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Child Custody Cases and the Cost in 2025: Critical Information

Gary Port
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Child Custody Cases and the Cost in 2025: Critical Information

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Child Custody Cases and The Cost – A Frank Discussion

Child Custody Cases and the Cost. That’s a loaded sentence.My father, God rest his soul, had a sign over his desk which read “In the law, nothing is certain but the expense.” He told every client that walked in that the sign was not a joke.

That sentiment is doubly true for custody cases. Let me state up front: child custody cases are expensive and there is absolutely no guarantee of success. In fact, I’m going to be adding that language to my retainers because no matter how many times and different ways I say it, someone will hear what they want to hear. So, let me repeat it, when looking at Child Custody Cases and the Cost, there are no predictions.

Custody battles can bankrupt you. I’m talking $120,000 or more for high-conflict cases. After decades in family court, I’ve watched parents lose their homes, drain retirement accounts, and borrow against everything they own just to fight for their children.

Think attorney fees are your only worry? Think again. Attorney for the Child costs alone hit at least $15,000 in average cases but often more. But here’s what catches parents off guard – you might spend $25,000 before your lawyer even starts working. Filing fees, custody evaluations, parenting investigators – the bills pile up fast. Spending over $60,000 is not unheard of, and in some counties, the norm.

Want to know something most parents don’t realize? Generally, you pay your own costs in custody cases. But here’s the exception that matters – when domestic violence involving serious injury or dangerous weapons comes into play, judges can slam the abusive parent with all the expenses. If one parent earns significantly more money, the court can make them pay some or all of the costs. If you have a low income, usually earning below $35,000 per year the court can appoint an attorney for you. This becomes critical when you consider 40.2% of all births happen to unmarried women who are underemployed. and many who’ll eventually face custody proceedings.

Those numbers feel overwhelming – especially knowing children in single-parent families face triple the poverty risk . I get it. The financial pressure feels crushing when your child’s future hangs in the balance.

But here’s what I tell every parent who walks into my office: knowledge is power. Understanding what you’re facing financially helps you make smart decisions about your case. Through this guide, I’ll walk you through exactly what custody costs look like in 2025 and show you how to protect both your children and your financial future.

Think of this as your financial roadmap through one of family law’s most expensive territories.

Child Custody Cases and the Cost: What Parents Should Expect to Spend in 2025

The financial reality hits different families in dramatically different ways. After handling hundreds of custody cases, I can tell you – the difference between a cooperative case and a full-blown custody war means the difference between a car payment and a mortgage.

Cost ranges for different custody scenarios

Here’s the brutal truth about custody costs. If both parents can work together? You’re looking at  total. Filing fees, maybe some mediation, minimal legal help. These uncontested cases wrap up quickly because everyone focuses on the children instead of the fight.between $500 and $6,500

But when parents can’t agree? Welcome to a different universe. Contested custody battles run $15,000 to over  the sky’s the limit per parent . High-conflict cases? I’ve seen them exceed a million dollars, easily.

Let me break down where your money goes. Attorney fees dominate everything else –  depending on your lawyer’s experience and location. The New York  average hovers around $500 per hour to $1,500 per hour.

Most attorneys demand retainer fees upfront. Straightforward cases? Expect $6,500 minimum though I have seen many attorney charge as much as $15,000 to $25,000.. Complex situations requiring extensive work? Much higher. Once that retainer burns through – and it will – you’ll need to refill the tank to keep your representation going.

Beyond legal fees, budget for these essentials:

  • Court filing fees. For Supreme Court? $210 for the index number. $95 for the Request for Judicial intervention and $35 to make a motion. Family Court has no fees.
  • Mediation costs (approximately $3,000-$7,500)
  • Forensic Evaluators – Minimum of $45,000.
  • Guardian ad litem fees ($300-$500 per hour)

Why costs vary so widely

The level of conflict between parents drives everything. Parents who can’t reach agreements need more court time, additional filings, and extensive attorney hours – all of which rapidly escalate expenses.

Your zip code affects your wallet. Urban areas like major cities typically charge higher legal fees compared to rural regions  State-specific laws and local court procedures also determine how cases proceed and what expenses arise.

Case complexity multiplies costs fast. Allegations of abuse, substance issues, relocation disputes, or special needs children require additional resources, evaluations, and court time – driving costs substantially higher.

Here’s something most parents don’t consider – your attorney choice affects total expenses. More experienced attorneys with specialized expertise typically charge higher rates, although their efficiency might actually save money by resolving matters more quickly.

Duration kills budgets. Some custody disputes drag on for years, resulting in ongoing legal fees that accumulate into six-figure amounts or even seven figure amounts. Every additional court appearance, motion filing, or procedural delay increases your total investment.

The billing arrangement impacts your bottom line too. Most attorneys charge hourly. An attorney who charges an flat rate tends to lose interest as the work multiples. Understanding these fee structures before hiring representation helps avoid unexpected financial surprises.

Remember this – every decision you make about cooperation versus confrontation shows up in your final bill.

In New York your attorney is require by law to give you an itemized bill every 60 days.

Breaking Down Child Custody Lawyer Costs

Legal fees eat up the biggest chunk of your custody budget. But here’s what most parents don’t understand – how lawyers actually bill you and what those numbers really mean for your case.

What’s included in a retainer

Retainer fees work like this – you pay upfront to secure your attorney’s services. Most law firms demand a  before they’ll even touch contested custody cases . But that’s just the starting point. That means no payment plan. The reason? These cases get expensive, fast. The law firms have their own expenses and can’t tell their landlord, “You’ll get paid when Mr. Smith pays me.” Too many lawyers get burned by clients who rack up fees and never pay.

Case complexity drives retainer amounts through the roof. Simple, uncontested matters? You’re looking at $5,500 to $7,500. But throw in abuse allegations, high-conflict disputes, or relocation fights, and retainers jump to $10,000 to $50,000. I’ve seen parents take out second mortgages just to get started.

Here’s something important – your retainer money can go into a specialized trust account, not your lawyer’s pocket.  That’s how I do it. However, New York law allows attorneys to pocket the money. Ask the lawyer before you sign the retainer about how they handle the money.  Either way, if your case settles under the retainer, you should get unused funds back That’s the way I operate. Should being the key word. Always ask about refund policies before signing anything.

How billing works over time

Most custody lawyers bill hourly – anywhere from  depending on experience and location [20]. Rural lawyers cost less than big-city attorneys, but you get what you pay for.

Pay attention to billing increments. Some firms charge in 15-minute chunks, meaning a 20-minute phone call costs you 30 minutes. Others use 10-minute or 6-minute increments – this difference can save or cost you thousands. This also depends on the software the lawyer uses. Our software lets us go to 6 minute increments, and using a decimal system that is “0.1.”

