Problems still exist in New York’s temporary maintenance law

It has been over a year since unilateral no-fault divorce was adopted in New York. No-fault divorce, which now exists in all states, permits one spouse to receive a divorce by swearing that the marriage has been irretrievably broken for six months or more.

Ever since the law’s passage, it has had critics and supporters. The law, which includes a small provision about temporary spousal support (also known as alimony and maintenance), is currently being analyzed by the state’s independent Law Revision Commissions:  According to a Wall Street Journal article by Sophia Hollander, there are “troubling aspects” of the strict formula for awarding temporary spousal support. A report is due in April.

Temporary maintenance is awarded when the income of the “less-monied” spouse is less than two thirds the income of the spouse with the higher income. The formula calls for maintenance to be the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non-payor’s income. Income for calculation of temporary maintenance is to be capped at $500,000, and judges are free to adjust amounts when the income exceeds $500,000.

The law aimed to protect the low-income spouse, but ended up hurting the affluent spouse by shifting income unfairly. At times, it even transformed the richer spouse into the poorer one.

The movement is to make the law less binding on judges and more advisory; however, the fear is that it will lose its effect.

Westchester Assemblywoman Amy Paulin, the primary sponsor of the alimony law, said, “[The 2010 law is] better for women.<Read More>


What is Fair Alimony in the 21st Century?

What is fair alimony in the 21st century? Alimony was originally designed to protect a woman and family from falling into poverty after a divorce. It originated during a time when women were mainly at home caregivers  where many lacked proper educations allowing for sufficient employment. However, in recent times the majority of women work and nearly a third have college degrees.

Florida lawmakers are pushing to overhaul the state’s alimony law in a bid to better reflect today’s marriages and make the system less burdensome for the alimony payer. Florida joins a growing number of states that seek to rewrite alimony laws by curbing lifelong alimony and alleviate the financial stress that some payers — still mostly men — say they are forced to take on.

“It can strangle the person that is paying it,” said Alan Frisher, the founder of Florida Alimony Reform, an organization of 2,000 members, several of whom testified recently at legislative committee hearings. “Oftentimes, we can’t afford to pay that amount of alimony. It can provide a disincentive for the receiver to ever go back to work, to make more money or remarry. I don’t think anybody should have to be an indentured servant for the rest of their lives.”

The legislature in Massachusetts, which had some of the country’s most antiquated alimony laws, passed without opposition a measure to rewrite the laws and make them more equitable.

Commissions in other states have been set up to collect data and stories about the hardships of long-term alimony payments and presenting them to lawmakers to hopefully make the necessary changes to bring the alimony laws to the 21st Century and to take into account current household dynamics. … <Read More>


Returning Home For a Better Life or Parental Kidnapping?

 

Parental kidnapping has been an issue many people across the country and the world have had to face. Iraq veteran and New Jersey resident Michael Elias alleges that he has experienced it firsthand.  Elias, who returned home from Iraq three years ago, alleges that upon his return, his former wife told him she wanted a divorce. However, if only Elias could foresee what was to come—an international custody battle with his former wife, who is now living with their two children approximately 7,000 miles away in Japan.

Upon divorce, Elias and his former wife were granted joint custody by a Bergen County Court. In order to prevent either parent from taking the children out of the country, the Court directed that the children’s passports be surrendered. With the children’s passports surrendered and a court order of joint custody, Elias thought he had nothing to worry about. 

However, during a routine exchange of the children a few months later, Elias waited for his children to be dropped off for his parenting time. What he didn’t know what that he former wife and their two children were on a plane to Japan, violating the custody order. Since Elias’s former wife worked at the Japanese Embassy, she was able to get new passports for the children. How did she obtain new passports for the children legally and now that she is in Japan with the children, does it really even matter?

Japan is not a party to the Hague Convention on Parental Kidnapping, so what is Elias supposed to do?… <Read More>


Flying High On Pension Benefits

Continental Airlines Inc. found out that several of its pilots obtained divorces to receive  benefits, concealed the divorces from their friends and families and later re-married after receiving the benefits.  Although the airline pursued action, the Court of Appeals for the 5th Circuit held on July 18, that Continental Airlines Inc. cannot recover lump sum pension plan benefits paid to pilots who allegedly got “sham divorces” in order to obtain payment of their benefits under the Employee Retirement Income Security Act. If a pilot is at least 50 years old, the pilot can assign his or her benefits to an ex-spouse, who in turn can then elect to receive those benefits regardless of whether or not the pilot is retired. 

The airline alleged that pilots created this scheme because of fears that financial difficulties would result in their pension plans being taken over by the Pension Benefit Guaranty Corporation, that their benefits would be reduced upon retirement, and that the lump-sum option would become unavailable . The Court’s reasoning for denying relief to the airline is that it doesn’t want pension administrators to second guess state family court determinations.

This decision is somewhat surprising. Putting aside for a moment that the reasoning seeks to respect a court’s divorce decision and give it full discretion, it also seems fraudulent. What’s really going on here? Is it a loophole to be taken advantage of or a deceitful plot to early payment of benefits? Isn’t it an unnecessary strain on court resources to have fake divorces and subsequent remarriages?… <Read More>


That’s not my daughter. Can I get a refund?

For the most part, the headline sums up what Eric Fischer asked Connecticut’s highest court, following a divorce from his wife. According to ABC news writer Christina Ng, Fischer discovered that the daughter he was raising was not biologically his. In the case, the court ruled that Fischer could sue the biological father, Richard Zollino, for $190,000 – the cost of raising the girl for 15 years. Fischer v. Zollino, 303 Conn. 661 (2012). The numerical figure was based on an expert witness’ calculation.

During his marriage, Fischer claimed to have seen red flags regarding the girl’s paternity. On the ride back from the hospital when the girl was born, his wife’s friend and business partner, Zollino, joined the couple in the limo. Awkward. Additionally, Zollino was present at the girl’s music recitals and graduation; however, he was not present at events of the couple’s other daughter. Creepy.

For 15 years he suspected, but never said anything. Finally, he obtained a hair sample from the girl and submitted it for a paternity test along with his DNA. The results came in October of 2006 and stated that he was not the father. The couple divorced soon after in 2007, and a test later proved that Zollino was the father.

Initially, Fischer looks at fault for not officially questioning the paternity earlier in the marriage. It seems there should be a time cap on challenging paternity. Or should there? The first thought that came to mind was that Fischer held the girl out as his own by attending major events in her life and by financially providing for her.… <Read More>