This year is no different.  There have been different versions running around the Assembly and the Senate, both known as the Divorce Reform Act of 2010 (Assembly Version versus Senate Version).

The long and short of it is this:

1. There will be a new ground for divorce in New York (to be set forth in Domestic Relations Law (DRL) § 170 (7)) as being :”The relationship between Husband and Wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”  This amounts to “no-fault” inasmuch as it does not require one party to prove fault on the part of the other, as has traditionally been required in New York.
2. There is a new provision providing for the formulaic calculation of Temporary Maintenance awards amending DRL § 236-B.
3. In order to opt-out of the statutory formula, a specific statutory waiver must be included in the order or agreement similar to that used to opt-out of the Child Support Standards Act (CSSA).
4. There are additional considerations enumerated for the Court to look at, including one that may bring enhanced earnings claims (O’Brien claims) within the terms of the statute.
5. There would be a rebuttable presumption that counsel fees are to be awarded to the less-monied spouse, on a timely basis, pendente lite.

So what does all that mean in English?  It means that New York State is trying to move into the 20th Century (NOTE:  the rest of the world currently lives in the 21st Century) in terms of divorce law.

The most interesting part of the proposed legislation is perhaps the formula propounded by the legislature to determine temporary maintenance (that’s alimony to the rest of the world).  The calculation goes something like this:

1. Take 30% of the monied spouse’s adjusted gross income and subtract from it 20% of the non-monied spouse’s adjusted gross income (adjusted gross income is defined in the bill similar to the definition set forth in the CSSA).
2. Multiply the adjusted gross income of the monied spouse by 40% and subtract from this sum the non-monied spouse’s adjusted gross income.
3. Choose the lesser of the two sums from numbers 1&2 and that is your presumptively correct amount of temporary maintenance.
4. The above applies up to an income cap of $500,000 (as if anyone in Western new York will need to worry about that).
5. The duration of the temporary maintenance is to be determined by the Court “…by consideration of the length of the marriage.”  (please don’t ask, because I don’t know what that means).
6. If the Court finds the presumptively correct amount of maintenance to be unjust or inappropriate, the Court can deviate from the presumptively correct amount by considering any or all of 17 enumerated factors and setting forth in a written Order the presumptively correct amount, the factors it considered in adjusting that amount, and the reasons why it adjusted that amount.  (The written findings cannot be waived by the Court, the parties, or the attorneys).
7. The parties can opt-out of the presumptively correct amount in a written agreement or oral stipulation so long as it includes certain waiver language set forth in the statute.

And the question everyone is going to want the answer to:  Will this new legislation give me a change in circumstances sufficient to go back and get my maintenance changed?  NO!  The text of the bill specifically states that it will not.

One of the more interesting provisions of the bill, (in my humble opinion) is the fact that it directs the Court to consider “The contributions and services or the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party.”

This seemingly brings the enhanced earnings claims (which have been a creature of case-law under O’Brien and its progeny) into the realm of statute and with one stroke of the pen changes the nature of an enhanced earnings claim from equitable distribution to maintenance.  The biog deal here is that distributive awards are not taxable, but maintenance is includable as income to the person receiving it and deductable to the person paying it.  I’m interested to see what will become of this if the bill is ever signed into law; which brings us back to my original comments…

The State of New York still has no “No-Fault” divorce law and the Governor has not, as of this date, signed the Divorce Reform Act of 2010 into law.

Knock Knock… Whose there?

No-fault divorce… No-fault divorce who?

No-No-fault divorce in New York, that’s who!

The “evil deed” is usually something about a spouse sleeping around, or coming home drunk, or openly eating non-kosher food in the house. All valid complaints, certainly.

The short answer is “No, the Judge will not consider this at your next court appearance.” But in reality, there is more to be said.

A divorce can end in one of two ways: a settlement or a trial. There is no third option. In the event the divorce ends with a settlement, the Judge will be quite happy to not have to take testimony and perhaps lose a day of golf. The settlement agreement will be reviewed by the Judge, or his or her law clerk, and assuming there is nothing completely wacky or illegal in it, it will be approved and you may never even meet the judge. In this case, the judge does not care that your husband came home drunk and urinated on your bed; or that your wife had sex with your brother on your kitchen table and you came home to find them in flagrante delicto. The matter is settled and the Judge will not consider any of those things.

