Wednesday, February 8, 2012

What happens if your marriage turns out to be void from the beginning?

What happens if your marriage turns out to be void from the beginning?

The question may sound unusual, but it is very common in religious communities where members may ignore secular law, and go straight to their clergy for a religious wedding ceremony. I will refer to this situation as “failed ceremonies.” Another scenario occurs when one, or both, of the parties were previously married. They may have obtained a religious divorce, but not a civil divorce from a court. While still being civilly and legally married to another person, s/he enters into a religious marriage ceremony with the new spouse. This sounds like polygamy, but the attempted second marriage is considered void from inception. The second marriage is akin to attempted polygamy. I will call this situation the “void or voidable marriages.”

Failed Ceremonies

In order to legally marry in New York State, a couple must be of proper age, obtain a license to marry from a city or town, wait 24 hours and then engage in a solemnization ceremony officiated by a member of the clergy, judge, mayor or town clerk. With many religious couples, these civil formalities are ignored. Specifically, no license is obtained or the officiant is not properly qualified. Recognizing this reality, the couple’s failure to obtain a marriage license or have a proper solemnization ceremony does not necessarily prevent the recognition of their marital status under New York’s Domestic Relations Law (“DRL”). The courts have found that the DRL shall “not be construed to render void by any reason of a failure to procure a marriage license any marriage solemnized between persons of full age.” Ahmed v. Ahmed, 55 A.D.3d 516 (2d. Dep’t 2008). The parties participation in a purely religious marriage ceremony satisfied the requirements of New York’s DRL. Wherever possible, the courts endeavor to sustain the validity of a marriage. Helfond v. Helfond, 53 Misc.2d. 974, 977 (Sup. Ct. Nassau Co. 1967).

Void or Voidable Marriages

A void marriage is one that never legally existed because one of the parties was unable as a matter of law to enter into the marriage. The most common example of this is when a person is still married to their former partner on the day of the marriage ceremony. New York does not recognize the second ceremony as a legal marriage. That attempted marriage is considered “void ab initio”, which means it will be treated as invalid from the beginning. Another form of failed marriage is the “voidable” marriage. It is commonly known as an annulment. In that case, a court issued a Judgment nullifying what was at one time a lawful marriage.

If the couple splits and a divorce action is commenced, one party may attempt to argue that there is a void, voidable or void ab initio marriage, to prevent a spouse from exercising his/her financial rights (under equitable distribution). In either case, the court in New York’s Second Department has long held that property acquired during a void or voidable marriage is subject to equitable distribution. First, the party claiming the marriage is void, has a heavy burden to overcome the presumption that favors the validation and legitimization of marriage. This is especially true when the facts show that the parties completed a ceremony, lived together, held themselves out as being married, and have children of the purported marriage. In New York there is a “strong presumption favoring the validity of marriage.” In re McDonald, 276 A.D.2d. 631, 632 (2d Dep't 2000), Fisher v. Fisher, 250 N.Y. 313, 317 (1929) ("Every presumption lies in favor of the validity of a marriage."). It has long been held that “[t]he presumption of marriage, from a cohabitation, apparently matrimonial, is one of the strongest presumptions known to the law.” Hynes v. McDermott, 91 N.Y. 451, 459 (1883).

Even if the marriage is determined to be void or voidable, such a decision is of no consequence with respect to the distribution of property acquired during the marriage or many other issues raised in a divorce case like custody and visitation. Attorneys have on several occasions proffered the theory that equitable distribution is not applicable to a void or voidable marriages.  The argument is wrong. The Appellate Division, Second Department has clearly put the issue to rest. The appellate court found in cases where a marriage was void at its inception because one spouse was not divorced from a prior spouse, that equitable distribution is available to both parties. Brant v. Brant, 149 A.D.2d. 646 (2d. Dep’t 1989), DeLyra v. DeLyra, 141 A.D.2d 75 (2d. Dep’t 1988), David v. Pillai, 303 A.D.2d. 708 (2d. Dep’t 2003). The aforesaid has unequivocally been the law in the Second Department since the Appellate Division held, “[t]he trial court properly concluded that the residence . . . was marital property. While the parties' marriage was declared void, the property purchased by the parties during their purported marriage was marital property which was subject to equitable distribution (see, Domestic Relations Law § 236 [B][1][c][5]).” Lobotsky v. Lobotsky, 122 A.D.2d 253, 254 (2d. Dep’t 1986).

