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This time of year sparks thoughts of commitment, starting a new life and a new family. With marriage proposals being at its peak during the holiday season, there are major concerns that both parties should consider before taking the plunge. And although some of these topics may be uncomfortable to discuss and even more uneasy to take action, they should definitely be given some significant attention to when making wedding plans. Here is a list of the most important issues to address:
Under New York laws, once you accept your significant other’s engagement ring, you may be directed to return it if the marriage never happens. The law of contracts and “gift” governs what should happen to the engagement ring if the wedding is called off. New York acknowledges a promise to marry as a legal contract, and therefore failure to marry is a breach of contract. However, New York abolished causes of action for breach of such contract, where monetary damages were sought. Consequently, the “heart balm” statute, (Civil Rights Law 80b) was developed to do away with such recourse. Under this statute, one can recover chattel (the engagement ring) given when the sole consideration for the exchange of the chattel was the anticipated marriage and that marriage does not occur. Furthermore, New York follows the “conditional gift” approach, which states that an engagement ring is a gift conditioned on an occurrence, the marriage and if the marriage does not occur, the gift should be returned. Although some states take into account which party broke off the engagement, New York does not.
In New York a binding legal contract that defines the rights of the parties if the marriage ends, is considered valid when the agreement meets certain criteria: 1) it is in writing 2) it is signed by both parties and 3) the agreement is acknowledged before a notary public (not just notarized) but contains a written acknowledgement. (General Obligations Law, Title 3 and Domestic Relations Law 236) However, the prenuptial agreement may not be upheld by the court if the judge believes that one side was pressured into signing and had no real bargaining power at the time; the agreement was not “fair and reasonable” at the time it was made; at the time it was to be enforced, it was so one-sided that it would be unfair to uphold it; or one of the parties hid important financial information from the other at the time of the agreement.
This agreement address the llegal rights of the parties who are not married, but live together. In New York, the agreement is a binding legal contract when it is in writing, signed by both parties and expressly states the material terms of the agreement. (General Obligations Law, Article 5) Unlike prenuptial agreements, the cohabitation agreement is not governed by the Domestic Relations Law but are upheld under similar theory. Cohabitation agreements usually addresses what happens to joint and separate property, responsibility for living expenses, decision making in healthcare related issues, etc. Therefore, there may be other statutory provisions that apply to issues in the cohabitation agreement, particularly wills, advanced directives and property division.
Establishing what is separate property and what is marital property can be addressed in several ways. A prenuptial agreement, a cohabitation agreement, trusts, wills or named beneficiaries can specify beforehand which property will be excluded from distribution when the marriage ends. Gifts, inheritances, transfers and property acquired before the marriage should all be classified as separate property even before the marriage commences. Otherwise, property acquired during the marriage, is presumed to be marital, including wages. (Domestic Relations Law Section 236)
Taking on the role as stepparent may thrust one in the position of financial provider even after the marriage ends. (Family Court Act, Article 4) A stepparent can be directed to provide child support for his/her stepchild(ren) if they provided financial support for the child(ren) while married to the child(ren)’s custodial parent. However, other requirements include that the custodial/biological parent is still alive and unmarried and the child(ren) would become dependent on public assistance without the support of the stepparent. However, that support obligation may end if the biological parent dies or remarries.
Stepparents do not have an absolute right to visit with the stepchild(ren) (although there are instances where this is not the case). (Family Court Act, Article 4, 5 & 6 and Domestic Relations Section 240) However, the parties may agree to child visitation with stepchild(ren) as part of a divorce settlement. Nonetheless, there is no statute that grants stepparents “legal standing” to sue for child visitation with their stepchild(ren). Although, stepparents may petition the court for child custody of a stepchild(ren), where the court finds that there are “extraordinary circumstances” like abuse/neglect or domestic violence. So even in instances where there is a relationship between stepparent and stepchild(ren), the biological parent has the fundamental right to determine who should have visits with or custody of their child(ren), when the petitioning party is a non-relative.
