Tuesday, June 29, 2010

Family and Divorce Law in New York: Family Court Not Just For Families Anymore

The Appeals Court in Albany, New York decided a Madison County Family Court Judge erred when he denied Jessica D.’s request for an order of protection for “reasons of public policy”. Even though the nature of the relationship met the standard of intimacy required by Family Court Act, section 812, as established by the legislature, Judge Dennis K. McDermott denied the request because Jessica D. was married and Petitioned for the order of protection against an on-again, off-again, boyfriend. In fact, Jessica D. was still living with her husband and daughter when she went on a ten-day liaison with her boyfriend, and thereafter filed a petition in Family Court for an order of protection alleging that he hit her in the leg and threatened to shoot both her and her husband.

The third department decided the main purpose of Family Court Act Article 8, section 812, is “providing reasonable means and methods of protection and enforcement for victims of domestic violence…” Walker v. Walker, 86 NY2d 624 (1995). In essence, the Court decided it was legislative intent to extend Family Court jurisdiction to cover relationships such as the one had between the parties herein. While those in "intimate" relationships were intended mainly to be non-married boyfriends and girlfriends, the statute explicitly says that no sexual relationship need exist for an alleged abuse victim to seek an order of protection against his or her abuser.

The Judge who made the underlying Family Court decision questioned Jessica D.’s commitment to her marriage. However, that is not the point of the Family Court Act, especially not of Article 8, section 812. Regardless of Jessica D.’s commitment to her family and marriage, she required protection against someone she was in an “intimate” relationship with, as established by the Family Court Act and interpreted by case law. Justice Mercure wrote, "Courts have no right to add to or take away from [the statute's plain] meaning. He went on to explain that the Court’s sole objective "is to discern and apply the will of the Legislature, not the court's own perception of what might be equitable."

In my personal opinion there is a shift in the Court away from traditionalism and judgment to modernity and understanding. What I mean is that, in the past adultery was a shameful and punishable act in Family and Matrimonial Courts. In New York, it is a ground for divorce that used to hold major weight in decision of equitable distribution, custody and other Family Court and Matrimonial Decisions. Lately, though, I observe a shift away from the ideal of preserving the sanctity of marriage, to a larger understanding and acceptance of the changing nature of relationships. One major indicator of such a shift, is the Senate passing No Fault Divorce in New York. Is this a positive or negative change, I’m not sure yet, but I believe the next few years will prove very interesting in the field of Family and Matrimonial Law, not just in New York, but all over the country.

If you have an opinion or any comments to add they are always appreciated and welcome.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com

Wednesday, June 23, 2010


So, when I started this blog I had envisioned not only writing about Family issues, Family and Matrimonial Law and issues surrounding Divorce in New York, but also about being a business owner. I have now been a solo practitioner, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., for over a year. Of course, I am no where near being an expert on business practices, but I would like to share what I have learned along the way.

For those who are thinking about starting their own business, I want to share with you that it has been the most challenging time in my life, but also the most rewarding and happy period of my life. My family does not remember the last time I complained about work. To the contrary, the challenges are all personal adventures and conquests.

I recently read an article that listed the top 6 reasons most individuals are scarred to start their own business, most of them being reasons I was scarred to take the leap out on my own, such as:
a) Uncertainty
b) Indecision
c) Economy
d) Debt
e) Family Obligations
f) No Benefits

However, reflecting on those fears and how personally and professionally fulfilled I currently am; these are my responses to each:

a) Uncertainty: I must confess that not having a steady income is a daunting thought when deciding whether to start one’s own business. The security of a steady and reliable pay check is a great feeling, especially when debt and other responsibilities are looming over you. However, looking back, I realize that it’s a false sense of security that I felt, because if your employer decides to let you go or close the business, then it’s the same as being self-employed, maybe even worse – unemployed. I was at the mercy of someone else, my boss, for my pay check, so I decided I would rather rely on myself (or at least try to). There is no denying that the beginning is challenging and a lot of financial sacrifices have to be made, but once the income starts coming in it is all yours, and at the end of the day you are at no one’s mercy but your own. I joke about how my current boss is a slave driver, but the income is growing and I’m enjoying it!