Persons who by either intent or happenstance find themselves in a void or voidable marriage need competent representation to ensure that they receive their fair share of the marital property, and not accept the rejection of their financial rights (under equitable distribution).

Tuesday, February 7, 2012

Obtaining a Get in New York

Under Jewish law, a married person must first receive a “Get” (Jewish divorce) before remarriage. The process of giving and accepting a Get is typically coordinated and managed by a Rabbi or Rabbinical court (Beth Din). The practice by some husbands to withhold a Get is frowned upon, but nevertheless exists. The result of such refusal is that the wife cannot remarry under Jewish law, and she is then characterized as an “Agunah”. Beyond the emotional and social ramifications of being an Agunah (“Agunot” plural), there are foreseeable adverse financial consequences resulting from the continued inability to remarry. The financial consequences of preventing remarriage and pooling of financial resources, include forced dependency on public assistance of a non-moneyed spouse.

The creation of Agunot in New York State and hardships that resulted, contributed to the passing of a Get law. The underlying principle is that it is fundamentally unfair to allow one spouse, usually the husband, to withhold a Get from his wife for spite or negotiating leverage within the context of a secular divorce. In 1983, the New York Domestic Relations Law (DRL) section 253 was enacted to remedy the inequity and social burden described. The law is entitled “removal of barriers to remarriage.”

DRL section 253 provides among other things, that a person suing for divorce in New York must take all necessary steps to remove all barriers to their spouse’s remarriage. If the divorce case is uncontested (both parties agree to the divorce), then both parties must remove all barriers to the other’s remarriage. The inability of a Jewish spouse to remarry as a result of the other spouse’s refusal to effectuate a Get, is considered a barrier to remarriage. This means that the husband must give the Get and his wife must accept it, so that either of the parties may marry again in the future. HOWEVER, the provisions of DRL section 253 are not effective when a party opposes the divorce. If a party does not ask for a divorce, then he (or she) is not required under the law to remove the other spouse’s barriers to remarriage (obtain a Get).

One remedy to this problem is for couples to enter into a prenuptial or postnuptial agreement. Such an agreement will require each spouse to authorize and accept a religious divorce. The courts of the State of New York will enforce these types of agreements and compel parties to obtain a Get. Absent such an agreement, the courts may not compel a recalcitrant spouse to effectuate a religious divorce, and many Jewish couples do not have these types of agreements. However, the courts can compensate a person who is left an Agunah by effectively punishing the party that has failed to remove that spouse’s barrier to remarriage.

In 1992, the New York State legislature addressed this issue by amending the DRL to include section 236(B)(5)(h) which states that "[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage. . .” This provision codified a prior court decision which characterized a husband's refusal to give a Get as another "factor" under DRL section 236 (B)(5)(d)(13) to take into consideration when determining the distribution of assets between parties. Schwartz v. Schwartz, 235 A.D.2d. 468 (2d. Dep’t 1997).

In a trial court decision in Kings County, the court decided that the husband was entitled to maintenance as well as a portion of his wife’s pension. At that trial, it was established that the husband refused to give a Get. The court’s award of maintenance and a portion of the wife’s pension were made contingent on the husband giving a Get within 45 days of the entry of the Judgment of Divorce; otherwise, he would not receive those benefits. S.A. v. K.F., 880 N.Y.S.2d 226 (Sup. Ct. Kings Co. 2009)

In another case, the Appellate Division found as proper an award of one hundred percent of the marital property to the wife in the event the husband did not deliver a Get within a specified period of time. Pinto v. Pinto, 260 A.D.2d. 622 (2d. Dep’t 2001).

Of course, the courts of the State of New York are aware of the Get law(s) and the applicable laws that may be employed to assist the spouse who is not receiving a Get. A recalcitrant spouse would be wise to proceed with an abundance of caution.

Monday, December 22, 2008

Tough Economic Times Create Need for Prenuptial Agreements

Seeking advice about whether one should have a prenuptial agreement in tough economic times is especially important. In the current economic downturn there is an increase in the number of foreclosures, bankruptcies, defaults on credit cards and other loans. More people are at risk for losing a job now than have been for nearly a generation. These are all criteria that may make it a very good idea to have a prenuptial agreement.

I must state that I don’t recommend that everyone get a prenuptial agreement. Most people who want one are trying to protect property that is already separate under New York State law. Most people want to make sure that their family property or inheritances stay “in the family.” So long as these assets are not commingled, they maintain their separate characteristic throughout the marriage.

