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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In addition to his wide-ranging experience in most major areas of law in general, and his extensive experience in Matrimonial and Family law  in particular, Mr. Schlissel has a particular expertise representing fathers in child custody matters.

Feel free to browse his Father’s Rights website for more information about that, or contact the office directly.

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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muslim-weddingProf. Howard M. Friedman, at the Religion Clause blog, has posted another very interesting case relating to New York Domestic Relations Law.

He reported on the case of Matter of Farraj, decided by the Surrogate’s Court in Kings County last week. In that case, Rabaa M. Hanash, the decedent Daoud Farraj’s wife, petitioned the court for an accounting of her husband’s estate. An adult child of the decedent, Saed Farraj, claimed that Rabaa had no standing to compel the accounting because she was not legally married to the decedent.

He claimed that this was the case because the couple did not obtain a marriage licence and were married in a Muslim ceremony in New Jersey, though they actually lived in New York. And according to New Jersey law (N.J. Stat. § 37:1-10) a marriage is absolutely void  if a the couple fails to obtain a marriage license before the ceremony. He argued, therefore, that Daoud and Rabaa’s marriage was void and that consequently, Rabaa was not a spouse with standing to petition to compel an accounting in her husband’s estate.

The Surrogate held that the validity of the marriage in question is governed by New York law,  and not New Jersey law, because the parties maintained their domicile in New York. Under New York law, marriages performed in religious ceremonies are recognized as valid even if no marriage license is obtained. The marriage between Radaa and Daoud was therefore valid under the governing New York law, so the court held that Radaa had standing to petition for an accounting in her husband’s estate proceeding.

I would like to consider the a slight variation on these facts though, to show that even though New Jersey law invalidates marriage ceremonies performed without a license, a New Jersey court would still validate the marriage in this case.

Normally, a New Jersey court would only have jurisdiction over an estate proceeding in the above-mentioned facts, if the parties’ primary domicile was in NJ. And if they had jurisdiction, they would have invalidated the marriage because the marriage ceremony took place without a license. But let’s say the couple had a vacation home in New Jersey and therefore had to do an ancillary probate proceeding in New Jersey to dispose of the home. In such a case, their domicile would still be in New York, but a New Jersey probate court would still have jurisdiction in the ancillary probate proceeding for the NJ vacation home.

Under those facts, if someone challenged the wife’s standing, a New Jersey court ought to agree that the couple’s marriage was valid under New York law (where the couple were domiciled) and therefore that the wife has standing as a widow of the decedent. It should further consider the couple’s marriage to be valid under New Jersey law, pursuant to the Constitution’s Full Faith and Credit clause (Article IV, Section 1), which obligates states to recognize  the “public acts, records, and judicial rulings” of other states. 

Because the couple was domiciled in New York, even a NJ court would hold that the marriage was valid under New York law, and by extension, under New Jersey law as well pursuant to the “full faith and credit” clause.

The New Jersey Supreme Court held in Heur v. Heur, 704 A 2d 913, 916 (1998), that “full faith and credit need not be accorded a judgment of another jurisdiction when the court issuing the judgment lacked the jurisdictional prerequisite of domicile.” Under our facts, the couple would have met the jurisdictional prerequisite of domicile in New York, and therefore a New Jersey court considering an ancillary probate proceeding  would apply New York law to determine the validity of Radaa and Daoud’s marriage. (Is it relevant that despite the couple’s domicile in New York, no New York court every officially ruled on the validity of their marriage?)

Thus, I think that were a New Jersey court to have jurisdiction over an ancilary probate proceeding under the facts, as suggested above, it would also recognize the validity of the Muslim ceremony, even without the marriage license, to give the decedent’s wife standing to petition for an accounting.

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father-son-holding-handsAs an office that has a very strong Matrimonial and Family practice, it is with great interest that we read Noeleen Walder’s recent article in the New York Law Journal (“NYLJ,” subscription required). She reported that the current non-modifiable status of § 516 child support agreements for non-marital children, may soon be changing.

Child Support agreements between the parents of children who were born in the context of marriage may be modified without court approval. But child support agreements made between parents of a child born out of wedlock may only be modified by court order, and not by mutual agreement, pursuant to § 516 of  NY’s Family Court Act.

According to the NYLJ, the Appellate Division, First Department, in the unanimous decision in Barbara N. v. James H.N., 4399, invalidated a § 516  non-marital child support agreement.  While not directly ruling on the constitutional question, the panel held that “to the extent that the statute precludes attempts to reverse support agreements for non-marital children, its constitutionality is questionable.”

