Complex Challenges in Matrimonial Actions
Suffolk County Divorce Lawyer and Complex Matrimonial Challenges
By J. Douglas Barics
Complex challenges often fall into two broad categories, complicated facts and complicated procedural issues. Often, the two are intertwined.
Complex Facts
Complicated facts are factual situations that are case specific. Assets and income may be hidden by simply not disclosing them and locating them in accounts where they are not likely to be found. Other times, income and assets are hidden in plain sight. Multiple transfers into and out of accounts creating a shell game is often an indication of undisclosed finances. New expenses that are not properly explained is another way income and assets are concealed. Being able to identify these signs is paramount, as missing these signs may result in missing the need for additional discovery and the use of experts.
Other times, complex facts arise due to complicated transactions. Inherited assets is one of the most common examples, as it can result in individuals who have a vested interest in property without their express knowledge.
Complex Procedural Issues
Separate from complex facts is complex procedural issues. Procedural problems can occur with even simple facts. The most telling sign here is the lack of the ability to be heard. Complex procedural issues covers situations such as a court following the rules of procedure, disregarding its own orders, revising its own orders, issuing sua sponte orders all result in orders determining the merits to the detriment of one party due to procedural violations.
Correcting procedural mistakes is almost always possible under the CPLR, but knowing the correct rules of procedure to correct these errors is paramount, and often requires coordinating requests for relief in both the appellate division and the trial level.
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Complex Matrimonial Challenges
Examples of Complex Matrimonial Issues
The following is a sample of various non typical situations that have arisen. As each situation should never have arisen, each one required a deep knowledge of the rules of procedure and the underlying law.
The judge assigned to my case radically altered an existing order. How can the court do that?
A court is without authority to amend its own orders and judgments if it affects a substantial right. There are limited exceptions to this rule.
What are the exceptions?
For an order, a party can file a motion to renew or reargue. For a judgment, a party can seek relief under CPLR 5015.
A judge granted an ex parte TRO which gave my spouse everything they were asking for in the motion. Is that right?
A court many not grant affirmative relief in a TRO unless it is required to maintain the status quo. The answer is to either seek appellate review or to file a motion seeking to vacate the ex parte order.
I thought I was divorced when I remarried, but it turns out the divorce was never finalized. My spouse says that means I don't get anything. What can I do?
The act of getting married gives the court the authority to grant relief under the matrimonial rules, even if that marriage is void. The law is written to prevent an innocent spouse from losing their rights. Should the court find a spouse intentionally created the bigamous marriage.
My spouse and I bought our home a week before we were married, is there anyway the court can treat this as close enough to be marital property?
A situation like this is fairly common and is surprisingly complex as it is very fact specific. Initially if the house was purchased prior to the marriage, it is not considered marital property and the court is without authority to touch it. However, it also must be determined if the house was transmuted into marital property by looking at post marriage transactions. In addition, a claim for recoupment may exist if marital funds were used to pay down a separate property debt. That in turn, would depend on how the house is titled.
If the house is in both names, then a partition action could be filed. Optimally it should be filed at the same time as the divorce and the two cases heard together, but this is not required.
If the house is under one name, then a constructive trust should be reviewed as well.
My spouse obtained a divorce without my knowledge. What can I do?
If the divorce was an ex parte divorce, it is void as a matter of policy.
If you were never given notice of the divorce, a motion to set aside the divorce should be filed.
I keep hearing there are two kinds of fraud. What does that mean?
There is extrinsic fraud, which means fraud was used to hide the entire case from you, and you were never given the opportunity to have your day in court. Extrinsic fraud will almost always result in relief from the judgment.
Intrinsic fraud is fraud that was could have been discovered but was not. There is a much higher burden to obtain relief when intrinsic fraud is the issue as the presumption is it could have been addressed with due diligence.
My ex works in a cash business and hides income. Is this fraud?
Yes, it may be fraud but its also something that can be addressed with due diligence. One common method to address unreported income is to look at inventory of consumable supplies. For example, while all coffee sales may not be reported, the amount of coffee cup lids are traceable and can be used to determine the amount of coffee sold. If the numbers don't match then backing into the financials through alternate methods may be required.
Contact Our Divorce Attorney Today
At the Law Office of J. Douglas Barics, we have the skills and knowledge to handle any complex divorce, no matter how challenging or convoluted. With over 25 years of matrimonial experience, we can bring to you the services of a large firm at a fraction of the cost. When you need a skilled matrimonial lawyer located in Suffolk County, call The Law Office of J. Douglas Barics.
For a free phone case consultation or to schedule an office meeting, call 631-864-2600.