b) Indecision: I cannot imagine going into a business that I did not have any experience in. All of my experience and gained knowledge was in the field of Family and Divorce Law in New York. I even earned an advanced legal degree (an LL.M.) in the field. Therefore, it was not a hard decision to start a business in Family and Divorce Law in New York. I had worked hard to build up at least a small client base and possible referral sources before jumping into my practice. Lastly, even though I had the education and a sufficient amount of experience in the field, I still read every source I could get my hands on about running one’s own business and material specific to my business. So, since I had no indecision about what business to start, I cannot really advise those who do, except prepare, prepare, prepare.

c) Economy: I left my firm and began my own business at the peak of the recession. Every one, from colleagues to friends to family, told me I was crazy to start my business when the economy was so bad and so many people were losing their jobs. At the same time my husband was laid off from a large financial institution, so I knew how precious having a job was and that I should have been happy to be employed. But, I had decided to start my own practice and maintained my plan, and quickly learned that when the economy may be hurting some, others may be thriving. It will never seem like the perfect time to take such a leap of faith, so after careful planning and with some determination I don’t believe a so-called bad economy should stop any one from following their dreams.

d) Debt: This concern I know best. Living in New York and having earned my legal degree, my license to practice law, and an advanced degree in Family and Matrimonial Law, all in New York, I have a tremendous amount of debt looming over me. I lost sleep over what to do about my debt. Then, after some careful planning and negotiation with banks, I learned that certain loans could be put on hold for a year, so that I was paying a lesser amount for that period of time. I learned how to manage my debt so that it was not managing me or my decisions. Managing my loans gave me a chance to save up enough money and generate enough income to sustain my business and now easily pay my debts down. So, if and only if, you can manage your debt in order to buy yourself a bit of time to get your business of the ground without ruining your credit or going into bankruptcy, then the debt should not be a deterrent to starting your own business.

e) Family Obligations: The first year of running your own business can be very trying. It has required most of my time, devotion and energy. My husband has had to be patient and make himself lots of dinners and spend some weekends on his own. I imagine I can liken starting your own business to having an infant. So, one must be ready and plan to be able to have the support and help necessary to balance your devotion and time between growing the business and maintaining it and your family obligations.

f) No Benefits: For some it might be scary to have to give up the 401K or retirement accounts, or go for a period without health or dental insurance. I know this was a big concern of mine. However, luckily my husband covers us both under his health insurance. If he had not been able to cover me, I am sure I could have either pooled together with other professionals to maintain a group health plan, or I would have lived without it for a while and purchased health insurance when I became financially able to do so. With regard to retirement plans and the 401K account, these are simple to open and with the help of a good accountant or business savvy friend very manageable and easy to maintain for a solo practice or small business venture.

So, to anyone pondering the possibility of starting your own business, it is not easy but at least for me the journey thus far has been extremely rewarding! I have been able to help so many individuals during times of family crisis, and have been able to personally reap all of the rewards!

As always, any comments are always welcome and appreciated!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com

Monday, June 21, 2010

New York Divorce and Family Law: Picking Favorites


I recently read in an article, that a study was done suggesting that in every family with more than one child, there is a favorite. The study goes on to suggest that while most parents deny having a favorite child and the issue is commonly laughed off, having a favorite can have serious future consequences, for both the favored kid and other children in the family.

Playing favorites can cause major resentment between children, especially toward the favorite child. Also, the favorite child may feel extreme guilt for how hard the other children had to work for their parent’s affection unlike themselves. The favorite child may have extra stress from having to always prove themselves to their parent, while the non-favorite may grow up well adjusted due to the lack of such stress.

During a Divorce or Custody dispute it is easy to favor the child who wishes to reside with you, or the child who sticks up for you, takes your side in the dispute. One must remember that each child during such a dispute or divorce loves their parents and should not be forced to take sides, and no matter what their wishes are during the proceeding the parents must show all of their children equal love and devotion.

If a child expresses negative feelings about your behavior toward them as opposed to your other child or children, then commend them for expressing their feelings as most of the time children will not properly communicate with their parents about such issues. Listen to your children and do a person evaluation of your self, your feelings and your behavior to determine if there is a basis for your child feeling that way. Most importantly and what turns out to be the most difficult task is to be honest with yourself. There’s some degree of favoritism in every family, so this should not be something a parent is ashamed of or denial about. Children are all different and favoritism is natural, it just must not go too far.

