Post-Divorce Torts Not Always Barred
January 27, 2006
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.
Challenges in Preparing the Prenuptial Agreement
January 27, 2006
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.
How Courts Handle Equitable Distribution
January 27, 2006
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.
Getting Ahead Of The Federal Rules Changes
January 27, 2006
On December 1, the long-discussed amendments to the Federal Rules of Civil Procedure are likely to take effect. It seems a long way off, but in the legal world, it's right around the corner. The new rules, if finally approved, don't have to be bad for business.
Erratum
January 27, 2006
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."…
Health Insurance for the Children
January 27, 2006
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.
