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About Law Offices of
Helaine S.
Brick-Cabot
Law Offices of Helaine S. Brick-Cabot is a full service firm with offices in Tarrytown, Chappaqua and Manhattan. The law firm specializes in divorce and family law, business and transactional matters, real estate and all types of other matters in Westchester, Rockland, Nassau, Suffolk and the five boroughs of New York City. We understand how important accessibility and cost-effective representation are to our clients. The firm's clients range from small establishments and individuals to multi-million dollar entities operating internationally.
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HOT OFF THE PRESSES! - MADOFF ALSO TOUCHES DIVORCE!CASE LAW UPDATE:
Court of Appeals - April 3, 2012Simkin v. Blank
Husband and wife divorced after almost 30 years of marriage and their settlement agreement set forth a comprehensive division of marital property. After the divorce was finalized, the husband retained a brokerage account maintained by Bernard L. Madoff Investment Securities with several million dollars in it. In addition, the husband alleged the wife received $2.7 million dollars from her share of the Madoff account.
As a result of the disclosure of the Madoff fraud, in February, 2009, 2 1/2 years after the divorce was finalized, the husband sued his former wife. The husband wanted to open the settlement based on mutual mistake and unjust enrichment.
The Court concluded that the husband could not reopen the settlement agreement based on post-divorce changes in asset valuation and that there was no unjust enrichment.
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THE TIMES THEY ARE A CHANGING!
MARRIAGE AND DIVORCE
THEY AIN'T WHAT THEY USED TO BE!
Since the last time we emailed a newsletter, two pieces of extraordinary Family Law Legislation have been enacted.
Same Sex Marriage in New York: Last year New York State Legislature approved the Marriage Equality Act. It amends New York State's Domestic Relations Law to grant same-sex couples the ability to enter into civil marriages. With the Marriage Equality Act come the full rights and obligations of marriage under the law of New York. Unfortunately, because of the Federal Defense of Marriage Act ("DOMA") same sex couples who marry in New York have added complexities, primarily in areas of personal income and estate taxation, which their heterosexual counterparts do not. Pursuant to DOMA there is a lack of Federal Recognition of same-sex couples need to remember that their New York Marriage rights may not be recognized in foreign or hostile jurisdictions.
It is unclear whether New York Law will recognize the biological child of one spouse born during the marriage as the legal child of both spouses. Even if New York law does recognize both spouses as the legal parents of the child, other states may not extend the same recognition. A child born prior to the marriage will not be considered the child of the non-biological spouse. Because of the uncertainties surrounding these issues, it is recommended that the non-biological parent obtain a second parent adoption.The decision whether to marry is of course highly personal. It also gives rise to many legal rights and obligations, and affects tax treatment and other financial arrangements. There are numerous substantial legal and financial issues arising from a same-sex marriage in New York. There also are unanswered questions about how the law will be applied in New York. Further, there are many jurisdictions which will not recognize a New York same-sex marriage, or will recognize the marriage only for certain purposes.
No fault divorce: Finally, New York State has passed no fault divorce legislation. In New York State, it is called a marriage that has irretrievably broken down. This legislation has included new temporary maintenance and counsel fee rules. The matrimonial law has been changed to include a new ground for divorce. The declaration by one party that a marriage "has broken down irretrievably" for at least six months is the basis for no fault divorce. All economic, property distribution and child custody and visitation issues must be resolved before a divorce can be granted. The law also established a formula (actual percentages) for courts to apply when determining temporary maintenance for spouses with significantly less income than their partners. It also expanded factors courts must consider when deciding post-divorce maintenance. Finally, the new law also created a rebuttable presumption that "counsel fees shall be awarded to the less monied spouse" in a divorce action. Comment: Although no fault divorce was necessary and too long in coming, the interim maintenance rules are problematic, many times not fair, and are being determined on a case-by-case basis. |
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Practice Update
We were on trial in Suffolk County with a complex divorce and custody case (where we were nicknamed the "Dream Team"), negotiated numerous other divorce settlements in Nassau, Westchester, Manhattan, and the Bronx, and drafted several Pre-Nuptial Agreements. We closed on various buy/sell transactions (one multi million dollar major merger that we had to close in one week!), real property matters (the rental market in Manhattan is excellent for landlords and expensive for tenants and we are seeing more buy/sell transactions in the New York tri-state area) and drafted several Last Will and Testaments, as well as other estate documents. We are also litigating in the five boroughs of Manhattan, Nassau, Suffolk, and Westchester Counties and working on numerous corporate matters.
We are always available to speak with you - if you just have a question or want to say hello.
We hope the balance of 2012 is healthy, peaceful and meaningful for you, as we approach Spring and Summer.
Helaine, Ivy, Theresa, Aida, Monica, Gail and Silvia |
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