Saturday, November 19, 2011

Court finds that Non-custodial Parent does not have right to children at school

Recently, the Court of Appeals came out with a decision affirming that a non-custodial parent does not have a constitutional right to visitation with their children at school, if the divorce decree and visitation order does not allow such an order.

The case was Schmidt v. Des Moines Public Schools, 8th Circuit Court of Appeals, and can be found here:

The mother in this case was awarded shared custody, but the father in Iowa was awarded physical custody.  The order also set forth a schedule granting Lisa Schmidt visitation periods with the children during certain holidays and school breaks. It provided for additional visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education and welfare of the parties' minor children.”

On several occasions, Schmidt unsuccessfully attempted to visit the children at their schools during the school day. In some cases, school officials told the children that Schmidt was at the school and wanted to visit with them. The children told the officials that they did not want to see Schmidt, and Schmidt was not granted access to the children. On one occasion, Schmidt attempted to visit one of the children during a school performance, and a school official told her that the child was not at school.  Schmidt's ex-husband sent several letters and e-mails to school officials during this period. The correspondence informed them about the terms of the court orders and asked them not to permit Schmidt to visit the children during school hours or to withdraw them from school.

In an appeal involving only procedural due process, the court has held that a noncustodial parent with visitation rights has, “at least in some form,” a liberty interest in the care, custody, and management of his child. Swipies v. Kofka, 419 F.3d 709, 714 (8th Cir.2005).

The court held several important points:

It is not clear that a parent's fundamental liberty interest in the care, custody, and management of her children includes unfettered access to the children during a school day. See Meadows v. Lake Travis Ind. Sch. Dist., 397 F. App'x 1, 2 (5th Cir.2010) (per curiam); Crowley v.. McKinney, 400 F.3d 965, 969 (7th Cir.2005); Bangura v. City of Phila., No. 07–127, 2008 WL 934438, at *4 (E.D.Pa. Apr. 1, 2008). But whatever the scope of that liberty interest, it can be “substantially reduced by the terms of [a] divorce decree and [state] law.” Zakrzewski, 87 F.3d at 1014.

It was reasonable for the defendants to construe the court orders to prohibit Schmidt from interrupting the children's school day without the prior consent of her ex-husband, particularly in light of the proviso that additional visitation with the children must be arranged “so as not to interfere with the education of the parties' minor children.” The doctrine of substantive due process is reserved for truly extraordinary and egregious cases; it does not forbid “reasonable, though possibly erroneous, legal interpretation.” Brittain, 451 F.3d at 996.

Schmidt asserts that she also demonstrated that the defendants violated her procedural due process rights by infringing on her parenting liberty interest and leaving her “without recourse to a state law remedy.” Even assuming that Schmidt demonstrated an infringement on a protected liberty interest, the state-law procedures in place to remedy such violations were sufficient to provide her with due process. If Schmidt believed that the defendants were misinterpreting the divorce decree's visitation provisions, she could have sought modification of the decree in state court at any time. See In re Marriage of Brown, 778 N.W.2d 47, 51–52 (Iowa Ct.App.2009). Schmidt could have submitted a formal written request to the school district for the educational records and information she sought about the children, pursuant to the school district's policy concerning noncustodial parents. Schmidt also could have requested a contempt proceeding in which the state court could order Schmidt's ex-husband to permit the schools to provide any information that Schmidt requested. See Iowa Code § 598.23(2)(d). Schmidt eventually pursued the latter course, and the state court issued an order in September 2008 requiring Michael Schmidt to “execute any and all documents necessary to allow [Schmidt] access ․ to any and all records or documents concerning the parties' minor children including ․ school records.” Given the limited nature of any infringement on Schmidt's protected liberty interest, these procedures were sufficient to protect Schmidt's right to procedural due process. 

So what to make of all of this?  Basically this case says that schools districts should be able to grant parents equal rights, unless a court order, such as that coming from a divorce, limits the rights a parent has to her children while they are in school.

If you are a parent who has sole or shared custody, and have a visitation schedule set up that does not include days or times when the children are at school, then make sure you tell the school district that they should not allow access to your children while they are at school to the non-custodial parent.

Saturday, November 12, 2011

Dear Legal Scammers: I am on to you.

I have recently seen an influx of potential clients contacting me about representing them to help collect either a divorce settlement or enforce a contract.  Inevitably, all the contacts live outside the United States, but the person they're trying to collect from somehow lives in New York.  Here are some of the type of contacts I have received:

Dear Counsel,

My name is Miyoko Kazuo. I am contacting your firm in regards to a divorce settlement with my ex husband Naoki Kazuo who resides in your jurisdiction.

I am currently on assignment in S.Korea. We had an out of court agreement (Collaborative Law Agreement) for him to pay $648,450.00 plus legal fees. He has only paid me $148,000 since.

I am hereby seeking your firm`s assistance in collecting the balance from him.

