Miller v. McKenna: When NEITHER Parent Deserves Custody

"There's no hope for that kid."  Unfortunately, that is a phrase used amongst divorce and family law professionals, from lawyers to social workers to Attorneys for the Child.  It means that there is such bitter and selfish infighting between the parents that the child is going to grow up in a custody maelstrom.

Having read the decision from the New York Court of Appeals and the New York Times article, about the child of U.S. Olympic skiier Bode Miller and U.S. Marine and firefighter Sara McKenna, I can only say:  unless these parents change their behavior in a drastic way, I don't have high hopes for the stability which will be provided for this child.  He was the subject of a major Court of Appeals decision (NY's highest court) when he was in utero.  The parents can't decide what his name should be.  The father and his new wife (he and McKenna never married) parade the child around on the social media like he's Boo the Pomeranian.

I don't think either parent deserves custody and I hope there are grandparents or siblings in the picture who can step in and provide some stability for the child.

The New York Times' headline about this case was "Custody Battle Raises Questions about the Rights of Women."  Does it?  Or does it raise questions about whether there are cases where two people are so selfish that neither one of them should be parenting this child.  The two had been living in California and McKenna moved to New York, while 7 months pregnant, to start school at Columbia on the G.I. Bill.  Miller started a family court action and the Court held that McKenna had improperly moved with her fetus to New York.  A California court granted custody of the fetus to the father, setting off a whole chain reaction as to what this means for women's rights.

Meanwhile, the baby was born into a Family Court action which recently went up to our highest State Court.  On November 14th, the Court of Appeals held that McKenna's rights had been violated and that "putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty."

What about the child's rights?  After all, if a child is born addicted to drugs, Social Services will step in and remove the child for his/her own protection.  Trust me, Family Court petitions can be as harmful to a child's health as drug addiction, maybe even more so.  At least there is rehab for drugs, there is no rehab for Family Court litigation.  And people get as addicted to Family Court litigation as they do to drugs.  They just can't stop themselves.

The Court also ruled that New York had jurisdiction, so now there will be a custody hearing about change of custody, in Family Court for this 9-month-old child.  Shame on the parents, shame on the lawyers, shame on everyone involved.  I hate to say it but, unless there is a sea change with both parents:  there is no hope for this kid, and in Mrs. Lo's opinion, NEITHER parent deserves custody.

Juliana LoBiondo
www.LoBiondolaw.com

PROMISES, PROMISES ... Why You have to be Married to get Divorce Relief

One of the main legal benefits of marriage is the protection afforded to a spouse should the marriage end either because of death or divorce.

Without a Will, an unmarried person has no rights in the Estate of another person.  Not so for a married person. Even with no Will in place (absent a valid prenuptial agreement), a Widow or Widower will take 1/3 of the Decedent's testamentary estate.

If a marriage ends by divorce, a Spouse will receive an equitable share of the marital estate, and has the potential for alimony.  However, without the benefit of marriage, Courts will not enforce "equitable distribution" on a breakup, even if there is a writing and payments made based on the writing.  Public policy in New York State is to encourage marriage, as was made clear in a recent case, which Mrs. Lo likes to call "Promises, Promises."

The case is out of Rockland County, where Acting Supreme Court Justice Alfieri ruled in favor of the Plaintiff (we'll call him BF), who had promised to pay his "special friend" (GF) $500,000.00 after "relationship" ended.

The Court ruled that the writing in question was not a valid contract, and also ordered the GF to pay the BF's attorney's fees.  In the ultimate slap in the face, the Court ordered the GF's lawyer to pay $2,500.00 in Sanctions for bringing on a frivolous claim.  

The BF had written a letter to GF, apologizing for hurting her and promising to pay her $500,000.00 in the future, according to the Decision, Wu v. Xu, 031636/2013.  BF actually made two payments totaling $47,020.00 to GF.  Then he went to see a lawyer and things changed.

He brought a lawsuit to declare the letter to be null and void, and not enforceable since they were never married.  GF then hired a lawyer to enforce the writing.  

The Court cited a 1906 New York Court of Appeals decision: Platt v. Elias, which stated:  

"Generally, contracts tending to impair familial relationships are found to be against public policy," 

Justice Alfieri's 2013 decision stated: "Although the August 2012 letter is not an express agreement to marry or to encourage a divorce, it does involve the institution of marriage and the well-being of the familiar relationship of Plaintiff and his wife to the extent that this Court finds is against public policy ... as such," Alfieri added, "the Court finds that the letter is not a valid, enforceable contract."  This is especially true where the BF was already married.

Thus, written in between the lines of the deicison is the fact that the Court is protecting the Wife of the BF and preserving the marital estate.  BF is married with a grown child and GF is single.  GF said BF had promised that he would divorce his wife, leave his family and marry her.

BF was not seeking to get back the $47K he had already paid GF, just to get out of having to pay another $450K.   

