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In February 2006, after nearly two years of investigation, hearing and analysis, the matrimonial commission led by Justice Sondra Miller issued its report and recommendations to improve the state of matrimonial law and practice. In the year and a half since the Miller Commission Report was issued, however, none of the substantial recommendations made have been enacted. While many of the commission’s recommendations were procedural in nature, several are substantive: the adoption of true no-fault divorce; establishing clear and unambiguous guidelines for attorneys representing children and for forensic custody experts; eliminating the concept of enhanced earning capacity; establishing more equitable parenting and custody arrangements; mandatory counsel fee awards to equalize the playing field between the monied and nonmonied spouse; and recognizing same-sex marriage. Legislative Action Needed Some of the issues addressed by the commission require legislative action. In particular, no-fault divorce, elimination of enhanced earning awards and same-sex marriage will only be enacted if the Legislature takes a stand. Most strikingly, we are still the only state in the entire country which does not have a true no-fault divorce law. Litigants must still prove grounds. Even upon the conversion of a legal separation to a divorce, the proponent of the divorce must not only demonstrate that the parties have lived separate and apart for a period of at least one year, but that party must also demonstrate “substantial compliance” with the terms of the separation or the divorce will be denied. 1 Due to the nonexistence of a no-fault ground, courts continue to be restrained from granting relief if grounds are not established, thus requiring parties to remain in married purgatory, usually unless one party pays extra for his or her freedom. Although the Legislature has had this issue before it countless times, they still do not act. In Molinari v. Molinari, 2 a decision from April 16, 2007, Justice Robert A. Ross in Nassau County reiterated the absurdity of the failure to enact no-fault divorce and boldly sent copies of his decision to the governor, the attorney general and ranking members of the Legislature. Assembly Bill A3027, referenced by Justice Ross, calls for the addition of irreconcilable differences as a ground for divorce, but continues to languish. Moreover, it presently has incorporated in it proposals for other revisions to the Domestic Relations Law, including a “presumption of equal distribution of marital property in marriages of five years or longer; permanent maintenance if a party is unable to maintain the standard of living established during the marriage due to age, health or other related factors; and a rebuttable presumption of attorney’s fees to the nonmonied spouse in divorce proceedings.” These other issues, however, will no doubt engender far more review and discussion, thus again preventing the prompt enactment of no-fault divorce. Subsequent to the issuance of the Miller Commission Report, the Court of Appeals took on the same-sex marriage issue in its July 6, 2006 decision in Hernandez v. Robles. 3 Judge Robert S. Smith writing for the majority began that decision stating quite clearly,
We hold that the New York Constitution does not compel recognition of marriages between members of the same sex. Whether such marriages should be recognized is a question to be addressed by the Legislature.
Judge Smith concluded that opinion as follows:
It may well be that the time has come for the Legislature to address the needs of same-sex couples and their families, and to consider granting these individuals additional benefits through marriage or whatever status the Legislature deems appropriate. Because the New York Constitution does not compel such a revision of the Domestic Relations Law, the decision whether or not to do so rests with our elected representatives.
Chief Judge Judith Kaye’s dissenting opinion in Hernandez, further laments the Legislature’s failure to act in calling for the Court to do what the Legislature has not:
The fact remains that although a number of bills to authorize same-sex marriage have been introduced in the Legislature over the past several years, none has ever made it out of committee (see 2005 N.Y. Senate-Assembly Bill S. 5156, A. 7463; 2005 N.Y. Assembly Bill A. 1823; 2003 N.Y. Senate Bill S. 3816; 2003 N.Y. Assembly Bill A. 7392; 2001 N.Y. Senate Bill S. 1205; see also 2005 N.Y. Senate-Assembly Bill S. 1887-A, A. 3693-A [proposing establishment of domestic partnerships.; 2004 N.Y. Senate-Assembly Bill S. 3393-A, A. 7304-A [same]). Regardless of the position one may hold, we find ourselves surrounded by states that recognize one form or another of same-sex relationships, including marriage. 4 Ultimately, we will at the very least be required to adjudicate full faith and credit issues and become entangled, courtroom by courtroom, with a variety of conflicting decisions unless the Legislature takes the stand that the Court of Appeals has asked it to – any stand. 5
