When custody or child visitation issues occur between separated or divorced parents, one or both parents sometimes seek to curry favor with the child or children. The parent takes this action either to ensure that he or she will receive custody or receive child support payments. In addition to currying favor with the child, some parents seek to undermine the relationship between the child and the other parent. When the child develops a strong resistance or rejection of a parent, that is disproportionate to that parent’s behavior, and this undermines that parent’s relationship with the child, this is referred to as parental alienation syndrome(PAS).

In a Canadian study conducted between 1989 and 2008 involving claims of parental alienation, there were allegations that parental alienation syndrome was present in 175 cases. The study showed that in 106 out of 175 cases, the courts found that there was parental alienation present. In 60% of the cases the mother was the parent involved in alienating the child from the father. In 31% of the cases the father was the parent involved in alienating the child against the mother. The study found that although there were gender differences involved in the alienation of children, mothers were more likely to make unsubstantiated claims of alienation against fathers. The study also found that alienation is most commonly perpetuated by the custodial parent against the noncustodial parent.

In the Canadian study the most common judicial remedy of dealing with parental alienation was to modify the custody arrangement.

Parental alienation is being recognized by the courts in New York more readily then it has been in the past. There is still a reluctance among many judges to use changing custody as a means of addressing this issue. Parental alienation may have the impact of reducing one parents access to visitation with his or her children. The more significant affect of parental alienation is to deprive a child from having a relationship with two loving parents.

Should you have any questions or issues concerning parental alienation feel free to contact Elliot Schlissel, Esquire at Schlissellawfirm.com or 1-800-344-6431.

On December 24, 2009, Judge Matthew F. Cooper, sitting in th Supreme Court of New York County, rendered a decision on the case of Davis v. Davis, 89 N.Y.S.2d 611, 2009 WL 3863026, 2009 NY Slip Op 08579. Mr. Davis brought an action for a non-contested divorce, claiming his wife constructively abandoned him. This means she had no sex with him for a period of one year. This is the most widely used ground for divorce in the State of New York. The reason this ground is widely used is that New York does not have a true no-fault ground for divorce. It is only state in the United States that still maintains an archaic fault based divorce system.

Constructive Abandonment – No Sex for a Year:

Mr. Davis alleged in his complaint that he had not had sex with his wife for over one year. He submitted an affidavit swearing to the validity of this information.

Unbeknownst to Mr. Davis, Mrs. Davis was pregnant with Mr. Davis’ child. Mr. Davis was successful in obtaining the divorce.

Mrs. Davis had a baby boy named Ethan. Mr. Davis, thereafter, moved for genetic marker testing to prove that he was the father of the child. He wanted a declaration of paternity and the divorce judgment to be modified to indicate he was Ethan’s father.

Mrs. Davis opposed the application by Mr. Davis. In her opposing papers, she indicates that in Mr. Davis’ divorce papers, it contained a signed sworn to affidavit that he hadn’t had sex with her for a period of one year. It, therefore, would be impossible for him to be the father of Ethan. Mrs. Davis also alleged that if Mr. Davis is recanting his sworn statement, he should be prosecuted under the NY Penal Law, §210.10 for perjury.

The Appellate Division, Second Department, in its decision on the appeal, indicated that this was the wrong venue to allege criminal conduct. The court further stated that “the sad truth is that New York’s insistence on fault based divorce ends up promoting a disregard for the truth by fostering and encouraging the embellishment of a spouse’s wrong doing as to grounds …”

The court found that there should a presumption of legitimacy of the child being a child of the marriage because it was in the child’s best interests. The court further stated that it is presumed that Mr. Davis was Ethan’s father by virtue of the fact that he had been married to Ethan’s mother when the child was born. The court stated it was in the child’s best interests that his father’s name appear on his birth certificate and that the father should be able to establish a father-son relationship.