Another important point is that a prenuptial agreement is not limited to people who are not yet married. The very same type of agreement can be created after partners are married. Such an agreement is called a postnuptial.

If a partner has debt or is likely to incur debt, that debt may become a marital liability and a source of conflict in the marriage. A prenuptial agreement along with care in keeping credit cards and loans separate will help ensure that one party is not saddled with unwanted debt.

The most common reasons for which I advise my clients to enter into a prenuptial are as follows.

One partner owns real estate, a business or a share in a business. Without a prenuptial agreement, when the marriage ends, the business needs to be evaluated, and any part of its increase in value during the marriage may be marital property. This is disruptive to the business, and the other shareholders or members of the business. This principle may hold true for investments and improvements to real estate. The increase in value to separately owned real property that is attributable to something other than just the market going up may be marital.

It’s a second marriage and one of the partners has children or other financial obligations from the prior divorce. A proper will is also recommended for this type of client.

If one of the potential spouses is significantly more wealthy than the other.

One of the spouses to be is a spendthrift. If your partner has debt or is likely to incur debt, that debt may become a marital liability. A prenuptial along with care in keeping credit cards and loans separate will help ensure that one party is not saddled with unwanted debt.

There are interpersonal reasons for having a prenuptial agreement. One partner may wish to make sure that the other is not just marrying for the money.

In the end, a prenuptial agreement is always subject to attack in Court. It is important that both partners have independent lawyers to advise them of their rights before the agreement is signed. Finally, the agreement must have some level of fairness. If the agreement is so one-sided that a Court will deem it “unconscionable,” then the agreement will be unenforceable. All prenuptial agreements should be drafted by experienced matrimonial lawyers, to ensure that the agreement will mean exactly what the partners want it to mean.

I would like to credit the astute observation of Jeena Belil, Esq. in connection with the December 19, 2008 blog that inspired today’s article.

Friday, December 19, 2008

A Community Property Opt Out Agreement May Become an Unwanted Prenuptial Agreement

An article in the December 19, 2008 issue of the New York Post was brought to my attention. It was titled "French flavor in NY divorce." I thought to myself "that can't be right." So I read the Court's decision, and the case has some significance, just not that reported by the New York Post. The Article was about a recent decision from the New York Court of Appeals in the case of Van Kipnis v. Van Kipnis. The case involved a couple that entered into a foreign prenuptial marriage contract designed to opt out of a community property scheme.

For those unfamiliar with the concept, community property is property that is acquired by either partner during the marriage (even if it was originally in the name of only one partner) and that property is subject to the debts of both partners after the marriage. New York State is not a community property state, and one spouse need not worry about subjecting their assets to the other spouse’s creditors through the marriage alone.

The court in the Van Kipnis case determined that the foreign community property opt out agreement called for the separate ownership of assets held in the parties' individual names during the marriage. This is pretty much exactly what the parties needed to protect their assets from each other’s creditors. It is important to note that during the entire marriage, there was no commingling of the separate assets acquired. If the spouses had commingled their separate funds, then under New York law they would lose their separate nature and become marital property subject to equitable distribution. As a result, the husband retained his liquid assets, and the wife kept her assets. There was a great disparity in those numbers. The parties’ jointly held real property was subject to equitable distribution and divided.

The New York State Domestic Relations Law sets forth two basic kinds of prenuptial agreements. First, there is the waiver or opt out of the normal statutory equitable distribution rules. The second type allows the future spouse to decide that assets that would normally be marital, be designated as separate property. Such property would retain its separate characteristics upon the dissolution of the marriage. The agreement in the Van Kipnis case was found to be one of the latter.

The significance of the Van Kipnis case is that parties who enter into a community property opt out agreement may very well (and unwittingly) be setting themselves up for a less than equitable divorce. If one spouse wants the benefit of insulating his or her assets from the other spouse’s debts in a community property situation, they need the agreement. But, if they subsequently move to New York State, then they may likely lose the right of equitable distribution of those assets.

This is especially unjust in New York State because, as I stated earlier in the weblog, there is no need for such a community property opt out in New York. New York does not allow a creditor to access a debtor’s spouse’s assets just because of the marriage alone. The New York State marital property is protected in that regard, and is still subject to equitable distribution upon dissolution of the marriage.

If you move here from France, Spain or Germany after a marriage, you may want to revoke or at least modify your opt out agreement.