New York Divorce Law Blog

HOW HIRING MY OWN ATTORNEYS WILL HELP ME BETTER SERVE MY CLIENTS

David A. Gabay — Tue, 23 Feb 2010 21:46:48 -0500

I have recently started my own real estate investing business. I buy and sell apartment buildings. As part of that business I have hired attorneys to represent my company and help me structure the business.

My experiences as a client have been a real eye-opener for me. For the first time in my career, I now know exactly what it is like to be a client—because I am one myself. I have suffered through the stress of finding and hiring a lawyer, the difficulties of fee negotiations, and the frustration of trying unsuccessfully to reach or communicate with your new lawyer.

For me, my experiences as a client will certainly make me a better lawyer because I can now truly understand what it is like to be on the other side of the lawyer’s desk or on the other end of the telephone. With this new understanding, I will be better able to relate to my clients and that will allow me to deliver much better service to my clients.

For more information about divorce or family law in New York, please visit my website at www.GabayLawFirm.com

GRANDPARENTS VISITATION RIGHTS IN NEW YORK

David A. Gabay — Thu, 11 Feb 2010 19:01:24 -0500

I am a member of an e-mail discussion group for New York divorce and family law attorneys, and over the last few days there has been a pretty interesting discussion of the legal rights of grandparents in New York State. Domestic Relations Law Section 72 spells out the statutory rights of grandparents, and there have been some judicial opinions and law review articles discussing grandparent's rights outside the statute or under the umbrella of other statutes and legal theories.

Of course, like most other areas of family law in New York, what is written and what actually happens are not always the same, and in my opinion there is considerable room for grandparents to maneuver within the Court system to assert their rights under appropriate circumstances. This is especially true in today’s economy, when grandparents are assuming greater financial and personal responsibility for their adult children and their own grandchildren.

If you have questions about grandparents rights in New York or would like more information about divorce or family law, please visit my website at www.GabayLawFirm.com

WHY I HAVE DECIDED TO CHARGE FLAT FEES FOR ALL OF MY DIVORCE AND FAMILY LAW CASES

David A. Gabay — Fri, 29 Jan 2010 22:11:17 -0500

I have decided to charge flat fees for all of my divorce and family law cases-contested and uncontested-from now on, and here is why:

1. Flat fees are better for my clients and my office. The client knows exactly what he or she will pay, and I know exactly what I will receive. There is less tension between my clients and my office over fees, billing, and communications. If a doctor can manage to charge a flat fee for major surgery, I can certainly manage to properly estimate a fee for a divorce.

2. Flat fees provide an incentive for my office to focus more thoroughly on the case and the client than on billing. This will result in better outcomes for clients, which is ultimately better for my office.

3. Clients hire attorneys for their knowledge and expertise, they do not rent them by the hour like power tools from Home Depot-or at least they should not. I have come to the conclusion that I can, actually, estimate the time and complexity of a case if my client and I can have a detailed consultation where the client provides reasonably accurate information about his or her life and situation.

4. I think clients will enthusiastically embrace this new way of doing business, which will ultimately benefit my office.

So, I guess I will soon learn whether this new idea of mine will succeed or fail. I will keep writing about my experiences with this new practice model in future posts.

VOLUNTARY TERMINATION OF CHILD SUPPORT OBLIGATIONS IN NEW YORK

David A. Gabay — Sun, 24 Jan 2010 22:49:04 -0500

One question which arises frequently in my practice is whether a non-custodial parent can terminate his or her child support obligations by ‘signing away’ his or her ‘rights’ to the child. How and why a parent gets to the point of seriously considering abandoning their own child is an issue for another day, but the answer to the question is (like almost anything else in New York family law) yes….and no.

1. Child support is a legal obligation each parent owes directly to a child, and cannot normally be bargained away by the parents.

2. Visitation and custody rights are separate from the duty of a parent to support their children, so surrendering custody or waiving visitation will never directly affect the payment of child support.

That being said, there are two (2) ways for a non-custodial parent to voluntarily terminate his or child support payments:

1. Under certain limited circumstances, a judge may approve of a waiver of child support payments for ‘good cause’ and the custodial parent consents to the waiver.

What constitutes ‘good cause’ is a question only the judge assigned to the case can answer, and in my experience each judge has his or her own practices and criteria for deciding whether to approve a waiver request.

2. Adoption of the child by a step parent or other appropriate person. If the parent paying child support consents to the adoption of the child by another adult (usually the new step-parent of the child), the completion of the adoption automatically terminates the child support obligation of the former parent.

