Gigantic Holding: Can Your Ex’s Debtor Come Years Later And Collect Money From You?
Can Money You Saved for Your Child’s College be Given to your Ex?
Explore These and Other Questions in our September 2021 Equitable Distribution Updates:
- Waiting to Challenge Disability Award is not Necessarily Intentional: Taberski v. Taberski, (Fourth Dept. 2021)(2021 WL 3782794)(Aug 26, 2021):
Supreme Court abused its discretion in determining Husband should be penalized for waiting too long to amend DRO and recoup retroactive disability payments to wife. Parties were divorced in 2009 stipulation stated wife would get her marital share of husband’s retirement benefits under NYS and Local Retirement System (NYSLRS) and a DRO was filed in 2010. Husband was contacted by NYSLRS in 2011 which approved the DRO and as it was silent as to what would happen if he retired under a disability, hence, NYSLRS would calculate wife’s distribution using the disability retirement allowance under its standard policy. Husband retired in 2016 and filed a disability retirement application simultaneously, which was thereafter subsequently approved in 2019 and made retroactive to his retirement date. A mere lapse of time, without a showing of prejudice, will not sustain a defense of laches. Here, though court found husband should have sought to amend DRO in 2011, husband was not eligible yet for a disability retirement. When his disability retirement application was approved in 2019 and he became aware the distribution to his ex-wife would accordingly increase, husband promptly moved to amend the DRO. Moreover, even if there was a delay, ex-wife utterly failed to make a showing of prejudice.
- Husband’s Third-Party Debtor, Could Not Collect From Wife’s Estate: Tiozzo v. Dangin, (First Dept. 2021)(2021 WL 3668438)(Aug 19, 2021):
Wife entitled to declaration establishing her 100% interest in Jane Street condo due to 2004 divorce judgment and injunction barring ex-husband and his creditor Lenz from all interest and from enforcing any lien. The stipulation provided wife was entitled to sole ownership and exclusive use and occupancy of Jane Street and provide quitclaim deed to wife, only if it would not jeopardize the existing mortgage. Wife did not demand quitclaim until 2019, nearly 15 years after divorce was final, to preserve existing mortgage. While parties names remained on deed, husband executed a confession of judgment in favor of Lenz due to his default on promissory notes secured by his separate property. Here, parties specifically provided for a limited joint ownership of real property after their divorce, based solely on their agreement to avoid jeopardizing the existing mortgage and stipulation divested husband of his rights in subject property. Under CPLR art 52, judgment creditor may only seek to enforce its money judgment against judgment debtor’s property. The determining factor as to whether a judgment debtor’s interest can constitute property vulnerable to a judgment creditor is whether it could be assigned or transferred. As husband gave up any right to assign or transfer to a third party an interest in subject property, Jane Street is therefore beyond the reach of Lenz. Wife’s interest in this property vested when judgment of divorce was entered, and she is not guilty of laches as her choice to delay demand for a quitclaim was pursuant to a right provided under the stipulation. Lenz’s argument that stipulation was only binding on husband and wife is rejected.
- Children’s College Account was not to Be Distributed: Mahoney v. Mahoney, (Second Dept. 2021) (2021 WL 3641338) (Aug 18, 2021):
Supreme Court rightly exercised its discretion in determining a particular savings account was to be used for children’s college and not subject to distribution. Trial court has broad discretion in dividing marital property, and unless shown improvident, its determination should not be disturbed. Here, testimony at trial supports court’s opinion it was parties’ intent to use funds for college expenses, and it was not improvident for court to direct parties to do so.
- a) Wife Could Not Obtain Half of Husband’s Business without Valuation b): Wife Commingled Separate Stock and as such, Husband was Entitled to Half: Weiss v. Nelson, 196 A.D.3d 722, (Second Dept. 2021)(2021 WL 3177791)(Jul 28, 2021):
Court erred in directing posttrial valuation of husband’s business and awarding wife 50% of that value. As party seeking part in the business, wife failed to submit evidence as to its value. Thus, court should not have directed valuation and awarded wife any portion of husband’s business. Court providently exercised its discretion in awarding husband 50% of value of wife’s LVMHF stock. Separate property commingled with marital property loses its separate character, and here, wife failed to beat presumption her commingled separate property was converted to marital.
- Division of Property is Largely Discretionary by Court: Handakas v. Handakas, (Second Dept. 2021)(2021 WL 2816695)(Jul 07, 2021):
Court properly determined which assets were marital, including marital home $1,105,695.70, $950,000 in funds husband attempted to secret wire transfers to Greece, $100,082 seized when husband was arrested at airport on mail fraud while aiming to leave US, $350,000 husband forfeited to federal government relating to his criminal conviction and $60,000 from boat sale.
- Once you Transfer pre-Marital Property to Both Parties, its not Separate Anymore: Philogene v. Delpe–Philogene, (Second Dept. )(2021 WL 2558027)(Jun 23, 2021):
Wife purchased marital residence prior to marriage and transferred it to both parties’ names after marriage. Supreme Court providently exercised its discretion in awarding wife a credit, equal to stipulated valuation of marital residence as of transfer date, representing her contribution of separate property towards creation of marital property. A separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property.
- a) Court Decided Proper Date to Give Wife Interest in Husband’s Investment Accounts, b) Burden of Proof Must be Provided by Party Claiming Properties are not Marital c) If Couple is Still Acting Married, The Distribution is Should Remain 50/50. Parkoff v. Parkoff, 195 A.D.3d 936, (Second Dept.)(2021 WL 2558022)(Jun 23, 2021):
Supreme Court providently exercised its discretion in failing to award wife statutory interest on funds in husband’s investment accounts. Trial court has broad discretion to select appropriate date for measuring value of property between commencement and date of trial.
Court providently exercised its discretion in determining husband’s shares of stock acquired during marriage were marital. Property acquired during marriage is presumed marital and party seeking to overcome such presumption has burden of proving property is separate property. Parties were married for 47 years and acquired assets of 6 million dollars at commencement. When both spouses have made significant contributions to a long marriage, division of property should be as equal as possible. Parties continued to reside together, husband continued to provide wife with $1,400 monthly to pay for household expenses, husband continued to prepare and file parties’ joint taxes, wife prepared dinner and took care of house, and husband accompanied wife to two work-related award ceremonies, spent holidays with her family, and attended concerts with her. Also, wife was primary caretaker for parties’ daughter and worked for 43 years during this marriage. Though parties maintained separate finances, under these circumstances, the economic decisions made by parties should not be second-guessed by court.