When your retainer runs dry, lawyers stop working until you refill it. You’ll get monthly or bi-monthly statements showing: • Hours worked on specific tasks • Who did the work (partner, associate, paralegal) • Your remaining balance • How much you need to deposit next. The invoice cannot do what is called “block billing.” This means no billing without explanations. But, we need to keep the explanations brief, as your invoice is NOT Confidential in a divorce. In other words, the judge can require that you produce them in the discovery process.

Trial prep triggers additional deposits – typically $5-$20,000 two months before court. Again this depends on the complexity and the anticipated length of the trial. No money, no trial preparation. Trials can take days or stretch over months.

I’ve done some cases in Family Court where I’ve done a day or two of trial and then get adjourned for a month to two months. I’ve done cases which have stretched over two years. That means each time I go back, I have to prepare again, to refresh my memory on the trial.

Control starts with understanding exactly what you’re paying for. During your first meeting, nail down fee structures. Too many clients get blindsided by bills because they never asked the right questions.

Organization saves money. Have your documents ready before meetings and respond quickly to lawyer requests. Every minute you waste costs billable time. Consider mediation or collaborative law – they cost less than courtroom warfare.

Pick your battles. Not every issue needs a legal fight. Sometimes compromise beats extended litigation.

Call Port and Sava for a free 15 Minute Telephone Consultation (516) 352-2999 to discuss your specific situation and get a clearer understanding of potential costs for your child custody case.

Remember this – cheap lawyers often cost more in the long run. Your custody outcome affects your child’s entire future. Quality representation is worth the investment, even when the bills hurt.

The Role and Cost of Court-Appointed Experts

Here’s something most parents don’t see coming – the court will appoint strangers to investigate your family. These so-called neutral experts hold enormous power over your custody case. Their reports can make or break your relationship with your child.

The Attorney for the Child responsibilities and fees

The Attorney for your child becomes your child’s legal voice in court.

About 20 years ago New York Changed the law. Before that, AFCs, then called Guardian Ad Litem advocated for the best interests of the child. Now, they are required to advocate for what the child wants. So, if the child wants to go with alcoholic dad, the AFC will argue for that.

Parenting evaluations and psychological assessments

Custody evaluators become forensic investigators of your family life. Under a recent change to New York law, they can only be psychologists or psychiatrists.

 They conduct multiple interviews with everyone involved, visit your home, review documents, and sometimes order psychological testing . Their comprehensive report lands on the judge’s desk in about 6 to 9 months. Yep, your case is on hold for that period of time. Nothing will happen. At every adjournment we’ll just adjourn again until the report comes it.

These reports are hefty. Generally clocking in at over 200 pages. Depending on the  judge you might be allowed to read it, but not get a copy or make notes. Your attorney can discuss it with you, but again, cannot give you a copy.

These evaluations pack serious financial punch –  and how many children are involved. Most evaluators require payment upfront, typically split 50/50 between parents or in proportion to your incomes. Some jurisdictions offer sliding scale fees or even county subsidies. But, don’t count on it.

When these experts are required

Courts order these evaluations when parents can’t agree and the stakes are high. Contested custody cases almost always trigger expert involvement. Allegations of abuse, neglect, or substance abuse? You’re definitely getting evaluated.

Complex situations demand expert analysis – special needs children, relocation disputes, questions about a parent’s mental health or parenting capacity. These experts provide insights judges can’t gather during brief court hearings. Their recommendations carry serious weight, even though they’re not legally binding.

Remember this – courts can shift these costs around after your case ends. The parent with more money might get stuck with the bigger bill, or someone who acted in bad faith could pay everything.

These experts shape your child’s future. Their reports influence where your child lives, when you see them, and under what conditions. The price tag hurts, but their opinions matter more than almost anything else in your case.

Generally, I don’t ask for these reports due to their expense, unless I strongly suspect that the other parent is in fact mentally ill, or addicted to drugs or alcohol. Diagnosed mental illness can be useful in a custody case. But, if there is no mental illness, then the doctor is making a judgment call.

Filing, Processing, and Administrative Fees

Court fees hit you before you even see a judge. These aren’t suggestions – they’re mandatory payments that keep your case moving through the system. Skip them, and your custody battle stops dead.

Again, there are no fees in Family Court, but in Divorce Court.

Standard court filing fees

Filing fees are your entry fee to the courthouse. Period. These payments cover processing and maintaining your case records. In New York all fees are paid on-line which means they also charge credit card fees. The below numbers are listed without  those fees.

  • Index Number – the way to start a case: $210
  • Request for Judicial Intervention- the ticket to see the judge: $95
  • All Motions: $45
  • Stipulations $35
  • Note of Issue – needed to either go to trial or settle the case: $35

Let me be clear about timing – these fees must be paid upfront before anything happens. Court clerks won’t touch your papers without payment. I’ve seen parents lose precious weeks waiting for hearings because they couldn’t cover filing fees on deadline day.

Other paperwork and service costs

Filing your petition is just the beginning. Serving papers on the other parent – the legal requirement to notify them. Most times Family Court handles the service. In Divorce Court you do.

Either way, if you have to serve we need a process server. This can be around $150. But if the other parties dodge service the price can skyrocket.

Many counties require mediation before trial.  Most counties in New York have  mediation program that will offer free mediation up to certain time limit.

How to request a fee waiver

The court system recognizes not everyone can afford these costs. The court can waive some of the fees and even appoint an attorney for the custody phase.

You might qualify if you:

  • Receive public benefits like welfare, Food Stamps, or SSI
  • Earn below specific income thresholds
  • Can’t pay court fees while covering basic living expenses

The application process requires completing detailed forms – sometimes called “In Forma Pauperis,” “Poor Person’s Application,” or “Indigency Affidavit” . You’ll need to document:

  • Income and employment details
  • Monthly expenses and debts
  • Assets and bank account balances

Supporting evidence strengthens your application. Gather proof of public benefits, pay stubs, utility bills, or other documentation showing financial hardship . Submit everything together, and a judge reviews your request.

Remember – fee waivers aren’t automatic. The judge makes the final decision based on your demonstrated need . But don’t let money worries stop you from protecting your children’s interests. These waivers exist for a reason.

Beyond the Bills: Emotional and Lifestyle Costs

Money isn’t the only thing custody battles steal from families. After two decades in family court, I’ve watched parents lose pieces of themselves that never fully heal. The emotional wreckage often costs more than any legal bill.

Stress and anxiety during litigation

Custody fights don’t just drain bank accounts – they destroy mental health. More than 50% of parents in custody proceedings develop depressive symptoms. I see it every day. Parents walk into my office as functioning adults and leave as anxious shells of themselves.

The statistics tell a brutal story. Around 70% of parents experience severe anxiety during custody proceedings. But numbers don’t capture the reality I witness:

  • Sleepless nights spent worrying about losing their children
  • Panic attacks in courthouse bathrooms
  • Marriages and friendships crumbling under the pressure
  • Physical symptoms that doctors can’t easily treat

Here’s something that haunts me – parents in high-conflict cases sometimes develop symptoms resembling post-traumatic stress disorder. The longer these battles drag on, the deeper the psychological wounds become. I’ve seen perfectly stable people need therapy for years after their cases end.