For more information on child support and other New York divorce and family law subjects or to discuss your own questions or case, please visit my website at www.GabayLawFirm.com

SPECIAL PROBLEMS WHEN DIVORCING A LAWYER

David A. Gabay — Tue, 05 Jan 2010 22:24:05 -0500

Divorce is a complicated process even under the best of circumstances. However, when your soon to be ex spouse is an attorney you can face very special challenges and problems on the way to obtaining a fair and equitable settlement or decision after trial.

Here is a list of the top three problems faced by spouses divorcing attorneys:

1. The Attorney is Known Throughout the Courthouse: If your spouse works regularly in Court, he or she may be well known to the Court and its staff. Even if the spouse works in a different area of the law, say criminal defense or civil litigation, judges and their staffs talk informally among themselves and Courthouse gossip is rampant. This might be the only case in a divorce setting in which the Court is familiar with one of the parties professionally but does not consider recusal. In this case, you and your attorney will have to work extra hard and be extra careful in how you handle your case.

2. Valuation of the Law Practice: Attorneys whose spouses make a claim for a portion of the value of the law practice tend to raise the same objections time and time again: (1) that the practice has little or no value because it depends entirely on their own efforts and work, (2) that the contingent receivables can’t be accurately valued because of the uncertainties of the cases, and (3) that attorney-client privilege prevents the full disclosure of the information required to properly value the practice. These arguments can be effectively defeated if your attorney is familiar with the specific rules and case law which govern this issue.

3. Income “Management”: Attorneys who are planning to divorce their spouse or who know that they will be served with a divorce summons themselves use a wide variety of techniques to manage their income to their advantage. Changes to partnership agreements, decisions to reduce partnership compensation, deferral of revenue, referral and routing of work through other attorneys, and cash fees are familiar ruses designed to depress the income of the attorney and therefore lower the amount of money paid out in spousal support, child support, and equitable distribution. Like the valuation problem, this issue can be effectively countered with aggressive and thorough discovery and an understanding of how to identify and uncover income management in all of its forms.

For more information or to schedule a consultation, please visit my firm’s website at www.GabayLawFirm.com

SUFFOLK COUNTY FAMILY COURT EXPANDS HOURS FOR ORDER OF PROTECTION PETITIONS

David A. Gabay — Fri, 27 Nov 2009 14:18:20 -0500

The Suffolk County Family Court has recently decided to open its clerk’s office earlier for the filing of a petition for an Order of Protection and simplified the procedure for filing petitions seeking Orders of Protection. As of November 9, 2009, the clerk’s office will open at 8:00 a.m. (the old opening time was 9:00 a.m.), and a party may see a judge as soon as the petition is processed, which can be before 9:00 a.m.

This change should make it easier and quicker for a party to file for an Order of Protection and will allow the Court to handle more requests in an efficient manner.

Previously, a petition for an Order of Protection had to be processed through either the clerk’s office or the Suffolk County Probation Department and could not be filed before 9:00 a.m., and no judge was available prior to 9:00 a.m.

For more information on New York Orders of Protection, please visit my website at www.GabayLawFirm.com

CHANGESTO NEW YORK INSURANCE LAW AFFECT DIVORCING COUPLES

David A. Gabay — Mon, 05 Oct 2009 22:13:47 -0500

Two recent changes to New York state insurance law will have a substantial impact on couples divorcing and separating. Those changes, signed into law on July 29, 2009, are:

1. COBRA coverage will now be available in New York for 36 months.

2. Families can now keep dependents on their insurance policies until age 29.

Of course, neither of these new laws apply to self-insured companies.

The practical effect of these extensions of insurance coverage will be to increase the value (or cost) of insurance coverage for divorcing couples, and therefore the impact and importance of insurance coverage as a issue to be considered and resolved in any divorce action.

For more information on New York state divorce law, please visit my website at www.GabayLawFirm.com

TIMING IS EVERYTHING: WHEN CLIENTS DECIDE TO BEGIN A DIVORCE

David A. Gabay — Fri, 02 Oct 2009 17:57:57 -0500

One of the great mysteries of my divorce practice is the question of when clients decide to begin a divorce. I’ve always wondered what it is that makes any particular client decide that today, now, is the time to commence an action. I’m sure I will never understand exactly what is in my client’s mind at that unique point in time, so I suppose I’m going to be relegated to observing and commenting on what actually happens after the fact.