Tips for parents when one child feels they are picking favorites:

a)Communicate your thoughts and feelings to your children and make them understand all of them are loved in their own way and for their differences.
b)Listen to your children and don’t ridicule them for their feelings with regard to this issue, rather commend them for speaking up.
c)Do a personal self-evaluation and do your best to correct the behavior that is to blame for your children’s feelings.
d) Most importantly, give your children the benefit of the doubt, as they are the ones that are being shaped into adults and are the ones that will suffer as a result of any negative behavior toward them, whether conscious or subconscious on your part.

If you wish to comment on this issue, or if you ever felt that you were favored or that your siblings were favored, I would love to hear from you!!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com

Wednesday, June 16, 2010

New York Divorce Law: NO-FAULT DIVORCE

New York is the last state in the United States to not have No-Fault divorce. Yesterday’s blog post discussed the grounds one must prove to obtain a divorce in NewYork. However; the New York State Senate pushed New York closer to modernity on Tuesday by approving legislation that would permit couples to separate by mutual consent, a major shift with sweeping implications for families and lawyers.

In a recent New York Times Article, it states, “The new legislation still has to pass the State Assembly, which is considering two bills that would include some version of no-fault divorce. But advocates said Tuesday that they believed that victory in the Senate…gave the measure momentum and a high likelihood of gaining approval in the Assembly…” (Issue: June 15, 2010, by Nicholas Confessore).

So as a Divorce attorney in New York, I sit and ponder what implications the passage of such legislation will have on my clients and on my practice. So, here are some thoughts on the subject:

Affects the passage of No-Fault laws in New York would possibly have:


a) Less emotional and mental harm to children, because they would not be pitted in the middle of the parents, would not have to choose sides, and best of all would not have to testify as much in court regarding the fault of one parent. Conflict between the parties would probably decline.
b) Other states have reported that moving towards No-fault divorce lessens the case-load of the Court and shortens the time it takes to obtain a divorce.
c) Would reduce the need for lies, perjury, and deceit to be a part of the divorce system in New York because financial settlements would be based on standard of living, contributions to family finances, need and ability to pay.
d) Certain clients, especially ones in marriages with domestic violence, will feel empowered to file for divorce and be able to get out of the marriage easier. It is very scary for some individuals to have to stand up in court, plead and prove cruel and inhuman treatment. Also, it is very embarrassing for most clients to state that they were either abandoned or that their spouse refused to have sex with them, constructive abandonment.
e) For attorneys the divorce would be more manageable, predictable and settlements would be easier to come by.


a) No-fault divorce gives more power to judges in deciding issues such as splitting up marital assets, custody, and spousal support – because there is no fault, the judge may use his full discretion without considering any fault.
b) Makes divorce much simpler, because no-fault eliminates one-parties control to object to the divorce. The party has no chance to fight the grounds and thereby lose a chance to save the marriage.
c) In custody decisions it will be harder to determine which parent is the fit parent if fault is not an issue. The court may not get a chance to hear of abuse or unfitness due to “fault” not being an issue.

In conclusion, I believe that even though some attribute the high rate of divorce on No-Fault Laws making it too easy to get a divorce, I attribute lots of individuals remaining if unhappy and unhealthy marriages due to stringent fault laws in New York. I believe No-Fault laws will free a lot of individuals and provide them with more of a choice over their own lives. I believe, the court in New York will not abandon the “Best Interest of the Child” standard for deciding custody and will still decide whether a parent is fit or not, having nothing to do with “fault” necessarily. Every divorce attorney in New York realizes that because of the amount of couples agreeing to a ground just to get a divorce, even if that ground is not absolutely true, that even though New York has fault laws, the fault of one party typically does not have that much impact on the separation of property or spousal support decisions.

I believe that the parties to a divorce should decide their own fate, rather than having a stranger, the judge, decide it for them and should try their best to come to a settlement. Realizing that no-fault laws may make this more possible makes me believe that No-Fault in New York is the way to go.

Please share your comments and opinions with the above; I would love to hear them!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com

Tuesday, June 15, 2010

New York Divorce and Family Law: Think Before You Post

Just came across a web site that states that New York State has no - No Fault Divorce. Meaning you must have a ground for a divorce. Which is current, but the web site then goes on to state that most people just put down "Constructive Abandonment or Abandonment" To get around the grounds requirement. To advertise this on a website, considering you must put the terms of the ground and attest to them under oath and on the record before a Judge seems incredibly un-ethical, even if it is some what true. Any opinions?

Constructive Abandonment is when one partner refuses to have sex with the other for one year, without any justification (such as a medical reason for not being able to perform) for refusing such and after being asked to have sexual relations.