Long-term effects on children

This part keeps me up at night. Children in custody battles carry emotional scars that sometimes never fade. During litigation, kids commonly show intense stress, anxiety, depression, and behavioral problems. Their little bodies manifest the trauma through headaches, stomachaches, and compromised immune systems.

The worst part? Children blame themselves for their parents’ divorce. Their self-esteem crumbles, grades drop, and they withdraw from friends [32]. I’ve seen kids experience:

  • Confusion about why mommy and daddy can’t be in the same room
  • Guilt over choosing which parent to live with
  • Terror about where they’ll sleep next month
  • Grief over losing the family they once knew

Research proves what I observe in court – high-conflict custody disputes increase children’s risk of substance abuse, depression, and psychiatric disorders later in life [32]. These kids often struggle with relationships as adults because they learned that people who love you hurt each other.

Understanding these emotional costs changes everything. Your decisions about how to handle custody proceedings affect more than just legal outcomes – they shape your family’s emotional future for generations.

How to Keep Costs Under Control

Smart parents control custody costs before costs control them. After watching families drain their savings on pointless legal battles, I can tell you exactly what works – and what wastes your money.

Avoiding unnecessary motions

Emotions are expensive in family court. Every time anger takes the wheel, your legal bills skyrocket. I’ve seen parents spend $15,000 fighting over a $200 school fee just to prove a point. That’s not strategy – that’s financial suicide.

Here’s what smart parents do: organize everything before you call your lawyer. Tax returns, pay stubs, bank statements – get them ready yourself. Every hour you spend organizing saves billable hours that would otherwise drain your bank account.

Keep communication efficient. Email works better than phone calls for quick questions. Think before you dial – every conversation costs money. I tell my clients to write down their questions and ask them all at once instead of calling five times with scattered thoughts.

 I’ve also had client use me as a therapist. At my rates, a one hour call is cheaper to your therapist than to me.

Also, don’t ask the same questions expecting a different answer. If you ask me the same question three times, you’ve just tripled your bill.

And yes, I can be short with you on the phone. That’s not being rude, it’s being considerate. The longer we’re on the phone, the more expensive for you.

Mediation beats litigation every single time for controlling costs. Think of mediation as surgery with a scalpel instead of a chainsaw – precise, effective, and much less expensive. Even when mediation doesn’t resolve everything, it narrows the battlefield. Fewer issues mean fewer billable hours.

Settlement talks save more than money – they save relationships. Court battles leave everyone bloody. Compromise on the small stuff to preserve resources for what really matters: your child’s wellbeing.

Planning Ahead: Budgeting for a Custody Case

Smart financial planning separates parents who survive custody battles from those who get buried by them. After watching thousands of cases, I can tell you – parents who budget properly make better decisions throughout their proceedings.

Start with brutal honesty about your finances. List everything – assets, debts, monthly income, necessary expenses. Most parents underestimate what they’ll need, then panic when bills pile up mid-case.

Here’s what your custody budget must cover:

  • Court filing fees and administrative costs
  • Mediation expenses (if required)
  • Evaluation costs (often unavoidable)
  • Emergency fund for case surprises

But here’s what most parents miss – build in buffer money. Cases take unexpected turns. That “simple” custody matter becomes complex when new issues surface. I’ve seen parents tap retirement accounts because they didn’t plan for the long haul.

Review your budget monthly as your case progresses. Legal proceedings drain money faster than you expect, especially when emotions run high and parents make poor strategic choices.

When to settle vs. when to fight

Sometimes the smartest financial move is compromise. Settlement costs a fraction of what trials run. But here’s the critical question – when does saving money cost you more in the long run?

Fight when you must:

  • Safety concerns involving domestic violence or substance abuse
  • The other parent takes positions no reasonable judge would support
  • Settlement terms would harm your child’s wellbeing

Settle when you can:

  • Minor disputes over visitation schedules
  • Issues that won’t affect your child’s daily life
  • Situations where compromise serves everyone better

Your attorney should help you weigh these choices strategically. Experience matters here – lawyers who know your judge can predict likely outcomes and help you spend money where it counts most.

Remember this: custody cases aren’t about winning or losing. They’re about protecting your children while preserving your financial ability to care for them long-term.

Conclusion

Custody cases drain more than bank accounts – they test everything you’ve got. The financial numbers alone tell a brutal story: $15,000 to over a million depending on how your case unfolds. But after watching countless families walk through my office doors, I can tell you the real cost runs deeper than any invoice.

Money matters, sure. But your child’s emotional well-being? That’s priceless. The parents who come out ahead don’t obsess over “winning” – they focus on what serves their kids best. Smart choices today protect both your wallet and your family’s future.

Here’s something that might surprise you – you’re not alone in this financial struggle. Single parents especially feel the squeeze. But help exists. Fee waivers work for many families. Legal aid organizations understand exactly what you’re facing. Mediation saves both money and heartache when parents can find common ground.

Every decision you make ripples through your family’s future. Choose cooperation over conflict when possible. Get proper legal help – but be strategic about it. Know when to compromise and when your child’s safety demands you stand firm.

I’ve seen parents emerge from these battles stronger and smarter about money. Yes, the process will test you financially and emotionally. But with the right approach, you can protect both your children and your financial stability.

Remember this – custody arrangements exist to serve your child’s needs, not your ego. When the bills pile up and stress mounts, that truth keeps everything in perspective. The investment you make today in proper legal guidance pays dividends in your relationship with your children for years to come.

The path through custody proceedings isn’t easy, but thousands of families navigate it successfully every year. With proper planning, strategic thinking, and focus on what truly matters, you can too.

Call Port and Sava for a free 15 Minute Telephone Consultation (516) 352-2999

FAQs

Q1. How much does a typical child custody case cost in 2025? The cost of a child custody case in 2025 can vary widely, ranging from $5,000 to $15,000 for uncontested cases, and $10,000 to over a million for contested cases.. The largest expense is usually attorney fees, which can range from $500 to $1,500 per hour.

Q2. What factors influence the cost of a child custody case? Several factors affect custody case costs, including the level of conflict between parents, geographic location, case complexity, choice of representation, and case duration. Urban areas typically have higher legal fees, and cases involving abuse allegations or special needs children often require additional resources, increasing overall costs.

Q3. Are there ways to reduce the cost of a child custody case? Yes, there are several strategies to control costs. These include avoiding unnecessary motions, choosing mediation or collaborative law when possible, using limited-scope representation, and taking advantage of free or low-cost legal help. Proper organization and efficient communication with your legal team can also help reduce billable hours.

Q4. Who pays for court-appointed experts in a custody case? Generally, both parents are responsible for paying court-appointed expert fees, such as the attorney for the child (AFC) or custody evaluator costs. These fees are often split between parents based on their income or as determined by the court. Initial deposits may be required, and monthly invoices typically follow for additional expenses.

