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In New York Divorce cases, Judges divide property subject to New Yorks equitable distribution law. In many cases Judges divide all property equally. If the marriage is a true economic partnership, generally everything will be divided equally. In the following case, a successful New York Divorce lawyer argued that one side was entitled to much less than half. K. v. B., 13 A.D.3d 12, 784 N.Y.S.2d 76 (First Dept. 2004)(2004 WL 2525121)(2004 N.Y. Slip Op. 08003)(Nov 09, 2004): Supreme Court, Appellate Division, First Department, New York. K., Plaintiff-Respondent, v. B., Defendant-Appellant. Nov. 9, 2004. This appeal presents an unusual set of facts, whose most pertinent aspects are substantially set forth in the dissent. The parties' marriage was unconventional in certain ways, but that lack of convention does not, as the defendant-husband would have it, trump the settled equitable distribution principles which have evolved in New York since 1980. For that reason we most respectfully disagree with our dissenting colleague(s) and affirm the trial court. CRUEL AND INHUMAN TREATMENT Without citing any legal authority, the husband argues that the wife could not establish cruel and inhuman treatment as a ground for divorce since the parties did not cohabit, but rather maintained separate residences-the wife in Manhattan and the husband in Putnam County. However, in considering a cause of action for cruel and inhuman treatment, the fact-finder should focus primary attention on the nature of the interaction between a husband and wife, rather than on the type of living arrangement they have.
Continue reading "Is every case 50/50" »
Most divorces are settled by agreement. A few go to trial. The only think certain in a divorce trial is nobody knows how a Judge will rule. Read the following case that was decided by the appellate divison. Apparently the Judge got somethings right and somethings wrong. 67.2.12 - - - Johnson v. Chapin Johnson v. Chapin, --- A.D.3d ---, --- N.Y.S.2d --- (First Dept. 2008)(2008 WL 664929)(2008 N.Y. Slip Op. 02203)(Mar. 13, 2008): Supreme Court, Appellate Division, First Department, New York. Janet M. JOHNSON, Plaintiff-Respondent, v. Allan M. CHAPIN, Defendant-Appellant. Mar. 13, 2008 TOM, J.P., MAZZARELLI, FRIEDMAN, BUCKLEY, McGUIRE, JJ. Judgment of divorce and money judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), entered May 17 and September 23, 2005, inter alia, distributing the parties' marital property and awarding plaintiff maintenance, child support and counsel fees, modified, on the law and the facts, (1) to reduce the wife's share of the enhanced value of the Claverack property to 25%; (2) to vacate the credit to the wife for 50% of the difference between the sum expended on the Claverack renovations and the property's appreciated value; and (3) to credit the husband (a) $548,460 for excess temporary maintenance payments and (b) $484,370.50, 50% of the mortgage and maintenance paid for the Fifth Avenue cooperative during the pendency of the divorce action, and otherwise affirmed, without costs.
Continue reading "Sometimes it does not Pay to Go to Trial" »
Most divorces are settled by agreement. A few go to trial. The only think certain in a divorce trial is nobody knows how a Judge will rule. Read the following case that was decided by the appellate divison. Apparently the Judge got somethings right and somethings wrong. 67.2.12 - - - Johnson v. Chapin Johnson v. Chapin, --- A.D.3d ---, --- N.Y.S.2d --- (First Dept. 2008)(2008 WL 664929)(2008 N.Y. Slip Op. 02203)(Mar. 13, 2008): Supreme Court, Appellate Division, First Department, New York. Janet M. JOHNSON, Plaintiff-Respondent, v. Allan M. CHAPIN, Defendant-Appellant. Mar. 13, 2008 TOM, J.P., MAZZARELLI, FRIEDMAN, BUCKLEY, McGUIRE, JJ. Judgment of divorce and money judgment, Supreme Court, New York County (John E.H. Stackhouse, J.), entered May 17 and September 23, 2005, inter alia, distributing the parties' marital property and awarding plaintiff maintenance, child support and counsel fees, modified, on the law and the facts, (1) to reduce the wife's share of the enhanced value of the Claverack property to 25%; (2) to vacate the credit to the wife for 50% of the difference between the sum expended on the Claverack renovations and the property's appreciated value; and (3) to credit the husband (a) $548,460 for excess temporary maintenance payments and (b) $484,370.50, 50% of the mortgage and maintenance paid for the Fifth Avenue cooperative during the pendency of the divorce action, and otherwise affirmed, without costs.
