Harold's Helpful Hints

As most of you know, I am the resident attorney of the group. As such I certainly try to help my clients who have troubles, just as you try to help people with troubles. However, we often come to these situations from different points of view. You deal with the individual and help them deal with pressures individually. I must advise based upon their dealings with others and what I think a court might do.

Many of your patients might be currently involved in court proceedings (marital or otherwise) or contemplating the start of court proceedings. What I hope to do in this venue is give you legal opinions, my opinions and points of interest in the legal field. I hope to write something of interest once or twice per month under the heading of "Harold's Helpful Hints".

If anyone has a point they wish to discuss, please email me and if I don't know the answer, I can research it for you. I hope the group will enjoy these tidbits.

December 2009:

I recently wrote about the ground of divorce based upon abandonment. I told you that instead of requiring that one party physically leave the marital home, an abandonment could consist of a refusal by one party to engage in sexual relations (constructive abandonment).

Because it is often the case that parties (probably the husband) want nothing to do with the other socially, i.e. they do not go out together, does not remember holidays or birthdays, does not eat with his wife etc., but will have sex with her, a Plaintiff in Nassau County sought a divorce based upon "social abandonment".

About 3 weeks ago, the Appellate Division held that there is NO ground for divorce based upon "social abandonment". The abandonment must be based upon a failure to have sexual relations. The decision was well written and stated several reasons for this holding.

Some of those are:

  1. Only the legislature can change the grounds for divorce, and the statute only says abandonment.
  2. Sexual abandonment is easy to state and prove or not based upon testimony. There are many grades of social abandonment and the courts would be flooded trying to determine what degree of social abandonment now qualifies for divorce and what does not.
  3. Sexual relations has a special place in our law and is reserved for marriage relationships (ha, ha) whereas social intercourse is different. (A little outdated but that is what the law presumes).
Anyway, there is no ground for divorce based upon social abandonment or a "dead marriage" but maybe this will wake up the legislature to enact a ground for irreconcilable differences.

July 2009:

Last time I wrote about the grounds for divorce and covered the ground of abandonment, which is the most popular. The second most popular is cruel and inhuman treatment of one spouse by the other.

The statute says that the cruelty must rise to a level that renders it unsafe or improper for the parties to continue to live together. Additionally there is a 5 year statute of limitations, so a party generally can not bring up incidents that happened more than 5 years before the lawsuit.

I just accepted assignment of a pro bono case with an interesting fact pattern along those lines. The Husband and Wife were married in 1983. The Wife moved out of the house in 1998. The Husband has just started a lawsuit for divorce based upon the abandonment of the Husband by the Wife.

In speaking with the Wife (my client) she states that she was thrown out of the house and told not to return. She tried to return several times but was told by the Husband that she wasn't welcome. She also claims she was abused and left the house for her own well being. If you remeber last time, this is not an abandonment because she left with the Husband's consent and possibly she was justified in leaving. Because she has been gone for so long, what instances of cruelty can I raise within the last 5 years? Probably none as they have had minimal contact.

DOES ANYONE SEE A NEED FOR "NO FAULT" DIVORCE? Enough politicking!

The court in NY could keep them married, even if they will never live together again. It is most likely that one of them will consent to a divorce and perpetuate a fiction.

Anyway, back to the lesson for today. In the old days, when I started praticing and before political correctness came into fashion, to get a divorce based on cruelty, one often needed to draw blood. Mental and emotional cruelty were not as well recognized as today, divorce was not as prevalent and judges often wanted at least one instance of physical cruelty with police or ambulences. Today, you can get away with less, but the length of the marriage is a factor. A short term marriage (less than 10 years) requires fewer and less severe acts of cruelty than a long term marriage. In a long term marriage you usually try to show a pattern of increasing violence and danger.

Remember from above, the cruelty must rise to a level that makes it unsafe or improper for the parties to continue to reside together. Therefore, if one party moves out, that is evidence of the danger. Many people tell me they heard that they shouldn't move because they are afraid of an abandonment claim. Remember (last time) the abandonment must be for more than a year to be a ground for divorce. Further, the abandonment must be without cause or justification. So, if you have a patient who truly fears for their well-being and safety, you can advise them to leave the marital home without a fear of creating an abandonment and they may well have a ground for divorce of cruel and inhuman treatment.

June 2009:

This is regarding grounds for divorce. At present NYS is the only state in the country that requires parties to have grounds for a divorce and does not have a "no fault" or "irreconcilable differences" ground for divorce. Currently, the various grounds for divorce in NYS are:

While each of these grounds has its technicalities, today I want to discuss abandonment.

Generally an abandonment occurs when one party moves out of the home, WITHOUT THE CONSENT OF THE OTHER. They must be apart for at least one year. Often I will hear someone say they do not want to move out because then they will be sued for abandonment. I advise that if their spouse consents (usually when they see me, their spouse wants them out) then it is not an abandonment. Also, until one year, it is not a ground for a divorce. So a "trial separation" whatever that is, does not give someone a ground for divorce. In order to make divorces a little easier, the Courts have created a fiction of "constructive abandonment". That is a situation where no one moves out, but one party refuses to have sexual relations with the other party. The courts created this years ago stating that the purpose of marriage is to have children, therefore if one party refuses to engage in relations they have abandoned the marriage vow and are guilty of abandonment. Again, the refusal must last for a full year. Any consensual relations start the clock running again. (We can make some crude jokes here, but won't).

The Courts are now trying to create another form of abandonment: SOCIAL ABANDONMENT. A couple of judges, particularly in Nassau County, have granted divorces on the basis of social abandonment. In other words, the refusal to engage in civil conversation, join your spouse on holidays or at social engagements with friends, refusal to share holidays, etc. might constitute an abandonment. One of those cases was argued in an appellate court this week. We are waiting for the decision as to whether the court will expand the definition of "abandonment" to social abandonment. From the argument and discussion at the appellate court, it does not appear that they will. Sexual relations are easy to define (BTW, it must be actual sex, not holding, cuddling, kissing or anything else). The court asked about a situation where one party has refused to have social relations but then attends Thanksgiving dinner with the spouse. Does that end the abandonment even if they do not socialize thereafter? We are waiting for the decision.

One other point. There are many who believe we should just go to "no fault" divorce like every other state in the Union. The legislature, which as you probably know is very dysfunctional, has always refused to do so. There is more of a movement for it now, but they have not acted on it. So, courts are trying to legislate, but I do not think the appellate court will go fot it this time.

Your thoughts and comments on whether we should require grounds for divorce are always welcome.

April 2009:

As a start, I read in the New York Law Journal about the term "ponzi scheme". Many prosecutors are bringing criminal charges against individuals alleging that they created a "ponzi scheme". There have been many more such charges brought over the past several months than previously. The term is inflammatory to people and can prejudice juries. Criminal defense lawyers are working very hard to have that term removed from indictments against their clients and to have juries shielded from that term.

Of course, because of the poor economy, many of these schemes are collapsing. If a patient believes they are a victim of a ponzi scheme, care should be taken to investigate. If it was such a scheme, prosecutors will charge the responsible individuals. Of course that might not get a monetary recovery for your client, but they might get some satisfaction. But, remember that not every bad investment was a ponzi scheme.
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