Q5. What are the emotional and lifestyle costs associated with custody battles? Beyond financial expenses, custody battles can take a significant emotional toll. Parents often experience high levels of stress, anxiety, and depression. Work productivity may decrease, potentially affecting job performance and income. Children caught in custody disputes may face long-term emotional challenges, including increased risk of behavioral problems and difficulties forming relationships later in life.

Divorce and Equitable Distribution Where There Are Hidden Assets, Part II

Gary Port
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Divorce and Equitable Distribution Where There Are Hidden Assets, Part II

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One of the biggest questions in New York divorce actions involves hiding assets. Many times one spouse controls all the money issues and the other spouse is utterly ignorant of the finances. Other times, property “mysteriously” vanishes without a trace. The challenge for the innocent spouse is how to get his/her fair share.

It is very important to remember that New York uses equitable distribution to divide assets, not title. Under New York divorce law, the courts are not concerned with whose name is in the deed to a piece of property or even on a bank account. The courts will look to a true owner.

This is critical when property has been transfered in order to cheat a spouse in a divorce. For example, if the husband owns a house in his own name, but transfers it to his brother around the time or just before the divorce, the court will reach back and provide the wife her share. The court can also adjust the scale and then award the innocent spouse more than 50 percent. In Niland v. Niland, 291 A.D.2d 876, court did just that. Finding a fraudulent transfer of property, the court awarded the wife 60 percent of the asset. Remember, equitable distribution is not “equal.” Therefore, the court can adjust the scales in the interest of fairness.

New York Divorce Law Pre-Nuptial Basics, Part II

Gary Port
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New York Divorce Law Pre-Nuptial Basics, Part II

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This post will bring together a number of concepts visited in other posts, particularly the ones on maintenance and equitable distribution. New York divorce law and the law of property distribution can be a little hairy and not all the pieces of the Domestic Relations law play well with each other. It really is important to try and understand how the pieces of New York divorce and family law work or do not work together. This area on pre-nuptial agreements is a perfect example.

In the equitable distribution posts I have discussed the issue of separate property versus martial property. The purpose of the pre-nup is to ensure that the lines between the two properties do no cross.

As a general rule, property acquired before marriage is separate property and property acquired afterwards is marital property. But, this simple rule rarely remains simple.

For example, a house is acquired before marriage, and the couple lives there for ten years. During the course of the marriage, the house increases in value from $125,000 to $500,000. The increased value could be considered marital property. Or, wife has a stock account before marriage in the amount of $100,000. During the marriage she uses the money to buy a house, and the couple lives there for the next 20 years. An argument can be made that the entire house is marital. Or, wife gets a personal injury settlement, which is separate property. She puts the money into a joint account with the husband. He claims that since she “co-mingled” the money, he is entitled to half of the personal injury settlement. Finally, husband buys a house before the marriage, ten years into the marriage, he sells the house and uses the proceeds to buy another house. The wife now claims the entire house is martial property.

The way to avoid these problems is to get a pre-nuptial agreement. A well-drafted pre-nuptial will reduce if not eliminate headaches and legal expenses. A poorly drafted pre-nuptial could put your lawyer’s daughter through college.

The first step to getting a good pre-nuptial agreement is not to do it yourself. Good legal documents do not come from the internet or by the people who make software packages. Also avoid those places which claim that although they are not attorneys, they can help you with drafting your legal documents.

The next step is to be complete on your assets. I like to get a full list of all the current assets. Then I draft clauses ensuring that not only is the property currently held separate but it will remain separate in the future. I specifically address the issues of increased value, co-mingling and transformation. If these issues are not addressed up front, then you will be opening yourself up for a fight at the divorce.

Finally, consider maintenance. A provision waiving or requiring maintenance can be put into the agreement. But be careful to address not only the current needs of the parties but the future ones as well. An agreement to pay $1,000 a week in 2008 may sound generous, but may be completely inadequate in 2038. The ability to actually pay maintenance must be gauged against future events. I’m sure that many executives at Enron thought their futures were secure.

There are a number of other factors that also need to be considered, but they will vary based upon your particular case. No “one size fits all” pre-nuptial agreement will work. That’s why it needs to be crafted to your particular circumstance. Maybe you don’t have a house, but hold a number of copyrights or patents. May you have an inheritance coming, or have a trust which will mature in a few years. Mature marriages have children from the first marriage to consider. Clauses can be placed in an agreement limited what property can be devised under a will.

For these and other reasons, consider a pre-nuptial agreement, but don’t pull one down from the internet.

National Guardsman Loses Child Custody Due to Deployment

Gary Port
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National Guardsman Loses Child Custody Due to Deployment

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Note: This post pre-dated Albany’s uncharacteristic quick action. After this decision was rendered, there was such a firestorm, that Albany put in a quick fix. It is not perfect, but the fix prevents judges from making permanent changes in custody based during a military deployment. More work needs to be done. But this is a start.

Note Two: The change in the law doesn’t lessen my feelings about the below decision.

Regular readers know I that don’t slam or criticize judges, I merely explain the law. Well that changes with this posting. I am furious at a decision by a panel of appellate judges in Albany who rubber stamped an ill-advised decision to penalize a mother for the crime of being a patriotic American. The case, Diffin v. Diffin involves a mother who got custody of her son as part of a divorce settlement in 2000. On April 2004, the mother got mobilized and went to Iraq.

The father moved for a change in custody, and the mother plead the Servicemembers Civil Relief Act. The Family Court stayed the action, but granted temporary custody to the father until the mother returned from Iraq.

When the mother returned, the Family Court awarded custody to the father. The appellate division, third department affirmed the decision. The reason was that because her military service, she has a less settled life. Therefore, it was in the best interests of the child to change custody to the father.

The Court tried to claim that the military service had no impact on the decision, but then they go on to find that her military service was the primary factor. To put a fig leaf on the decision, they talk about how in the past year the child is in a stable environment and that it would be disruptive to uproot him. But, in the end of the decision the anti-military bias shows through: “although the disruption caused by her deployment was not her fault, this record does not demonstrate that Darrell’s best interests would be enhanced by a order a change (i.e. a return to his mother) in his present physical custody.”

Justices, Cardona, Peters, Spain, Carpinello and Lahtinen, should be ashamed of themselves for this blatantly anti-servicemember decision. Justices Cardona and Spain bear particular responsibility as they are prior military.

There are a large number of single parents in the military and particularly in the Guard and Reserves. The reason we have the Servicemember’s Civil Relief Act (SCRA) and the Servicemembers Employment Re-employment Rights Act (USERA) is to fulfil a public policy of maintaining the Guard and Reserves. Patriotic Americans who go the extra step and serve our country should not be punished by small minded people who are shielded by sacrifices that our military members are making every day.

Here, we have a Guardsman who did not shirk from her duty. She did not make excuses. When the call came, she raised her hand and went into a war zone. The thanks that a grateful nation bestowed upon her was to take her son away from her.