Abandonment is when one partner leaves the home and is away for at least one year.

Other grounds for divorce are as follows:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant,

(2) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(3) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(4) The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(5) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com

Monday, June 14, 2010

New York Divorce and Family Law: Child Adbuction

In Haimdas v. Haimdas: 2 children were found to have been unlawfully retained by their father in the United States and the father was ordered to return both sons to their mother in England.

A bit of history: The Petitioner, the one bringing the suit for return of her sons, was in the United States under a tourist visa and met Respondent Father. The couple conceived a child and were married shortly afterwards. When her first son was 4 years old and the second 17 months old the Couple decided to separate and both agreed that the Petitioner Mother would go back to England with the boys, who were dual citizens. The respondent purchased them a one-way ticket.

Seven months after Mother’s departure with the boys she came back to America with her brother and the boys to visit their father. They all came by a round trip ticket again purchased by Respondent Father. At the airport the Mother was not allowed to proceed into America as she had overstayed her prior tourist visa by four months. So, mother had to return to England, while her sons and her brother went to visit with the father. At the end of the two weeks, the father refused to return the sons. For three years the sons lived in America, periodically visiting the mother for 4 or 5 weeks at time.

Then at age 8 and 5, the boys expressed to their mother that they wish to stay in England with her as the father punishes them and hits them. They were with her for three years. Petitioner Mother received a Prohibited Steps Order. This is an order in England prohibiting the father from removing the children from England or retaining the children outside of England.

In July of 2008, the mother allowed the children to fly and visit their father in New York for two weeks. After the two weeks, the father told the mother he was keeping the boys and visitation was going to be on his terms. Mother brought suit under the Hague Convention.

The Hague Convention: "was adopted in 1980 in response to the problem of international child abductions during domestic disputes." Abbott v. Abbott, -- S. Ct. --, No. 08-645, 2010 WL 1946730, at *5 (May 17, 2010). The Convention's express objectives are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1. Since its inception, the treaty has been ratified by over 80 nations, including, most pertinently, the Unites States and the United Kingdom.

The Convention is especially designed to deter "those close to [a child], such as parents, guardians, or family members," from unilaterally taking or keeping the child out of the country of habitual residence with an intent "to establish artificial jurisdictional links" to a more sympathetic forum for a custody dispute. Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, "[t]he Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith,' unless certain exceptions apply." Abbott, 2010 WL 1946730, at *5 (quoting Hague Convention, art. 12). "[A] 'wrongful removal' under the Convention is one 'in breach of rights of custody…under the law of the State in which the child was habitually resident.'" Blondin v. DuBois, 238 F.3d 153, 157 (2d Cir. 2001) ("Blondin II") (quoting Hague Convention, art. 3) (ellipsis in Blondin II). The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art 5.

Pursuant to the Hague Convention: it’s a three step process to determine if the children shall be returned:
a) Determine where child habitually resides: Protection versus child abduction when taken or kept out of state in which children habitually reside immediately before removal.
b) If removal is a breach of the right of Custody?
c) If Custody rights were being exercised at time of removal/retention.

So, in this case the Court determined: that the habitual residence of the children was in fact England, since both parents agreed that the child would live there before their initial move there. The father had paid for a one-way plane ticket and the children had started school there. The Court further determined that children’s lives were not so deeply entrenched in the United States to warrant keeping them in the United States.

Second, the Court determined that even though under the Hague Convention it states that both parents have parental responsibility over a child born to married parents. This means that both parents have custodial rights. However, in this case the Court in England had clearly ordered that the father was prohibited from removing the children from the United Kingdom or retaining them any where else, and was clearly noticed that if he did so it is a criminal offense.

Moreover, the mother by solely taking care of the children before they came to the United States to visit their father was more than exercising custody of the children prior to their wrongful retention.

Lastly, there is an exception to the Hague Convention, if the child of an age and maturity where his or her view should be taken into account. The Court found that the boys were not of such an age or maturity, and even if they were, their reasons for wanting to stay in America were not good enough.

So, even though we typically hear of long and drawn out court battles between countries and such, there is light at the end of the tunnel for some parents. The Hague Convention is a very complicated legal product so I hope this post shed a little light on its provisions. I found it interesting and hope you did too. For the full article go to: http://nccr.info/

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

Friday, June 11, 2010

New York Divorce and Family Law: Violance Against Women Act

The Justice Department has decided that the criminal provisions in the Violence Against Women act should be enforced in cases involving gay and lesbian relationships.