On the other hand, if there is no settlement, what exactly will the Judge consider? It depends on the case. What is really relevant to the issues at hand? Urinating on the bed may go to the issue of whether he should have to pay for the cost of a new mattress and may show that he’s a mean drunk, but at the end of the day, it gets you the same divorce decree as anyone else.

Lets take the other hypothetical of you finding your wife and brother playing kitchen. Once all thought of Cain and Abel has been put aside, there is, again, not much for the Judge to consider at the end of the day except that your wife has exhibited some very poor judgment and your brother is a jerk. It likely won’t effect the financial outcome much in and of itself. But change the scenario a bit, and have your 9 year old kid walk in on Mommy and Uncle Johnny, and you now have exhibit A in a custody trial, where Mommy is going to have gobs of fun being cross examined about exactly what was being cooked up in the kitchen that day. Yes, the Judge will certainly consider it when rendering a custody decision.

I have used some crazy and far fetched hypothetical situations to demonstrate “what the Judge will consider.” But the real question at trial is not “Will the Judge consider this?”, but “Is this RELEVANT to the issue the Judge is deciding.” Some of the most atrocious acts of immorality, bad taste, and poor decision making are simply not relevant in all situations. And as harsh as it might sound, the Judge may not consider it.

While the question may seem grossly simple, there is no simple answer.  A number of factors must be taken into account, including:

• How far into divorce proceedings are the parties?
• How close is a final judgment of divorce to being granted?
• What was the income of each party for the given tax year?
• Is there an agreement as to how any exemptions for children will be handled?
• Is there an agreement as to how the parties will split any refund?
• Is there an agreement as to how the parties will contribute to any tax liability?
• Are both parties W-2 wage earners, or will a Schedule C be completed?

Generally speaking, married filing jointly is often the most advantageous way to file while going through a divorce.  The parties can either agree ahead of time how to split up any refund or tax liability, or, if they cannot agree, often the refund (if there is one) will go to one of the attorneys to hold in escrow until the parties can either decide amongst themselves how to divide it, or the Court makes that decision for them.

Occasionally, there are issues of a family business, that one party is highly involved with and the other party knows next to nothing about.  This situation can present serious issues if there is any question of one party “cooking the books” and then requesting that the other party file a joint return.  Such a situation can leave the innocent party open to serious liability for signing a fraudulent return.

In the case of the average John and Jane Doe, W-2 wage earners, there can arise an issue where one party has had nothing withheld from his or her pay checks, and the other party has had a large amount withheld from each pay check.  In this situation, the party who has had money withheld, will usually want to file married separate, because he or she will get a large refund.  On the other hand, the party who had nothing withheld (counting on the withholding of the other spouse to cover the tax liability for the year) will usually owe a large tax liability.  When this occurs, filing jointly is usually the way to solve the issue.  In the event that one party surreptitiously files married filing separately to grab the big refund, leaving the other party with a huge and unanticipated tax burden, the remedy usually lies with a motion to the divorce court to equalize the refund vs. burden.   Courts look dimly upon such behavior, be warned.

Remember that if children are involved, the non-custodial party (the one the kids are not regularly living with) will need to have IRS form 8332 executed by the custodial parent (the one the kids regularly reside with) to submit with the tax return in order to claim a dependency exemption (assuming the parties agreed that the non-custodial parent would take one or more dependency exemptions).  IRS form 8332 is available here.

The safest way to decide how to file taxes while a divorce is pending is to discuss the matter with your attorney.  While I have addressed a few common issues that arise, every situation is unique and requires careful consideration by someone with the knowledge and experience to guide you through making an appropriate choice.

Going through a divorce, the parties also need to remember that the attorneys are not CPA’s or tax Preparation experts.  With that in mind, one usually safe answer to the old question, “How should we file taxes?” is to go to a CPA or Tax Preparation Professional, have him or her run the numbers under the various filing options, and to go with the most advantageous.

Thee O’Brien case opened the door in new York State for enhanced earnings claims.  Basically, if one spouse earns a degree or professional license during the course of the marriage, the other spouse has a claim to some portion of the enhanced earnings capacity that flows from that degree or license.  Doctors, lawyers, nurses, licensed massage therapists BEWARE!