Continue reading "Sometimes it does not Pay to Go to Trial" »
 
64.2.12 - - - Hale Hale v. Hale, 16 A.D.3d 231, 792 N.Y.S.2d 27 (First Dept. 2005)(2005 WL 612968)(2005 N.Y. Slip Op. 01997)(Mar 17, 2005): Supreme Court, Appellate Division, First Department, New York. Robert V. Hale, Plaintiff-Appellant- Respondent, v. Jane Drake Hale, Defendant-Respondent-Appellant.
ENTERED: MARCH 17, 2005 Mazzarelli, J.P., Marlow, Williams, Gonzalez, Catterson, JJ. Resettled judgment, Supreme Court, New York County (Joan B. Lobis, J.), entered November 26, 2004, which, inter alia, awarded the wife $89,141 for her share in the parties' Connecticut condominium, permitted her to buy out husband's share of the New York co-op apartment for $324,670, determined that the distributions from the Drake Land Trust were separate property and that the alleged loans he received from his employer actually constituted part of his salary, and directed him to pay his wife $8,000 maintenance per month for four years, unanimously modified, on the law and the facts, to the extent of (1) requiring, as part of the buy-out condition for the New York apartment, that the wife pay her husband $273,846 as his separate property credit, $178,900.50 as his half share of the marital equity, as well as his post-commencement credits consisting of principal and not interest, to be determined on remand; (2) deleting the husband's award of $80,302.55 to his wife for post-commencement mortgage credits, and awarding him half of her $20,407 share of the 2000 proceeds from the Drake Land Trust; (3) deleting the provision holding the wife responsible for half the amount by which the mortgage on the parties' boat exceeds the sale price, and otherwise affirmed, without costs. The husband's appeal from order, same court and Justice, entered October 1, 2004, insofar as it denied reargument on resettling the judgment with respect to whether it should recalculate his separate property credit for the New York apartment and whether it should provide the parties the option of selling the apartment, unanimously dismissed, without costs, as taken from a nonappealable order. The husband's appeal from order, same court and Justice, entered on or about February 17, 2004, which, to the extent appealed from as limited by the briefs, denied his motion to resettle the judgment, unanimously dismissed, without costs, as taken from a nonappealable order. The husband's appeal from those portions of the divorce judgment, same court and Justice, entered October 28, 2003, "which relate to the distributive award," unanimously dismissed, without costs, as superseded by the appeal from the resettled divorce judgment. The husband's appeal from order purportedly entered July 31, 2003, unanimously dismissed, without costs, as superseded by his appeal from said order as actually entered October 22, 2003. The husband's appeal from order, same court and Justice, entered October 22, 2003, which, to the extent as limited by the briefs, refused his motion to reconsider the value of the Connecticut condominium or his wife's buy-out cost of the New York apartment, unanimously dismissed, without costs, as superseded by the appeal from the resettled divorce judgment. The wife's cross appeals from the original October 28, 2003 divorce judgment and the October 1, 2004 order directing resettlement unanimously dismissed, without costs.
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It is a common misconception that jewelry is necessarily the separate property of the wife and is never subject to equitable distribution. In fact, many people don't even mention jewelry when discussing assets during a divorce case. See the excerpt below for an example of equitable distribution of jewelry and don't forget to discuss your family jewels with your attorney. Excerpt from Ciaffone v. Ciaffone, 645 N.Y.S.2d 549 (1996). Supreme Court's classification of certain items of jewelry given plaintiff by defendant during the marriage as marital property was correct (see, Chase v Chase, 208 A.D.2d 883, 884, 618 N.Y.S.2d 94). It should, however, have given plaintiff a credit of $1,724 for the evidence shows that these funds were plaintiff's separate property which she utilized to purchase a ring. This credit reduces the distributive value of the jewelry to $7,676 ($9,400 - $1,724) and plaintiff's distributive award therein to $3,070.
The question of whether or not an inheritance is subject to equitable distribution has gotten in a lot of attention. Take a look at the following excerpt from Spencer v. Spencer which finds that inheritance is separate property, but its appreciated value is marital property... Excerpt from Stencer v. Stencer, 646 N.Y.S.2d 674, 230 A.D.2d 645
Decided August 15, 1996 The trial court properly concluded that an inheritance received by the plaintiff from his brother and sister, and thereafter placed in the Merrill Lynch investment account, was his separate property upon receipt, and that he continued to maintain this asset as separate throughout the marriage ( McGarrity v McGarrity, 211 A.D.2d 669, 622 N.Y.S.2d 521; Alaimo v Alaimo, 199 A.D.2d 1039, 606 N.Y.S.2d 117; Feldman v Feldman, supra). The fact that the plaintiff may have made withdrawals from his separate account to pay marital expenses does not alter this conclusion ( Feldman, supra, at 216), as there was insufficient evidence of commingling to conclude that this account was transmuted into marital property.
