long Is This Going To Take?

Wednesday, October 9th, 2013

It seems that every individual seeking a divorce or legal separation has the very same question: How long will the process take?

Unfortunately this question cannot be answered with any degree of certainty until a thorough review of the circumstances of each case is evaluated. And even after all that, it is difficult to state a precise time frame.

There are cases that we have completed in one month from the time we were first retained to when the parties executed a settlement agreement. Thereafter, a judgment of divorce packet must be prepared and then submitted to the Court. It is unknown exactly when the judge will sign the divorce documents. The wait time varies from county to county.

Other cases can go on for years especially when the parties need to retain experts to determine the value of real estate or business interest(s). Sometimes it is not always in the parties’ best interest to retain a neutral expert because in the event that they cannot agree on the report, then they will each need to obtain their own expert. This is something to consider when an expert is involved.

Also, delays can arise from the parties’ themselves due to health reasons, being activated for military service or various other personal reasons. There are unpredictable events which all play a role in the delay of a matrimonial action.

Custody disputes, in particular, may require a forensic psychological evaluation of the family. It can take months to receive a final report from the evaluator.

The easiest way for divorcing couples to keep costs down and get a quicker result is to narrow the issues in dispute. Identify the issues, and try and determine the root of the problem.

Notably, a Judgment of Divorce is required to get divorced. The Judgment is a separate document from a separation agreement, stipulation of settlement or decision after trial. It can take months after the proposed judgment is sent to the Judge for signature to finalize the Divorce.  In the interim, the parties comply with the terms and conditions previously agreed to or directed by the Court.

If you are considering a divorce, contact Rubin and Rosenblum, PLLC for a consultation, and we will sit down and review the unique circumstances of your case with you.

By Gayle Rosenblum, Esq.

Rubin & Rosenblum, PLLC
445 Broad Hollow Road, Suite 210
Melville, New York 11747
Telephone: (631)462-5888
Email: grosenblum@rrmatlaw.com
Website: rubinandrosenblum.com

How Enforceable Are Prenuptial Agreements in New York?

Tuesday, July 2nd, 2013

Recent court decisions in New York State have caused uncertainty as to whether disputed prenuptial agreements are likely to be upheld. These agreements, which are contracts signed by a couple before a marriage begins, have generally been given the same strong presumption of validity as other contracts. However, decisions in two recent cases seem to run counter to tradition.

In Cioffi-Petrakis v. Petrakis, a New York appellate court affirmed the decision of a Nassau County trial judge which invalidated a prenuptial agreement signed by both parties. The agreement in dispute was signed four days before the marriage. The wife testified that she signed the agreement only after the husband verbally promised to tear it up once the couple had children.  (The written agreement itself did not provide that it would no longer be valid once the parties had children.)  Despite the three children that followed, the husband insisted upon enforcing the terms of the prenuptial agreement when marital difficulties arose. (more…)

Lemieux v. Lemieux Long Term Maintenance

Friday, January 14th, 2011

LEMIEUX, Appellant, v LEMIEUX, Respondent. (Index No. 17857/03)

2006-10302, 2007-00070

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2008 NY Slip Op 1510; 48 A.D.3d 644; 852 N.Y.S.2d 347; 2008 N.Y. App. Div. LEXIS 1493
February 19, 2008, Decided

COUNSEL: Conrad J. Rybicki (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Rubin & Rosenblum, PLLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

JUDGES: DAVID S. RITTER, J.P., ANITA R. FLORIO, WILLIAM E. McCARTHY, THOMAS A. DICKERSON, JJ. RITTER, J.P.,

FLORIO, McCARTHY and DICKERSON, JJ., concur.

In an action, inter alia, to annul a marriage and for ancillary relief, the plaintiff appeals (1) from a decision of the Supreme Court, Suffolk County (MacKenzie, J.), dated October 4, 2006, and (2), as limited by his notice of appeal and brief, from so much of a judgment of the same court entered December 18, 2006, as, after a nonjury trial, and upon the decision, and upon annulling the marriage on the ground of fraud, awarded the defendant maintenance in the sum of $ 300 per week commencing on October 4, 2006, and continuing until the defendant reaches the age of 66, dies, remarries, or cohabitates, whichever is sooner.