So what is an enhanced earnings capacity and how does this O’Brien claim work?  Well, the degree or license must first be valued by an expert.  That expert will project out from the U.S. Government mortality tables what the owner’s lifetime working expectancy is, what the projected earnings are over that lifetime, and what the projected earnings would be for a person who had a similar education prior to the marriage, but not the advanced license or degree.  The difference in the figures is the projected enhanced earnings, which is then reduced to present dollar value  (there’s a lot more to it, and it really does take an expert to value, but this simplified version will suffice for now).

OK, so the degree has been reduced to present value… now what?  The spouse is not entitled to 100% of that degree (in most cases) but probably something less than %50 of the present value.  Either the parties to the divorce settle on a percentage, or the Court will hold a trial on the matter, and determine the appropriate percentage after hearing about all the contributions of the spouses toward the degree and considering all relevant circumstances.  In the Fourth Department (Western New York, where I practice), the percentage is usually somewhere between 10-20%.  Downstate, in the New York City area (generally the Second Department) there have been some recent cases where 0-15% have been awarded.  The trend seems to be moving to awarding smaller percentages lately.

So we have a present dollar value, and we know what percentage of that the spouse is entitled to, how do we go about distributing it?  Generally, the parties will try to work out a settlement of some sort; perhaps credits against other assets, or a payment plan.  If the parties cannot work out a settlement, the full, lump sum of the enhanced earnings is due and payable immediately upon rendering of the divorce decree.  Harsh, I know.  Or a windfall, if you’re on the receiving side.  But the Courts recognize that people generally don’t have tens of thousands of dollars to just hand over, from earnings they will not realize for perhaps another 30 years!  The Court will often make the enhanced earnings award payable over a number of years (with interest).

I understand, conceptually, the logic in making enhanced earnings distributable in divorce.  I am not, however, a proponent of the concept.  Granted, some spouses do make major contributions to the education of the other, and they should realize the fruits of their labors.  But all too often, it seems that both parties are working people, one is often holding down one or even two jobs and going to school at the same time, and the majority of the effort put into that enhanced earning is due to the efforts of the degree owner.  Perhaps that is why the current trend is a decrease in the awards?  Only time will tell, but enhanced earnings is definitely an interesting and much debated topic in New York matrimonial law.

The biggest asset in any marriage is usually the house.  If the parties don’t own a house, but lease or rent, there is nothing for a Court to consider in equitable distribution and there is one less thing to fight over.  But houses come in all shapes and sizes; some are acquired before the marriage by one spouse or another; some are inherited; some are purchased during the marriage.   The issues to be determined, or settled, in a divorce are:

1. Is the house a marital asset?  Meaning was it purchased during the marriage, or perhaps improved to some extent or transferred during the marriage.
2. What portion of the house is a marital asset?  Houses often have mortgages attached to them.  The portion of the house that is a marital asset is really the equity in the house (the value of the house less the outstanding mortgage/home equity line of credit/ etc.) which was accrued during the marriage.
3. Is there a separate property claim to the house?  Did one spouse buy the house before the marriage?  If so, there may be a separate property claim to funds expended in the purchase of the house before the parties were married.
4. What are we going to do with the house?  Are the parties going to sell it and somehow split the proceeds (or shortfall, under the worst of circumstances)?  Will one party buy out the equity of the other and keep the house?  Maybe an arrangement can be reached where one party remains in the house until the children reach a certain age and then the house is sold and the proceeds distributed.

These are just a few of the questions that need to be answered before any decision can be reached, by a Court or by the parties themselves, as to what is going to happen to the house.  If the house is sold and the proceeds split, the parties, or the Court, must decide whether there will be an even split, or maybe more of the proceeds will go to one spouse than the other.  Will there be credits from one party to the other for things like mortgage payments that were made after the divorce was filed that the other spouse failed to contribute to, or tax bills or utility bills and carrying costs during the divorce?