He has agreed already to pay me the balance but it is my belief that a Law firm like yours is needed to help me collect/enforce payment from my ex-husband or litigate this matter if he fails to pay as promised.

Kindly Reply:
Your's truly, 

Just to show you how it's a scammer, this is a referral I received from someone who just made an inquiry on a website that was not specific to my practice:

Dear Attorney, I am Miyoko Kazuo,but now undergoing medical treatment in Korea I am contacting your law firm in regards to a divorce settlement with my ex-husband Naoki Kazuo who resides in your jurisdiction. We had out of court (Collaborative Law Agreement) for him to settle me with usd648,000 he only paid usd148,000 and has been proving extremely difficult to balance the shortfall. I am seeking your law firm`s legal assistance to help get the balance from him. He agreed already to pay the balance, but it is my belief that he will fail again, because he has been flip-flopping for more than a year ago and that is my reason to contact a Law firm like yours to help enforce him to comply with the rest payments. Please get hold of me at the earliest convenience to let me know your procedure and operational charges. kind regards, Miyoko.

 Next we have another South Korean on assignment:

Dear Counsel

My name is Isabella Minoru. I am contacting your firm in regards to a divorce settlement with my ex husband Franklin Minoru who resides in your jurisdiction.

I am currently on assignment in South Korea. We had an out of court agreement for him to pay $623,000,00 plus legal fees. He has only paid me $122,000.00 since.

I am hereby seeking your firm`s assistance in collecting the balance from him or litigate this matter if he fails to pay as promised because He has delayed for too long. If you are in the position to represent me at the moment kindly advice immediately.

Your's Truly,
Isabella Minoru.
So I brought this up to some of my coworkers downtown, and one of them sent me an article highlighting the prevalence of this.  You can find it here:

Some highlights of the article:

What is Happening
A “bogus check scheme” seen across Canada and the United States has duped many unsuspecting lawyers. While each case has a slightly different fact scenario, there is a common theme. In these schemes, a lawyer is retained by a bogus client and receives funds into his or her trust account by way of a check or bank draft that appears legitimate.
Within days of receiving the funds and depositing them to the trust account, the lawyer pays out funds from the account before learning (sometimes many weeks later) that the funds were bogus, the check returned and his or her trust account debited.

In these cases, the fraudsters delayed confirmation that the check was bogus long enough to get the lawyer’s trust account money and abscond with it. They did it by changing the nine-digit MICR (magnetic ink character recognition) lines at the bottom of the check. This resulted in the check indicating that it was drawn on one particular bank, while the code recognized the check as being from another bank, thus creating a delay in the clearing process.

How to Protect Yourself
Similar and new scams are attempted daily. No area of practice is immune. To minimize the chance of being victimized you should be alert to:
  • Situations where little or no legal work is required, but a large sum of money is expected to flow into and out of your trust account;
  • A client who is prepared to pay higher than normal legal fees for what seems to be very little work;
  • Typos on bank drafts/checks;
  • Bank drafts/checks drawn on poor quality paper;
  • Spelling and/or grammar mistakes in emails sent to you by the company or individual asking for representation;
  • Evasive or inconsistent answers from prospective clients when they are asked to provide more information;
  • A client with no apparent connection to you, who compliments you on your “special expertise or qualifications.” Ask yourself why this client would want you to act for them; is it you, or your trust account they want? Don’t let flatteries from the client go to your head;
  • Rushed closings or transactions and a client who is pressuring you to do something that just doesn’t feel right. Don’t pay out funds too quickly and without doing all necessary investigations on your client and on the authenticity of funds provided to you;
  • Periods of time when there are banking holidays and when you are short staffed, e.g., between Christmas and New Years or before a long weekend. These are times when details may not be checked as closely, and also times when banks are closed; resulting in delays in the return of counterfeit checks and bank drafts
  • Check and keep envelopes when bank drafts and checks are received; in one British Columbia case a bank draft received by a law firm from what was purported to be a Canadian company came in an envelope from Romania; 
So guess what scammers...I'm on to your scheme.  Now please stop spamming my inbox with your requests for legal representation.  My attention is better spent on those who actually need it.  Thanks.

Monday, November 7, 2011

Distribution of Property and Assets in a Divorce

I have been asked by many clients about property and assets in a divorce.  The presumption is that all property is just split 50/50, or that if someone was at fault, then the other party gets everything.  This is not the case. 

First it is important to differentiate between separate property and marital property in a divorce, as the court has no jurisdiction to distribute property that is not considered marital property. 

Generally speaking, all property acquired by either spouse before the marriage is considered non-marital property. All property acquired after the marriage is considered property of the marriage or marital property.

Property Is Presumed To Be Marital Property Except For:
  • Property acquired by gift, legacy or descent.
  • Property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, legacy or descent.
  • Property acquired by a spouse after a Judgment of Legal Separation.
  • Property excluded by valid agreement of the parties.
  • Any judgment or property obtained by judgment awarded to a spouse from the other spouse.
  • Property acquired before the marriage.
In terms of distribution of property that is considered marital property in New York, equitable distribution laws apply.

