Published on:

Husband Seeks Equitable Distribution in Divorce Case

 

In this family case, the husband wishes to preserve his priority in time, perhaps for commencement date purposes under equitable distribution and the cause of action he has asserted, and that right should not be denied. Similarly, the wife wishes to proceed on her cause of action, either in the event the husband fails on his or, perhaps, under the concept of a dual divorce. Moreover, she may seek to pursue pendente lite relief under the new statutory guidelines which will only be available to her in Action # 2, commenced after October 12, 2010. A party is not obligated to counter-claim in Action #1 just because the husband has previously commenced such an action against her. Instead, the wife may assert an independent cause of action in a separate suit (Action # 2) that will not be subject to dismissal on the ground that “there is another action pending between the same parties for the same cause of action” (CPLR § 3211[a][4] ), as long as the relief requested is different from that requested in Action # 1.

In Action # 2, the wife now moves to partake in the benefits of the new matrimonial legislation and seeks, inter alia, pendente lite maintenance and counsel fees as well as partial summary judgment on grounds (DRL § 170[7] ) under the new law. She also seeks pendente lite child support, educational expenses and related relief, as well as payment of all the carrying charges for the parties home, her automobile. medical, dental and life insurance and unreimbursed medical expenses. The court notes that the instant motions were fully submitted on the date of the Preliminary Conference, January 12, 2011, at which time the husband consented to pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner’s insurance and to maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers.

The parties were married on October 4, 1992. The wife is 48 and the husband is 52 years old. The parties have three (3) children. The parties and the children reside together in the marital residence, located at Cedarhurst, New York, purchased on May 11, 2000 for $945,000.00. There is no outstanding mortgage on the residence. Title to the premises is in the name of the husband and the wife.

The wife has a masters degree in journalism, attained in 1990 and is presently a homemaker. The husband is a physician and earned his medical degree in 1983. He has monthly gross W–2 income of $15, 833.00, and is employed by A.A. of W., PC.

A preliminary conference was held on January 12, 2011. Pursuant to the so-ordered preliminary conference stipulation, the parties agreed that the husband would pay the carrying charges on the marital residence pendente lite, including utilities, real estate taxes and homeowner’s insurance and would maintain health insurance for the entire family and pay uncovered health expenses, provided the wife uses in network providers. Additionally, it was agreed that the husband would maintain the existing life insurance policy with a $500,000.00 death benefit.

The wife paid a retainer of $15,000.00 with funds claimed to be pre-marital. The husband paid a retainer of $11,000.00 with funds from marital savings.

In support of the remaining issues, the wife now alleges as follows: that it is imperative that the court grant her immediate financial relief because the husband, a highly successful anesthesiologist with annual income exceeding $500,000.00, refuses to provide sufficient direct support to her leaving her without sufficient funds to meet her and the children’s reasonable needs; that, while she has certain separate property assets, she should not be compelled to deplete these assets to provide for the family’s daily expenses; that the husband seeks to strangle her financially and she has been forced to use credit cards and has accumulated significant debt; that throughout the marriage the husband has earned substantial income as reported on the parties’ joint federal income tax return that prior to the marriage, and for a short time thereafter, the wife worked in a travel agency owned by her family; that after the birth of the parties’ first child, the parties agreed that the wife would not work and she has been out of the workforce for approximately ten (10) years; that she is almost solely responsible for the care of the three (3) children and relies on the husband for her and the children’s support; that, throughout the marriage, the parties have lived a comfortable upper-middle class, if not affluent lifestyle, which included a $960,000.00 home in Great Neck, New York, with no mortgage, annual family vacations, dining out in expensive restaurants and live in domestic help; that the wife’s net worth statement accurately reflects monthly expenses of almost $26,000.00; that the husband regularly deposited funds into the parties joint checking account which the wife utilized to pay the household bills and family expenses, that the wife also had unfettered use of credit cards which the husband paid in full each month; that, since the commencement of the litigation, the husband has stopped depositing funds into the parties’ joint account and has refused to pay the balance on her credit card bills; that, because of the husband’s failure to provide necessary support, the wife has relied on her credit cards to meet everyday expenses and has accrued $20,000.00 in debt, the limit of her credit; that the newly enacted provisions of the DRL directs a formula for calculating the presumptively correct amount of temporary maintenance which, based on the parties respective income from all sources (the husband’s income capped at $500,000.00 and the wife’s dividend income of $8,516.00), amounts to $148, 297.00 per annum; that the CSSA provides a formula for the calculation of child support and, utilizing the husband’s income of $529,857.00 and deducting the maintenance sum of $148,297.00, amounts to income of $381,560.00 for the purpose of calculating child support, X 29% for three (3) children results in a child support obligation of $110,652.40 per year, or $9,221.00 per month; that the wife claims that such an award is necessary to meet the needs of the children based on the standard of living of the parties; that, although the husband is paying some of the carrying charges for the marital residence, he has refused to provide necessary funds for certain repairs at the marital residence, particularly an outstanding balance of $7,650.00 owed to a painting contractor and he should be directed to pay same, that the husband has recently indicated his unwillingness to continue to pay for the children’s Hebrew school and he should be directed too pay for all of the children’s educational expenses including Hebrew school and tutoring for all three (3) children; together with all extracurricular activities, tennis, karate, summer camp and summer activities; that the wife drives a 2008 Mercedes Benz R–350 and all expenses for said vehicle have always been paid by the husband and he should be directed to continue same; that the wife has paid her attorney an initial retainer of $15,000.00 from her separate property funds which are limited; that the husband has income of at least $550,000.00 per year and has millions of dollars of liquid assets under his control, that the wife does not have the financial ability to pay her attorneys and an award of counsel fees is warranted to enable her to prosecute the action.