If New York had a true no-fault divorce law with a ground such as “irreconcilable differences” or “incompatibility,” individuals would not be motivated to submit false affidavits in divorce lawsuits for the sole purpose of ending their marriage. Although, New York State in many respects is a very forward thinking state, this is not true when it comes to New York’s divorce laws. The court stated that the “view of marriage is more reflective of the time of the Empire of Queen Victoria than it is of the second decade of the 21st Century”. The failure of New York’s legal system to adopt a divorce law that reflects 21st Century sensibilities willl continue to impugn the integrity of the legal system in the State of New York.

The Law Office of Elliot S. Schlissel has been providing legal services to individuals with marital problems for more than 30 years. Should you have an issue involving your marriage, feel free to call us at 1-800-344-6431 or email us anytime.

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Reports have been circulating the past few days that Tiger Woods has been in negotiation with his wife Elin to “update” the pre-nuptial agreement to induce her to stay in the marriage after news of several of his extra-marital affairs became public.

Originally, the couple’s pre-nuptial agreement, signed in October of 2004, stipulated that Ms. Nordegren would receive a $20m payment from Mr. Woods after 10 years of marriage, which would have been in the year 2014. But with the recent revelations, news sources  have  reported that he has offered her an immediate payment of $5m and an additional $55m if she stays with him until October of 2011. The new agreement would reportedly also given her even another $20m if she stayed longer (totaling $80m). It would have also required her to attend public events with him and allow him to show the world (and his corporate sponsors, who are sticking with him so far) that he and Ms. Nordegren had reconciled completely.

These reports make it (mildly) surprising that she left for Sweden this week, thus potentially forfeiting any payment under either the old pre-nuptial agreement or any new agreement. It would definitely be understandable if she simply felt that no amount of money is worth staying in a miserable marriage. Alternatively, her stay overseas may be temporary and the couple will be getting back together. Not much is known publicly at this point.

It is noteworthy that although most news sources are reporting that the couple were in negotiations to sign a new “pre-nuptial agreement,” that  term is not the correct one. If a couple who is already married signs the equivalent of a pre-nuptial agreement, it is called a “post-nuptial agreement” because the nuptials have already taken place.

You can always contact the office by phone at 800-344-6431 or by e-mail  for questions about pre or post-nuptial agreements, divorce, or any other kind of legal matter.

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britney spears jason alexander marriage annulment annulledIn an effort to bring in blog traffic discuss the laws relating to having a marriage annulled in New York, it is worthwhile to bring up Britney Spears’ petition to annul her marriage signed just hours after her Las Vegas marriage. The couple tied the knot in a Las Vegas chapel Saturday morning, January 3, 2004 at 5 AM. She signed a petition to have the marriage annulled that same day, it was filed Monday morning, and a judge granted the annulment on Tuesday, January 6th. The marriage lasted about 55 hours. Las Vegas Review Journal.

The manager of Nevada Divorce and Paralegal Services said that an annulment makes it “like [the marriage] never happened in the first place.” This is not the case in New York. Here, under NY Domestic Relations Law § 7, the marriage is only void “from the time its nullity is declared by  a  court  of  competent  jurisdiction,” meaning that the marriage was legally valid from the time it began until the court declares it null and void.

A judge may annul a marriage, even where the parties have children (see §§ 7 & 24), when either one of the parties meets any one of the following criteria:

  1. If a party is under age 18, then the judge may annul the marriage at his/her discretion, taking into account all of the facts and circumstances.
  2. If either party is mentally incapable of consenting to a marriage because he or she is unable to understand the consequences and significance of a marriage.
  3. If either party is physically and permanently incapable of entering into a marriage (i.e. having sexual relations). Sterility does not count.
  4. The marriage occurred through force, duress, or fraud. Fraud may be shown where one party conceals or misrepresents some fact so material to the essence of the marriage that the other party would not have entered the marriage had it known about that fact.
  5. One party has been mentally ill for five years or more before the marriage.