The question of whether or not an inheritance is subject to equitable distribution has gotten a lot of attention. Take a look at the following excerpt from Spencer v. Spencer which finds that inheritance is separate property, but its appreciated value is marital property... Excerpt from Stencer v. Stencer, 646 N.Y.S.2d 674, 230 A.D.2d 645 Decided August 15, 1996 The trial court properly concluded that an inheritance received by the plaintiff from his brother and sister, and thereafter placed in the Merrill Lynch investment account, was his separate property upon receipt, and that he continued to maintain this asset as separate throughout the marriage ( McGarrity v McGarrity, 211 A.D.2d 669, 622 N.Y.S.2d 521; Alaimo v Alaimo, 199 A.D.2d 1039, 606 N.Y.S.2d 117; Feldman v Feldman, supra). The fact that the plaintiff may have made withdrawals from his separate account to pay marital expenses does not alter this conclusion ( Feldman, supra, at 216), as there was insufficient evidence of commingling to conclude that this account was transmuted into marital property. Pursuant to Domestic Relations Law § 236(B) (1) (d) (3), however, the appreciation of this account, due to the plaintiff's management during the marriage, must be credited to the defendant, who is entitled to a fifty percent share of such appreciated value during the marriage as part of the marital estate. As recognized by the Court of Appeals in Price v Price (supra, at 17), "where separate property of one spouse has appreciated during the marriage and before execution of a separation agreement or commencement of a matrimonial proceeding ... 'due in part' to the contributions or efforts of the non-titled spouse as parent and homemaker, the amount of that appreciation should be added to the sum of marital property for equitable distribution" (DRL § 236 [5]; see, also, Hartog v Hartog, 194 A.D.2d 286, 291-292, 605 N.Y.S.2d 749, affd as modified by Hartog v Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749). Here, the plaintiff used his experience in accounting and taxation to manage the investments in the inheritance accounts with his son. Since the defendant indirectly contributed to the appreciation of this asset by handling the household matters, thereby permitting her husband the freedom to devote energy to his financial endeavors ( Price, supra, at 16), her contribution should be given consideration in the distribution of the appreciated value of this asset...
Clients often ask about the distribution of stock or employee stock options upon divorce. Unfortunately, there is no one way to determine the value of these assets without immediate sale, which is frequently undesirable for both parties. For a discussion of the factors that may be used in valuing a stock interest, see Amodio v. Amodio which is copied below. THERESA AMODIO, APPELLANT,
v.
MICHAEL P. AMODIO, RESPONDENT Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered August 4, 1986, which unanimously affirmed so much of a judgment of the Supreme Court (Morton B. Silberman, J.H.O.), entered in Westchester County, as valued defendant husband's 15% interest in a closely held corporation at $87,500, and denied plaintiff wife's request for an award of counsel fees, expert fees or appraisal expenses. The only issue before the court in this divorce action is the value, for equitable distribution purposes, of defendant's 15% stock interest in Capitol Electrical Supply Co., Inc., a closely held corporation. Defendant acquired the stock in 1980 for $87,500 pursuant to the terms of a shareholder's agreement which provides that if defendant seeks to sell his stock within 20 years, the other shareholders may exercise a right of first refusal and purchase his shares for the price paid. The agreement also provides that if defendant dies within its 20-year term, the surviving stockholders can acquire his interest for $87,500. After a trial the court concluded that the stock was worth $87,500 and the Appellate Division affirmed. There is no uniform rule for valuing stock in closely held corporations. "One tailored to the particular case must be found, and that can be done only after a discriminating consideration of all information bearing upon an enlightened prediction of the future" (Snyder's Estate v United States, 285 F2d 857, 861). The Internal Revenue Service has declared that appropriate factors to be considered in valuing such stock for tax purposes include: (1) the nature and history of the business, (2) its particular economic outlook and that of its industry generally, (3) the book value of the stock and the financial condition of the business, (4) the company's earning capacity, (5) its dividend paying capacity, (6) its goodwill and other intangible assets, (7) other sales of the corporation's stock, and (8) the market price of stock of comparable corporations (Rev Rul 59-60, IRS Cum Bull 1959-1, at 237). The Internal Revenue Service's formulation is not the only method of valuing stock in a closely held corporation, but it has been recognized by authors and applied by appellate courts and was one of the two methods used by plaintiff's expert witness in this case (see, Matter of Blake v Blake Agency, 107 A.D.2d 139, 146-147, lv denied 65 N.Y.2d 609; Kaye v Kaye, 102 A.D.2d 682, 687; 3 Foster, Freed and Brandes, Law and the Family, New York § 15:2, at 644-645 [2d ed 1986]; Golden, Equitable Distribution of Property §§ 7.08-7.09, at 215-219 [1983]; 11C Zett-Kaufman-Kraut, NY Civ Prac, Equitable Distribution Actions § 69.04 [3], [4], at 69-26 - 69-44). Whatever method is used, however, must take into