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Court Grants Divorce Based on Constructive Abandonment


A couple was married in Albania. The couple had five children and all of the children are free from restraint. The children are ages are thirteen, eight, seven, five and four. A New York Family Lawyer said the four youngest children reside with the mother at a shelter in a confidential address, while the eldest child resides with the father at the marital residence, a rented apartment in New York. The couple is both in good health. An Albanian interpreter was provided for the wife throughout the litigation since she does not speak English. Although the husband testified in English during the child custody and visitation trial, he requested the use of an interpreter for the financial trial. The husband’s former attorney was relieved as counsel for the husband shortly after the child custody and visitation decision was rendered. The counsel was substituted.

During the marriage, the husband worked in the construction industry which enabled him to financially support the family and send funds to Albania. A Nassau County Family Lawyer said the wife is as a stay-at-home mother as established during the child custody trial. The couple and their children traveled to Albania. The husband returned to the United States after two weeks, however, the wife and children were left in Albania at the parents’ house of the husband for two years. The wife and youngest child left the husband’s parents’ home and went to live with the wife’s family in a nearby village over the objections of the husband and his family while the four eldest children remained with the husband’s parents. Thereafter, the marriage fractured and the husband returned to Albania to bring the four eldest children back to the United States. The wife and youngest child returned to the United States and moved directly into a domestic violence shelter, where the wife and the four youngest children resided. The events of the couple’s life in Albania and their return to New York are the subject of the court’s extensive child custody and visitation decision.

The husband testified to grounds for divorce. He testified that his wife ceased having sexual relations with him. The abandonment took place at the marital residence in New York. The husband further testified that he has requested that the wife resume sexual relations with him. He testified that the wife had no cause or justification for her actions and that there are no physical impairments to him having sexual relations with the wife. He did not condone or consent to her actions. A Nassau County Child Support Lawyer said the parties were married in a civil ceremony therefore there is no barrier to remarry. The wife remained silent, neither admitting nor denying the husband’s testimony. The court reserved its judgment pending the resolution of the supplementary issues.

Records revealed that in accordance to the decision after trial, the wife was awarded custody of the five children. The court temporarily stayed the transfer of the eldest child. Presently, the court is hearing multiple applications for modification by each of the couple on the issues.

The husband’s employment history prior to the marriage is not stated in the record. During the marriage, the parties’ sole source of income was the husband’s employment in the construction industry. The husband filed tax returns as married filing separately for the years 2006 and 2007. At the time the trial testimony concluded, he had yet to file a tax return for the year 2008. However, it is undisputed that the husband used funds from his business to pay for many, if not all, family and personal expenses during the marriage.

In 2002, he incorporated his construction company. The husband claims that he held only a 25% ownership interest in the corporation from its formation, for which he contributed $10,000.00 of initial capital. He further testified that his friend and business partner held a 75% ownership interest, for which he contributed $40,000.00. The wife claims that the husband has always been the sole owner of the corporation and that he made an initial capital investment of $40,000.00 to the corporation.

The husband also claims that during the pendency of the action, he forfeited his 25% equity interest in the corporation to his business partner as a result of his mounting indebtedness to the company attributable to his personal use of corporate funds. The husband’s updated affidavit of net worth states that the husband is unemployed since October 2008. In his testimony, the husband stated that he has been collecting unemployment benefits each week since January 1, 2009.

The wife has no means of income. Throughout the duration of the marriage, she has been a stay at home mother. She and the four younger children are residents at a shelter with a confidential address. The wife refutes the husband’s testimony regarding the corporation company. She avers that the husband is, and has always been, the sole owner of the business and he continues to own and operate it. The wife contends that the husband is under reporting his income and ownership interest in his business.

The husband is 44 years of age and the wife is 37 years of age. The wife seeks maintenance in the amount of $75.00 per week for a period of at least nine years. The husband contends that the wife is not entitled to any maintenance award. However, the husband requests that any maintenance awarded terminate after 12 months or sooner if allowable under the Domestic Relations Law.

