Whose ring is it anyway?

It was a beautiful night – the moon was bright the stars were shining and the velvet box was opened to reveal a sparkling diamond. Slipping the ring on her finger, the couple was now engaged to be married – you could almost hear  wedding bells in the distance. But not many moons had passed when storm clouds brewed, the wedding was canceled and the ring – well that’s the thing- was it a gift bestowed on the recipient or should it be returned to the donor? The answer to the question is not always that clear.

Once upon a time there was a statute in New York which was colloquially referred to as the ‘heart-balm’ statute,

(Civ. Prac. Act, Section 61– b, – d 1935) which prohibited “actions to recover damages for breach of promise to marry” and also prohibited  “suits to recover specific real or personal property in contemplation of marriage” Gaden v. Gaden 29 NY2d80 Court of Appeals 1971.

From 1935 until 1965 the so called heart balm statute did not allow for recovery of an engagement ring, or other gifts, in contemplation of marriage, so that, in the event of a broken engagement, the recipient of the ring would be entitled to retain it.

In 1965

“section 80–b of the Civil Rights Law was enacted to legislatively change our interpretation of the heart balm statute… that a person, not under any impediment to marry… will no longer be denied the right to recover property given in contemplation of a marriage which has not occurred.” (see Gaden).

In other words, if a ring is given with the intention of getting married, and the marriage does not occur, the donor of the ring has the right to recover the ring as long as there was no viable reason that the wedding could not take place.

Still confused? – so  what exactly is an ‘impediment to marry’. In Lowe v. Quinn 27 NY2d 397 Court of Appeals 1971, the Court held that a married man who was awaiting his divorce and had given an engagement ring to his new girlfriend could not recover the ring when she broke off the engagement. The reason was that since “one of the parties is married, an agreement to marry under such circumstances is void as against public policy…and it is not saved by the fact that the married individual contemplated divorce.” To be clear, in this case since the groom-to-be was still married and the engagement was broken off, the bride-to- be would keep the ring.

But what if the bride- to- be is still married when the future groom presents her with a ring and she subsequently breaks the engagement. Does she keep the ring because her marriage was the impediment to a new marriage and therefore recovery should be precluded?  Not always. In a recent case, Lipschutz v Kiderman 905NYS2d247 (2nd Dept. 2010) the Appellate Court remanded the case back to the trial court to determine whether or not the husband- to- be had knowledge that his fiancee was still married, holding that ” recovery in such cases is not intended to bar an action for the return of property to an innocent party, not aware of the other’s disability to contract a marriage at the time of the ‘engagement.'” The implication here  is that the giver would be able to recover the ring if he had no knowledge that his fiancee was still married, however if he knew that she was still married at the time and gave her the ring anyway, the fiancee would keep the ring.

There are other circumstances  where the recipient might retain the engagement ring, such as if the ring were presented to the recipient as a birthday present. “If there were reasons other than a contemplated marriage why the gift was given, such as part of a birthday or holiday celebration, the ring may not be subject to return. Where there is a genuine dispute as to the circumstances under which the ring was given, a trial is necessary to determine the facts.” 11 NY Practice New York Law of Domestic Relations Section 4:4, Courtship: Engagement Rings [2002] In other words, if the giver presents the engagement ring to the prospective bride on her birthday, or on Valentine’s Day, and the engagement is subsequently broken, he may not be entitled to recover the ring.

Lastly, if the couple does get married, but subsequently divorce, the engagement ring, which was given prior to the marriage is considered to be the recipient’s separate property and is not subject to return.”The marriage turned a gift that was conditional into one that was unconditional.” Epstein v. Epstein, 289 AD2d78. As to jewelry which is given during the marriage rather than before the marriage – that jewelry is marital property, and that is a discussion best saved for another day.

Thinking about a divorce?- Here’s what you need to know

It happens. Sometimes ‘til death do us part’ no longer seems like a viable option for your marriage. Whatever the reasons, are you prepared for getting a divorce? Do you know what to expect? Probably not. Since ‘knowledge is power’ a bit of basic information may ease the mind.

While each person’s marriage and family situation is unique, and this is not a ‘one’size’ fits all situation, each divorce must resolve fundamental issues such as the family’s finances and, if there are children, custody matters.