Directly from Domestic Relations Law Sec. B(5)(d): 

In determining an equitable disposition of property under paragraph c, the court shall consider:

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both parties;

(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5) the loss of health insurance benefits upon dissolution of the marriage;

(6) any award of maintenance under subdivision six of this part;

(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8) the liquid or non-liquid character of all marital property;

(9) the probable future financial circumstances of each party;

(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11) the tax consequences to each party;

(12) the wasteful dissipation of assets by either spouse;

(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14) any other factor which the court shall expressly find to be just and proper.

Property acquired during the marriage is presumed to be marital property. Raviv v. Raviv, 153 AD2d 932 (2nd Dept. 1989). This presumption may be overcome by the party seeking to prove it is separate, but absent such proof the default is to assume it is marital. Likewise, when one spouse puts property in the name of both spouses, the asset becomes marital. See Lisetza v. Lisetza, 135 AD2d 20 (3rd Dept. 1988). However, the transferring party should be given a credit. Robertson v. Robertson 186 AD2d 124 (2nd Dept. 1992).

Proposed Upcoming Changes to Divorce Law in New York

The New York City Bar Association, in collaboration with several committees, recently released a report reviewing many aspects of Family Law and Matrimonial Law in New York State.  You can find the full report here:

Here are some important highlights that are of note:

Current law already creates myriad interconnections between Supreme Court and Family Court, and between spousal support and maintenance. A Family Court award of spousal support is valid until a divorce decree is entered. In a matrimonial action, a court may choose to leave a Family Court support order untouched, or it may preempt the existing order by issuing an award of temporary maintenance.

Family Court is a court of limited jurisdiction and may exercise only those powers specifically granted to it by the state constitution or by statute. The state constitution grants the Family Court exclusive original jurisdiction over “the support of dependents except for support incidental to actions and proceedings in this state for marital separation, divorce, annulment of marriage or dissolution of marriage.”

Although a Family Court order for spousal support may be valid until the completion of a divorce action, a Supreme Court temporary maintenance award preempts any pre-existing spousal support order.

The courts developed the concept of enhanced earning capacity as an asset to be divided in equitable distribution. See O’Brien v. O’Brien, 66 N.Y.2d 576 (1985); Elkus v. Elkus, 169 A.D. 134 (1st Dept. 1991) and their progeny. As the Court of Appeals noted, “marital property” as defined by the DRL has been found “to include a wide range of intangible interests which in other contexts might not be recognized as divisible property at all.” DeJesus v. DeJesus, 90 N.Y.2d 643, 647 (1997).

Similar to where we stood before passage of no-fault divorce, New York now finds that it is one of the last states to use the concept of Enhanced Earning Capacity as an asset. And, to further complicate matters, the concept of Enhanced Earning Capacity as an asset is not recognized by the bankruptcy courts, which creates potential conflicts for New York State residents.

Additionally, summaries were provided of these committees comments to several laws currently in place: 

(1) The temporary maintenance guidelines require consideration of “the existence and duration of a pre-marital joint household”. Some members of the group believe that this is an important addition to the law and recognizes modern-day reality. Proponents also stress that this provision is important to protect the lesser-monied spouse, particularly in those cases where the withholding of marriage is used as a means of control. However, other members of the group are concerned that this can be interpreted as fundamentally altering when the obligations of marriage begin and that it will lead to litigation in the many cases where people live together before getting married, in essence, recognizing the equivalent of a common law marriage. Further, in light of the passage of the Marriage Equality Law, the existence of pre-marriage living arrangements among same-sex couples who were unable to marry in New York takes on new significance in this context.

(2) The temporary maintenance guidelines require consideration of “the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party’s earning capacity or ability to obtain meaningful employment”. Proponents of this provision believe that it enables the court to consider the unpaid efforts of primary caretakers, whose responsibilities may inhibit their ability to earn income in the workforce and who may lack the resources required to hire outside help. However, other members of the group are concerned that this provision could be read to require a judge to consider the post-divorce arrangements for care of someone other than a minor child. In their view, this would greatly expand post-divorce familial responsibilities to over-age children and elderly parents in a way that is not supported by case law. Some recommended modifying the provision so that it is clearly applicable only to care provided during the course of the marriage.

(3) The temporary maintenance guidelines require consideration of “the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment”. Proponents of this provision believe that, because educational expenses are discretionary and not often ordered as part of a divorce settlement or judgment for low to middle income families, this provision enables the court to consider the contributions to education made by the primary caretaker when calculating maintenance. Opponents believe it is duplicative of considerations already in place under the CSSA and, should such a provision remain, it should be amended to provide that when these expenses are no longer necessary, maintenance shall be recalculated. Further, we recommend that the calculation of temporary maintenance be made before child support is calculated and that temporary maintenance be included as part of the payee’s income.