consideration inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions (see, 3 Foster, Law and the Family, op. cit., at 645; 11C Zett, NY Civ Prac, op. cit., at 69-25, 69-46 - 69-48; cf., Matter of Blake v Blake Agency, supra, at 149). If transfer of the stock of a closely held corporation is restricted by a bona fide buy-sell agreement which predates the marital discord, the price fixed by the agreement, although not conclusive, is a factor which should be considered (see, Kaye v Kaye, 102 A.D.2d 682, 687, supra; Bowen v Bowen, 96 NJ 36, 473 A2d 73; Rev Rul 59-60, § 8; cf., Stern v Stern, 66 NJ 340, 331 A2d 257). The decisions below, however, could be read as indicating that the courts found the price fixed in the agreement controlling because under the agreement the stock was not currently transferable. That the stock could not immediately be sold is not dispositive; marital property may have a value to the holder notwithstanding that it has no present market value (see, O'Brien v O'Brien, 66 N.Y.2d 576, 586-587 [value of professional license]; Majauskas v Majauskas, 61 N.Y.2d 481 [value of vested but unmatured pension]; see also, 11C Zett, NY Civ Prac, op. cit. § 69.04 [1], at 69-24 - 69-25). The court must consider all the circumstances reflecting on the present worth of the property to the titleholder. It need not rely solely on the price set forth in a buy-sell agreement if other evidence exists. In this case plaintiff's expert witness, using two different methods of appraisal, testified that the value of defendant's stock was between $172,000 and $253,000. His first method computed the value of the stock by dividing the corporation's estimated shareholder equity by defendant's 15% interest in the corporation. The other valued the corporation, and defendant's stock interest in it, by applying the guidelines for valuing close corporations set forth in Revenue Ruling 59-60. However, the witness did not consider the stock transfer restrictions contained in the shareholders' agreement in either method. That being so, the courts properly determined defendant's stock was worth $87,500, the price contained in the shareholders' agreement, because that was the only evidence in the record of its actual value. Accordingly, the order of the Appellate Division should be affirmed, with costs.
A Post nuptial agreement is basically a settlement agreement. However, the Courts in New York will require that the agreement is fair. Many times, when one spouse feels guilty they will sign anything. In the following case this is exactly what happened. Remember, before you sign something, retained an experienced New York Divorce Attorney, if it is patently unfair, it will never work.
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In a recent case the appellate division dismissed a divorce action, because the lawyer failed to file the proper paper work in a timely fashion. As the Court pointed out in Farkas v. Farkas, rules about time are meant to be taken seriously. Your lawyer cannot just say he or she was too busy, or there was a mistake by a paralegal. All too often litigants here the Judge say : settle judgment of divorce with findings of fact and conclusions of law within 60 days or your action will be deemed dismissed. Well guess what happened?....... continue reading
Continue reading "Make Sure Your Lawyer Follows the Rules!!!!" »
66.2.20 - - - Pulver Pulver v. Pulver, --- A.D.3d ---, --- N.Y.S.2d --- (Third Dept. 2007)(2007 WL 1499069)(2007 N.Y. Slip Op. 04375)(May 24, 2007): Supreme Court, Appellate Division, Third Department, New York. James H. PULVER, Appellant, v. Suzanne M. PULVER, Respondent. May 24, 2007 O'Brien & Asssociates, Albany (Stephen W. Rossi of counsel), for appellant. Law Offices of David J. Clegg, Kingston (David J. Clegg of counsel), for respondent. Before: CARDONA, P.J., SPAIN, MUGGLIN and ROSE, JJ. SPAIN, J. Appeals from two orders of the Supreme Court (Doyle, J.), entered April 15, 2005 in Ulster County, ordering, inter alia, equitable distribution of the parties' marital property, upon decisions of the court. Plaintiff and defendant were married in July 1992 and have three children (born in 1993, 1995 and 1997). Prior to their marriage, defendant and her siblings were given an interest in New York businesses owned by her father. In 1990, defendant moved to New York to be closer to her family and began working in the family businesses and plaintiff moved to New York to join her soon thereafter. On the day before their wedding, the parties-under the supervision of their respective attorneys-duly executed and acknowledged separate but identical prenuptial agreements at two separate locations. Just prior to their marriage, defendant used separate funds toward the purchase-in her own name-of what became the marital residence in the Town of Saugerties, Ulster County. Defendant's parents loaned her $30,000 toward the down payment and closing costs on the home. Although the mortgage remained in defendant's name, she subsequently deeded the residence to plaintiff, who transferred the property to the parties jointly. During the marriage, defendant spent $150,000 of her separate funds for improvements to the residence, and plaintiff made the mortgage payments until the commencement of this action. In August 1995, defendant's family's businesses, where she was employed, were sold for $12.5 million and she placed her share of those funds, approximately $2.5 million, in a separate account. Meanwhile, plaintiff began to manage most of the investments in defendant's family's sizable portfolio and used $40,000 of marital assets