The value of the house is often a sticking point with divorcing spouses.  One party will usually want to minimize the value, if he or she is seeking to buy out the other party’s interest, and the other party will seek to maximize the value of the house to increase the buyout.  If the house is sold to a third party, the issue takes care of itself and the sale price is the value.  Certainly, issues are often raise that one party wants to sell the house to his brother for $10.00 which the other party generally will not agree to, and the Courts do entertain issues like that when considering wasteful dissipation of assets.  On the other hand, the parties can often agree to have an independent appraisal of the house done and agree to use whatever figure the house appraises at.

There do arise circumstances where one party seeks to remain in the house until such time as children are grown, or finish high school, or whatever the case may be.  The parties can agree to such an arrangement with the proceeds of the sale to be distributed at a later date.  I have personally found that local Courts would rather not Order, after a trial in a contentious matter that cannot be settled, that one party may remain in the house for a period of time.  While it is within the Court’s power to do so, and an achievable result under the right circumstances I just don’t see it happen that often.

Perhaps the most difficult obstacle to overcome in trying to reach a settlement with regard to a house is financing.  The parties may agree on the sale price, credit to one side or the other, the buyout price, and all the associated issues.  But when it comes time for one party to actually buy out the other, and transfer title from joint names to sole ownership, our country’s economic downturn rears its ugly head.  if there is a 30 year mortgage with both parties on the note, the party being bought out will not want to remain liable for the mortgage for the remaining 20 years.  The party buying out the other will have to refinance and somehow remove his or her spouse from the mortgage obligation.  While they may have been earning a total of $100,000 per year as a married couple, they each only make $50,000 as singles.  The difference, together with a less than stellar credit score can make it extremely difficult, if not impossible, to refinance the house by one party alone.  Sometimes this hurdle can be overcome if a co-signer can be found for the new mortgage, but not everyone has a relative or friend willing to go out on that limb.  With luck, the strangle-hold that lenders currently have on credit will subside a bit with time and make things easier.  For now, difficulties refinancing are a fact of life that cannot be overlooked.

There can be no doubt that dealing with a house is one challenging aspect of a divorce.  One should always seek advice of a competent attorney to provide guidance on all the potential consequences of selling, or even contemplating a transfer of the marital residence.  The factors to consider are simply too complex for the average John and Jane Smith on the street to really grasp the far reaching issues and ramifications.

Before going to Family Court, as either a Petitioner (the person bringing a Petition) or the Respondent (the person responding to a Petition), there are some issues one must consider very carefully first:

1.  Is Family Court the proper place for this Petition?  Remember, as a court of limited jurisdiction, the Family Court can only hear certain enumerated issues.  Is your issue one of them?  If not, your Petition will likely be dismissed at the first appearance.  For instance, Family Court cannot hear an action for divorce… only the Supreme Court has jurisdiction for that.  Family Court cannot issue a Qualified Domestic Relations Order (QDRO) to divide a pension.  Be sure the Court has the authority to grant the relief you are seeking before you file the Petition.  Under certain circumstances, Supreme Court might be a better venue for a given matter.

2.  Who do I want to hear this matter?  While it may seem like a silly question, it is a very basic tactical question that any attorney will carefully consider before filing any Petition.  In the Family Court, generally Support Magistrates hear all support related Petitions.  Support Magistrates are not judges, are not elected, and have extremely busy calendars.  Many of them are extremely good at what they do, but the occasional Support Magistrate may not be a good choice to hear a given matter.  On the other hand, Family Court Judges generally hear matters involving custody and visitation.  Do you know who the Support Magistrates and Family Court judges are that may be assigned to your case?  Do you know who the Supreme Court Justices are that might be assigned to your case if filed in Supreme Court?  before you file a Petition, you should research both of these issues.  Call the clerk’s office and ask which Judges or Magistrates your case may be assigned to, they will let you know, with a little cajoling.  Research those persons who are on the list of possibilities.  How have they performed in the past?  Have your friends or relatives been before any of them?  Assess whether the Family Court or Supreme Court possible assignees might be more sympathetic to your case.