What is the constitutional question? Child Support compromises are valid without court order for marital children but not for non-marital children. This poses an Equal Protection problem under the 14th Amendment. The panel suggested that  § 516  does not offer equal protection under the law by treating marital children differently from non-marital children.

Based on this and other objections, some state legislators have proposed repealing § 516, and therefore A02578/S2975 is currently before the state Assembly and the Senate Codes Committee.

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lesbian-same-sex-marriageOur office practices a great deal of matrimonial law, so it is with great interest that we read about a Broome County New York Supreme Court justice who  just granted Lauren Wells-Weiss and Shari Weiss (married in Canada) a divorce.  By doing so, it implicitly also recognized the fact that they were initially married, the first time this has happened in the marriage or divorce context in New York.

The New York Surrogate’s Court has already recognized a same-sex marriage performed in Canada for the purpose of an Administration proceeding, as reported on this site in February.

I am frankly not surprised by the recognition of Canadian same-sex marriages for the purpose of granting a divorce.  That issue is not fundamentally different from the one considered by the Surrogate’s Court. And in the recent case of Lewis v. NYS Dept. of Civil Service, 872 NYS 2d 578 (3d Dept 2009), the Appellate Division held that marriages validly performed in another jurisdiction, unless void as a matter of public policy or specifically excluded by New York’s Domestic Relations law, are recognized as valid by New York State as well.

The Court held that New York’s recognition of validly-performed foreign jurisdiction same-sex marriages do not fall into either exception to New York’s general recognition of out-of-state marriages. It pointed out that NY’s Domestic Relations law does not specifically invalidate foreign same-sex marriages. The court also clarified that  New York has only invalidated a few types of marriages based on public policy, including incestuous or  polygamous marriages, and marriages where one party was under the age of consent.

That being the case, it comes as no surprise that a situation has arisen in which a New York court has had to decide whether it may grant a divorce in the case of a Canadian same-sex marriage, a new application of an emerging pattern of foreign same-sex marriage recognition in New York.

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divorce-decreeMany non-custodial parents think that they can get the child tax exemption that they are entitled to (based on I.R.C. § 152(e)2)) pursuant to their divorce decree by simply attaching the divorce decree to their tax return. People try this use the divorce decree in lieu of IRS form 8332 because they are either hesitant or feel unable to have that form filled out and signed by the custodial parent.

Unfortunately, this does not work. As accountant Louis J. Cercone, Jr. points out, even when a non-custodial parent can take a tax exemption pursuant to a divorce decree,  the Internal Revenue Code only permits him (or her) to do so if the custodial parent fills out Form 8332 or signs a letter with the following information contained in it:

  1. The name of the child to which an exemption is released;
  2. The year for which the exemption is released to the non-custodial parent;
  3. A signature, date of signature, & social security number for the custodial parent; and
  4. the name and social security number of the non-custodial parent to whom the exemption is released.

Without either form 8332 or a letter signed by the custodial parent with the aforementioned elements, a non-custodial parent cannot get the exemption he or she is entitled to according to the divorce decree. The divorce decree, which is not signed by the custodial parent, will not suffice.

For any other legal advice on matrimonial or family law issues, please call our office for information.

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kidneysVess Mitev, star reporter at the New York Law Journal, reported on the decision of a Nassau County Court Referee issued this past Tuesday on the Batista v. Batista “Kidney Case.” As has been widely reported, Dr. Batista, a surgeon, donated a kidney to his wife in 2001. Now that they are getting divorced (with the case already dragging on for four years), he sought to have the kidney considered “marital property.”  The result of such a determination would have been that she would either be credited as having already received $1.5m (its purported monetary value) from him, or, in the alternative, that she should return the kidney to him (!).

The parties agreed to have the case decided by a Court Referee. In his ruling in the case, Referee Grob looked to, among other sources, the New York Public Health law, § 4307 which states that it “shall be unlawful for any person to knowingly acquire, receive,  or  otherwise  transfer  for  valuable  consideration  any human organ for use in human transplantation.”

Grob used this rule, along with the New York public policy against equating human organs with commodities to be bought and sold for compensation, as the basis to dissallow testimony regarding the “monetary value” of the kidney that Dr. Batista sought to offer at trial on the issue of the division of marital assets. 

It will be interesting to see whether Batista’s lawyer, showman trial attorney Dominic Barbara, has any other creative arguments up his sleeve for the upcoming matters that still remain to be decided in the case, including division of the martial assets, maintenance, child support, and a contempt action against Dr. Batista for allegedly failing to pay child support.

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