Here are two (2) very different experiences I’ve had with clients over the past two (2) days:

Yesterday, I met with a woman at her home for about two (2) hours for an initial consultation for a divorce. We covered a myriad of divorce topics, from the anatomy of a divorce case to equitable distribution to tax impacting settlements and post-settlement housekeeping issues. At the end of the meeting I asked how she would like to move forward with her case. She let me know she was not making any decisions right away, but that I should call her in one week.

Today, I received a call from a woman who wanted to come in to this office and discuss her options for a divorce. An hour later, we met and after a 15 minute discussion she retained me to handle her case.

The juxtaposition of these two consultations is an interesting commentary on the utter individuality of all of my clients. It also reminds me that no matter how many times I think I know which ‘box’ a case or client fits into, I’m probably wrong.

If you would like more information on New York divorce law, please visit my website at www.GabayLawFirm.com

NEW LAW HELPS RETURNING NEW YORK MILITARY IN CUSTODY DISPUTES

David A. Gabay — Tue, 29 Sep 2009 21:58:44 -0500

The return of a military parent from activation or deployment will automatically be considered a ‘substantial change of circumstances’ for the purpose of seeking to modify a custody or visitation order made while the member of the military was away on active duty or deployed

The law takes effect on November 15, 2009.

This new law compliments a law passed in 2008 which requires all custody and visitation orders issues when one parent is on active duty be deemed temporary and subject to revision when the parent returns to civilian life.

If you would like more information on New York custody or visitation law, please visit my website at www.GabayLawFirm.com

VERMONT LEGISLATURE APPROVES GAY MARRIAGE

David A. Gabay — Tue, 07 Apr 2009 20:56:40 -0500

Gaining the required two-thirds majority by the smallest possible margin, 100-49, Vermont’s House of Representatives voted to override Gov. Jim Douglas' veto of a bill (PDF) allowing gays and lesbians to marry, the Associated Press reports. The House vote was preceded by a Senate vote of 23-5 to override Douglas’ veto.

The Atlantic’s Washington blog reports that the law will go into effect Sept. 1.

Vermont now joins Connecticut, Massachusetts and Iowa in allowing gays to marry. Iowa’s ban was lifted Friday by way of an Iowa Supreme Court ruling.

"Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago, " Dale Carpenter wrote on the Volokh Conspiracy blog.

IRS TAX EXEMPTION FOR CHILDREN AND DIVORCE AGREEMENTS

David A. Gabay — Thu, 02 Apr 2009 16:19:18 -0500

In 2008, the IRS amended Code Section 152(e), which addresses child dependency exemptions. The changes affect the procedures and means for claiming the exemption. The new rules should be carefully followed to ensure that the exemption is taken by the parent entitled to it, and that the appropriate language is contained in divorce or separation agreements to reflect the current state of the law.

A divorce agreement or court order can no longer be used as a substitute for Form 8332. The parties must actually complete the form.
Beginning in 2009, the custodial parent is the one with whom the child resides the greater number of nights during the year, regardless of the terms of the divorce decree.
Beginning in 2009, the custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 and beyond regardless of when the release was made.

In light of these developments, all non-custodial parents who plan to claim the exemption must obtain a signed Form 8332. In addition, divorce or separation agreements should address the potential for a release being improperly revoked after it is given.

The parent claiming a dependency exemption is also entitled to benefit from a Child Tax Credit and any allowable Hope or LIfetime Learning Educational Tax Credits. Keep in mind that the exemptions and credits are phased out as the income of the parent increases. This should be factored into decisions as to when and how to claim the exemption.

For 2009, the Chidl Tax Credit phases out from $75,000.00 to $95,000.00 (of Adjusted Gross Income) and Hope or Lifetime Learning Educational Tax Credits phase out from $48,000.00 to $58,000.00 for single and head of household filers. These credits are generally more valuable to lower and middle income filers than the dependency exemption itself.

As with all tax issues in a divorce or separation agreement, you should consult an experienced tax attorney or accountant in order to full understand all of the ramifications of your agreement.

NEW YORK HIGH COURT TO HEAR SAME SEX MARRIAGE CASES

David A. Gabay — Wed, 01 Apr 2009 12:11:46 -0500

An item on the front page of today’s New York Law Journal reports that the New York State Court of Appeals has agreed to hear appeals in two cases involving the recognition of same sex marriages validly performed outside of New York. The Court is expected to hear argument in the cases in the fall of 2009.