3.  Manners.  you need to be on your best behavior, before, during & after your Family Court appearance.  Dress appropriately, it goes a long way.  Men – button down shirt, neck-tie, neat and clean pants and shoes.  Women- neat and clean, no jeans, no stiletto heels, CONSERVATIVE, no abdomen showing, no micro-mini skirts, easy on the cleavage (though it pains me to say that).  All- ditch the piercings, cover the tattoos, speak when spoken too, do not yell, scream, curse, talk over the Judge, or end a sentence in the courtroom with anything other than “yes/no your honor” or “yes/no sir/ma’am.”  Trust me, these simple manners will go a long way with the Court.  You might be asking yourself :Hey, he said best behavior before and after the appearance, why can’t I flip the Judge off after I leave the courtroom?”  Well, that is because of technology.  There are cameras at all the entrences, exits, in the hallways, big brother has your number.  There is a team of security personel watching your every move, and they watch CAREFULLY!  if you’re planning on putting out a dube in the ashcan next to the door, you’ll probably be arrested on your way out.  And make no mistake, there may not be official channels, but you will be the talk of the Courthouse if you make a scene for any reason and you Judge will likely hear about it.

4.  Should I appear and answer a Petition my ex-wife/girlfriend/brother0in-law/husband brought against me?  Sounds like another trick question, but it is not.  You may not always want to appear to answer a Petition.  For instance, certain jurisdictional defects might dictate that you not appear, or only put in a special appearance to contest the jurisdiction of the Court.  If you appear and don’t raise the objection, you may very well waive the issue.  Be very careful about this, only a licensed attorney should make a decision to not appear or to make a special appearance to challenge jurisdiction.  The question is simply to technical for the average non-lawyer to answer.  When in doubt, get an attorney.

5.  Should I get an attorney?  This is an easy one… YES!  You should get an attorney.  if you can afford an attorney, retaining one to represent you is your safest option.  Attorneys know the rules, the system, and are familiar with all the players in the system.  They can answer your legal questions, explain your options, and carry out your instructions to give you the best chance of coming out of this in reasonably good shape.  If you cannot afford an attorney, call your local Bar Association and ask if they can refer you to either the local assigned counsel program, volunteer lawyer program, or an attorney who might represent you for free.  Contrary to popular belief, attorneys do a tremendous amount of free legal work.  If the Bar Association can’t help you, ask the Family Court for a referral to the assigned counsel program when and if you appear.  The Court is always happy to make the referral, though you may or may not qualify.

In short, the worst thing to do is ignore the matter if you are summoned to appear in Family Court.  Retain an attorney if you have the means, seek help from the system if you do not.  Family Court can be a scary place, but with some research ahead of time, and some common sense, you can get through it.  And one last tidbit…  bring a book!  Family Court is always a slow process and you just might make it through that novel you started two years ago and couldn’t find time to finish.

What do you do next?  First thing, find an attorney.  Not just any old attorney.  Not your brother-in-law’s best friend from college who practices corporate law and will do your divorce as a favor.  Not the lawyer you went to with your spouse three years ago to have your joint wills drawn.  And for the love of all that is holy, don’t randomly open the phone book to the attorney pages and pick the first number you see!

You need someone to guide you through a very difficult and complex time that will definitely change the rest of your life.   First, ask around.  Have friends or relative who are divorced?  What attorney did they use?  How was their experience dealing with that attorney?  I’m certain, with 43% of marriages ending in divorce, you’ll find someone who can recommend an attorney.  If not, call your local bar association and they will be happy to recommend a competent attorney who has experience in divorce.

So you find a few names and decide to make a few phone calls.  But what do you ask a prospective attorney to find out if he or she is right for you?  I suggest the following:

1. Have you ever represented someone in a divorce before? This may seem silly, but you need an attorney who has some experience to guide you through what could be the most important decisions of your life.
2. Will you take my case to trial if necessary? It is amazing the number of attorneys who will be happy to file your divorce for you, and the minute your spouse puts up an objection to anything, they tell clients that they only do no-fault or default divorces and will not take the case to trial.  You need someone with the competence and knowledge to take your case to trial, if it becomes necessary.
3. Will you be doing the work on my case, or will your associate who is 1 year out of law school? Some of the bigger firms like to pull the old “bait and switch” routine.  You meet with the big gun, who’s been doing matrimonial law for three or four decades, you sign the retainer, and the next thing you know, the big gun is gone and you got the water pistol instead.  A fresh young face straight out of law school, and you’re how he or she is going to get experience in matrimonial law!
4. What about the fees and costs? So you’ve been presented with a retainer agreement to sign.  Does the retainer that you pay include costs and fees, or will you have to come up with those separately?  There is a filing fee with the court, cost of deposition transcripts, cost to have a process server serve the papers, motion filing fees, the list goes on and on.  Are any of those fees included in the retainer or will you have to come up with more money for them?  What is the estimate you can expect of the costs and fees?
5. When was the last time you were in court on a divorce? Perhaps the most telling of all.  Does the attorney answer “this morning,” “yesterday,” “a few weeks ago,”  “a few months ago,” or “well, I’ve never actually been to court on a divorce before… but don’t worry, it’s no different than suing someone for a dog bite!”  I think this is rather self explanatory, so I won’t belabor the point.

