LJN Newsletters

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.

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)…

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.

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.

Recent rulings of interest to you and your practice.

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.

In October 2005, a New York appellate court ruling in Chen v. Fischer, 12 A.D.3d 43, appeared to make a substantial change in the way litigation is managed where both matrimonial causes of action and tort claims are asserted in New York. The Second Department had held, for the first time, that an interspousal tort action seeking to recover damages for personal injuries commenced subsequent to, and separate from, an action for divorce is barred upon the res judicata principles of claim preclusion. In short, a spouse had to bring any personal injury claim he or she might have as a cause of action within the matrimonial action. A separate tort action was no longer tenable.

Last month, in the first part of this article, we discussed the case law of both state and federal courts with regard to the admissibility of child testimony and the suggestibility of child witnesses. The conclusion of this article discusses whether the child witness understands that he or she can affect the outcome of the litigation, as well as other issues related to the reliability of the child's testimony.