to form his own company, Lockwood Financial Services. Plaintiff commenced this divorce action in July 2002 and the parties ultimately agreed to dissolve the marriage on the ground of defendant's constructive abandonment; a trial was subsequently held to determine how their assets would be distributed.FN1 After hearing proof with respect to the parties' prenuptial agreement, Supreme Court, by decision and order, determined that it was valid and enforceable. Upon the completion of the trial, the court issued a second decision and order which, among other things, ordered plaintiff to pay monthly child support of $2,175 and child support arrears, directed the parties to each pay half of the cost of the children's unreimbursed health care expenses and private schooling, determined that neither party was entitled to spousal maintenance, awarded defendant 70% of the marital residence after finding it to be marital property, and required plaintiff to pay defendant 50% of the value of his business. Plaintiff now appeals. FN1. In January 2003, by temporary order, Family Court, Ulster County, ordered plaintiff to pay $1,700 in monthly child support. However, by the time of the November 2004 trial, plaintiff was $18,900 in arrears. In June 2003, Family Court granted sole custody of the parties' children to defendant. Initially, there is ample support in the record for Supreme Court's determination that the parties' prenuptial agreement was properly executed and enforceable. A duly executed prenuptial agreement will be considered valid and binding unless the contesting party can establish that he or she was induced by fraud, overreaching or duress attributable to the party seeking enforcement (see Matter of Greiff, 92 N.Y.2d 341, 344 [1998]; Costanza v. Costanza, 199 A.D.2d 988, 990 [1993] ). Evidence demonstrating "concealment of facts, misrepresentation or some form of deception" is necessary to establish fraud (Matter of Phillips, 293 N.Y. 483, 491 [1944] ); however, "a failure to disclose does not, standing alone, constitute fraud or overreaching sufficient to vitiate" a prenuptial agreement (Panossian v. Panossian, 172 A.D.2d 811, 813 [1991] ). Here, plaintiff first asserts that although both parties signed the agreement on the same day, they signed and acknowledged-before notaries-two separate documents, at different locations, and when they each signed their respective copy, the line for the other party's signature was blank. Indeed, the fact that the agreement was signed by the parties at separate locations does not render it invalid; "a binding agreement may be assembled from more than one writing, even if all are not signed by the party against whom enforcement is sought" (Nolfi Masonry Corp. v. Lasker-Goldman Corp., 160 A.D.2d 186, 187 [1990], citing Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 54-55 [1953]; see Raj Jewelers v. Dialuck Corp., 300 A.D.2d 124, 126 [2002] ). Here, although the agreements were signed at separate locations, they are identical and plaintiff conceded that he understood beforehand that even though neither of the documents would be signed by both parties, their terms were binding on both parties. Similarly unpersuasive is plaintiff's claim that the prenuptial agreement was unenforceable as defendant inadequately disclosed her financial standing prior to its execution. Notably, in the signed agreement, the spaces provided for the amount of stock that defendant held in each of the family businesses were left blank. However, plaintiff testified that he was aware when signing the agreement that it did not set forth the number of defendant's shares in the family businesses but was not concerned by that omission, and that defendant's financial status had made no difference to him before the marriage and that, even if she had disclosed her financial status, it would not have changed his decision to sign the agreement. Further, the record indicates that plaintiff-an experienced stockbroker who had attended meetings of the companies' executive committee during the period leading up to the agreement-had a thorough knowledge of defendant's finances before signing the agreement. Finally, since he entered into the agreement with the assistance and advice of his own attorney, plaintiff may not now "complain that his ... interests were not adequately safeguarded" (Price v. Price, 289 A.D.2d 11, 13 [2001] ). Indeed, ample evidence supports the conclusion that the prenuptial agreement is valid and enforceable. We also find support in the record for Supreme Court's calculation of plaintiff's child support obligation. The court determined plaintiff's income for child support purposes to be $90,000, applied the statutory percentage to this income and found plaintiff's monthly child support obligation to be $2,175. Plaintiff initially argues that Supreme Court did not follow the statutory requirement as it did not exclusively rely on his most recent tax return when calculating his parental income (see Domestic Relations Law ? ? 240[1-b][b][5][i] ). Plaintiff claims that this mistake was egregious as his recent tax returns consistently indicated his income to be much lower than $90,000. However, the court may impute income from any source that is not reported on an income tax return (see Domestic Relations Law ? ? 