The family’s financial issues that require resolution are :
1. Dividing the assets
2. Spousal support
3. Child support

The custody issues, to name a few are:
1. Where will the children live?
2. When will each child spend time with each parent?
3. Who will make decisions for the children?

Dividing the assets in ‘divorce speak’ in New York is termed equitable distribution. The concept is that the division of the assets should be fair- hence the use of the word equitable. Assets include the marital residence, other real estate, retirement funds, non-retirement accounts, vehicles, jewelry, furniture and such. Also, equitable distribution includes an allocation of who shall pay which debts. Debts include mortgages, home equity loans, credit cards, car loans and any other debts incurred during the marriage.

Spousal support is called ‘maintenance’ in New York ‘divorce speak’, but in other states it is referred to as alimony. If there is a significant disparity of income, the person who is the financially advantaged spouse would pay maintenance to the financially disadvantaged spouse. The amount of the payment and duration is guided by calculations based on the Domestic Relations Law post divorce maintenance provisions.

Child support is paid to the parent with whom the children resides. The amount of the payment, is guided by New York’s Child Support Standards Act and the income of both parents.

All the financial issues identified above are subject to negotiation by the parties and if the parties cannot reach an amicable resolution and they choose to go to trial, a Judge may make the decision for them.

Custody is always a delicate matter. There are different kinds of custody – joint custody, sole custody, shared custody, residential custody- and the determination, as to which kind of custody will prevail, is either agreed to by the parties or determined by a court. That custody decision will determine where the children live, how much time each parent spends with the children, and who makes the decisions for the children’s well being.

To explain further: Parents having joint custody will make decisions for the children together on consent. If the children will live the majority of the time with one parent, that parent is said to have residential custody subject to the other parent’s parenting time, for which a schedule shall be determined. If the children spend an equal amount of time with both parents, that is said to be shared custody, and a parenting schedule shall be determined for this arrangement as well. Sole custody is when one parent has both residential custody of the children and makes the decisions for the children, usually after consultation with the other parent, but not necessarily on consent and a parenting schedule will be worked out as well for the non-custodial parent.

Lots of decisions need to be made to determine the future for a family that is changing its status from married to divorced and the ‘how’ to make the decisions is as important as what kinds of decisions need to be made. If divorce is the destination, there are different paths to get there ; litigation, mediation and collaborative divorce.

When people think of divorce, litigation is the first thing that comes to mind. However, each divorce need not be resolved through the Courts. Mediation and collaborative divorce are alternative dispute resolution methods that eliminate the need to appear in Court.

In mediation a neutral mediator facilitates the parties to come to a settlement agreement of all the issues of the divorce.

In a collaborative divorce case both parties are represented by counsel, but the parties and counsel work together as a team, and agree, as with mediation not to seek resolution in the courts.

In a litigated case, the parties are represented by counsel, and the case proceeds in an adversarial way with the Court scheduling appearances and ultimately, if the parties do not negotiate a settlement, the divorce issues are determined by a judge.
Which method to choose is up to the parties. It is the first decision that they will need to make, and could well determine how long the journey and how smooth the road to divorce will ultimately be.

Divorce Is Not Only for Grown-ups

Divorce is not only for grown-ups. Children are the collateral damage of their parents’ divorce. While that sounds harsh, it is the uncomfortable reality. In every divorce where the children are minors (in New York, under age 18), there is always a custody decision which results in a determination of living arrangements for the children. The parents, by deciding to divorce, have chosen to live separate and apart, but the children – not so much. Nonetheless, that becomes their new reality, which will impact the children’s relationship with each parent.

Deciding where the children are going to live is not like dividing up the furniture and deciding who gets Grandma’s china.

“A child is a person, and not a subperson over whom the parent has an absolute possessory interest. A child has rights too…” Matter of Bennett v. Jeffreys, 40 N.Y.2d 543, 546 (Court of Appeals 1976).

“The child’s expressed preference is an additional factor to be considered, taking into account the child’s age, maturity, and any potential influence that may have been exerted on him or her.” Tejada v. Tejada, 126 A.D.3D 985 (2nd Dept. 2015); Eschbach v. Eschbach, 56 N.Y.2d 167 (Court of Appeals 1982).