There are a number of other questions you can ask a potential divorce attorney to get a feel for their level of competence.  For instance, are they a Fellow of the American Academy of Matrimonial Lawyers (AAML)? Are they a member of their state or local bar association matrimonial and/or family law committee?  When was the last time they attended a Continuing Legal Education (CLE) program having to do with divorce?  I’m sure you can come up with more on your own.

The moral of this story, is when shopping for a divorce lawyer, ask questions.  If the prospective attorney can’t answer them, or makes you feel uncomfortable, move on to someone else.

1. The Mother always gets the kids:  Not quite.  In New York, there is no preference for the Mother to have custody of the children over the Father.
2. The Father has to pay child support no matter what:  Actually, the non-custodial parent generally pays child support to the custodial parent.  If the Father is the custodial parent, barring certain additional considerations, the Mother will often be required to pay child support to the Father.
3. If we get divorced, my spouse gets half of everything:  Actually, New York is an “Equitable Distribution” state, not a “Community Property” state.  This means that assets and debts are distributed according to what is “equitable” not just a quick division of half.
4. I can get a divorce for irreconcilable differences:  No you can’t.  There are only certain grounds for divorce in New York and irreconcilable differences is not one of them.
5. At least  my pension is safe, my spouse can’t get to that:  Wrong.  A pension accrued during the course of a marriage is considered marital property to the extent it was accrued during the marriage.  Pensions are often distributed in a divorce by way of a QDRO (Qualified Domestic Relations Order).

In New York, the courts generally want to do what is fair, or equitable between the parties in a divorce.  Sometimes old myths prove true, though usually not for the reasons that one might think.  New York is still stuck in the age of the dinosaurs in some respects (like no “no-fault” divorce statute) but is rather progressive in others.  I personally think that equitable distribution is a more equitable way (pun intended) to distribute property and debt than everyone taking half, regardless of whether they ran up a $50,000 credit card bill 2 months prior to filing for divorce.

Generally speaking, the gross income of the two parents is used in the calculation. From the gross income of each parent, certain amounts are first deducted, such as FICA actually paid, and maintenance paid to a spouse (and several other permissible sums set forth in the statute).  The adjusted gross incomes of the parents is then added together to make a combined adjusted parental income.  The pro rata percentage of each parent is determined (for instance, did one parent provide 60% of the total combined income and the other parent 40%, or did each contribute 50%).  The combined parental income (up to $80,000, sometimes called the “cap”) is then multiplied by a percentage dependent upon the number of children to be supported (17% for one child, 25% for two children, 29% for three children, etc.) to yield the basic annual child support obligation.  Each parent is then responsible for his or her pro rata percentage of the basic support obligation.  There are other factors that a court may consider to deviate from the basic obligation (often referred to as the “F-Factors” as they are contained in subparagraph f) but that is a topic for another day.   There are other components to the CSSA, beyond the basic support obligation, such as unreimbursed health care expenses, mandatory add-ons, life insurance to secure one’s child support obligation, and several others, which are also beyond the scope of this blog entry.

Once calculated, child support generally flows from the non-custodial parent tot he custodial parent.  In some situations where there is true shared custody, with an equal 50-50 share of parenting time with the child(ren), child support flows from the parent with greater income to the parent with lesser income.

Considering the above, one can see that if there is significant income greater than $80,000 per year for the two parents, the child support calculation will yield a number considerably lower than if the calculation had been done without applying the $80,000 cap.  The legislature has recognized this and effective January 31, 2010, the cap will be increased to $130,000.  The bill was signed into law as the Child Support Modernization Act on August 11, 2009.