The two cases are:

Godfrey v. Spano: Motion No. 2009-220: The Second Department upheld the Westchester County Executive’s 2006 order directing that all county departments to honor same sex marriages from other jurisdictions.

Lewis v. New York State Department of Civil Service: Motion No. 2009-219: The Third Department affirmed the grant of health benefits to same sex partners if the marriage was legal when and where it was performed.

Theses appeals will be the first time the Court has considered these issues since its decision in Hernandex v. Robles in 2006.

NEW YORK STATE JUDGE GRANTS SAME SEX DIVORCE FOR FIRST TIME

David A. Gabay — Tue, 31 Mar 2009 14:59:18 -0500

In an historic decision, a New York State Supreme Court Justice in Broome County has granted a lesbian couple a divorce. In her decision, Justice Molly Fitzgerald granted the request of Lauren Wells-Weiss to divorce her partner, Shari Weiss. The women were married in Canada in 2004. Shari Weiss was represented by Joseph Meagher. Lauren Wills-Weiss was represented by Judith Osburn.

This decision appears to be the first time a trial judge in New York has approved a same sex divorce.

I spoke with Judith Osburn today, and according to her here is what happened in the case: Shari Weiss filed a partition action against Lauren Wells-Weiss regarding a home they shared together but which Shari bought about 3 months before the marriage. Lauren counter-claimed for divorce. The Court eventually determined that it would try the partition action before the divorce case and would not allow Lauren to make equitable distribution claims concerning the home. That decision paved the way for a settlement of the divorce action.

The stipulation in the case was placed on the record orally on March 12 or 13. The Court accepted the stipulation, and the parties are now submitting the final judgment of divorce to the Court.

I wonder what effect this decision will have on the pending actions for divorce among same sex couples, including one case I am now handling in Suffolk County. Perhaps it will be the end of the debate on the question of whether same sex divorce in New York is permissible. Or, it might be the beginning of a process which will ultimately be settled by the Court of Appeals.

I also know that there are many other attorneys working on similar cases throughout the state.

EQUITABLE DISTRIBUTION OF RETIREMENT AND DEFERRED COMPENSATION ACCOUNTS IN A RECESSION

David A. Gabay — Mon, 30 Mar 2009 18:03:11 -0500

One of the more difficult issues faced by couples who are divorcing in the current economic environment is how to divide retirement or deferred compensation benefits, especially defined benefit plans such as a 401(k), SEP, or IRA.

New York law specifies that the ‘cut off’ date for classifying retirement assets as either martial property or separate property is the date on which a divorce action is commenced. The law also provides for a range of dates for valuing the marital portion of the account, ranging from the commencement date through the trial date.

Courts have developed certain standards for determining which valuation date should be applied to a particular asset class such as retirement and deferred compensation accounts. Under certain circumstances, the Courts may value the asset as of the date of commencement and under others it may use the trial date as the valuation point.

A problem arises in today’s economy where after the commencement of a divorce action the marital portion of the retirement assets declines in value. Disagreements arise over which party should bear the cost of that decline. Some common discussion points are:

1. Is the account actively managed (traded) by either or both spouses?

2. Which spouse is responsible for selecting the assets held in the account?

3. Which spouse should bear the risk of the asset declining during the time the divorce case proceeds in Court.

4. How are the post-commencement contributions into the account valued?

Unfortunately, there seems to be very little guidance from the Courts at this time as to how they are dealing with these issues in this new economic environment. In the absence of any definitive authority, it is extremely important for people going through a divorce to have as much factual information about their retirement assets as they can obtain and to carefully think through and negotiate this complex issue.

If you or someone you know would like more information on this topic, please feel free to contact my office.

HOW TO FIND AND HIRE A DIVORCE LAWYER

David A. Gabay — Thu, 11 Sep 2008 15:19:29 -0500

Finding right attorney for your family law matter requires asking specific questions to determine which attorney may be best for you. Choosing the wrong attorney may ultimately you a great deal of time, stress, and money in the end.

Divorce can be an intimidating process. There is no area of the law which cases requires more paperwork or forms, and which involves as much raw human emotion. As a result, a divorce proceeding can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make in your entire case.

Not every lawyer is a good fit for every person. You must be sure that your philosophy of how to approach and handle your case matches the temperament and practice philosophy of your lawyer. As a result, you must ask questions that reflect your specific concerns.

A good lawyer will:

-help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;

-help you to prepare for court proceedings in advance;

-provide prompt and courteous responses to your questions;

-provide information and methods to help you reduce your legal fees.