The child’s influence on his/her own custody determination was increased dramatically in 2007 by a change to the New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts. (see New York Rules of the Chief Judge Administrative Rules of the Unified Court System and Uniform Rules of the Trial Courts, Section 7.2 and NYLJ July 26, 2019, “Does Empowering Children During Divorce Litigation Serve them Well by Lisa Zelderman).

In contested litigated custody matters, the Court appoints an attorney for the child or children as the case may be. Prior to 2007, the role of the attorney for the child was not adequately defined, but was construed to be to advocate for the child’s best interest. However, in 2007 after the ruling by the Chief Judge of New York, the role was clarified so that the attorney for the child is to “zealously advocate the child’s position”(New York Rules of the Chief Judge Section 7.2[d][2]), even if the child’s preference may not be in the child’s best interest. While Section 7.2 does provide exceptions to the rule, the usual procedure is that the child’s position is what the attorney for the child must advocate. There are exceptions to the rule. If the attorney determines that the child lacks the capacity for knowing, or that “following the child’s preference would result in substantial risk of imminent serious harm,” the attorney for the child may advocate for what is in the child’s best interest. New York Rules of the Chief Judge Section 7.2(d)(3).

The 2007 ruling effectively gives the child a powerful voice in the proceedings, and depending on the age of the child, the voice can have a profound effect on the outcome. If the case goes to trial, the Judge makes the ultimate decision as to custody, using the best interest standard. The judge considers the positions of the Mother, Father and child. Each party’s attorney advocates for the client’s position by presenting evidence and testimony consistent with that position. The child, thus, becomes a party to the action with the same input as each of the parents.

The fact that the child is considered an actual party even though the child is neither Plaintiff nor Defendant in the matter, is evident in a recent appellate case regarding a modification of custody, Matter of Newton v. McFarlane (NY Law Journal June 11, 2019, 2nd Dept.). The appellate court held that the Father should be given sole custody of the child, finding that the trial court’s decision to change custody from the Father to the Mother was in error because the lower court “failed to give due consideration to the expressed preferences of the child, who was 14 and 15 years old at the time of the proceedings in the Family Court, and who communicated a clear desire to remain in the father’s custody.” The appeal was taken on the child’s behalf by the attorney for the child, with the Court determining that the child had the right and standing to file an appeal from the Family Court’s decision, as the child was ‘’aggrieved” by the lower court’s decision.

There is a less contentious way to determine custody and other divorce issues. That other way would be the Interdisciplinary Collaborative Divorce method using mediation techniques and a team approach to obtaining a divorce settlement and agreement on custody and parenting time. This avoids abdicating the decision about the future of the family to a third party – the Judge.

The Interdisciplinary Collaborative method is a means of alternative dispute resolution eliminating the need for a judge and the court system to make a decision for the family. In a Collaborative Divorce case that involves custody, instead of an attorney representing the child and advocating for the child’s position, there is a child specialist: a mental health professional who gives voice to the child’s concerns and interests as well as acknowledging the interests of the parents.

A legal background may not be the best preparation for an individual who represents a child in a custody case, especially if that person’s role is defined as zealously representing the child’s position, even if that position is not in the child’s best interest. A mental health professional whose practice consists of children and families has a different perspective, more akin to helping the child and the family rather than advocating a position. Together with the parents, the attorneys for the parents and the mental health professional, a custody settlement that is in the best interest of the children and the parents can be agreed to collaboratively, rather than have a decision imposed by a Judge.

If Angelina and Brad Chose Collaborative Divorce Instead of Litigation

On September 19, 2016, when the news that Angelina Jolie filed for divorce from Brad Pitt hit the newspapers, the private details of their marriage – if there is such a phrase relevant to such high profile individuals- were splashed all over the tabloids. The Petition for divorce filed in California was printed for all to see, accompanied by various reporter’s articles replete with speculation as to the reasons for the split, and how the divorce will proceed. In an article on September 22, 2016 in the New York Post, the headline that captured the attention was “Why Angelina Jolie is seeking ‘physical custody’ of kids.” The theory alleged was that she intends “to move the whole brood out of Hollywood.” The couple have six children, and while the children have been subjected to the spotlight because of their famous parents during most of their lives, having your parents’ divorce and marital details aired so publicly, including the representation that they are going to be arguing over custody, just does not seem to be in the best interest of the kids.