To add insult to injury the knife was wielded by Presiding Justice Cardona, a Viet Nam veteran.

New York Equitable Distribution, The Former Spouses Protection Act and the National Guard

Gary Port
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New York Equitable Distribution, The Former Spouses Protection Act and the National Guard

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I just settled a strange little divorce in front Judge Kent, in Suffolk County. On it’s face, it was nothing too strange. A forty year marriage, where the only property was a pension and a house. As I explained in other posts, under New York divorce law, a pension is martial property and is divided according the number of years of marriage by number of years in the pension.

The husband in this case had retired as an AGR New York Guardsman. In 1998 when he retired from the National Guard, he took off for Puerto Rico. Eight years later, the wife decided to get a divorce. Under New York divorce law, the military retired pay is marital property, but under Puerto Rican law, it is not. The question facing Judge Kent was: which law to apply.

Under the Former Spouses Protection Act Congress specifically stated that military retired pay is subject to laws of the state where the divorce is ordered. There is one kicker, the military member must either be a resident of the state or consent to the state’s jurisdiction. If he is a resident of Georgia, and the spouse tries to divorce him in Nevada, the court cannot divide his military pay. It can only be divided in Georgia, or if he consents to the Nevada court.

My case was different. The husband was a Guardsman for 20 years. He never left the state of New York and his boss was the TAG. Upon retirement he moved to Puerto Rico. So, does the Former Spouses Protection Act govern? Is it meant to cover a Guardsman who spent his entire military career in New York working for the TAG, and then moves out of state upon retirement? The answer is: I don’t know. At this time, there is no decision by any judge in the United States that I have been able find on this issue. My argument was that the act should not apply. He worked for 20 years for the Governor, not the President. I argued that the Former Spouses Protection Act was not designed to cover a career Guardsman being sued for divorce in the state where served and retired from. Naturally, my opponent argued the other side. Judge Kent was caught in the middle. Fortunately, the judge,who is a gentleman, and famous for cutting to the heart of an issue, managed to get the parties to settle. So, this question is still unanswered.

The lesson here is to be careful. If you are the spouse of guardsman who is retiring and he intends to leave the state, start the divorce now before he establishes residence in another state. If you are the guardsman, after you leave the state, establish residence and then commence the divorce. Here, because the parties let the matter sit for several years, multiple problems occurred. If we had not settled, the husband was facing 10 years of arrears payments to the wife, if we won. If we lost, the wife was potentially facing not getting any money from the pension.

New York Divorce Law Prenuptial Basics.

Gary Port
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New York Divorce Law Prenuptial Basics.

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New York divorce law loves agreements. An agreement means no trial, and the issues are resolved. In fact, so strong does the New York divorce law support agreements, that they are pretty impossible to break.

There are three basic agreements in divorce and family law: (1) the prenuptial ( and it’s close relative the post-nuptial); (2) the separation agreement; and (3) the stipulation settling the divorce.

The prenuptial is a strange creature to be filed under the “hope for the best but plan for the worst” category. Generally, it is used by a person who either is coming into the marriage with assets, or has been burned in a prior divorce, or both.

As readers of these pages know (and by the way, in the space of the month the average visitor comes back 3.7 times) property division is not that straight forward. Sure, the statute (DRL 236 B) states that property acquired before the marriage, such as an inheritance or money from a personal injury settlement are separate property, but creative lawyers have found ways to get the New York courts to chip away at the statute and create a host of exceptions. The two main exceptions are co-mingling and increase in value of the separate property. It is beyond my purpose in this post to explain them. Just take my word for it.

The question is: How do you protect your separate property from becoming marital property? The answer is a well drafted pre or post nuptial agreement. For example, assume you own a house. You want to insure that if there is a divorce the house remains your property. So, you sign a prenuptial which states that the house is separate property. Problem solved? Nope. Remember, where there’s a will there’s a lawyer. Suppose during the marriage, you sold your house and bought a new house. A clever lawyer could (and will) argue that while, yes indeedy, the old house was separate property, this new house is marital. The solution is a clause in the prenuptial which states that all separate property remains separate even if it is sold and new property was bought.

That protects the spouse with the separate property. But, what about the spouse who belatedly realizes that s/he has signed a bad deal? Can the agreement be broken? Remember what I said at the top of the posting? Courts love agreements. Judges use great phrases such as “public policy” and the “smooth administration of justice” and the like. But, what it comes down to, is that New York courts really, really hate to break an agreement absent fraud, duress, and over-reaching. In a future post I’ll address these three grounds to break an agreement. However, in my experience, they are very high standards to meet.

The Appellate Division, First Department, in a recent decision, has demonstrated just how high the standard is. Basically, in 1974 just before marriage the groom presented the wife, in Germany with a prenuptial agreement in German. The court upheld the agreement. I am putting the link here for anyone who wishes to read the full decision. I’m going to quote Judge Saxe’s dissent, because he really sets out why the decision is not fair. Stawski v. Stawski

In December of 1974, an affianced young American woman in the bloom of love, traveling with her German fiancé to his parents’ home in Frankfurt, en route to a skiing vacation in Switzerland, experienced a sudden and unexpected detour to a lawyer’s office in Frankfurt, where she was presented with a prenuptial agreement. Her execution of that document, and its enforceability, form the basis for this appeal.

The Special Referee, who was requested to hear and determine the controversy, held that the agreement is enforceable, and the majority agrees. However, in my view, the confluence of various questionable practices and procedural irregularities surrounding the execution of the agreement makes this the exceptional case in which an antenuptial agreement should be set aside. The evidence establishes that plaintiff’s signature was obtained through a combination of deception and overreaching, causing an unknowing waiver of unexplained rights. Accordingly, I dissent.

Plaintiff wife and defendant husband are children of Holocaust survivors; the parents met in a displaced persons camp outside Frankfurt, Germany after World War II, and ultimately settled there. Plaintiff’s family moved to the United States 3½ years later, and settled in New York City, where plaintiff was born. Defendant’s family remained in Germany. He was educated in England beginning at age 10 and received a law degree from Birmingham University in England. After briefly meeting at a dance in Frankfurt in the 1960s when she was 12 and he was 14, plaintiff and defendant met again in 1971, when she was 19 and an undergraduate at New York University and he was 21 and studying for a Master’s degree in International Law at the same university. They became engaged in the summer of 1974 and married in 1975.

In December 1974, the affianced couple traveled together from New York to Frankfurt, where defendant’s parents lived, in anticipation of a winter ski vacation. Upon their arrival in Germany, defendant told plaintiff that before they left for Switzerland, it was necessary for both of them to attend a meeting with a lawyer. The parties dispute the exact explanation provided to plaintiff as to the need for this meeting; she testified that the reason defendant gave her was the necessity of “signing a piece of paper for bankruptcy.” Plaintiff also testified that she and defendant had no prior discussions regarding the signing of any agreement having to do with their marital or property rights. For his part, defendant testified that he brought up the subject of a premarital agreement with plaintiff in the autumn of 1974 and that she asked him to discuss the matter further with her father, which he testified he did, although both plaintiff and her father disputed this assertion.

