Osha v Osha 2012 NY Slip Op 08630 Decided on December 13, 2012 Appellate Division, First Department

Osha v Osha 2012 NY Slip Op 08630 Decided on December 13, 2012 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

 

This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2012 Gonzalez, P.J., Mazzarelli, Acosta, Román, JJ. 8825 301110/12

Jay Osha, Plaintiff-Respondent,
v
Olurotimi Osha, Defendant-Appellant.

Brian D. Perskin, Brooklyn, for appellant. Anne Peyton Bryant, New York, for respondent.

Order, Supreme Court, New York County (Ellen Gesmer, J.), entered July 9, 2012, which, to the extent appealed from as limited by the briefs, granted defendant husband’s motion for pendente lite relief to the extent of awarding him $500 per month in temporary maintenance for a period of six months, with retroactive temporary maintenance of $50 per month, and directing plaintiff wife to pay interim counsel fees of $10,000 directly to defendant’s attorney, unanimously affirmed, without costs.

There is no basis for disturbing the court’s award of temporary maintenance. In calculating the award, the court correctly applied the formula set forth in Domestic Relations Law § 236(B)(5-a)(c)(1) (see Khaira v Khaira, 93 AD3d 194, 197 [1st Dept 2012]). The court considered numerous statutory factors and found that the statutory presumptive or guideline amount of temporary maintenance of $1,959.86 per month was “unjust or inappropriate” (Domestic Relations Law § 236[B][5-a][e][1]). The court set forth the amount of the unadjusted presumptive award, the factors it considered, and the reasons that it adjusted the presumptive award (§ 236[B][5-a][e][2]). The court providently exercised its discretion in imputing gross annual income to defendant in the amount of $90,000, given defendant’s past work experience and educational background (see Hickland v Hickland, 39 NY2d 1, 5 [1976], cert denied 429 US 941 [1976]).

The court’s award of $10,000 to defendant’s attorney for interim counsel fees, rather than the $25,000 defendant requested, was a provident exercise of discretion (see Domestic Relations Law § 237[a]). Although defendant is the less monied spouse, this divorce action is unlikely to [*2]be prolonged, as the parties have little marital assets and no children.

We have considered defendant’s remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 13, 2012

CLERK

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Kim Kardashian Divorce Update

Although only married for a mere 72 day (less than three months!), Kim Kardashian and Kris Humpries remain married more than a year after she filed for divorce.  What is going on you ask?  Will Kim Kardashian marry Kanye West after their baby is born?

The reality show diva is still  trying to divorce Kris Humphries, who’s apparently milking this divorce for as much money and publicity as he can.  After all, who will be googling his name after he’s no longer attached to Kardashian? How is this possible you ask? First, it takes two hands to clap and it appears that estranged husband Kris Humpries has no urgency to move on with his life… at least in the legal sense.  Nevermind that Kardashian is pregnant with Kanye West’s child.  According to reports from news outlets, Humphries wants an annulment, rather than a  divorce, which means Kardashian would have to admit, or Humphries would have to prove, the marriage was a “fraud,” which of course Kardashian denies.  Kardashian has now filed a motion seeking to calendar an immediate trial date.  Humphries claimed he was heartbroken over the end of the marriage, which in my opinion was nothing more than a long (albeit fabulous) date. He has accused her of using him to earn millions off their unhappy union. Stay tuned…. hell hath fury like a woman scorned, … or in this case Kris Humphries.

As for Kardashian finally marrying Kanye West, one would hope that these two would think long and hard before rushing to the alter and at a minimum have a private wedding and an iron clad prenuptial agreement.

Anne Peyton Bryant, Esq.

305 Broadway, Suite 14 New York , New York 

www.matrimoniallawnewyork.com

Email: peyton@apbryantesq.com

Office: 646.421.6505 

Cell:  917.747.8543

Fax: 646.274.0205

Gay Marriage and Divorce in New York

Divorce Lawyer in New York

Legal Assistance for Gay and Lesbian Pre-nuptial Agreements, Post-Nuptial Agreements, and Divorce

As of July 24, 2011, the State of New York became the sixth state in the country to allow marriage between same sex couples. Unfortunately not all marriages last forever, whether gay or straight, and with the right to marry, comes divorce. Until the repeal of the Defense of Marriage Act (“DOMA”) the dissolution of a same-sex marriage is more complex than heterosexual marriage, especially if there are children or assets involved. Although the steps to divorce are the same legally as a heterosexual marriage, there are important tax considerations in the dissolution of same sex marriages.

At the Law Offices of Anne Peyton Bryant, our legal team understands the nuances that are associated with relationship exit strategies of this nature and possess the sophisticated and sensitive perspective that is required to get clients onto the next phase of their lives as seamlessly and successfully as possible.