Starting in 2012, the Child Support Modernization Act provides for a biannual readjustment of the “cap” based upon changes in the Consumer Price Index thereafter.  All I can say, is I sincerely hope that inflation does not take off after we emerge from our current recession!

The new Act has many more provisions, but the increase to the cap has been a long time in coming.  The $80,000 cap of the CSSA has not been increased since the statute’s introduction approximately 20 years ago.  What does this mean to Mr. & Mrs. Average upstate New Yorker who still make about $40,000 each… not much.  What does this mean to the P. Diddy’s of the world, with more annual income than most small towns… not much.  I think that this increase of the cap will most effect the upper middle class, the professionals, the nurses, the physician assistants, the small business owners, the people who have combined income in the $130,000 to $250,000 range.  It sounds great for the children of divorce, and they deserve the benefits that this act will provide.  But those upper middle class people, who are living paycheck to paycheck (yes, I can hear you groaning, $130,000 a year and living paycheck to paycheck, cry me a river), they will feel the impact more than the working poor and the P.Diddy’s.

Grounds for divorce are set forth in our Domestic Relations Law Section 170  and include only:

1. Cruel and Inhuman Treatment -  A “catch all” that is often abused and sometimes misused;
2. Abandonment – for more than one year…  may also encompass “constructive abandonment”  a/k/a refusal of sexual relations;
3. Confinement of Defendant to prison – self explanatory;
4. Adultery – which is surprisingly difficult to prove since spouses are incompetent to testify against each other concerning this; or
5. Parties have lived apart pursuant to a judgment of separation or separation agreement for at least one year-  sometimes referred to as a “conversion” divorce.

In order to obtain a divorce in New York, only one of the above grounds will do the trick, nothing else.  The party seeking the divorce must prove, to a jury if necessary, that he or she has sufficient grounds for divorce.  And the longer parties are married, the greater the proof necessary to demonstrate sufficient grounds.  Simply saying “We don’t get along any more and we both want a divorce” is insufficient.

To complicate matters, if there are no grounds for divorce, there can be no equitable distribution of property.  What does that mean in English?  It means that if Wife Wanda files for divorce against Husband Bob, and Bob has a great job, lots of income, and all the assets are in his name, and Wanda has little more than her dislike of Bob’s bottle collection as her grounds, Bob gets to have a trial and challenge her to prove her grounds.  But why would Bob want to do that, you might say?  Because if Bob defeats Wanda in a grounds trial, he will not be forced to give her any of the money he has hidden away in a Swiss bank account, or to give her the house owned in his name, or to provide her with the Mustag GTO that he just bought while leaving her with the ’82 Camry.  Bob can effectively hold Wanda over the economic barrel.  When this happens, Wanda is usually willing to give up what would normally be her fair share of the assets in exchange for Bob not challenging her grounds for divorce.  I tend to think of this as legalized blackmail, but perhaps that is being too harsh…

You may have noticed there is no “irreconcilable differences” in that list of grounds.  New York is, I believe, the only state in the union that does not have a “no-fault” divorce provision, such as irreconcilable differences.  There is an outdated mode of thought in New York that the State has a vested interest in the marriage relationship.  Personally, I feel that vested interests in marriage are strictly the business of the people involved in that marriage and the State has no business forcing two people who can’t stand each other to remain together.  I leave it to religion to make moral determinations, those ar enot for me.

There has been a push in the past decade to bring New York in line with the rest of the country and provide a no-fault ground for divorce, but a law has yet to pass.  There is currently a bill in the New York State Assembly which would add “irreconcilable differences” to the list of grounds for divorce.  I am all for it!  The time has come for New York to get in line with the rest of the country and give people a way out when the love is gone and there is no going back.

A grounds trial is a horrific beast to watch.  I’ve seen them, and they are not pretty.  The plaintiff parades a line of witnesses across the stand to say what a horrible creature the defendant is.  The defendant parades a line of witnesses across the stand to say what a wonderful person he or she is and explain away the allegations of the plaintiff.  In the process, both people are irrevocably scarred, any chance of dealing civilly with the other is burnt to ash, and the State has thus preserved the “sanctity” of marriage.