Another issue, enhanced earning capacity, which has long been derided by the matrimonial bar and trial courts, continues in its perpetual fiction. This concept, which commenced with the Court of Appeals’ 1985 decision in O’Brien v. O’Brien, 6 and was given renewed life in that Court’s 2004 decision in Holterman v. Holterman, 7 compels the court to ascertain the value of one’s license, degree, celebrity, or even extraordinary wage-earning ability 8 and distribute that value to the other spouse, even though the party possessing that enhanced earning capacity might not utilize their degree, might lose that celebrity status, or be rendered unable to avail themselves of the actuarially computed future earnings due to injury or illness. One could for example, be a fledgling surgeon, whose enhanced earnings have been calculated into the millions over a prospective 25-year career which has not yet occurred. A portion of that value is then subject to equitable distribution which may also amount to millions and because it is in the nature of a property distribution, is nonmodifiable. If that surgeon is then disabled and has lost the ability to derive the income upon which the enhanced earnings award is based, he or she cannot recoup what has been paid to or owed to the other spouse. While many trial courts have been critical of the concept and have reduced the percentages distributed in enhanced earnings case, it still exists, values must be ascribed, and the issue tried. Given the imprimatur placed by the Holterman court, despite the stinging dissent of Judge Robert S. Smith, joined by Judge Susan P. Read, it again falls to the Legislature to act. Again, it has not. Conclusion It is astounding that the hard work undertaken by the Miller Commission has gone unheeded. In addition to the failure of the Legislature (Did I mention on the broader scale that there is still no pay raise for judges?), we still have a plethora of areas which remain stagnant. There is still the reluctance of courts to issue proper interim counsel fee awards. Law guardians are still referred to as “Law Guardians” with a capital “L” and “G,” instead of the more appropriate “attorney for the child” and are still perceived by many lawyers, judges and by themselves, as having more influence than the other attorneys. There remains no understandable or universal guidelines for the function of “parent coordinators” or forensic custody evaluators. There is no continuity in high-income child support awards. These conditions exist in spite of the effort made by judges, attorneys and lay people to help make this process swifter and more equitable. Let us hope than the work of Justice Miller and the members of her commission are appreciated and revisited. Further, and at the very least, common sense must find a way to prevail upon those who have the power to act and enact, to do what is needed to bring proper reform. We have a road map, it just needs to be followed. Lee Rosenberg, is a partner at Saltzman Chetkof & Rosenberg in Garden City. His e-mail address is [email protected]. Endnotes: 1. DRL �170(5) and (6) 2. 15 Misc3d 1120(A) (Sup. Ct., Nassau Co. 2007) 3. 7 NY3d 338 (2006) 4. Massachusetts recognizes same-sex marriage. Connecticut, Vermont and New Jersey recognize same-sex unions which are tantamount to marriages without using the term “marriage.” New Hampshire will have a similar law effective January 2008. 5. In Gonzales v. Green, 14 Misc3d 641 (Sup. Ct., New York Co. 1996), the court ruled that the Massachusetts same-sex marriage was not entitled to recognition, because the Massachusetts statute does not require other states to recognize the marriage where such other state does not itself recognize it. To the contrary, in Godfrey v. Spano, 15 Misc3d 809 (Sup. Ct., Westchester Co. 2007), the County Executive’s Order recognizing out of state same-sex marriages was upheld. 6. 66 NY2d 576 (1985) 7. 3 NY3d 1 (2004). 8. See, e.g., medical board certification ( Savasta v. Savasta, 146 Misc. 2d 101 (Sup. Ct., Nassau Co. 1989)); law degree ( Holihan v. Holihan, 159 A.D.2d 685 (2nd Dept. 1990)); accounting license ( Duspiva v. Duspiva, 181 A.D.2d 810 (2nd Dept. 1992)); physician’s assistant certificate ( Morimando v. Morimando, 145 A.D.2d 609 (2d Dept. 1988)); academic degree and teaching certificate ( McGowan v. McGowan, 142 A.D.2d 355 (Sup. Ct., Suffolk Co. 1988)); unutilized master’s degree ( Kaufman v. Kaufman, 207 A.D.2d 528 (2nd Dept. 1994)); congressional career ( Martin v. Martin, 200 A.D.2d 304 (3d Dept. 1994)); celebrity ( Golub v. Golub, 139 Misc. 2d 440 (Sup. Ct., N.Y. Co. 1988), Elkus v. Elkus, 169 A.D.2d 134 (1st Dept. 1991), lv. dismissed 79 N.Y.2d 851 (1992)); harbor pilot’s apprenticeship and license ( Pino v. Pino, 189 Misc. 2d 331 (Sup. Ct., Nassau Co. 2001)); extraordinary career earning ability ( Hougie v. Hougie, 261 A.D.2d 161 (3d Dept. 1999)).

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