Incidentally, that 1906 case was the source of a great scandal back in the day.  In that case, BF was a millionaire glass manufacturer.  He sued to have his GF, Hannah Elias, repay him the $685,385.00 he said he spent on her between 1896 and 1904. BF, age 86 in 1906, claimed Elias had threatened extortion or blackmail by revealing their long-time affair unless he continued to maintain her affluent lifestyle.  Did I mention BF was married and Hannah was African American?  Hence, the scandal in 1906.

Thus, the title of the blog, "Promises, Promises" could alternately be "Take the Money and Run."  In any event, no marriage, no divorce protection.

Juliana LoBiondo

www.LoBiondoLaw.com

October is Domestic Violence Awareness Month: What Everyone Should Know

October is Domestic Violence Awareness Month.  New York State defines Domestic Violence as a pattern of coercive tactics, which can include physical, psychological, sexual, economic and emotional abuse, perpetrated by one person against an adult intimate partner, with the goal of establishing and maintaining power and control over the victim.

Did you know:

• One in every four women will experience domestic violence in her lifetime.
• An estimated 1.3 million women are victims of physical assault by an intimate partner each year.
• 85% of domestic violence victims are women.
• Historically, females have been most often victimized by someone they knew.
• Females who are 20-24 years of age are at the greatest risk of nonfatal intimate partner violence.
  
• Most cases of domestic violence are never reported to the police.

Source: National Coalition Against Domestic Violence.

Did you know that children who witness domestic violence:

• are the most at risk of transmitting violent behavior from one generation to the next.
• Boys who witness domestic violence are twice as likely to abuse their own partners and children when they become adults.
• 30% to 60% of perpetrators of intimate partner violence also abuse children in the household   

While the justice and family court system are far from perfect, New York State laws are designed to help victims of domestic violence.  Victims may seek an order of protection on behalf of themselves/ and or their children from either Family Court, or the criminal court, or both.  Resources are available in English and Spanish as well as other languages from New York State.  The law has been amended to include people in domestic partnerships and intimate relationships.

It is now mandatory that a judge hearing a custody case take into consideration any prior adjudication or finding of domestic violence in a determination of custody and visitation.

Most importantly, if you see something, say something.  Here are some resources in New York State.  Remember, you are not alone:

• Order of Protection:
  FAQ's| HelpCentersCourtHelp
• New! NYS Address Confidentiality Program
• NYS Office for the Prevention of Domestic Violence (OPDV)
• NYS Coalition Against Domestic Violence (CADV) 
  (maintains list of available resources by county)
• National Office on Violence Against Women
• NYC Gay and Lesbian Anti-Violence Project 
  212-714-1141 (24-hour English and Spanish Hotline)
• NYS Domestic and Sexual Violence Hotline Numbers
  English: 1-800-942-6906
  TTY: 1-800-818-0656 
  Spanish: 1-800-942-6908
  TTY: 1-800-780-7660
  In NYC: 1-800-621-HOPE (4673) or dial 311
  TTY: 1-866-604-5350

Juliana LoBiondo
www.LoBiondoLaw.com

Why Divorce Lawyers Should Encourage Mediation

The esteemed Appellate Division Justice, the Honorable David B. Saxe, wrote an article for the New York Law Journal in 2011 entitled, "Encourage Divorce Clients to Mediate."  As someone who is both a Mediator and a Divorce/Family Law Attorney with 23 years experience, I could not agree more.  Of course, not everyone is a "mediation candidate."  I have always said that Mediation works best where there is a level playing field, so to speak.  Where one spouse greatly "overpowers" the other spouse, beats their chest and won't let the other person get a word in edgewise, there is not a "level playing field," and only the most skilled of mediators will be able to level the playing field and achieve a mediated resolution.  In other cases, such as domestic violence, there is inherently an imbalance of power and mediation is not appropriate.  However, in many cases that come before me, I recognize that the parties are 'mediation candidates" and I try to present Mediation as a viable option.  Mediation is virtually always less expensive for the parties and therefore less "lucrative" for the attorney but it would be a shame to not mediate, simply because a divorce attorney failed to present the option.  Litigation, or going to court, should be a last resort for most folks, not the opening salvo.

As Justice Saxe noted in his article, mediation clients have more control over their process, and ultimately it is the parties who craft the resolution in the end, not a judge who presides over them.  Moreover, Justice Saxe pointed out that mediation clients tend to be more satisfied with their results than litigation clients.  As Justice Saxe wrote, "if matrimonial lawyers focus om the larger picture, they might recognize that they stand to gain more in the long run from the good will and recommendations of satisfied clients than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce."

And of course, there is the decreased expense of litigation with an experienced Attorney-Mediator.  After all, as my longtime mentor, Phil Shatz always used to say:  "Why use your money to put your attorneys' kids through college when you get use it to put your own kids through college."

