Husband Allowed to Have Wife Removed from Residence

father's rights lawyerDuring a divorce lawsuit, a husband provided the court with documentation the parties’ home was moving towards foreclosure. The court appointed the husband as a receiver and gave him authority to list the home with real estate brokers and conduct the sale of the home.

The wife did not accept the court’s initial ruling and brought a motion to renew or reargue the court’s prior decision concerning the husband being entitled to sell the home to avoid it being sold in foreclosure. The wife claimed in her application to the court he had failed to abide by a court order to make timely payments of the mortgage obligation on the home. She claimed that there were funds available for the husband to pay the mortgage in his 401(k) plan.

Home Handicapped Accessible

The wife argued extensively that their home was handicapped accessible. She claimed she needed to live in this handicapped accessible home and the judge should allow her to continue to live there.

The husband asked the court to keep him as the receiver of the home and allow him to have his wife removed from the home to facilitate his ability to list the home for sale and have the home sold.

Wife Interfered in the Sale of the Home

Justice John Bivona sitting in the Supreme Court Divorce Part in Suffolk County granted the husband’s application. The judge found that his wife had been interfering in the sale of the marital home. As a result of her interference, the parties were suffering economic waste of a valuable marital asset.


helping fathers during trialThe judge in this case felt it was in the parties’ best interests to maximize the return on the sale of the marital residence by having it sold privately instead of being sold in foreclosure where it would go for less than fair market value.

Husband Delays Divorce Proceedings: Wife Awarded Temporary Attorneys’ Fees

father's rights lawyersJudge Jeffrey Sunshine sitting in a Divorce Part in the Supreme Court of Kings County recently awarded a wife temporary attorneys’ fees in a pending divorce case due to the husband delaying the case from moving forward.

The wife had received an order in a prior application directing the husband to pay spousal maintenance (alimony) and child support to wife. Husband brought a motion to reargue this temporary spousal maintenance and child support order. Wife cross moved and claimed husband was simply delaying this case from moving forward causing her unnecessary attorneys’ fees and that the husband should be forced to pay her unnecessary additional attorneys’ fees.

Wife Claimed to be the Non-Monied Spouse

The wife argued in her court papers she was the non-monied spouse. She claimed the husband had “hundreds of thousands of dollars in unrecorded income” from his business. The husband’s position was the wife was the monied spouse. He claimed she made $90,000 a year while he earned significantly less money. He presented his tax return to back these allegations.

Judge Sunshine noted the husband failed to provide information to explain why a number of accounts with significant assets in them did not appear on his net worth statement. Judge Sunshine went on to say in his decision the husband did not reveal “forgotten” accounts until his wife, after extensive discovery, was able to document the existence of these accounts and the funds in them. The judge’s decision stated that the husband was unwilling to reveal his true financial circumstances.

The failure of the husband to provide the wife with a detailed accounting of his financial circumstances cost her additional attorneys’ fees due to the extensive discovery she had been forced to undertake. As a result, the judge awarded the wife $40,000 in temporary attorneys’ fees.


divorce counsel for husbands and fathersHonesty is the best policy. If a judge finds that you are being less than honest during divorce litigation, he will punish you.

Distribution of Pensions and Retirement Assets in Divorces

fathers rights attorneysIn the State of New York, the distribution of assets accumulated during the course of a marriage is dealt with under the theory of equitable distribution. If the parties cannot amicably resolve issues concerning their assets in a divorce, the assets of the marriage which include, cars, houses, personal property, cash, investment assets, pensions and retirement accounts, are equitably distributed by a judge. The equitable distribution of retirement assets, pensions, 401(k)s, 403(b)s, and IRAs, can be a complicated process. Sometimes these assets need to be evaluated by a pension evaluation firm or an actuarial firm to determine the portion of the pension asset which was accumulated during the course of the marriage.

