Divorce Lawyers New York - Recent Family Law Decisons (32)
RECENT FAMILY LAW DECISIONS (32)
Effective Date
Termination of maintenance may not be effected prior to the date a petitioner received notice a petition had been filed.
A determination of the effective date of termination is a matter within the court’s discretionary authority.
The termination of maintenance on the basis of the payee’s cohabitation with another on a resident, continuing conjugal basis became effective when the petition for termination was filed.
Factors Considered
While the trial court can consider the financial interaction between the interested parties in a petition for termination of maintenance, that factor is not controlling; if the court finds the required cohabitating relationship exists based on its assessment of the totality of the circumstances, it need not make any specific finding as to the maintenance recipient’s financial need.
An important consideration in evaluating payment of maintenance to an ex-spouse cohabiting with another individual, divorced from the morality of the conduct, is whether the cohabitation has materially affected the recipient spouse’s need for support because she either received support from her co-resident or used maintenance moneys to support him.
Indefinite Time
Since this section of Marriage and Dissolution of Marriage Act permits either spouse to modify or terminate the maintenance award, should circumstances change, an award for an indefinite period of time is not necessarily an interminable award.
Not Allowed
The trial court properly abated, rather than terminated, maintenance to the wife, where she received $3.7 million in a medical malpractice action, given the uncertainty of her future
Estoppel
Wife was barred from attacking a divorce decree by accepting the benefits of the divorce decree to the distinct disadvantage of the husband where wife had been awarded the marital home and all the personal property therein, and subsequent to the divorce decree, she sold two pieces of personal property out of the marital home, she sold the marital residence and purchased another residence.