Juliana LoBiondo
juliana@lobiondolaw.com
www.LoBiondoLaw.com

Question: Do I need to be separated for one year in order to get a Divorce? If I have been separated for a year, am I divorced?

These are some of the most commonly asked questions I receive.  The answers are:  No, you do not need to be separated for any period of time in order to obtain a Judgment of Divorce.  In order to obtain a Divorce Judgment, at some point, one person will need to file an action for Divorce, dissolving the marriage and seeking ancillary relief.  In order to file a divorce action, the plaintiff must allege grounds for divorce.  By far the most common grounds for divorce is DRL Section 170(7), Irretrievable Breakdown of the Marriage.  This is our equivalent of what most people think of as "Irreconcilable Differences."  The plaintiff merely must allege that the mariage has broken down irretrievably for a period of 6 months or more.  No further grounds need be alleged.

Followup question:  if married people have been separated for more than a year, are they automatically divorced?  No.  Moreover, being separated for a year is not grounds for divorce, being separated for a year and living separate and apart pursuant to a validly executed Separation Agreement is grounds for divorce.  However, a separated couple could file for divorce using DRL Section 170(7), Irretrievable Breakdown of the Marriage.

Juliana LoBiondo
www.LoBiondoLaw.com

Is Mediation right for me?

WHAT IS “FAMILY MEDIATION”?

Mrs. LoBiondo is a trained mediator, starting with Mediation of Small Claims matters in Bronx Small Claims Court in 1990, as well as a Family Law Attorney with over 23 years experience in the field. “I highly recommend that couples considering divorce or separation consider whether Mediation is right for them. This process keeps the family out of court, results in a written agreement that both parties crafted, and takes less of a financial and emotional toll on the family unit than the traditional divorce through litigation model.”

WHAT IS THE PROCESS?

The first step is to determine that mediation is right for you. Contact the office to set up a free initial consultation.

Second, we will schedule a full consultation. Mrs. LoBiondo meets with the parties. There are no other attorney involved in the process. During this full consultation, Mrs. Lo will provide a framework for the process and provide answers to basic questions. If both parties agree that mediation is the right process for them, the Mediation process will begin with the next session.

Mrs. Lo will then schedule the proper number of sessions to achieve a written settlement agreement. The parties pay per Mediation session, with final payment constituting the fee for the written agreement.

HOW DOES THIS TIE IN WITH SEPARATION OR DIVORCE?

The final agreement constitutes a valid written separation agreement, recognized by New York State Law. The agreement can easily be converted into a Judgment of Divorce, with the parties either using the Uncontested Divorce packet provided by New York State online for free and paying the necessary filing fees; or the parties may wish to retain an attorney to convert the separation agreement into a Judgment of Divorce.

Call today to schedule your free initial Mediation consultation (845) 569-7600

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The statements found in this article are intended for general information only and should not be construed as "legal advice." In order to best protect your rights, it is important that you contact this office immediately.

How to file Uncontested Divorce Papers in NYS without an Attorney

CAN MY SPOUSE AND I FILE UNCONTESTED DIVORCE PAPERS OURSELVES?

Yes.  You can.  It is difficult, but certainly not impossible.

NYS puts the Uncontested Divorce Package online, along with a booklet explaining how to do it.  You will need to read the booklet very carefully and pay very close attention to it.  I would read the booklet once to understand it, then read it again, highlighting with a yellow highlighter what you need to do.  This packet works best for people who have already been separated for a while and have already separated their finances.  It is also easier to use these forms where there are no children of the marriage, your children are grown, or you have already worked these matters out in Family Court with an order of custody and visitation as well as a child support order.  Here is the link to the Uncontested Divorce Forms and Instruction Booklet.  Remember, that unless you qualify for and make application for "in pauperis" status, you will need to write checks out to your local County Clerk's office for various filing fees, starting with the Index number application.  Here is the link:  http://www.nycourts.gov/divorce/forms.shtml

Why seeing a Divorce Attorney to "save" your marriage always backfires

In 23 years of practice, I cannot tell you how many times people have come to my office and said, "Oh, I don't really want a divorce, I'm just coming here to scare my spouse, then he/she will see the light and come running back to me."  I'm paraphrasing, but you get the idea.  This never works.  If anything, the client finds out their spouse couldn't be more delighted that they went to a divorce attorney.  Now the other person may stop marriage counseling, stop working on the marriage, and maybe shift the cost of the divorce filing fees.

As a rule, I will not meet with anyone who is in marriage counseling.  If you're serious about saving your marriage, do whatever it is that must be done, but do NOT think that coming home with the business card of a divorce attorney is going to scare your spouse.

That almost always ends up backfiring.

If you need to call an attorney to find out your rights for divorce or separation purposes, then by all means, do so.  But ONLY if you are really serious about moving in that direction.  Until then, leave it in the hands of the marriage counselor.

www.LoBiondoLaw.com