Retirement accounts the parties accumulate during the course of the marriage are considered marital property subject to equitable distribution. This is true even if only one spouse has a pension and the other spouse didn’t work. When there are retirement assets such as pensions, 401(k)s, or 403(b)s, which accumulated during the course of a marriage, it is necessary to obtain a Qualified Domestic Relations Order (hereinafter referred to as a “QDRO”). The purpose of a QDRO is to provide the administrators of the retirement asset with a breakdown as to how the benefits shall be paid between the employee and the non-employee spouse. QDROs also eliminate, minimize and/or distribute, the taxes that are to be paid between the parties when the deferred compensation assets are received.


QDROs are very complicated court orders. The process to obtain a QDRO usually involves providing a pension analysis firm or actuarial firm with all of the necessary financial information related to the pension or deferred compensation plan. These firms analyze the portion of the asset accumulated during the marriage and the portion accumulated prior to the marriage. After clarifying this information, they draft the QDRO and forward it to the attorneys for the respective parties. The attorneys thereafter check the QDRO to make sure it is accurate and submit the QDRO to the judge handling the divorce for his/her signature. After the QDRO is executed by the judge, it is served by the attorneys on the administrators of the retirement accounts referred to in the QDRO. QDROs are important to see to it that the parties to a divorce obtain the retirement benefits they are entitled to. These benefits will become very important down the road when they will help pay for living expenses during the respective party’s retirement.father's advocate

Divorce Case: Equitable Distribution After Death

father's rights attorneysRecently, Supreme Court Justice Stacey Bennett sitting in a Matrimonial Part in Nassau County made a decision in an unusual case. A husband started a divorce lawsuit. He was granted a judgment of divorce in this proceeding. Both parties after the divorce were to submit post trial briefs to the court regarding all outstanding economic issues. Then, the husband committed suicide. The wife claimed suicide didn’t stop the divorce action from going forward because the judgement had already been rendered.

Husband Tries to Deny Wife Equitable Distribution

The husband, a physician, in an attempt to deny his wife and children equitable distribution of millions of dollars in assets and life insurance that he possessed, decided to kill himself. At the time the husband committed suicide he was aware he had advanced brain cancer and did not have a significant time to live. Prior to committing suicide the husband changed the beneficiaries on his $2,000,000 life insurance policy and $3,000,000 in his investment accounts. In violation of the court’s order he changed the beneficiaries from his wife and their son and named his mother, who is the executrix of his estate, and his sister as beneficiaries. The suicide took place after each of the parties had rested their presentation to the court but before a final judgment had been entered.

The legal question presented was whether the suicide abated the divorce (stopped it from moving forward) and prevented the Supreme Court Judge handling the case from making a decision on equitable distribution of the assets.

Judge Bennett held “suicide, like murder, is an intentional act and the husband’s estate should not be able to benefit from it by seeking an equitable remedy.” Judge Bennett went on to write in her decision “consequently in the interest of justice, equity and the efficiency of the Court system, this Court finds the right to equitable distribution in this action survives the husband’s suicidal death.”

The husband’s attorney claimed the case needed to be dismissed because the husband was dead. The dismissal of the case after one of the parties dies is called abatement. However, Justice Stacey Bennett said this case didn’t abate because the divorce had been granted already. Justice Bennett’s decision was that she still had jurisdiction to finalize all the remaining economic and financial issues in this divorce proceeding even though the husband died before equitable distribution took place. Justice Bennett took the position the entry of the divorce itself was merely a ministerial act. The case was to continue even after the husband’s death on the issue of equitable distribution.

Novel Legal Question Presented

The legal question presented to Judge Bennett was a novel question of whether an intentional suicide stops a divorce action and whether the issues that were not resolved prior to the death involving equitable distribution survive the death. Judge Bennett wrote, “here, the husband committed suicide and thus those who now represent his interests come to the court with unclean hands”. Judge Bennett’s position was the suicide was specifically designed to prevent the wife and child from receiving the decedent’s assets. Judge Bennett’s decision said the husband’s committing suicide “demonstrated a nefarious pattern of conduct on part of the husband designed to deprive his wife and children of any assets.”father's rights advocate