As to summary judgment, the husband argues that, because his action for divorce is first in time, he would be entitled to a grounds trial first; that, in the event the husband does not succeed, then the wife’s motion for summary judgment could be heard, counsel for the husband suggests that the motion for summary judgment is premature and must be held in abeyance; counsel states that, if the husband prevails on grounds, then the pre-October 12, 2010 laws will govern any final award of maintenance; that if the husband is unsuccessful on grounds, then the wife’s motion for summary judgment can be renewed.

Marriage is the state’s recognition and approval of a man and a woman’s voluntary choice to live with each other, to remain committed to one another and to form a household based upon their own feelings about one another. It has often been said that marriage is a partnership. There can be no such thing as an indissoluble partnership. Indeed, it has been held that the decision that a marriage is irretrievably broken need not be based on any objectifiable fact. It is sufficient that one or both of the parties subjectively decide that their marriage is over and there is no hope for reconciliation.

In other words, a plaintiff’s self-serving declaration about his or her state of mind is all that is required for the dissolution of a marriage on grounds that it is irretrievably broken. As stated in our statute, a no-fault divorce may be granted “provided that one party has so stated under oath” that the, marriage is irretrievably broken. In adopting no-fault divorce, the Legislature implicitly recognized that the parties to a marriage should be able to make personal and unavoidably subjective decisions about the continuation of their marriage partnership.

In this court’s view, the Legislature did not intend nor is there a defense to DRL § 170(7). Suggestions that the party wishing to stay married has a constitutional right that is being infringed upon in violation of due process is unavailing. Staying married, against the wishes of the other adult who states under oath that the marriage is irretrievably broken, is not a vested right. “Marital rights have always been treated as inchoate or contingent and may be taken away by legislation before they vest”

Nor is there substance to the further contention that the statute unconstitutionally impairs contract rights. Marriage ins not a contract … within the meaning of the provision of the Federal Constitution which prohibits the impairment by the States of the obligation of contracts This being so, rights growing out of the [marriage] relationship may be modified or abolished by the Legislature without violating the provisions of the Federal of State Constitution which forbid the taking of life, liberty or property without due process of law.

While this court would ordinarily grant partial summary judgment to movant, where there are no defenses and no triable issues of fact, the new legislation directs that “no judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts; fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce”.

The husband’s cross-motion for a parenting access schedule is granted to the extent that he shall have exclusive parenting time with the children on Tuesday and Thursday evenings from 7:30 p.m. to 10:30 p.m. and the first three (3) Sundays of each month from 10:00 a.m. to 6:00 p.m. The wife is therefore granted one full weekend with the children on the last weekend of each month. The husband shall facilitate whatever activities are planned for the children and make sure that they complete their homework and get to bed at a reasonable hour. In the event the parties are unable to resolve interim parental access, they can be referred to parental access mediation. The father’s request that the wife deposit the children’s passports with the court is denied, however, neither party shall remove the children from the state of New York without the written consent of the other or the prior approval of the court.

Marital disputes which can no longer be resolved by mere communication between spouses can be resolved by means of filing of a divorce petition. Here in Stephen Bilkis and Associates, our attorneys will draft such petition and will file the same in Court. Come in and speak to one of our lawyers for advice and a free consultation.

Contact Information