Should you choose to work with a lawyer from our firm, you will be able to rest easier knowing that you will have an experienced advocate on your side who understands the nuancerelations marriage, as well as adoption and custody issues. We recognize how different the divorce process is for a same-sex couple and we are fully committed to ensuring that our clients are supported throughout the entire process. We encourage you to contact us as soon as possible – no matter whether you are considering a pre-nuptial agreement, post-nuptialnagreement, if you are currently considering filing for divorce if you have already been served withba Summons for divorce and/or even a Temporary Order of Protection. We can help you navigate through this very emotional process.

Contact a New York same-sex divorce lawyer from our firm to learn more about how we can help you move forward in the divorce process.

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What is the Impact Of Marital Fault In Maintenance (a.k.a “Alimony”) Determinations In New York:

As a divorce lawyer, I often hear the following, “My lousy good for nothing spouse did…….. ” followed by “what?!!!” when I provide my response. This is because most people begin the process of divorce with the mistaken belief that their soon to be ex’s cheating, cavorting, drinking, buying gifts for their paramour, and otherwise unacceptable behavior will strongly influence a court’s determination of the financial issues of their divorce. Fortunately, this is not the case. (I know if you have been cheated on you are perhaps not so happy with my use of the adjective “fortunately” so … I shall explain.)

Short of hiring someone to murder your soon to be ex, marital fault will play no role whatsoever in determining financial issues in divorce. Under New York law, specifically Domestic Relations Law (DRL) § 236, a court must consider 11 factors in making a determination with regard to alimony (also known as “maintenance”) While the first 10 factors are specific, the eleventh is essentially a catch-all provision that allows the court to consider “any other factor which the court shall expressly find to be just and proper”.

The primary consideration of the court in determining an award of maintenance to the less monied spouse is the parties’ pre-separation standard of living. Courts will also focus on the length of the marriage, the parties’ respective earning capacities, income disparities, and the tax consequences that would arise from a maintenance award.

Even though the 11th factor, the catch-all, affords the court broad discretion in making decisions with regard to equitable distribution and maintenance, marital fault is generally not a factor that may be considered under the case law. The New York Court of Appeals held in O’Brien v. OBrien, that marital fault is not relevant to the financial issues decided in divorce except in them most extreme and shocking situations. The Court reasoned that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate. The court further noted that fault would usually be difficult to assign and invariably involve involve the courts in time-consuming procedural maneuvers relating to collateral issues The Conclusion of the court is that marital fault will not be explicitly considered by the court except in most extreme of circumstances.

This is not the approach that most litigants expect–in fact most spouses who find their significant other cheating of course feel that it is indeed “extreme” and therefore begin the divorce process focusing solely on the numerous misdeeds of their spouse.

As an attorney, I often find this is much to their detriment for a variety of reasons. Although angry and hurt spouses often want vindication, they much more often do not want the accompanying legal bill that results from dragging one’s spouse through the dproverbial dirt. The sooner one begins to focus on the children and the finances, the sooner rational decision making can begin. This ultimately makes for a much less expensive and adversarial divorce–and when there are children involved, the less adversarial the better. After all, you will be communicating with and/or seeing the schmuck at least until the kids are emancipated, and perhaps at a wedding or two thereafter. The sooner you can agree to disagree, or at least not discuss those illicit affairs, the better. It may initially be hard for a divorcing spouse to accept that the issues that have the most emotional impact on them have minimal, if any, impact on the outcome of the divorce, but in the long run, it is better for all involved. While each case has to be reviewed based upon its unique facts, the odds are that unless your spouse has hired a hitman, marital fault will not be the defining factor with regard to the financial aspects of divorce.

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Facebook, Youtube, MySpace and Divorce…

Facebook, Youtube, MySpace and Divorce…

In today’s day and age, its not all that uncommon for a disgruntled spouse to take their divorce case to the court of public opinion on Facebook, Youtube or another social networking or blogging site. Here are a few good reasons why this is not a good idea.

 

1. No one is perfect. Once you go public, your spouse may decide it’s gloves off time and go after you. Do you really want your secrets out there?

2. Your kids. I once had a very well intended father write a lovely note on his Facebook page telling his children how much he loved them and missed them. The teenage child was rather unhappy that her parents bitter divorce was now public information. Parents should keep in mind that while adults may handle a matter like this gracefully, teens can be rather cruel. Your posting will only add stress to your child’s life– no matter how sweet your message may be.

3.  Even if you delete your posting, it may still be discoverable…  In the case of Romano v Steelcase Inc., 2010 NY Slip Op 20388, 5 (N.Y. Sup. Ct. 2010) the court granted access to Plaintiff’s current and historical Facebook and MySpace pages and accounts, including all deleted pages and related information upon the grounds that Plaintiff had placed certain information on these social networking sites which were believed to be inconsistent with her claims in the action. In making this finding the court found that, “it is reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages, that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence. To deny Defendant an opportunity access to these sites not only would go against the liberal discovery policies of New York favoring pre-trial disclosure, but would condone Plaintiff’s attempt to hide relevant information behind self-regulated privacy settings.”

4.Your posting may adversely impact your spouse’s income… and if he/she is supporting you and your kids, that’s surely a path of recklessness that would not make for a positive outcome long-term.

 

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