I had the pleasure of taking additional training in the area of Collaborative Law this past week. This is an excellent process for divorcing parties who are desirous of avoiding the emotional and economic costs of the litigation process, ending their marriages in a civilized fashion, and achieving a result fashioned by both. Since each party has a legal representative, it also creates a level of comfort for both parties, where one may feel “overpowered” by the other in a mediation setting.
NO FAULT DIVORCE, ETC.
July 7th, 2010The New York State Assembly has passed a three bill package aimed at reforming NY’s divorce laws.   NY, which is currently the only state that still requires grounds for divorce, will have a no fault provision that will allow one spouse to state under oath that the marriage has been irretrievably broken for a period of at least six months.     This legislation should simplify and lessen the cost of the divorce process.   The two additional bills address provisions for temporary maintenance as well as attorney and expert fees for the non-monied spouse.    Additional information will be provided as it becomes available.
Mongelli v Mongelli
January 24th, 2010Rubin & Rosenblum, PLLC, Commack, N.Y. (Debra L. Rubin of
counsel), for appellant.
Eric Dubinsky, Westbury, N.Y., for respondent.
DECISION & ORDER
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Grob, Ct. Atty. Ref.), entered November 24, 2008, as, upon a decision of the same court dated July 31, 2008, made after a nonjury trial, awarded the defendant 50% of the appreciation of the marital residence from the date of the marriage, awarded him a separate property credit in the sum of only $48,000 for the marital residence, imputed income to him in the sum of $100,000, directed him to pay child support in the sum of $1,924 per month for the parties’ two minor children until the emancipation of the older of those children and, upon emancipation of the older minor child, to pay child support in the sum of $1,308 per month until the emancipation of the younger of those children, and awarded the defendant an attorney’s fee in the sum of $15,000.
ORDERED that the judgment is modified, on the law and the facts, by deleting from the fifteenth decretal paragraph thereof the sums of “$1,924.00,” and “$1,308.00,” and substituting therefor the sums of “$1,356.77,” and “$922.60″ respectively; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
Equitable does Not Mean Equal
December 30th, 2009In 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
Temporary Relief During the Pendency of a Divorce
December 24th, 2009Mintz, 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.
Post Judgement Maintenance
December 21st, 2009Norman, 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.
Change In Custody
December 15th, 2009Ocampo, Respondent, v Jimenez, Appellant.
2005-03909, (Docket No. V-20887/04)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2006 NY Slip Op 2380; 27 A.D.3d 753; 815 N.Y.S.2d 629; 2006 N.Y. App. Div. LEXIS 3795
March 28, 2006, Decided
COUNSEL: Frederick Klarer, Melville, N.Y., for appellant.
Kramer & Rabinowitz, LLC, Commack, N.Y. (Debra L. Rubin of counsel), for respondent.
Beth A. Rosenthal, Deer Park, N.Y., Law Guardian for the child.
JUDGES: ROBERT W. SCHMIDT, J.P., THOMAS A. ADAMS, FRED T. SANTUCCI, PETER B. SKELOS, JJ. SCHMIDT, J.P., ADAMS, SANTUCCI and SKELOS, JJ., concur.
In a child custody proceeding pursuant to Family Court Act article 6, the father appeals from an order of the Family Court, Suffolk County (MacKenzie, J.), dated March 23, 2005, which, after a hearing, awarded custody of the parties’ child to the mother.
Ordered that the order is affirmed, without costs or disbursements.
The Family Court’s determination as to custody should not be disturbed unless it lacks a sound and substantial basis in the record (see Matter of Ortiz v Maharaj, 8 AD3d 574, 779 NYS2d 220 [2004]; Matter of Skratt v Henry, 6 AD3d 719, 775 NYS2d 544 [2004]). Furthermore, the Family Court’s determination as to credibility should be accorded great weight on appeal, since it saw and heard the witnesses (see Eschbach v Eschbach, 56 NY2d 167, 173, 436 NE2d 1260, 451 NYS2d 658 [1982]; Matter of Maust v Pignetti, 270 AD2d 274, 703 NYS2d 531 [2000]).
Contrary to the father’s contentions, the evidence presented at the hearing amply supports the Family Court’s determination that awarding sole custody to the mother is in the child’s best interests (see Matter of Jarushewsky v Baez, 7 AD3d 713, 776 NYS2d 847 [2004]; Vinciguerra v Vinciguerra, 294 AD2d 565, 743 NYS2d 139 [2002]). An important factor in the Family Court’s determination was the finding, supported by the record, that the father was less than credible throughout the proceeding. Given that the mother was supportive of visitation, that both parties are loving parents, that the mother was available to [*2] care for the child and address her special needs, and that the mother was the primary caretaker of the child since her birth, the Family Court properly awarded custody of the child to the mother (see Cohen v Merems, 2 AD3d 663, 664, 768 NYS2d 637 [2003]).
We note that the order of protection issued in this case was not appealed from and is not subject to review on this appeal. Schmidt, J.P., Adams, Santucci and Skelos, JJ., concur.