Britney Spears declared that the basis for her application for annulment was NRS 125.330, which allows annulment “for want of understanding.” This statute is worded very similar to New York’s, which allows annulment when “either of the parties to a marriage for want of understanding shall be incapable of assenting thereto.” New York’s law is almost the same allowing annulment when a party is “incapable of consenting to a marriage for want of understanding.” But Britney Spears said she  was “incapable” of agreeing to the marriage because she and her new husband “did not know each others likes and dislikes, each others desires to have or not have children, and each others desires as to State of residency.”

I don’t think this would work in New York. Incapacity does not mean that one simply doesn’t yet know certain information about the person she is marrying. It means she is actually incapable, due to “mental illness or retardation,”  of knowing what marriage really is, its significance and its consequences. Levine v. Dumbra, 604 N.Y.S.2d 207, 208 (2nd Dept. 1993). While some might claim, tongue in cheek,  that Ms. Spears does suffer from some mental defect, it is doubtful that a court would find that she suffers from any actual mental illness that deprives her of the capacity to understand what marriage is. She may not have known her new husband’s favorite color, but this hardly rises to the level of incapacity to understand the nature of marriage itself.

 If you need assistance with any matrimonial or family law matter, whether it be divorce, separation, child custody, annulment, adoption, or anything else, our office has over 30 years experience in these areas. So please contact our office by e-mail or call 800-344-6431 for help.

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Common Law Marriage Versus Regular Marriage

The majority of states have laws establishing that marriages are only recognized when created with a marriage license and an official marriage ceremony. This is very important because many rights are dependant on the existence of a valid marriage. For instance, only a wife is entitled to an equitable share in the couple’s marital property and only a husband in a valid marriage will  inherit from his wife if she dies without a Last Will and Testament. 

Many situations exist, however, where a couple lives as husband and wife without ever formalizing their relationship with a marriage license and ceremony. This is referred to as a “common law marriage.” The parties will only have marital rights if their common law marriage is valid in one of the few states that still recognize common law marriage. Those states include Pennsylvania, Alabama, Colorado, District of Columbia, Georgia (if created before 1/1/97), Iowa, Kansas, Montana, New Hampshire (for probate purposes), Oklahoma, Rhode Island, South Carolina, Texas, Utah, Ohio, and Florida (if created before 1968). 

New York’s Recognition of Out-of-State Common Law Marriages

Even where a couple lives in a state like New York that has abolished common law marriage, if the marriage is valid in a state that does recognizes common law marriage, then New York would recognize the marriage as well,[1] pursuant to the “full faith and credit” clause of the Constitution. 

For instance, if a common law married couple lived in New York, and merely vacationed briefly in a state like Pennsylvania that does recognize common law marriage, New York State courts may very well recognize that marriage as valid.[2] This is because “Pennsylvania [does] not require that the couple reside within its borders for any specified period of time before their marital status will be recognized.”[3] 

Not only that, but “behavior in New York before and after a New York couple’s visit to a jurisdiction that recognizes common-law marriage, like Pennsylvania, may be considered in determining whether the pair entered into a valid common-law marriage while cohabiting, even briefly, in the other jurisdiction.”[4] Evidence of either actual cohabitation in Pennsylvania (like hotel receipts) or the renewal of the private marriage vows in Pennsylvania would still be required.[5] 

Because New York only recognizes a common law marriage where that marriage is valid under the laws of a state that validates common law marriage, it is important to understand what the elements of a common law marriage are in that state. This will determine what one must prove in order to have the marriage recognized in New York. Using our Pennsylvania law example, there is one primary requirement that must be met to validate a common law marriage. 

Common Law Marriage Under Pennsylvania Law

“A common law marriage can only be created by an exchange of words in the present tense, spoken with the specific purpose that the legal relationship of husband and wife is created by that.”[6] “Present tense” means that there must be evidence that the couple made a verbal commitment to enter a marriage at the time of that verbal statement. This means that making statements affirming or acknowledging a pre-existing marriage status or verbally expressing the intent to get married in the future do not qualify. 