The parties are married for over 17 years, and the wife was and continues to be a stay-at-home parent. She has no work experience outside of the home. Her formal education is limited to a high school diploma attained in Albania. She speaks Albanian and very limited English. The husband’s education is similarly limited to eight years of primary school education in Albania. However, the husband has substantial work experience in the construction industry, as a laborer, supervisor and owner. Additionally, the husband has substantial business experience from the formation, ownership, and operation of his construction business from 2002 through at least 2008. During the marriage, the husband was the sole wage earner and managed all of the family’s financial affairs.

As a requirement of receiving the public assistance benefits, the wife is also engaging in English as a Second Language classes and workfare assignments while serving as the primary care-giver to the four youngest of the five marital children. Additionally, the wife asks the court to consider its finding in the child custody trial decision that the wife was the victim of physical abuse by the husband during the marriage in its determination of maintenance under Domestic Relations Law.

The husband avers that the factors set forth in Domestic Relations Law do not support a maintenance award. The husband contends that the wife should be able to earn based on minimum wage, an amount which husband claims is sufficient to meet the wife’s reasonable needs and exceeds her share of the husband’s purported version of his annual income. The husband also contends that they cohabitated for only four of the 12 years of marriage. The husband further contends that the wife made no contribution to his career by caring for the marital home and children while he worked in the construction industry because his business office was in the marital home, enabling him to be with the family most of the time as a work from home dad.

The wife requests an award of child support for the unemancipated children calculated in accordance to the Child Support Standard Guidelines. The husband requests that the court consider that the eldest child is currently living with the husband and that the husband has lost his ownership interest in corporation, as well as the many subsidies of his living expenses which the company previously paid. Neither party addressed the issue of retroactive support. However, the husband conceded at trial that he has made no child support payments since February 1, 2009.

Domestic Relations Law defines marital property as all property acquired by either or both spouses during the marriage and before the commencement of a matrimonial action, regardless of the form in which title is held. Separate property, on the other hand, is defined, in part, as property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse. It must also be recognized, however, that the term marital property is to be broadly construed, while the phrase separate property is to be narrowly construed. Separate property, an exception to marital property, is to be narrowly construed. Hence, the law favors the inclusion of property within the marital estate and, accordingly, the party seeking to establish that a particular item is indeed separate property bears the burden of proof. When a party commingles separate funds with marital funds and assets, it is that party’s burden to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property. Furthermore, the Court of Appeals has recently ruled that during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

Judgment of divorce is granted to the husband on the grounds of constructive abandonment. Child custody is awarded to the mother in accordance with the decision of the court, and the interlocutory judgment, subject to the modification applications that are subject to the hearing presently before the court. Equitable distribution shall be effectuated and the payment of maintenance and child support as is directed in the trial decision. The Family Court shall have concurrent jurisdiction with regard to maintenance, child support, child custody and visitation. The children are recipients of Child Health Plus and there was no testimony as to unreimbursed expenses. The wife shall have the right to continue to use her maiden name if she so chooses.

The court reiterates that in accordance to the Domestic Relations Law, both parties are on notice that once the judgment is signed, a party may or may not be eligible to be covered under the other party’s health insurance plan, depending on the terms of the plan. In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance, or otherwise may be required to secure their own health insurance.

Although the husband’s testimony reflects monies taken from the corporation for his personal use and reiterates his indebtedness to the corporation, he fails to substantiate the existence of the loans with any documents, checks, notes or any other writings. The court finds that the husband’s testimony is not credible. Although the court finds that the manner in which the wife herein was treated throughout the marriage is appalling, the court finds that the facts and circumstances do not rise to the level of severe and egregious conduct to warrant this court to invoke its equitable power in accordance with Domestic Relations Law. The facts of the case do not rise to the level of a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse that will require the court to consider whether to adjust the equitable distribution of the assets.

In consideration of the wife’s contributions and efforts for the family all the facts recited, the court awards the wife 33.33% as her equitable share of the husband’s share of the value of the corporation which is $50,000.00 as a distributive award. The monies in the couple’s bank accounts at the time of the commencement of the action shall be divided equally.

When couple decides to part ways, it is both their obligation to make sure that their children are well taken cared off. If you are in need of counsels to represent you in your family related disputes, be sure to consult a NY Divorce Attorney. After a divorce action, you would need the services of a New York Child Custody Lawyer. Whether you are going through a divorce, need an Order for Protection, or have a custody issue, contact Stephen Bilkis and Associates for help.

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