Divorce Lawyers New York - Recent Family Law Decisons (11)
RECENT FAMILY LAW DECISIONS (11)
Veteran’s Benefits
The respondent’s receipt of veteran’s benefits, as non-marital property set aside to him, was a factor to be considered in the division of marital property, but error was committed when the trial court did not determine a value for the respondent’s non-marital property; the value of the respondent’s veterans’ benefits would depend upon such factors as the respondent’s life expectancy and the present value of future increased benefits and absent such a valuation, the marital property of the parties could not have been equitably divided without an evidentiary determination of the value of the respondent’s non-marital assets.
Waiver
A party cannot argue for the first time on appeal regarding the value of a pension when he has failed to object to the value before the trial court and failed to introduce to the trial court evidence to the contrary.
Vested Property Rights
Property rights created in a divorce decree become vested and after 30 days the court is without jurisdiction to modify them.
Where an original divorce decree was entirely silent with regard to apportionment of any income tax refund, wife could not by her petition requesting the award of income taxes withheld from her salary, which had been included in a joint income tax return, invoke the court’s jurisdiction to adjudicate property rights upon which the final word had already been spoken in the decree.
Waiver
Respondent cannot claim error in division of property to which he acquiesced in the trial court.
Although wife had no separate income in 1984, she retained a property right in refund check and did not waive her interest in the refund in property settlement agreement.
Where the record clearly refuted respondent’s assertions regarding the absence of evidence of the value of foreclosed real estate, the trial court properly found respondent had waived any interest in the property’s redemption.
Respondent, who failed to assert her homestead claim to the trial court, could not rely on the fact that such claim was not considered in order to reverse the trial court’s judgment on appeal.
Ward of Court
The decision of the trial court making three children wards of the court but leaving them in their mother’s home and making a fourth child a ward of the court but allowing her to reside with her natural father were not against the manifest weight of the evidence.
In General
It is entirely with the realm of possibility that one spouse’s use of marital funds for his or her own living expenses at a time when the marriage is undergoing an irreconcilable breakdown could be shown to be so selfish and excessive and improper as to constitute an outright waste of marital funds.