240[1-b][b] [5][iv] ), and such imputed income may be attributed to a party so long as the court articulates the bases for the imputation and its calculations are supported in the record (see Matter of Calabrese v. Johnston, 274 A.D.2d 971, 971 [2000] ). Here, the court noted that plaintiff's 2003 income tax return listed his income as $77,278,FN2 but additionally observed that the 2004 business ledger of plaintiff's company showed his income for the first 10 months of 2004 to be $94,087.16. The court also found that plaintiff took upwards of $42,700 from his business in 2004 to pay a number of personal expenses. Consequently, there was sufficient record support and explanation for imputing additional income to plaintiff and setting his income for child support purposes at $90,000. FN2. Notably, plaintiff's 2002 tax return indicates his income to be only $55,756. Plaintiff next claims that Supreme Court failed to sufficiently articulate why it would not depart from the given statutory percentages when evaluating his income over $80,000 for child support purposes (see Domestic Relations Law ? ? 240[1-b][c][3]; [f] ). However, the court adequately stated its rationale, indicating that it took into account, among other things, the children's standard of living and their level of activities. Similarly unpersuasive is plaintiff's claim that the court erred in requiring him to pay 50% of the cost of the children's private schooling, asserting that such a mandate was improper as he never agreed to send his children to St. Mary's of the Snow, a private parochial school. The court's finding, however, that this choice of schooling was jointly decided by both parties is also supported in the record. Plaintiff next argues that Supreme Court failed to determine the combined parental income before applying the child support percentage contrary to Domestic Relations Law ? ? 240(1-b)(c)(1), (2). Indeed, the court did not state defendant's parental income and appears to have merely applied the correct child support percentage of 29% to plaintiff's assessed income of $90,000. Since the statutory percentages should be applied only to the combined parental income (see Domestic Relations Law ? ? 240[1-b][b][3], [4] ), the court should have added defendant's income to the $90,000 attributable to plaintiff before calculating his prorated child support obligation. However, implicit in the court's decision is that defendant's income for child support purposes was also $90,000; and the record amply supports this determination. FN3 Accordingly, based upon a combined parental income of $180,000, the court properly calculated plaintiff's monthly child support obligation to be $2,175 after applying the child support percentage and prorating the results (see Domestic Relations Law ? ? 240[1-b][b], [c] ). FN3. For example, Supreme Court determined that the parties should equally split the child support add ons. We next reject plaintiff's assertion that Supreme Court should have considered, prior to assessing his income over $80,000, that he was left impoverished when defendant's family withdrew its investments from his control (see Domestic Relations Law ? ? 240[1-b][f][10]; [g] ). Given the evidence, however, that plaintiff's business was still lucrative and that he continued to lead an expensive lifestyle following the parties' separation, his argument is unpersuasive. We also reject plaintiff's assertion that Supreme Court erred in valuing his individual retirement accounts as of the date of trial. So as to avoid a windfall to the titled spouse and an injustice to the other, "where increases to a marital asset are passive, that is, affected by outside market influences rather than the actions of the titled spouse, the asset should be valued as closely as possible to the date of trial" (Harrington v. Harrington, 300 A.D.2d 861, 864 [2002]; see Soule v. Soule, 252 A.D.2d 768, 771 [1998]; Heine v. Heine, 176 A.D.2d 77, 87 [1992], lv denied 80 N.Y.2d 753 [1992] ). Here, plaintiff, on direct examination, testified that the market was a factor in the increase and conceded on cross-examination that the increase was "strictly a result of market forces." In all, plaintiff failed-despite his expertise in that field-to demonstrate that he actively managed the individual retirement accounts during the pendency of the action. Accordingly, no error occurred. As to the distribution of the marital residence as marital property, we find ample support in the record for Supreme Court's choice of expert opinions in setting the value of the marital residence at $350,000, the issues of the quality of the proof and credibility having been resolved in defendant's favor by the trier of fact (see Walasek v. Walasek, 243 A.D.2d 851, 853 [1997]; Holihan v. Holihan, 159 A.D.2d 685, 686 [1990] ). We also reject plaintiff's argument that the court unfairly distributed the marital residence. It is well settled that a party is entitled to a credit for any contribution of separate property used in the purchase or improvement of the marital dwelling (see Stots v. Daniels, 22 AD3d 413, 413-414 [2005]; Gonzalez v. Gonzalez, 291 A.D.2d 373, 374 [2002]; Strang v. Strang, 222 A.D.2d 975, 977 [1995]; Mink v.. Mink, 163 A.D.2d 748, 749 [1990]; Lord v. Lord, 124 A.D.2d 930, 931 [1986]; Cunningham v. Cunningham, 105 A.D.2d 997, 998-999 [1984] ). Here, defendant purchased the residence in her own name with her separate funds for the down payment and closing costs totaling $47,301, a sum which included a $30,000 loan to her from her parents which they later forgave as a gift. Notably, despite the conflicting testimony regarding that gift, the loan clearly was made to defendant only and our review of the testimony supports the court's determination that it was subsequently gifted to her alone and not to both parties. Moreover, we cannot say that Supreme Court abused its discretion in awarding