By choosing to litigate their divorce, especially a custody dispute, they are exposing the issues of their divorce to the court records and due to their fame to a media frenzy. They are opting for an adversarial approach which can interfere with their abilities to co-parent, and the well-being of their children. The parties become subject to a Court’s schedule, to Court procedure and most importantly subject to a decision by a Judge, who is really a stranger making life-altering judgments for these six children and for the parties as well. Surely there is a better way – Collaborative Divorce.

In a Collaborative Divorce the parties agree not to go to court but instead agree to resolve all of their issues through negotiation. It is not an adversarial method, but instead is a team approach. Each party selects an attorney trained in the Collaborative Process. The team is completed with a neutral mental health professional to aid in communication and a neutral financial expert to expedite the handling of financial issues. If there are children involved, as in this case, a child specialist, may be added to the team. Divorcing through the Collaborative method keeps the parties out of court, and enables them to reach a divorce agreement by communicating and addressing the needs and interests of each other and their children.

Using the Collaborative Process would have, from the very onset, shielded Angelina, Brad and their six children from the immediate glare of the media because there would have been no petition filed to start the process. Outside of the Courts and the public eye they would have been able to negotiate the terms of their divorce and to provide together for the welfare and future of their children.

If Angelina and Brad used the Collaborative Process to divorce, the headline could have been: “Angelina and Brad Reach An Amicable Divorce Settlement Out Of Court, The Details Of Which Remain Private.”

Who Gets Custody of Fido in the Divorce?

According to the New York Post article, Dogs are the new kids in NYC custody battles, “A 2014 survey from the American Academy of Matrimonial Lawyers (AAML) found a 27 percent increase in the number of couples who have fought over custody of a pet during the past five years.”

Traditionally, the New York courts have considered the family pet as personal property. The standard for deciding who gets the pet, even when there was a divorce or break-up of domestic partners, had more to do with who was technically the owner (i.e., who bought the dog, and paid for its upkeep), rather than considering the emotional attachment that a person has to a pet.

However, New York County Supreme Court Justice Matthew F. Cooper recognized inTravis v. Murray that “labeling a dog ‘property’ fails to describe the value human beings place upon the companionship that they enjoy with a dog. A companion dog is not a fungible item, equivalent to other items of personal property.” In the Travis case, the fate of a two and a half year-old dachshund named Joey was at stake. What’s a judge to do?

Once coming to that conclusion, and leaning heavily on the manner in which contested child custody cases are decided, Judge Cooper determined that the more reasonable way to decide “who gets the dog” was to have a one day hearing and make a decision based on the “best interests for all concerned.”

People who love their dogs almost always love them forever. But with divorce rates at record highs, the same cannot always be said for those who marry. All too often, onetime happy spouses end up as decidedly unhappy litigants in divorce proceedings. And when those litigants own a dog, matrimonial judges are called upon more and more to decide what happens to the pet that each of the parties still loves and each them still wants.

Now, while it is laudable that pets might not be treated as mere chattel in the context of divorce, or cohabiting partners, the courts are already overburdened resolving family breakups. But, litigation is not the only way to resolve the fight over Fido or the clash over Kitty.

Collaborative Divorce is a kinder, gentler approach to resolve family disputes, whether the goal is for parties to obtain a divorce, to settle matters of child custody, resolve support, etc. Collaborative Divorce is equally applicable to matters of pet custody.

Using the Collaborative approach, the parties agree to settle their issues outside of Court using attorneys trained to work together applying mediation principles to resolve their issues. Each party is represented by his/her own attorney, but the parties and their respective counsel work as a team rather than as adversaries. The parties progress to reach their goal by arriving at a solution that is, to quote Judge Cooper, in the “best interests of all concerned.”

The difference, however, in using the Collaborative Process is that rather than having a judge make a decision for you, you work out an agreement together that suits you, your family and your pet. Communication is the key, and the Collaborative Process provides the means to reach an amicable resolution for co-parenting whether parenting children or precious family pets.