[**645] Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509, 472 NYS2d 718 [1984]); and it is further, Ordered that the judgment is affirmed insofar as appealed from; and it is further, Ordered that one bill of costs is awarded to the defendant. The plaintiff contends that the Supreme Court was not authorized to make a maintenance award in this annulment action because Domestic Relations Law § 141, which provides that maintenance may be awarded in a matter where an annulment has been granted on the ground of the mental illness of one of the parties, necessarily limits the court’s authority. He contends that since [*2] the parties’ annulment was based on fraud, the court erred in making an award of maintenance. Alternatively, the plaintiff argues that the maintenance award is excessive in both amount and duration. The Supreme Court had the discretion to make an award of maintenance in this annulment action based on fraud. Pursuant to Domestic Relations Law § 236 (B) (2), the court has discretion to make a maintenance award in any matrimonial action (see Domestic Relations Law § 236 [B] [2]; see also Sponsor’s Mem, Bill Jacket, L 1962, ch 313 ["Proposed Section 236 . . . deals with a wife's right to alimony in annulment, separation and divorce actions, domestic and foreign. It unifies and broadens the discretion of the court in all classes of matrimonial actions. It replaces comparable provisions included in . . . Civil Practice Act Sections 1140-a, 1155, 1164, 1169, 1170 and 1170-b"]). Domestic Relations Law § 141 simply provides additional procedural and substantive detail with respect to an action to annul a marriage based upon five years’ incurable mental illness of one of the parties, to ensure that the disabled spouse is cared for and does not become a public charge (see Scheinkman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, Domestic Relations Law § 141; see also Bancroft v Bancroft, 288 NY 323, 326, 43 NE2d 63 [1942]). Domestic Relations Law § 141 does not, however, limit the class of annulments in which the court can award maintenance as provided for in Domestic Relations Law § 236 (B) (2) (see Local Govt. Assistance Corp. v Sales Tax Asset Receivable Corp., 2 NY3d 524, 544, 813 NE2d 587, 780 NYS2d 507 [2004] ["Generally, a statute impliedly repeals a prior statute only if the two are in such conflict that it is impossible to give some effect to both. If by any fair construction, a reasonable field of operation can be found for (both) statutes, that construction should be adopted"] [citations omitted]).

[***349] The Supreme Court providently exercised its discretion in [**646] making the maintenance award to the defendant (see DeVries v DeVries, 35 AD3d 794, 796, 828 NYS2d 142 [2006]; Zengxiu Liu v Cuizhi Zhu, 5 AD3d 476, 772 NYS2d 565 [2004]).

The plaintiff’s remaining contentions are without merit. Ritter, J.P. Florio, McCarthy and Dickerson, JJ., concur.

Glassberg v. Glassberg Unequal Distribution

Wednesday, December 30th, 2009

In New York, the Court is required to “equitably” distribute all marital property in a divorce action. In the case of a long a term marriage, it is often assumed that “equitable” means “equal.” However, that is not always the case.

In Glassberg v. Glassberg, decided on April 15, 2009, Debra L. Rubin successfully argued to the Court that the wife should receive more than 50% of the marital estate as there was not an equal economic partnership, where the wife worked full-time as a teacher and handled virtually all household duties with minimal assistance from the husband. The husband was disbarred as an attorney during the marriage, and thereafter, worked several jobs, making minimal contributions to the marriage. After trial, the Suffolk County Supreme Court determined that the wife was entitled to receive 65% of the net proceeds of the sale of the marital residence and 65% of her retirement assets in recognition of the husband’s “limited, sporadic, unreliable and inconsistent” support of the marriage.

Former Attorney’s ‘Sporadic’ Economic Support Results in Small Share of Marital Property

Mintz v. Mintz Temporary Support

Thursday, December 24th, 2009

Mintz, Respondent, v. Mintz, Appellant.

1998-08561

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

266 A.D.2d 439; 698 N.Y.S.2d 889; 1999 N.Y. App. Div. LEXIS 12009

October 15, 1999, Submitted
November 22, 1999, Decided

COUNSEL: Sheresky Aronson & Mayefsky, LLP, New York, N.Y. (Alton L. Abramowitz of counsel), and Mintz & Gold, LLP, New York, N.Y., for appellant (one brief filed).

Koopersmith & Brown, LLP, Lake Success, N.Y. (Kenneth Koopersmith, Debra L. Rubin, and Amy Lesserson Brown of counsel), for respondent.

JUDGES: O’Brien, J. P., Krausman, Florio and Feuerstein, JJ., concur.

Ordered that the appeal from so much of the order as referred the defendant’s motion for downward modification of his pendente lite support and maintenance obligations to the trial court is dismissed; and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

Ordered that the respondent is awarded one bill of costs.