The couple went to the office of a law firm in Frankfurt. It is undisputed that the law firm represented defendant’s family in various legal matters. The parties appeared before Dr. Nikolas Hensel, who, aside from being an attorney, was apprentice to a notar. In Germany, a notar is a public official before whom certain types of transactions, including marital agreements, must be executed in order for them to be valid. A notar serves as an independent consultant for the parties to the transaction, and is responsible for exploring and ensuring the parties’ understanding of the transaction and its legal consequences. At the time, Dr. Hensel was not yet officially a notar, but was apprenticed to an older notar, Dr. Rudolph Boergner, for whom he was properly [*5]substituting on the date of execution of the agreement.

After exchanging pleasantries with the parties, Dr. Hensel showed them the agreement, which was written in German. Apparently, neither of the parties had seen either the final document or even a draft of the document before the visit. Dr. Hensel initially read the agreement to the young couple in German. The agreement was not a long one. It stated that the signatories (plaintiff and defendant) planned to get married in 1975 and, as translated into English, that: “We hereby agree that for the time of our marriage we exclude the legal regime of joint ownership of any increase in property. Instead we will adopt the regime of legal separation of property. The notar’s representative informed us on the legal significance of such a decision.” Thirty years later, in a court in New York, it is this language that is relied upon to bar plaintiff from sharing at all in increases in the value of defendant’s separately-owned property during the course of the marriage.

Judge Saxe to goes, in a well reasoned dissent to explain why he would set aside the agreement. The rest of the court was unpersuaded. They cited the oft quoted legal maxims. I’ll provide an except below:

“[T]he decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court’s conclusions could not be reached under any fair interpretation of the evidence, especially when the findings of fact rest in large measure on considerations relating to [*2]the credibility of witnesses” (Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992] [internal quotation marks omitted]). It cannot be said that the Special Referee’s conclusions were not based on a fair interpretation of the evidence, and there is thus no basis for reversal. The agreement is fair, neutral and valid on its face and the issue determined by the Special Referee was therefore solely one of credibility.

Furthermore, the public policy of this State favors ” ‘individuals ordering and deciding their own interests through contractual arrangements’ ” (Van Kipnis v Van Kipnis, 43 AD3d 71, 76-77 [2007], quoting Bloomfield v Bloomfield, 97 NY2d 188, 193 [2001]), and thus, duly executed prenuptial agreements, including agreements executed in a foreign country, are accorded the same presumption of legality as any other contract (see Greschler v Greschler, 51 NY2d 368 [1980]). A party attacking the validity of the agreement has the burden of coming forward with evidence showing fraud, which will not be presumed, and must have as its basis evidence of overreaching—the concealment of facts, misrepresentation or some other form of deception (see Matter of Sunshine, 51 AD2d 326 [1976], affd 40 NY2d 875 [1976]). Plaintiff completely failed to meet that burden.

The numerous circumstances cited by plaintiff as irregularities, including her alleged lack of fluency in the German language, defendant’s superior education, the fact that she was unrepresented by counsel and that the agreement was written by a law firm that had previously done business with defendant’s family, do not establish overreaching on defendant’s part, especially in view of the uncontradicted testimony that the agreement was explained to plaintiff in English. In reaching the opposite conclusion, the dissent adopts a highly skewed version of the facts in the course of portraying plaintiff as a naive individual who was the victim of elaborate “machinations” that were calculated to induce her to sign an agreement she did not understand. However, at the time the agreement was executed, plaintiff had received her B.A. from a prestigious university, New York University (where she took such courses as “International Law,” “Ideas & Action I: Law in Society,” “International Politics” and “U.S. Foreign Policy”) and was pursuing a Master’s degree in political science from that same university.

How far will the courts go to enforce an agreement? In Van Kipnis v. Van Kipnis, the court enforced an agreement, even though the written agreement was contrary to the parties understanding. In 1965 the parties signed a contract in France. “At the time, the wife, a Canadian citizen, was studying at the Sorbonne and the husband, a citizen of the United States, had just finished college. Prior to the marriage ceremony, and at the specific request of the wife, the parties agreed to execute a “Contrat de Mariage” (Contract), which is a form of prenuptial agreement under the French Civil Code. The wife made all the arrangements for the Contract, including securing the presence of a “Notaire,” the French official who presides over the execution of such contracts, and obtaining an American attorney and interpreter to protect the husband’s interests. The expressly stated purpose of the Contract was to opt out of the “community property regime,” which is the custom in France, in favor of a “separation of estates” property regime.”

After 38 years of marriage, the parties started a divorce action. After months of litigation, the husband found the agreement and moved to have it enforced. “At the hearing, the wife testified that the Contract was executed for the sole purpose of opting out of the community property system of France, and instead adopting a complete separation of estates, whereby each party could not be held liable for the other’s debts. She also admitted, however, that the husband executed the Contract at her insistence, that he had no money at the time of the marriage and that she had never moved to set the Contract aside during the marriage.

The husband offered a similar understanding of the Contract in his testimony. Defendant testified: “I didn’t realize it was a prenuptial agreement. I just thought I had a marriage contract, which meant that we decided to protect ourselves from creditors, and we decided to keep our assets in separate names, and I never drew the conclusion that this had relevance in a divorce proceeding.””

The court found that as the agreement was clear on it’s face, the parties understanding was irrelevant and inadmissible.

Two fundamental principles of contract interpretation are that “agreements are construed in accord with the parties’ intent,” and that “[t]he best evidence of what parties to a written agreement intend is what they say in their writing” (Greenfield v Philles Records, 98 NY2d 562, 569 [2002] [internal quotation marks omitted]). “Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms” (id.). “A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion” (id. [internal quotation marks and brackets omitted]).

Extrinsic evidence of what the parties really intended is generally inadmissible, and will be considered only if the agreement is found to be ambiguous, which is an issue of law for the court (id., citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, 162 [1990]). However, extrinsic evidence may not be utilized to create an ambiguity that would otherwise not exist, since “before looking to evidence of what was in the parties’ minds, a court must give due weight to what was in their contract” (W.W.W. Assoc. at 162). An omission or mistake in a contract, such as a failure to include a specific contingency, does not itself create an ambiguity (see Reiss v Financial Performance Corp., 97 NY2d 195, 199 [2001]).

But, recently, the Second Appellate Department agreed to set aside a post-nuptial on the grounds that the husband engaged in overreaching. In Barchella v Barchella the court stated that “because of the fiduciary relationship that exists between spouses, postnuptial agreements are closely scrutinized by the courts and are more readily set aside on grounds that would be insufficient to nullify an ordinary contract.”

The lesson is that if you want to protect your property get a prenuptial agreement. If you are on the other side of the table, get a lawyer. A well drafted and fair agreement can save a lot of grief and trouble in the future.