plaintiff only 30% of the balance of the value of the residence, a decision based on defendant's expenditure of upwards of $150,000 of her separate funds to renovate and improve the marital residence. While defendant may have been entitled to a full credit for these improvements (see Strang v. Strang, supra at 977; Lord v. Lord, supra at 931; Cunningham v. Cunningham, supra at 998-999), the court, within its broad discretion, reasonably awarded defendant 70% (20% more than a 50/50 split) of the balance of the value of the residence. There is also support in the record for awarding a credit to defendant for a portion of the $74,546 that she paid from her own funds for the carrying charges-mortgage, taxes, maintenance-on the residence from July 2002, when plaintiff ceased making payments on the mortgage (see Cunningham v. Cunningham, supra at 998-999). In light of the 70/30 split in distributing the marital residence, however, defendant's credit for the carrying charges should be limited to 30% instead of the 50/50 split awarded by Supreme Court. We also find merit in plaintiff's contention that Supreme Court improperly directed him to pay defendant 50% of the $40,000 in marital property used to start his business, Lockwood Financial Services. In order to avoid "double counting," seed money voluntarily contributed from marital funds to help one of the parties create a new business should not be reimbursed during distribution if the value of that business is equitably distributed (see Garvey v. Garvey, 223 A.D.2d 968, 971 [1996] ). Thus, as defendant received a 50% share of plaintiff's business in equitable distribution, the court erred in directing plaintiff to repay defendant $20,000, i.e., half of the $40,000 of marital property used to start his business. We have considered plaintiff's remaining contentions, including Supreme Court's denial of maintenance, and find them to be without merit. ORDERED that the orders are modified, on the law and the facts, without costs, by reversing so much thereof as (1) credited defendant with 50% of the $74,564.56 she expended with respect to the marital residence during the pendency of the action, and (2) directed plaintiff to pay defendant $20,000 in marital assets used to start plaintiff's business; defendant is entitled to only a 30% credit for the moneys she expended with respect to the marital residence; and, as so modified, affirmed. CARDONA, P.J., MUGGLIN and ROSE, JJ., concur.
The Court has great discretion in New York to divide up marital property. Childless marriages of short duration are commo in NY. However, Judges generally do not divide all property equally......
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If your husband or wife has pension benefits in New York, you should be aware that under the New York Equitable Distribuition Law, you are entitled to your marital share of his or her pension. When your spouse tells you that you are not entitled to a piece of his or her retirement benefits, tell him to read the following case....
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Supreme Court, Appellate Division, Third Department, New York. Maria A. ALTIERI, Respondent, v. Lawrence J. ALTIERI, Appellant. Dec. 28, 2006 . Before: PETERS, J.P., MUGGLIN, ROSE, LAHTINEN and KANE, JJ. KANE, J. Appeal from a judgment of the Supreme Court (Malone Jr., J.), entered September 6, 2005 in Albany County, ordering, inter alia, equitable distribution of the parties' marital property, upon a decision of the court. The parties, who were married in 1973, stipulated to the distribution of some assets in this divorce action, but proceeded to a nonjury trial to resolve the equitable distribution of the remaining assets, maintenance and counsel fees. Supreme Court's decision edited but mainly adopted plaintiff's proposed findings of fact and conclusions of law, making that document its order and judgment of divorce. As relevant here, the court awarded plaintiff the marital residence, made her responsible for the mortgage on that residence, divided most of the financial accounts evenly, found that defendant wastefully dissipated marital assets by cashing in stocks and taking loans and withdrawals from his 401k plan, and awarded defendant the remaining amount of his 401k plan. Defendant appeals. Defendant first contends that Supreme Court erred in awarding plaintiff a liquid asset in the form of the marital residence while awarding him a nonliquid asset in the form of his 401k plan. We disagree. Trial courts are accorded substantial deference in determining what distribution of marital property is equitable, and such determinations will not be disturbed if the court considered the statutory factors and did not abuse its discretion (see Carman v. Carman, 22 AD3d 1004, 1007 [2005]; Robbins-Johnson v. Johnson, 20 AD3d 723, 725 [2005]; see also Domestic Relations Law ? 236[B][5][d] ). The liquid or nonliquid character of assets is one factor to consider (see Domestic Relations Law ? 