Where one or both of the parties are unable to testify that words were spoken in the present tense to create a marriage status, Pennsylvania law will create a rebuttable presumption that a common law marriage exists when the party alleging the existence of the common law marriage offers “sufficient proof” that the couple was in (1) Constant Cohabitation and a (2) reputation of marriage “which is not partial or divided but is broad and general”[7] 

Interestingly, in September of 2003, the Commonwealth Court of Pennsylvania in its PNC Bank decision purported to abolish all common law marriage going forward, after the date of that case.[8] However, other Pennsylvania courts may not be bound by its decisions,[9] and the Supreme Court of Pennsylvania declined to abolish common law marriage, deferring that decision to the legislature.[10] 

But even assuming that the PNC Bank decision were binding, many common law marriages will still survive. If the facts that gave rise to the common law marriage took place before September 13, 2003, when PNC Bank was decided, the marriage would still be valid.[11] This means that if the couple made their private statements creating the marriage, cohabited in Pennsylvania, and had the general reputation of being married prior to Sept. 13, 2003, then their common law marriage would still be recognized under Pennsylvania law, even if PNC Bank were held to be binding precedent. 

Conclusion

If a couple has (1) made statements to each other to effect their marriage, (2) has lived together continuously (and at least temporarily on vacation in a state like Pennsylvania that recognizes common law marriage), and (3) has held themselves out and has had the reputation generally of being husband and wife, then New York Courts may indeed recognize their marriage as valid for the purpose of equitable distribution in divorce, a spousal share in an estate, and many other purposes. 

As always, these legal issues are complicated, and it is worth noting that our office has extensive experience in matrimonialand estate law. If you need legal representation in general, or if you find yourself in a situation where you may have legal rights under the theory of common law marriage in the divorce or estate contexts, please do not hesitate to contact our office.


[1] See, e.g., In re Steiner, 786 N.Y.S. 2d 83, 84 (N.Y. App. Div. 2nd Dept. 2004); Sears v. Sears, 700 N.Y.S. 2d 626, 627 (N.Y. App. Div. 4th Dept. 1999); Lancaster v. 46 NYL Partners, 651 N.Y.S. 2d 440, 443 (N.Y. App. Div. 2nd Dept. 1996); Tornese v. Tornese, 649 N.Y.S. 2d 177, 178 (N.Y. App. Div. 2nd Dept. 1996).

[2]Tornese at 178.

[3]Carpenter v. Carpenter, 617 N.Y.S. 2d 903, 904  (N.Y. App. Div. 2nd Dept. 1996); In re Landolfi, 727 N.Y.S. 2d 470, 472 (N.Y. App. Div. 2nd Dept. 2001).

[4] Carpenter at id.; In re Landolfi at id.

[5]In re Landolfi at id.

[6]Staudenmayer v. Staudenmayer, 714 A.2d 1016, 1020 (1998).

[7] Id.

[8]PNC Bank Corp. v. Workers’ Compensation Appeal Board, 831 A.2d 1269, 1272 (Commw. Ct. Penn. 2003).

[9]Stackhouse v. Stackhouse, 862 A.2d 102, 104-05 (Pa. Super. Ct. 2004).

[10]Staudenmayer at 1020 (1998).

[11] Id. at 108.

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You may view the video above to get information about Mr. Schlissel’s matrimonial practice in the Five Boroughs of New York City, Nassau and Suffolk counites. Our office has been representing matrimonial clients in New York clients for over 30 years. You can get additional information from our matrimonial law site  and by contacting our office.

divorceAs an office with a large matrimonial/family law practice, we often work with both out-of-state clients, as well as in-state clients whose spouse has moved out of state, where custody of the children is an issue. There are a number of laws in New York relating to whether New York has jurisdiction to handle a couple’s divorce, the child custody issues, or both. This article will outline some of the major jurisdictional hoops parties must jump through in order for New York courts to decide a matrimonial/custody case.

Imagine that a couple lives in New York and they have two elementary school children. The couple has marital trouble for a period of time and the wife and children left New York several months ago to live in her home state of Florida. There are several jurisdictional questions to consider before a New York court could handle all aspects of this case.