Landmines In Child Support Part 1

Gary Port
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Landmines In Child Support Part 1

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A legal landmine is a mistake that I see people repeatedly make. The mistake is made because the person doesn’t realize he is making it, until it is too late. In New York family law and divorce law, there are several such landmines. In this post I will discuss the landmines in Child Support.

The one I see most frequently is failing to follow a court order of child support. At first blush, that may seem odd. How can some violate a support order and not realize it? Well, unfortunately, all to easily because a lot of people do not understand the nature of a court order.

Here’s how it normally plays out: Father is ordered by a court to pay $1000 a month in support. He does so for a while, then, he loses his job, get sicks or something else happens which makes it tough if not impossible for him to make his support payments. He goes to the mother and explains the situation and she agrees to take less, say $500 a month. They shake on the deal, and he now pays $500 a month, thinking all is good. A while later he gets served with papers for violating the court order. Not only must he pay the full $1000 a month, but he owes arrears on the time he was only paying $500. He’s shocked by the injustice: she agreed to the deal. The judge doesn’t see it that way, and the order for arrears is entered.

The problem that he didn’t understand is that a court order is just that: an order of the court. The mother has no authority to reduce the support. She cannot legally agree to lowering the support. Even if she put it in writing, he would still have to pay the full amount. In New York family and divorce law, once a court order is in place the only person who can modify the order is the judge (or family court support magistrate.) So, even if the parties have an agreement, the custodial parent can walk into divorce or family court and demand payment of the arrears and the court will grant it.

The only way to reduce the support payments is to go back to court and request it. In order to get a reduction, the non-custodial parent must demonstrate that there has been an unforeseeable change in circumstances. The court is very wary of guys claiming reduced income or to have lost their jobs. The court frequently sees guys voluntarily reducing or even hiding income to defeat the court order. However, I’ll get into reductions in another post. For now, the lesson is simple: once the court order is in place, obey it until you get another court order.

Divorce and Equitable Distribution Where There Are Hidden Assets (part 1)

Gary Port
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Divorce and Equitable Distribution Where There Are Hidden Assets (part 1)

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A frequent issue in a divorce action is proving a spouse’s assets. For a w-2 employee, this is generally an easy task. Where the issue becomes tricky is where the spouse owns a cash business, such as landscaping, or the restaurant. In that case, there is a question as to how much the spouse really makes, or how much the business is really worth.

I had a case where the husband had a $14,000 a year pension, and claimed that the pension was his sole income. The wife, my client, claimed that he operated an unlicensed garage, and several joker poker machines. The business was unlicensed and all cash; further, he never reported a dime to the IRS. He thought that he was untouchable. However, the divorce court has the power to strip away the lies and determine the real state of affairs. Here, I showed that he spent over $60,000 a year. The judge then found that the husband’s income was $60,000 a year and made the appropriate orders based upon that finding.

This power to look beyond a person’s story and determine the truth of the situation was vividly demonstrated in a recent decision by Justice Arthur Diamond, who is a divorce court judge in Nassau County, in the case of C.H. v. R.H, reported in the Law Journal, November 20, 2007, on page 29.

The husband was a minister of a church in Brooklyn. The church, under New York law, was a religious corporation. As such, it did not belong to the husband, and under New York law, was not part of the martial estate. Additionally, courts are prohibited from judicial involvement with internal church governance.

But, the wife argued, the church is a marital assets because it is actually the husband’s piggy bank. Specifically, she claimed that the husband “provided $50,000 of their marital money to church as start-up capital; the defendant controls all the finances of the church, and makes all financial decisions, defendant refuses to make any financial disclosures to the church’s board of directors and the church administrator, hides his finances from the church elders, determines his own income, refers to the church as ‘my church’ and dismisses anyone who challenges his operation and finance of the church.”

Justice Diamond addressed the New York law governing churches, and the reluctance of the courts to interfere with them. He then discussed the power of a court sitting in divorce to piece the veil of a corporation to determine the true owner as opposed to the title owner. He noted that in the case of Goldberg v. Goldberg, 172 A.D2. 2d 316, which involved a for-profit corporation, the appellate division granted “a distributive award to the plaintiff as her share of the marital property after finding that the defendant had deliberately dissipated and secreted marital funds and assets through conveyance of various trusts and alter ego corporations which served as defendant’s personal pocket book.”

Based upon the statute and case law, Justice Diamond found that there were sufficient questions of fact as to whether the church was indeed a separate and independent religious corporation or merely the alter-ego (i.e. pocket book) of the husband.

This decision shows the power of the divorce court to identify the true ownership of property. After all, at first blush, who would think that a church could be considered marital property? But, if the wife can prove her case, that the husband filtered martial money into the church, and used it to generate income for his personal benefit, then the court can find the church to be a marital asset, subject to equitable distribution. The lesson of this decision is that the court will not be bound by appearances but will determine the true state of affairs based upon the facts.

For example, if the business is in the husband’s father’s name, but the father lives in Florida, has no contact to the business, the husband provided all the capital, runs the business on a daily basis and enjoys the profits from the business, the court could well decide that the husband is the true owner, and the property is subject to division.

 

Ex Parte Foreign Nation Divorces

Gary Port
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Ex Parte Foreign Nation Divorces

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Although not as common as they used to be, ex parte foreign divorces are still an issue. By ex parte, we mean the court only had jurisdiction over one party. Back before New York eased, to some degree, its divorce laws, people found it easier to go to Nevada or Mexico to get a divorce. Typically, one party would go and it get. Since the court only had jurisdiction over the person before it, the divorce was ex parte (one party.) The New York courts were very concerned about this type of divorces, since with only one party showing up, there was a good chance that an injustice could be wrought on the absent spouse.

An ex parte foreign divorce where there was no service or appearance by the other party is generally void. In Matter of Levi, NYLJ Volume 215 Number 52 (Nassau County Surrogate 1996), the court recognized the long settled principle that ex parte foreign divorces are void. Surrogate Radigan found that the decedent and his first wife were not domiciled in the Dominican Republic at the time of the divorce. Under the circumstances, the Dominican divorce is void where it is at best an ex parte foreign divorce decree.

The foreign court must obtain jurisdiction over the proponent of the divorce as well as the absent spouse. In cases where a divorce has been obtained without any personal contact with the jurisdiction by either party or by physical submission to the jurisdiction by one, with no personal service of process within the foreign jurisdiction upon, and no appearance or submission by, the other, decision has been against the validity of the foreign decree. Rosenstiel v. Rosenstiel, 16 N.Y.2d 64, 209 N.E.2d 709 (1965). In Maltese, the court found that the sole purpose of the wife’s trip to Mexico was to get a divorce.

it is clear that defendant’s appearance in Mexico was for the sole purpose of participating in the divorce proceeding, not for the purpose of residing there; she remained at all times a resident and domiciliary of New York State. As was said in the Rosenbaum case, supra, ‘Thus under comity as contrasted with full faith and credit our courts have power to deny even prima facie validity to the judgments of foreign countries for policy reasons, despite whatever allegations of jurisdiction may appear on the face of such foreign judgments. * * * The recognition of a foreign county judgment is far less certain, the judgment itself is far more assailable and vulnerable, than sister state judgments and is subject to a test of policy.’Accordingly, plaintiff is entitled to a judgment declaring the Mexican divorce decree null and void,

Similarly, Surrogate Preminger found that a Mexican divorce was void where the decedent was not a domiciliary of Mexico , Matter of Barton, NYLJ Volume 222, Number 13 (N.Y. Surrogate Court 1999).

