Articles Posted in Divorce

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In this case the Supreme Court considered whether the terms of a separation agreement prepared by a non-attorney mediator were unconscionable and as a result should be voided.

A separation agreement is a document agreed to by a husband and wife in which they agree to the conditions related to how they are going to live separately, such as property division, spousal maintenance, child custody, and child support.  While a separation agreement is not always a precursor to a divorce, it can be.  In fact, when filing for a divorce in New York, you must state the grounds for the action.  One of the possible grounds is that the couple has been separated pursuant to a separation agreement.  According to Dom. Rel. Law §170 (6), if a couple signed and notarized a separation agreement, are not living together, and have abided by the terms of the agreement, then they would have grounds for divorce.

In this case Irizarry v Hayes, the couple married in 2008 and had one child.  A prenuptial agreement was drafted.  Both parties were aware of its terms and agreed to them, but only the husband signed it.  As a result, the prenuptial agreement was not enforceable.  Several years later the couple experienced problems. After meeting with a mediator, the couple signed a separation agreement in 2016.  In the agreement they acknowledged that they were encouraged to seek the advice of independent counsel, that they had the opportunity to seek independent counsel and financial advisors to review the agreement, and that by signing it they agreed to file an uncontested divorce action. The husband then filed an action for an uncontested divorce, and in her answer the wife consented to the uncontested divorce.  The wife also stated in the answer that she “waives her right to any additional equitable distribution of marital property insomuch as all properties ever jointly owed, shared or enjoyed, have been distributed between the parties voluntarily prior to the commencement of the action by and through their Separation and Property Settlement Agreement.”  The couple received a judgement of divorce.

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In Katz v. Katz, the Appellate Division considered whether a father’s obligation to pay child support could be suspended because the mother interfered with his visitation.

The general rule is that under New York law a noncustodial parent’s access to a child and his or her obligation to pay child support are separate issues.  The court can require a parent to pay child support and also deny the parent visitation.  If a custodial parent refuses to allow the noncustodial parent access to the child, the noncustodial parent should petition the court for custody or visitation.  If there is a custody or visitation order in place and the custodial parent does not allow the noncustodial parent access to the child as required by the order, then the custodial parent is violating a court order.  The aggrieved parent should take up the matter with Family Court.  The remedy is not for the noncustodial parent to simply withhold child support. If the custodial parent is willfully interfering with visitation, upon petition the court may suspend or even cancel the noncustodial parent’s obligation to pay child support.

In Katz v. Katz, upon the couple’s divorce, the mother was awarded physical custody of the couple’s children.  The father was awarded visitation.  The father was also ordered to pay child support in the amount of $10,000 per month.  The father petitioned the court to suspend his obligation to pay child support because the mother was not permitting him to have access to the children as required by the custody order. He also requested a recoupment of the child support that he had already paid.  In support of his petition the father alleged multiple incidents in which the mother interfered with his parenting time and denied him telephone contact with the children.  The mother responded by filing a motion to dismiss.

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T v T

In this case, the family court determined that the Respondent violated two temporary Orders for Protection. It was found that the court acted properly in entering an order for protection after these findings.

The Petitioner filed an offense petition against the Respondent, She received a temporary Order for Protection. While that order was pending, the court found that the Respondent had violations on two temporary orders. The court dismissed the family offense order but sustained the violation of the petitions and issued a one year order for protection. The Court of Appeals affirmed.

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2017 NY Slip Op 06470

September 13, 2017

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NY Slip Op 05760

July 19, 2017

Decision

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2017 NY Slip Op 02623

April 5, 2017

Decision

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This case involves the enforcement of a sister-state divorce judgment, with respect to arrears in alimony and support payments, pursuant to the ‘Uniform Enforcement of Foreign Judgments Act’ (article 54 of the CPLR) brought before the Supreme Court, Special Term.

Sometime in Junuary 1973, the plaintiff-wife commenced an action for divorce in the Superior Court of the State of Connecticut where she was then living and has continued to reside with her two minor children. On 16 April 1973, while the action was pending, the parties executed a separation agreement – semimonthly payments to the plaintiff for alimony and child support, among others. Thereafter, the plaintiff was granted a judgment of absolute divorce by the Connecticut court, specifically incorporating the terms of the separation agreement, the agreement surviving and not merging into the decree.

Defendant resided in Manhattan when the separation agreement was executed, and in Brooklyn when the divorce judgment was granted. There is no question of the defendant appearing in and being represented by counsel in the divorce action. Defendant currently lives in Brooklyn and is a practicing veterinarian.

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2017 NY Slip 00148

January 11, 2017

Order

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