The Violence Against Women Act was first passed by Congress in 1994. Its provisions made it a federal crime to cross state lines with the intent of committing domestic violence, stalking, or violating a protection order. The government’s application of laws to gay and lesbian relationships has been a matter of great contention. The Defense of Marriage Act, a 1996 law, required the federal government to define terms like “marriage” and “spouse” as legal categories that can only be understood as a union between one man and one woman.

Since the Violence Against Women Act includes terms not covered by the Defense of Marriage Act, like “dating partner” and “intimate partner”, and since the provisions of the Act make clear it applies to conduct against male, as well as female, victims, it has been determined that the text of the Act is gender-neutral.

The expansion of the Violence Against Women Act, like the amendment to Article 8 of the Family Court Act in New York which extended the ability of an individual to obtain an Order of Protection against any individual they have been in an intimate relationship with regardless of whether such persons have lived together at any time, is a step towards equality and recognizing that same-sex couples are subject to the same issues facing other committed couples, such as domestic violence.

If you are seeking more information about Family Offense Proceedings or any other Family Court preceding in New York you may go to:

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

Monday, June 7, 2010

New York Divorce/Family Law: Parental Alienation

Supreme Court Justice Robert A. Ross in Nassau County, New York, has sentenced a woman, in an on-going divorce matter to six weekends in jail for willfully violating a court order by repeatedly undermining her ex-husband's relationship with their two elementary school-age daughters. "The extensive record is replete with instances of...manipulation of defendant's parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct...and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father," the judge wrote.

Parental alienation syndrome occurs when one parent attempts to purposefully or unconsciously brainwash a child, in effect pitting the child against the other parent. In severe cases, the child will not want to see or talk to the alienated parent. Once the alienation reaches such a point, it is almost impossible to reverse, and permanent damage is done to the child, mentally and emotionally, and to the relationship between the child and the alienated parent.

Some Warning Signs of Parental Alienation: Here are some warning symptoms psychologists have observed in children suffering from parental alienation syndrome:

1) Speaking with the child in detail about the marital relationship or reasons for the divorce.
2) One parent bad-mouthing the other to the child by blaming the other parent for financial problems, the break up of the family, or having a girlfriend or boyfriend.
3) Refusing to allow the child to transport possessions between residences.
4) Refusing to allow the other parent to visit with the child, or refusing to be flexible with the visitation schedule, or scheduling the child in so many activities that the other parent is never given the chance to visit, even going so far as to violate Court orders of visitation.
5) Resisting or refusing to allow the other parent access to school or medical records and schedules of extracurricular activities.
6) Lying to the child about extra-marital affairs of the other parent, or about the other parent not wishing to see the child, when in actuality they will not let the other parent see or call the child.
7) Asking the child to choose one parent over the other, either directly or by making the child feel guilty about seeing the other parent by reacting with hurt or sadness to a child having a good time with the other parent.
8) A parent or stepparent suggesting that the child call their new partner “Mom” or “Dad”.
9) The alienating parent encouraging any natural anger the child has toward the other parent.
10) When the child cannot give reasons for being angry towards a parent or gives reasons that are vague and without any details.
11) Using a child to spy or covertly gather information for the parent's own use, or as a messenger between the parents.
12) Listening in on the child's phone conversation with the other parent.

Parental alienation is not just damaging to the parent-child relationship, in many cases it can be very damaging to the child’s mental and emotional well-being. Parental alienationis being taken very seriously in Family Court, when deciding issues of custody and visitation.

If parental alienation is pleaded and proved I believe it should be considered as a form of child abuse, even as a crime, as it has long term detrimental affects to the child; however, circumstantial evidence of such abuse should not be allowed. Many individuals, even parents who are the actual abusers use the claim of parental alienation in Family Court to obtain custody and visitation when in fact the supposed alienator is in reality trying to protect their child from an abusive individual. Therefore, I believe that forensic evaluators, judges and attorneys for children should use the utmost care when it comes to such claims to determine if they are in fact true.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ Dukhanlaw.com

Friday, June 4, 2010

Divorce in New York: The Gary Coleman Lesson

I just read an article in the post about Gary Coleman and the mysterious circumstances surrounding his death. It won’t surprise most who know me that the fact I found most interesting is that Shannon Price, his ex-wife, made all of the medical decisions on his behalf. HIS EX-WIFE! Although it was revealed Wednesday that Coleman, and Price, had been divorced at the time of his death, the actor had given Price written permission to make medical decisions on his behalf.