Two months after the Supreme Court issued a pendente lite order fixing the defendant’s temporary support and maintenance obligations, he moved for downward modification of those amounts upon the ground that there had been a substantial change in his circumstances. In opposition to the motion, the plaintiff disputed the defendant’s claim that his financial condition had deteriorated since the issuance of the pendente lite order. Faced with conflicting claims from the parties, the Supreme Court referred the defendant’s motion to the trial court for determination.

The defendant may not appeal, as of right, from the portion of the order which referred his motion to the trial court for determination, since it merely deferred resolution of his motion until trial, where the parties’ financial circumstances may be fully explored without the additional delay of an interim hearing. Under these circumstances, the challenged ruling does not affect a substantial right (see, CPLR 5701 [a]; see also, Marine Midland Bank v Rashid, 259 AD2d 739; Walis v Walis, 192 AD2d 598, 600). Accordingly, the defendant’s appeal from that portion of the order is dismissed.

Contrary to the defendant’s contention, the plaintiff’s application for an additional interim attorney’s fee was supported by sufficient documentation to establish that such an award was necessary to enable her to properly prosecute this action (see, Domestic Relations Law § 237 [a]). Moreover, considering the respective financial circumstances of the parties, and the issues involved in this case, the Supreme Court did not improvidently exercise its discretion in awarding the wife an additional interim attorney’s fee (see, DeCabrera v Cabrera-Rosete, 70 NY2d 879; Appold v Savaglio, 249 AD2d 347; Piali v Piali, 247 AD2d 455).

O’Brien, J. P., Krausman, Florio and Feuerstein, JJ., concur.

Norman v. Dykman Post Judgment Maintenance

Monday, December 21st, 2009

Norman, Appellant, v Dykman, Respondent. (Index No. 27748/96)

2004-03452

SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

2005 NY Slip Op 8294; 23 A.D.3d 358; 808 N.Y.S.2d 80; 2005 N.Y. App. Div. LEXIS 12315

November 7, 2005, Decided

COUNSEL: Fisher & Golden, P.C., East Hampton, N.Y. (Karen Golden of counsel), for appellant.

Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.

JUDGES: THOMAS A. ADAMS, J.P., DANIEL F. LUCIANO, PETER B. SKELOS, ROBERT A. LIFSON, JJ. ADAMS, J.P., LUCIANO, SKELOS and LIFSON, JJ., concur.

In a matrimonial action in which the parties were divorced by judgment dated November 17, 1997, which incorporated but did not merge the terms of a stipulation of settlement, the plaintiff appeals from so much of an order of the Supreme Court, Suffolk County (McNulty, J.), dated March 22, 2004, as denied her motion for a downward modification of her maintenance and child support obligations, the appointment of a Law Guardian for the parties’ children, and a hearing on the issue of custody, and granted the defendant’s motion for arrears in the sum of $ 77,500.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff failed to demonstrate that continued enforcement of her obligation to pay maintenance under the parties’ stipulation of settlement, which was incorporated but not merged into their judgment of divorce, would create an “extreme hardship” (Matter of Ross v Ross, 297 AD2d 286, 287, 745 NYS2d 917 [2002]; seePintus v Pintus, 104 AD2d 866, 867-868, 480 NYS2d 501 [1984]; see also Domestic Relations Law § 236 [B] [9] [b]). She also failed to establish a substantial, unanticipated, and unreasonable change in circumstances warranting a reduction in child support (see Matter of Boden v Boden, 42 NY2d 210, 213, 366 NE2d 791, 397 NYS2d 701 [1977]; Praeger v Praeger, 162 AD2d 671, 673, 557 NYS2d 394 [1990]; Nordhauser v Nordhauser, 130 AD2d 561, 562, 515 NYS2d 501 [1987]). Thus, the Supreme Court properly denied that branch of her motion which was for a downward modification.

Under the circumstances, the Supreme Court providently exercised its discretion in denying that branch of the plaintiff’s motion which was for the appointment of a Law Guardian (see Riccio v Riccio, 21 AD3d 1107, 803 NYS2d 603 [2005]; Dodaro v Dodaro, 269 AD2d 420, 702 NYS2d 905 [2000]). In addition, the Supreme Court properly found that there was insufficient evidence to warrant a hearing on the issue of custody (see Nash v Yablon-Nash, 16 AD3d 471, 790 NYS2d 718 [2005]; Matter of Timson v Timson, 5 AD3d 691, 774 NYS2d 751 [2004]).

The plaintiff’s remaining contentions are without merit. Adams, J.P., Luciano, Skelos and Lifson, JJ., concur.