To choose an attorney you should find more than one candidate to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form your friends. Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.

Remember that finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.

Interviewing candidates

It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.

Remember, it is your case!

Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, if you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.

Some questions you may wish to ask include the following:

-How long have you been a lawyer?
-What is your primary area of practice?
-Do you have any other practice areas?
-What percentage of your caseload is dedicated to divorce?
-Have you handled cases with issues similar to mine?
-Do you have a heavy caseload and do you have time for my case?
-Have you handled many divorce cases in my county?
-What is the divorce process in my county?
-What are the likely obstacles and issues in my case?
-What are my alternatives in resolving the issues?
-Is there any process you would recommend and why?
-Approximately how long will the process take?
-What are your rates and how often will you bill me?
-What are the costs I can expect in this case?
-What are the legal fees I can expect in this case?
-Will the lawyer accept payments on any outstanding balance?
-How will you keep me informed of the progress in my case?
-What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative?
-Who else in the office will be working on my case and what is their rate?
-Is there anything I can do to keep my legal fees down?

Selecting your lawyer

When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?

To discuss your divorce or family law matter or schedule a free initial consultation, please call my office at 631-467-4177 or e-mail me at DavidAGabay@aol.com

WIFE MAY USE INSTANT MESSAGE EVIDENCE FOUND ON COMPUTER IN DIVORCE CASE

David A. Gabay — Fri, 15 Aug 2008 13:17:07 -0500

A trial judge in New York City recently ruled in Moore v. Moore that a wife seeking a divorce can use evidence of her husband’s internet activities with another woman which she found on a computer she took from her husband’s car.

The Moore’s were married in 1963, and are now retired. He was an information technology consultant and she was a school teacher.

In Moore, the wife took a laptop computer out of her husband’s car just before she commenced her divorce case. According to the wife’s attorney, she was searching the computer for financial information when she came upon a large number of salacious instant messages which the husband exchanged with a woman in Texas. The wife’s attorney told the husband’s attorney she had the computer, and the parties agreed to make copies of the computer’s hard drive. The materials found on the hard drive were repeatedly referred to by the wife in affidavits submitted to the Court without objection by the husband. Eventually, the case was transferred to another judge, and the defendant moved to suppress the contents of the hard drive.

The Court denied the motion, finding that the wife die not commit a crime or otherwise violate the husband’s rights in taking the computer and copying its contents. The Court noted that the attorneys for the parties specifically agreed to copy the hard drive, and the defendant did not move to suppress the contents of the computer when the wife first bean referring to items found on the computer in at least two (2) affidavits she submitted to the Court at least six (6) months prior to his suppression motion.

The Court determined that the computer was a family computer as claimed by the wife and not a work computer as alleged by the husband. The Court also found that the taking of the computer was appropriate since it was done before the commencement of the case and the machine was taken from the family car. Finally, the Court also noted that the parties agreed in writing and through their attorneys that the computer’s hard drive should be copied and made available to both sides.

This case is another interesting example of the way in which computers and technology affect divorce and family law cases. It is also a reminder that some people will do a lot of preparation and planning prior to beginning a divorce-remember, the wife was searching for financial information on the computer when she stumbled upon the explicit instant messages.

MAN ARRESTED FOR VIOLATING ORDER OF PROTECTION BY MARRYING EX-WIFE

David A. Gabay — Tue, 12 Aug 2008 16:07:03 -0500

In my practice, I often represent men who whose wives or girlfriends have orders of protection against them or are seeking to obtain one in Court. One of the more interesting aspects of this area of practice is explaining to my clients how orders or protection are used or abused, and how they are enforced.

I typically tell my clients that when it comes to orders of protection the police have a mandatory arrest policy: if the person who has an order of protection call the police and tells them you violated the order, the police will arrest you first and ask questions later. It’s that simple. There is no discussion, no debate, and no appeal. This policy was created and authorized by elected officials and whether you, the defendant, are guilty or innocent is at the very bottom of their list of concerns. When you get back to Court, you will be charged with either a class A misdemeanor or a class E felony, depending on how the prosecutor decides to charge the case.

Now, I have a new way of making my point to my clients. I came across this story today. A man and his ex-wife decided to remarry, but it turns out she had an order of protection against him from a prior dispute and it was never vacated. At the wedding, the groom got into an argument with a guest, and the police were called. When the police arrived, they discovered that the bride had an order of protection against the groom, and he was arrested and charged with criminal contempt for violating the order. He was charged with felony contempt has held without bail.