When a divorce decree is void, either party may attack it. Further, the party who obtained the divorce is not prevented from attacking it’s validity. See Marum v. Marum, 8 A.D.2d 975, 190 N.Y.S.2d 812 (2nd Dept 1959).

The Domestic Relations Law, section 236B(2) specifically grants the court jurisdiction to determine issues of property distribution upon a foreign divorce.

Matrimonial actions. Except as provided in subdivision five of this part, the provisions of this part shall be applicable to actions for an annulment or dissolution of a marriage, for a divorce, for a separation, for a declaration of the nullity of a void marriage, for a declaration of the validity or nullity of a foreign judgment of divorce, for a declaration of the validity or nullity of a marriage, and to proceedings to obtain maintenance or a distribution of marital property following a foreign judgment of divorce, commenced on and after the effective date of this part. Any application which seeks a modification of a judgment, order or decree made in an action commenced prior to the effective date of this part shall be heard and determined in accordance with the provisions of part A of this section.

Emphasis added.

While a divorce granted by a foreign sister is accorded full faith and credit, “[i]t is equally well settled, however, that a valid ex parte foreign divorce terminates only the marital status of the parties. Such a divorce is ‘divisible’ in that it has no effect upon the property held by the parties outside the jurisdiction of the state issuing the judgment.” Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2nd Dept 1992). See Vanderbilt v. Vanderbilt, 354 U.S. 416, 77 S.Ct. 1360 (1957) (Ex parte judgments from a foreign sister state resolving issues of support and property are not granted full faith and credit). “An ex parte foreign divorced decree is entitled to recognition to the extent of determining the marital status, though not to the extent of affecting personal rights stemming from the marital relationship such as property and custodial issues…” Matter of Childers, NYLJ Volume 222 Number 112 (New York County Surrogate’s Court, 1999).

The court in Mattwell v. Mattwell, 194 A.D.2d 715, 600 N.Y.S.2d 90 (2nd Dept 1993) explained that the purpose of DRL § 236(B)(2) & (5) was to address the divisible nature of foreign divorces. Accordingly, to provide for the distribution of property not affected by a foreign judgment of divorce, Domestic Relations Law § 236B(2) and (5) provide that a divorced spouse who possesses an interest in marital property within this state may commence an action for equitable distribution of property… The court has the power to convert an action into one for equitable distribution following the entry of a foreign divorce. Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2nd Dept 1992).

Therefore, in the case of valid ex parte foreign divorces the court has the power and authority under DRL 236B(2) and (5) to proceed to address and determine the issues of equitable distribution, custody, support and visitation.

Sometimes it’s not that easy to determine if a divorce is ex part. For example, assume that the couple is from the Dominican Republic. Both are legally in the United States, and residents of New York. Both are also still citizens of the Dominican Republic. Assume that one of the spouses goes back to the DR and obtains a legal and valid divorce and the other spouse remained in New York. Was it ex part or not? There would be an argument either way. At present, I’m not aware of any case addressing this issue.

Therefore, let prudence be your guide and avoid any appearance of an ex-parte divorce. If you are looking for a divorce and you live in New York, consult a New York divorce lawyer. If you are looking for a quick solution, you might find that you have severely prejudiced your rights.

Foreign State Divorces and Equitable Distribution

Gary Port
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Foreign State Divorces and Equitable Distribution

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Foreign divorces can be very tricky, and ultimately very dangerous for the unwary. The problem is that under the New York divorce law, all issues between a spouses must be settled in the divorce. Any issue not resolved or raised is waived.

For example, let’s assume that the divorce papers are silent as to the marital home. Nothing is mentioned about how the house will be disposed of, and there is no provision for who will take the house. After the divorce, the parties fight, and now one of the wants to force a sale and get his interest. Under New York law, when co-owners of a piece of property can’t get along, there is a legal proceeding called a partition. If the ex-spouse tries to bring a partition action here, he will be told that he had his chance in the divorce, and now the New York courts are closed to him.

This is a fairly harsh rule, but it is New York divorce law. Any issue of equitable distribution not raised is waived forever. It can never be revisited.

This rule has a serious impact on foreign divorces. By foreign divorces, I mean a divorce from either a sister state or a foreign country.

The issue of a New Jersey divorce was recently examined by Judicial Hearing Officer Stanley Gartenstein in the case of Ottomanelli v. Ottomanelli, decided on September 17, 2007.

The husband, who had established residence in New Jersey, commenced a no-fault divorce there. The court found jurisdiction over both the husband and the wife, although the wife was still a New York resident, living on Long Island.

The court’s divorce decree made no reference either to equitable distribution or maintenance.

The husband, having secured the divorce in his home state, returned to Long Island and commenced an action for equitable distribution. His action was dismissed.

JHO Gartenstein found that the New Jersey divorce was final and could not be amended.

He found that once the court has acquired jurisdiction over both parties, it had the power to decide all issues regarding the marriage and divorce and therefore he was without authority that amend that decision and made a property distribution.

In support of his decision, JHO Gartenstein cited the New York Court of Appeals case of O‘Connell v. Corcoran, 1 NY3rd 179, which involved a Vermont divorce. In that case, the wife appeared before the Vermont court and stated that no application would be made for an equitable distribution award as all the assets were in New York. The Vermont court issued a final judgment of divorce without contest and made no other awards. The wife then started an action in New York for equitable distribution. The Court of Appeals would not allow such an action. It found that the issues were before the Vermont court and the failure of the court to render an award, for whatever reason, ended the matter.

Following the holding of O’Connell, JHO Gartenstein dismissed the husband’s action for equitable distribution, as it should have been raised in New Jersey. The failure to raise the issue waived it.

This rule also applies to divorces from other countries. In DeGanay v. DeGanay 261 AD2d 175, a bilateral divorce in France was also viewed as final.

This rule only applies to bilateral divorces, that is divorces where the court has jurisdiction over both parties. When the court does not have jurisdiction over both parties, it is an ex-parte divorce. In an ex parte divorce, the issue of equitable distribution remains alive. Ex-parte divorces are a large and somewhat complicated area, and I’ll address it in another posting. Just remember for this posting, that if the court has jurisdiction over both parties, it’s a real good idea to address all issues of the divorce. If you leave something for later you’ll find that you’ve waived your rights.

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