Yorke v. Yorke, 83 A.D.3d 951, 922 N.Y.S.2d 115 (2nd Dept.,2011); Kent v. Kent, 29 A.D.3d 123, 810 N.Y.S.2d 160 (1st Dep’t 2006).
Category: Legal Blog
Custody of Children Is a Factor in Determining Who is awarded the House Prior to Its Sale
In Greisman v. Greisman, 98 A.D.3d 1079, 951 N.Y.S.2d 219 (2nd Dep’t ,2012), the Appellate Division echoed settled law that custody of children is a key factor in retention of the marital residence:
“[T]he Supreme Court did not improvidently exercise its discretion in awarding the defendant wife exclusive occupancy of the marital residence until the parties’ youngest child reaches the age of 18 or is otherwise emancipated. ‘[E]xclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage’ ” … In making such a determination, ‘the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties.’ ”
When Child Support Is Unallocated for Several Children, Emancipation of a Child Does Not Allow Automatic Seductuions, Must Seek Judical Relief
Lamassa v. Lamassa, 965 N.Y.S.2d 195, 198 (2nd Dept.,2013):
“When child support has been ordered for more than one child, the emancipation of the oldest child does not automatically reduce the amount of support owed under an order of support for multiple children.” The party seeking a downward modification of an unallocated order of child support based on the emancipation of one of the children has the burden of proving that the amount of unallocated child support is excessive based on the needs of the remaining children – that party may not unilaterally make any type of deduction, pro rata, or even according to the Child Support Standards Act.
Joint Custody May Be Awarded Only Where Parents Can Get Along
Solovay v. Solovay 94 A.D.3d 898, 941 N.Y.S.2d 712 (2nd Dept.,2012), echoed settled law that courts may not impose joint custody where the relationship of the parents is such that they are unable to set aside their differences and animosity for the benefit of the children: “[J]oint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion”…“However, joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child.”
Exclusive Occupany of Marital Residence Is Custody Related
In Greisman v. Greisman, 98 A.D.3d 1079, 951 N.Y.S.2d 219 (2nd Dept.,2012), the Appellate Division echoed settled law that custody of children is a key factor in retention of the marital residence: “[T]he Supreme Court did not improvidently exercise its discretion in awarding the defendant wife exclusive occupancy of the marital residence until the parties’ youngest child reaches the age of 18 or is otherwise emancipated. ‘[E]xclusive possession of the marital residence is usually granted to the spouse who has custody of the minor children of the marriage’ ” … In making such a determination, “the need of the custodial parent to occupy the marital residence is weighed against the financial need of the parties.”
Don’t Communicate with Your Lawyer on Family Computers
Parties often communicate with their lawyers on the family computer, the one that other family members use to access email, surf the internet, etc. Where access to the computer is not password protected for each user, communications with counsel are fatal to the attorney-client privilege because caselaw holds that there is no expectation of privacy – it is akin to speaking to counsel about sensitive matters on a crowded elevator where everything can be overheard. This can result in a court order directing the careless party to reveal all prior communications (Willis v. Willis, 79 A.D.3d 1029, 914 N.Y.S.2d 243 (2nd Dept., 2010)).
A Parent’s Representations of Their Finances Not Binding on a Court, Court May Impute Income
The determination of child support, a matter public policy, requires that a party’s depiction of his or her financial situation (earnings and the ability to earn income) is strictly governed. Unsubstantiated descriptions are ill received by the courts. It is well settled law that, in determining a parent’s child support obligation, a court need not rely upon a party’s own account of his or her finances, but may impute income based upon the party’s past income or demonstrated future potential earnings (Rohme v. Burns, 92 A.D.3d 946, 939 N.Y.S.2d 532 (2nd Dept.,2012). A party must, therefore, present hard and accurate evidence in support of his or her financial difficulties or hardships.
Separate Property May Not Be Distributed
Davidman v. Davidman, 97 A.D.3d 627, 948 N.Y.S.2d 639 (2nd Dept.,2012):
The Domestic Relations Law protects separate property from distribution during a divorce – nor may a court order its sale. However, separate property may become subject to distribution if the asset was either commingled or transmuted into marital property, such as, when the owner of the separate property has placed the asset into joint names. Also, separate property, whether a house or a business, may be distributed when the nontitled-spouse can prove that the appreciation of, the increase in the value, the separate property is attributable to “the contributions or efforts of the other spouse.” The nontitled-spouse is entitled to a credit for his/her share of the marital funds that were used to pay off the mortgage of the owner of the separate property.
Rental Apartment Cannot Be Distributed by a Court
A rental apartment subject to rent control constitutes neither marital nor separate property and, even though it may have been the former marital residence, it is not property distributable (Cudar v. Cudar 946 N.Y.S.2d 630 (2nd Dept.,2012)).
Parent Who Lost Job and Needs Downward Modification of Child Support Must Prove Diligent Efforts to Get New Job
Before a parent who has lost his/her job seeks a decrease in the child support obligation, that parent must demonstarte that he/she diligently sought re-employment commensurate with his/her earning capacity — even if the parent is receiving public assistance (Martin v. Cooper 96 A.D.3d 849, 947 N.Y.S.2d 526 (2nd Dept.,2012)).