First, New York’s Long-Arm statute must give it jurisdiction over the out-of-state spouse. CPLR §  302(b) gives New York jurisdiction over a spouse that has moved out of New York when the spouse that is starting the action is domiciled in or is a resident of New York when he starts the case, as long as New York was the “matrimonial domicile” of the couple before they separated.

Next, for New York to have jurisdiction over any matrimonial action,  Domestic Relations Law (“DRL”) § 230 (2) must apply. This statute, in part, requires that the parties must have resided in New York as husband and wife and that either spouse is a resident of the state for at least one year leading up to the commencement of the divorce proceedings.

But even if one is able to have a matrimonial case heard by a New York court, that fact alone does not necessarily mean that the court will have jurisdiction over matters of custody. It is possible that the jurisdictional requirements for the divorce will be met but that the requirements for custody jurisdiction will not be met, and that some other state will have jurisdiction in a custody proceeding. Vanneck v. Vanneck, 404 N.E.2d 1278, 1280, 1282 (1980).

DRL § 76, enacted to conform  to the Uniform Child Custody Jurisdiction Act (“UCCJA”), only grants New York jurisdiction to make initial child custody decisions when (a) New York is the “home state” of the children involved (see § 75-a(7) for definition) in the six months preceeding the legal proceeding.. Additionally, (b) no other state must have custody jurisdiction according to the definition in (a) above, or, if it does, that it must have declined jurisdiction on the grounds that New York would be a more appropriate forum.

Situations exist where a matrimonial/custody case would be bifurcated, with, for example, the New York Supreme Court handling the divorce and property distribution aspects of the case and Florida courts deciding matters of custody. As one judge put it, such cases “turn[] on the connection between divorce jurisdiction and custody jurisdiction.  At one time the two may have been inseparable; but the P.K.P.A. [Parental Kidnapping Prevention Act], in particular, has placed these issues on different jurisdiction terrain.” Foley v. Foley, 170 Misc.2d 87, 89 (Sup. Ct. Monroe Cty 1996).

Although courts will consider whether they have jurisdiction over the divorce and custody sides of a case separately, how that decision affects the best interests of the children involved will be considered. The hardship inherent in different states handling the divorce and custody issues separately will also be factored into a court’s decision about whether to bifurcate the two issues in the case. Vanneck, supra, at 1280.

If a couple finds itself in a situation where one spouse has lived outside of New York with the children for more than six months and the other spouse still lives in New York, it would seem that there are a couple of options. Based on the statutes mentioned above, the state where the children live would normally have jurisdiction over issues of custody and the couple may elect to litigate the divorce there too if that state’s jurisdictional rules would allow that. This would simplify the process by avoiding a split litigation between states and it would avoid forcing the spouses to hire two lawyers each, one for each state. 

Alternatively, the out-of-state spouse may wish to simply consent to New York’s jurisdiction over issues of custody, but this is not so simple because matters of jurisdiction cannot be waived or stipulated to. Koshetz v. Lamberti, 262 A.D.2d 611 (2d Dept. 1999). However, since a court will make jurisdictional determinations based on the particular facts of a case, the parties may stipulate to certain issues of fact, which the court will use as its basis to find that it has custody jurisdiction. Caroline B. v. Thomas A.B., 16 Misc.3d 1128(A) (N.Y. Fam. Ct., 2007).

For example, if it is somewhat ambiguous whether the wife left New York permanently or simply to get some time away from her husband, the couple may stipulate to the fact that her stay out-of-state was a mere “temporary absence” and will not be credited to establishing “home state” status for the child in that other state. See DRL § 75-a(7). The parties may therefore stipulate to facts upon which the court will make a jurisdictional determination, but they may not stipulate to, waive, or consent to jurisdiction where the facts do not warrant it.

The bottom line is that anyone contemplating divorce, especially in less-than-typical factual situations, has many factors to consider before deciding where and how to proceed. As always, if you need assistance in any matrimonial, custody, child-support, paternity or visitation matter, you are invited to contact our office.

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