This unfortunate incident just goes to show how strictly police enforce orders of protection and how careful clients need to be when faced with a petition for an order of protection or an actual order.

NEW YORK COURT FINDS 'PREMIUM FEE' CLAUSE IN RETAINER AGREEMENT UNENFORCEABLE

David A. Gabay — Thu, 31 Jul 2008 13:42:18 -0500

A recent case from the New York State Appellate Division, First Department, highlights the conflict between trying to use creative alternative billing arrangements in divorce cases and the harsh reality of the current rules governing matrimonial fee agreements.

In Sheresky Aronson & Mayefsky v. Whitmore, decided on July 8, 2008, the Appellate Division ruled that Ms. Whitmore’s attorneys could not enforce a clause in her retainer agreement relating to a ‘premium fee.’ That clause stated:

We reserve the right to discuss with you at the conclusion of your matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent.

The complaint filed by Sheresky against its client was dismissed as a matter of law by the trial court, and the Appellate Division affirmed the decision. The Appellate Division held that the clause violated the plain language and specificity provisions of the New York rules governing fee agreements in matrimonial cases. The Court also found that Ms. Whitmore’s oral agreement to pay Sheresky a premium fee of $150,000.00 was not enforceable because of those same rules.

By the way, Sheresky was the firm who represented Peter Cook in his highly publicized divorce case against Christie Brinkley.

I think the Court’s decision was correct under the rules, and I also think the rules are incredibly inhospitable to success or premium fees in matrimonial matters. In order for a premium or success fee to pass muster under the rules, the manner in which the fee is to be calculated must be spelled out in clear and plain language. That is nearly impossible in matrimonial practice, because of the inherently unpredictable and volatile nature of the work.

So, while premium fees might be welcome and appropriate in business or corporate law transactional matters or even certain types of civil litigation, they appear to be unwelcome in New York matrimonial practice.

YOU TUBE DIVORCE WIFE LOSES DIVORCE CASE: WAS COURT'S OPINION CORRECT?

David A. Gabay — Fri, 25 Jul 2008 14:41:40 -0500

Tricia Walsh-Smith has lost her divorce case after the Court found that her husband, Philip Smith, established that Ms. Walsh-Smith engaged in conduct which constitutes cruel and inhuman treatment under New York Law. A good portion of the Court’s opinion focused on the video Ms. Walsh-Smith posted on You Tube in April of 2008. The video and its effect on Ms. Walsh-Smith’s divorce case was the subject of two posts by Daniel C. Clement in his New York Divorce Report.

Despite the publicity and curiosity surrounding the video and Ms. Walsh-Smith’s unusual conduct in the case, the Court’s decision may in my opinion be ripe for a legal challenge on appeal.

My reading of the opinion suggests that the Court granted Mr. Smith his divorce in part, perhaps a large part, based on the You Tube video. However, the video was posted in April of 2008, which is well after the divorce action was commenced in October of 2007.

The Court cannot rely on post-commencement actions by either party in determining whether grounds for divorce existed as of the commencement of the action. Either the plaintiff did or did not have grounds for divorce on the day she filed her action or she did not. She cannot ‘acquire’ grounds after the commencement of the case.

So, what will happen if Ms. Walsh-Smith appeals the Court’s ruling? Stay tuned, and we will see.

NEW YORK STATE LAW PERMITS FAMILY COURT ORDERS OF PROTECTION FOR PERSONS IN INTIMATE RELATIONSHIPS

David A. Gabay — Wed, 23 Jul 2008 14:58:33 -0500

On July 22, 2008, New York State Governor David A. Patterson signed into law a bill permitting the Family Court to issue orders of protection to persons in ‘intimate relationships.’

Prior to the new legislation, the Family Court had jurisdiction to grant orders of protection only to victims of domestic violence and other family offenses who were:

1. Married to or divorced from the alleged perpetrator.

2. Related to the alleged perpetrator by blood or marriage.

3. Had a child in common with the alleged perpetrator.

Under the new law, the Family Court may now issue an order of protection in favor of a person who is in an ‘intimate relationship.’ The law defines an ‘intimate relationship’ as:

Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the Court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”

The new law is intended to encompass dating relationships and couples who live together. Both heterosexual and homosexual relationships are included in the law.

This increased access to the Family Court for victims of domestic violence brings New York law into line with that of the other 49 states, all of which currently have similar provisions for orders of protection.