236[B][5][d][7]; Fanelli v. Fanelli, 14 AD3d 592, 592 [2005] ). While courts should ordinarily avoid methods of property division which provide one spouse with immediate enjoyment of assets and relegate the other spouse to a potentially long and uncertain wait before access to the equity in the assets is realized (see Cutson v. Cutson, 161 A.D.2d 996, 999 [1990]; Tanner v. Tanner, 107 A.D.2d 980, 981 [1985] ), that principle was not violated here. Although defendant will be required to pay income tax on any withdrawals from his 401k account, based on his age he is entitled to make withdrawals without penalties, and had done so several times prior to commencement of this action. As he failed to prove the nonliquidity of that asset, it was properly awarded as an offset against his portion of the marital residence awarded to plaintiff (see Fanelli v. Fanelli, supra at 592; Brandt v. Brandt, 176 A.D.2d 1016, 1017 [1991]; compare Tanner v. Tanner, supra at 981 [inequitable to award marital residence to one party while other party received unvested pension rights which would not be accessible for 16 years] ). Nor do we find that Supreme Court erred in not adjusting the distributions from defendant's 401k account for tax consequences. Significantly, defendant did not prove the tax impact of those withdrawals. Likewise, were plaintiff to liquidate the realty, she would incur costs for repairs, counsel fees and broker fees. Under the circumstances of this case, considering plaintiff's attachment to the marital home, defendant's actions in secreting assets during the marriage, his failure to disclose significant assets in his financial disclosure statement and his incredible testimony concerning the use of certain assets, it was equitable to balance the distribution of the marital residence to plaintiff against the distribution of the 401k plan to defendant.
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Trial Judges in New York constantly make mistakes. Basic principles of equitable distribution are not followed. I have found that at least the appellate division gets it right. You should always consult a qualified New York Divorce Attorney. Read the following..... and you may begin to understand the process.
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Even Judges get it wrong. That is why it is important to hire a New York Divorce Lawyer that knows the law, read the following and learned how many Judges in New York get it wrong. OPINION OF THE COURT Saxe, J. The determination of equitable distribution made by the Special Referee and incorporated in the court's judgment is both inequitable and unsupported by the record in numerous respects; in particular, the conclusion that plaintiff had no right to any portion of the marital residence or its appreciation in value was contrary to fundamental principles
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The first issue is often the easiest. In the vast majority of case, marital property is equally divided in New York. New York public policy values the contributions of a wage earner and a homemaker equally in the accumulation of property. Thus, unless there is a compelling fairness argument to be made, a New York Court is not likely to divide property in any other manner. In attempting to negotiate an agreement, most individuals find that a simple agreement to equally divide property is what works.
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Before you sign on the dotted line, make sure you agree with all the financial terms of your divorce agreement. Too many people, just want their divorce to end and they wind up agreeing to terms that they later want to set aside. It is difficult to set aside an agreement unless there was some type of fraud, or the terms are totally unfair....
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Most lawyers know that law degrees, and medical degrees can be valued as part of a divorce in New York State. What many lawyers overlook is attempting to place a value on other forms of enhanced earnings. For that matter, half the judges in New York don't know that a wife or a husband can place a value on any type of enhanced earnings earnied during the marriage...
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In a recent decision, the appellate division in the Fourth Department, reduced an award of equitable distribuition from forty percent to twenty percent of the value of a degree earned during the marriage. It is interesting to read this case for a number of reasons. Foremost, the degree for a physicians assistant was valued at approximately $176,000 dollars and this is a case of a women in her mid to late forties. If she was younger the degree would have been worth more money......
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All property acquired during the course of a marriage is considered marital property. What many people do not realize is any license or degree obtained during the marriage can be valued and divided between the parties. What this mean in non lawyer talk is, " Did your wife or husband go to law school or medical school and earn a degree, it could be worth a small fortune. Did your wife go to school to become a registered nurse or a physicians assistant or get somebody get an MBA or become a Certified Finanial Planner, these degrees could have signigicant value. The Fourth Department recently awarded.......
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Many times individuals enter marriage with their own separate property. The Divorce laws in New York allow for indivuals getting divorced to keep their separate property. However, it is difficult in long term marriages to determine it certain property is truly separate. Divorce litigants are required to trace their assets. A recent case in the third department is very informative. I suggest you read it.....
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I cannot tell you how many times a client or potential client comes to my office and says they are entitled to more than half of all of the assets. Sometimes a client will tell me that they want to give thier spouse nothing. I tell them......
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