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In the 1988 case of <i>Buronow v. Buronow</i>, 71 NY2d 284 (1988), the Court of Appeals set out the basic rule that issues relating to marital property must be decided within the matrimonial action. If they are not, the doctrine of res judicata steps in to bar a later suit over subjects that should have been adjudicated. This maxim has caused consternation to some over the years but, by and large, it was fairly easy to understand and follow. Its purpose was to finalize all aspects of spousal litigation as expeditiously as possible in order to preserve judicial resources and prevent divorcing parties from being compelled to take part in never-ending controversies.
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Many attorneys, even those who do not regularly practice matrimonial or family law, may find themselves in a situation in which a client who is contemplating marriage asks for advice on the preparation of an antenuptial agreement. This happens, more often than not, when the client is wealthy, has been married and divorced previously, or both. While an antenuptial, or prenuptial, agreement may contain many of the elements of a separation or settlement agreement, it is, in many ways, a more complicated document. As with all agreements, clear and concise drafting is essential. The prenuptial agreement, however, requires additional delicacy and greater consciousness of the too oft ignored Standards Of Civility (22 NYCRR Part 1200). Although, typically, the "pre-nup" involves a marriage other than a first or a situation where one intended spouse is in a superior economic position than the other, in the litigious world in which we find ourselves today we see more and more parties of all kinds who want to define their rights and obligations in the event of divorce or separation -- or one of their parents wants them to.
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The equitable distribution of the appreciation in value of the separately owned or separate property marital residence raises some unique issues. Real estate is generally considered to be a "passive" asset that increases in value mainly as a result of passive market forces rather than due to the "active" efforts of either spouse. Accordingly, the passive appreciation of such an asset would likewise remain the titled spouse's separate property, not subject to equitable distribution. Nevertheless, courts often distribute a portion of the appreciation to the non-titled spouse who resided in the separately owned marital residence. Perhaps courts have done so because, were it not for the titled spouse's residence, the parties would have presumably purchased a joint residence -- often one of the most valuable assets in the marital estate -- and would have shared in the appreciation that accumulated during the years of their economic partnership. Thus, courts have often awarded the non-titled spouse a share of the appreciation in a separately owned marital residence even when the non-titled spouse is unable to show that any efforts on his/her part contributed directly to the increase in value. These courts also seem to recognize that the marital "home" is something to which both parties to a marriage contribute simply by virtue of their economic partnership and that the value of certain contributions are difficult if not impossible to quantify.
ERRATUM In the December 2005 Issue, part of the last sentence of "Choosing Collaborative Family Practice," by David M. Rosoff, was inadvertently omitted. The entire last sentence should have read: "Conversely, where it is clear that the parties need and want additional professional assistance in overcoming anger, fear or ineffective communication, the lawyers should not let their own practical or theoretical reservations concerning team practice predominate."…
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Health insurance has become an increasingly important component of child support over the past several years. Changes in legislation highlight society's increased awareness that health care coverage for children is of paramount importance to their welfare, and that a child's access to proper health care services should not be impeded by his or her parents' divorce.
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Pension vs. Disability: Court Says It Doesn't Matter A husband's appeal of the denial of his motion to vacate a qualified domestic relations order (QDRO)…
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More case law is developing in answer the question whether same-sex couples should be afforded the same rights as married heterosexual couples in the State of New York. Two cases moving through the courts right now are worth noting, although one is yet to be decided and the other, in which an appellate decision was issued, is going to be further appealed.
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While our society has come to accept out-of-wedlock children with little or no apparent stigma, there remains a principal in law that is near and dear to parentage: the presumption of legitimacy of a child born during a marriage. This is a strong, virtually inalienable right that warrants protection from almost any inquiries that would rebut it. The issue can arise in various ways. A third party can come forward asserting that the child is his and petition for a declaration of paternity of a child born in a marriage. A mother may come forward and claim the child does not belong to the husband, perhaps in order to gain an edge in a custody dispute. Most commonly, a husband/father may go to court to disown the child in an attempt to avoid the obligation to support her. However, regardless of the motivations or allegations, there is a prevailing presumption of paternity that is very difficult to rebut.
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The division or other disposition of the marital residence has always been a major issue in most divorces. Given the tremendous increase in the value of homes in recent years, the economic and tax concerns of dealing with the marital residence are even more acute for clients and their advisers. The general rules governing income taxation on the sale of a residence were enacted as part of the Taxpayer Relief Act of 1997, Public Law 105-34, which became effective Aug. 5, 1997. Prior rules concerning home sale rollover, or exclusion of gain by certain older taxpayers, are generally no longer relevant and not discussed in this article.