Where there are children from a previous marriage/relationship or elderly parents, caring for them financially, emotionally or physically may need to be addressed by prenuptial agreements, antenuptial agreements, trusts, wills or named beneficiaries. Assuring that loved ones are cared for are concerns that should be addressed early on since the rights of the new or acquired family can obliterate the rights of the existing family members if the marriage ends.
I am all for marriage. However, as an experienced divorce attorney I believe that addressing these concerns can minimize the emotional, psychological and financial turmoil associated with dissolution of marriage, or before it even begins. If either of you have property, businesses, professional licenses or degrees, children from previous relationships, other family members to care for and/or debts, hiring an experienced attorney to discuss these issues should be on the wedding plan list of things to do.
Please contact our office to discuss any of these issues. This past week there was a highly publicized decision rendered by the high court in the state of Rhode Island that prevented married same-sex Rhode Islanders from getting a divorce. Ironically, Rhode Island does not have laws legalizing same-sex marriage. However, that is not the basis for the recent decision preventing the divorce, the court’s decision was based on its interpretation of the state’s law on the family court’s authority regarding divorce. This particular same sex couple was legally married in Massachusetts, the only state in the United States that legalized same-sex marriage. Massachusetts permits Rhode Island and New Mexico same-sex couples only, to come to the state and marry. The state limits the out of state same-sex couples to these two states because at the time of enactment, these were the only two states in the U.S. that did not have laws clearly prohibiting same-sex marriage. Interestingly, however, if Massachusetts, Rhode Island or New Mexico same-sex couples legally marry in the state of Massachusetts, there are some states that will recognize their marriage as legal even if that state illegalizes such marriages. New York, specifically, recently had a trial court rule that a valid Canadian same-sex marriage will be recognized here in New York. Under the legal theory of comity, a country must recognize the laws of another country on such issues, as long as it does not violate any of the former’s public policies. And although the decision has not made it to the state’s highest court, it is a major triumph for those same-sex couples that marry elsewhere and subsequently relocate to New York. Consequently, Congress passed the Defense of Marriage Act in 1996, which permits individual states to opt out of recognizing another state’s same-sex marriage. As a result, many states have enacted laws or Constitutional amendments either explicitly defining marriage or specifically prohibiting the recognition of out of state same-sex marriage. New York is one of the few states that have not enacted any such law, although the legislature currently has a committee addressing this issue. And although the highest court recently rendered a decision stating that it is not unconstitutional to ban same-sex marriage, there is no such law yet. Thus, the trial court’s position in its ruling, was that because there is currently no such law on the books prohibiting the recognition of foreign marriage, there is no viable reason to deviate from New York’s longstanding tradition of recognizing these marriages, particularly those that could not legally be performed here. New York City (and other counties in New York) do permit same-sex couples to enter into domestic partnerships. Although the entitlements under a domestic partnership are limited, it does entitle same-sex couples to enjoy some of the same benefits that heterosexual couples are afforded, i.e. healthcare benefits for the domestic partner. (See my blog on Dissolution of Domestic Partnerships). So in essence, if a same-sex couple marries in Massachusetts (or any other country that legalizes same-sex marriage) and moves to New York, their marriage would be recognized as any other marriage, if the trial court’s decision is upheld on appeal. Therefore, the rights and benefits afforded to New York’s married heterosexual couples would be extended to its same-sex couples legally married elsewhere. Those rights would extend far beyond what domestic partners are entitled to, including benefits ranging from spousal retirement benefits to child custody to the evidentiary marital privilege exercised in court proceedings. However, it is not the rights or the benefits same-sex married couples are entitled to that raise questions, but the authority New York courts have to divorce these same-sex married couples. Divorcing same-sex couples here in New York can raise same or similar concerns as raised in Rhode Island. While New York has not promulgated a “marriage recognition” law, specifying that a legal marriage is limited to man and woman, it has no law setting forth specific requirements for divorce either. Aside from residency requirements, the legal grounds for the divorce and other procedural criteria, nowhere in the Domestic Relations Law is divorce actually defined. Further, the New York Constitution, Article 1, Section 9 merely states “…nor shall any divorce be granted otherwise than by due judicial proceedings…” and makes no further mention of one’s rights to divorce. It will be interesting to see where this goes. We are probably not that far from being faced with a similar situation here in New York and will be forced to deal with it given the gay and lesbian population. If