Of course no one will ever know if in fact Coleman wished that his EX-WIFE would pull the plug and let him die, as she did, because he never revoked the document he executed giving her such power over his life.

In New York, pursuant to section 2981 of the New York State Public Health Law, the appointment of principle spouse as health care agent is automatically revoked upon the divorce. Now, Gary Coleman lived and died in Utah, so their laws may be different; however, regardless of the New York State Public Health Law, even in New York after you divorce, it is important to update your beneficiary designations on health care Proxies, Power of Attorney Forms, and any other financial instruments such as life insurance policies, stocks, bonds and other assets, since state law does not always offer 100% protection.

For example, the U.S. Supreme Court recently upheld a case involving an award to an ex-wife of the benefits of her ex-husband’s life insurance and pension plans because he never replaced her as the beneficiary. A federal law known as ERISA pre-empted a state law that automatically revoked beneficiary designations of ex-spouses after divorce. As you can see, if a situation like this is left unattended, an unintended outcome could result.

New York precludes an ex-spouse from inheriting under a Will created during marriage, and all provisions for spouse as executor or administrator are revoked automatically as well. However, the laws vary tremendously and resolution of the matter can be further complicated where a divorce occurs in one state, but the estate plan or beneficiary designation is governed by the laws of another state or the federal government.

Bottom line, is that you should have all estate planning documents reviewed. In particular, you’ll have to review your fiduciary designations with the following questions in mind.
Who is designated as the Trustee of a Trust?
Who is the Executor/Personal Representative of a Will?
Who is the Agent under a Property Power of Attorney, Health Care Power of Attorney, or Health Care Proxy?
Who are the beneficiaries of my Life Insurance Policy, Pension and any other stocks, bonds and other assets?

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

Wednesday, June 2, 2010


A Couple of Interesting Topics:

First, suing someone because they gave you permission to cheat?

Upper West Side couples counselor Jeffrey Mechanic is being sued by two of his former clients who claim he almost ruined their marriage. He told one of the spouses to have an affair because that spouse was not satisfied at home. The most amazing thing is that the spouse actually had an affair. Now some individuals may agree with the counselor and his belief that if you are unsatisfied at home you should have an affair rather than Divorce your spouse. The counselor’s advice may have even saved certain marriages. One of his former clients states, “he encourages people to have affairs. He makes people feel it’s O.K. He gives them permission to do it.” I mean really?!? Individuals who have serious medical illnesses typically get more than one doctor’s opinion before proceeding with a treatment. Why would any one going to a couple’s counselor who tells them to have an affair not do the same thing before choosing what is right for them to save their marriage.

The real issue here, though, is not whether the counselor gave bad advice, but it is whether a couple should be able to sue a counselor for his prescription if at the end of the day you chose to listen to that counselor. After all, have we forgotten that people have free will and are expected to know the difference between right and wrong?

Second, waiver of interests in retirement assets enforceable within a prenuptial agreement:

In the past, a provision in a prenuptial agreement waiving one’s interest in certain retirement rights was unenforceable. In Richards v. Richards (232 AD2d 303, 303 [1996]), the court had found that under the Employee Retirement Income Security Act 'only a spouse can waive spousal rights to employee plan benefits, that a fiancĂ©(e) is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.' Therefore, because such rights could only be waived by a “spouse”, if one fiancĂ©(e) wished for the other to waive their interest in such retirement rights they would have to have had a prenuptial agreement and a post-nuptial agreement waiving said rights.

Now, the first department in New York (Manhattan), found, in an opinion by Justice
Andrias, that the parties' prenuptial agreement contained an enforceable waiver of defendant wife's interest in the marital portion of plaintiff husband's retirement assets. Strong v Dubin,--- N.Y.S.2d ----, 2010 WL 1905004 (N.Y.A.D. 1 Dept.).

Judge Andrias pointed out that Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), which provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage, marital property must be distributed equitably between the parties, while separate property shall remain separate (see Domestic Relations Law 236[B] [5][a]-[c]). Therefore, the court is distinguishing now between pension benefits as marital property and survivorship rights, which Richards v. Richards above failed to do. So, now a couple can waive pension benefits in a prenuptial agreement; however, survivorship benefits must still be left for a post-nuptial.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com