you have a question about divorce, domestic partnership or any related issue please contact my office for a consultation. CORRECTION: My last blog entry erroneously stated that New York’s statute of limitations period for vacating an Acknowledgement of Paternity on the basis of fraud, duress or material mistake of fact was one year. However, nowhere in the applicable section of the Family Court Act does it make reference to this one year period. However, it is presumed that the statute of limitations period for a claim of “fraud” would apply instead, thus possibly tolling and extending the period beyond the six-month period for vacating the Acknowledgement of Paternity. I recently had a case where the issue of paternity of a child consumed every moment of the client’s life, which put his marriage in jeopardy. The father believed he was the biological father from the moment he was informed and therefore never gave a thought to taking a DNA test to prove it. He was present for the birth, signed an acknowledgement of paternity at the hospital (since the parties were not married) and took on all responsibilities of a father. Three years later, after enduring an emotional roller coaster and paying thousands in child support, DNA results indicated that there was more than a 95% probability that he was not the biological father. He immediately went to Family Court and filed a petition to vacate the acknowledgement of paternity and to have his court ordered child support terminated. Now one would think that with the results indicating that he was not the father, this should be a cut and dry case and the court should be more than willing to terminate the order of support. However, in New York, once paternity is established, by acts of the alleged father or by signing an acknowledgement of paternity, terminating paternity is not an easy task. Paternity is established in one of four ways in New York: 1) if the parties are married at the time of birth paternity is presumed; 2) if an acknowledgement of paternity is signed by both parties at the time of birth (or any time after birth at the Department of Social Services); 3) if the parties are not married at the time of birth but marry sometime afterwards, the parties can submit an affidavit to the Department of Social Services and it will be filed; or 4) the parties can file a petition for paternity and get an order of filiation at Family Court. In any of these instances, the father is considered the “legal father”. Prior to the signing of an acknowledgement of paternity or Family Court order of filiation (even if named as the father on the birth certificate), the father of a child born as a result of non-marital relationship is not the legal father, but considered the “putative father”. The difference between the two typically becomes an issue mainly with fostercare and adoption. Once an acknowledgement of paternity is signed, either party may make an application to court to have it vacated if they believe that the named father is in fact not the biological father. The petition must be filed within six months of signing the acknowledgement unless it was signed under fraud, duress or material mistake of fact, in which case the period is extended to one year of signing. The legality of challenging paternity prior to signing an acknowledgement of paternity where there is no contact with the child; prior to signing an acknowledgement where there was contact with the child; after signing an acknowledgement whether there was contact or not; and a child born out of a legal marriage varies tremendously. In instances where prior to signing an acknowledgment there was no contact between the alleged father and the child, challenging paternity is the least burdensome. However, in instances where there was prior contact (putative father); or there was an acknowledgement of paternity signed or an order of filiation entered by Family Court; or the parties were married at the time of birth, the burden on the party challenging paternity is much greater and at times impossible. Furthermore, although the legal time period (statute of limitations) for establishing paternity is 21 years from date of pregnancy for a child where there is no acknowledgement of paternity and no contact, that period is limited where either the parties were married, there was contact between alleged parent and child, there is an acknowledgement of paternity or court order of filiation. In this particular case, because there was an acknowledgement of paternity and contact with the child, the legal theory of “equitable estoppel” prevents the “legal father” from vacating the acknowledgement of paternity and terminating his obligation to support the child. The premise behind this legal theory is that in the “best interests of the child” the psychological impact on the child from testing for paternity, the potential strain on the established parent-child relationship and the emotional turmoil of not knowing one’s actual biological father is not worth an actual determination of paternity. In essence, this means that a non-biological father may be held responsible for providing, at the very least, financial support for the child. And in an era where more and more children are being born out of wedlock, the potential for this “involuntary surrogacy” is increasing. It is yet to be seen what the outcome of this particular case will be. However, in the interim those of you facing the dilemma of having a child out of wedlock, establishing paternity early on is tantamount to a lifetime free of playing “involuntary surrogate” to someone else’s child. If have a paternity case and/or child support case, feel free to contact my office for a consultation. |
