Wouldn't it be great is US v. Windsor were decided on the anniversary of US v. Loving?

We are all on "Windsor Watch," awaiting the decision of the U.S. Supreme Court in U.S. v. Windsor, as well as the Proposition 8 case.  Regardless of whether the Windsor case

is decided on the grounds of States' rights, federalism, or whatever else is in the Court's toolbox, the Defense of Marriage Act needs to be overturned.  While Mrs. Lo is staunchly pro-same sex marriage, the reason the Windsor case needs to be affirmed is because the federal government simply has no jurisdiction over Family Law and the DOMA act should never have been enacted.

Today, June 12, is the 46th year anniversary of the U.S. Supreme Court's decision in Loving v. Virginia, 388 U.S. 1 (1967).  Mildred and Richard Loving, then a young married couple, were arrested in 1958 for violating the anti-miscegenation laws, which existed in 16 states at the time, including Virgina, and prohibited marriage between whites and non-whites.  The Lovings, were convicted (they had a child by this time), and their motion to vacate was denied.  The Circuit Court affirmed in part, reversed and remanded and the conviction went up on appeal to the Warren Court.

In one of Mrs. Lo's favorite written decisions ever, the U.S. Supreme Court declared Virginia's anti-miscegenation statute, known as the "Racial Integrity Act of 1924" as violative of the equal-protection clause and therefore unconstitutional.  This rendered the remaining 15 state anti-miscegenation statutes unconstitutional and gave all couples the freedom to marry -- unless those couples were of the same sex.

This brings us to present day, and I have written extensively on the US v. Windsor case, as Edith Windsor is a New Yorker and a personal hero of mine.  Due to the DOMA, although validly married in Canada, and although her marriage to her deceased spouse is recognized now under New York State Law, she still had to pay over $360,000.00 in estate taxes because her marriage was not recognized under Federal Law.

Today is celebrated as "Loving Day" throughout the country, and couples who are of different races are celebrated.  Wouldn't it be great if same sex couples were given the same freedom on Loving Day, by having the US Supreme Court decide US v. Windsor and strike down the DOMA once and for all?  We should call it Loving-Windsor Day if that happens.

NYS Judges are Suing NYS for $51 Million in Salary Increases

The case of "Pines v. State of New York" is now being argued before the Appellate Division, Second Department.  State Judges, from New York State's Supreme Court, argue that the $51,000,000.00 appropriation by the NYS Legislature is lawful.

At issue are retroactive raises of 27% between April 1, 2005 and April 1, 2009.  The raises were to increase in 4 steps from the then amount of $136,770.00 per year for Supreme Court Justices to $174,000.00 per year between April 2005 and April 2009.

The following is quoted from today's New York Law Journal:  "In her 2011 ruling in Pines, Nassau County Supreme Court Justice Karen Murphy accepted the plaintiffs' argument that the Legislature's appropriation of $51 million was sufficient to make the raises legal.

Murphy said the appropriation met the requirement that has been in the state Constitution since the 1920s that judicial pay raises be "established by law" (NYLJ, Feb. 14, 2011).

"The State Constitution does not mandate a specific format for judicial salaries, and consequently, Chapter 51 is enforceable as it stands," Murphy wrote in Pines v. State of New York, 13518/10.

The lead plaintiff is Suffolk County Supreme Court Justice Emily Pines. Other plaintiffs are Supreme Court Justice David Demarest in St. Lawrence County, Acting Queens Supreme Court Justice Jeffrey Lebowitz, Supreme Court Justice Stephen Ferradino in Saratoga County, Supreme Court Justice Ralph Boniello in Niagara County and Nassau County Court Judge Joseph Calabrese." 

CAN MY SPOUSE AND I FILE UNCONTESTED DIVORCE PAPERS OURSELVES?

Yes.  You can.  It is difficult, but certainly not impossible.  

NYS puts the Uncontested Divorce Package online, along with a booklet explaining how to do it.  You will need to read the booklet very carefully and pay very close attention to it.  I would read the booklet once to understand it, then read it again, highlighting with a yellow highlighter what you need to do.  This packet works best for people who have already been separated for a while and have already separated their finances.  It is also easier to use these forms where there are no children of the marriage, your children are grown, or you have already worked these matters out in Family Court with an order of custody and visitation as well as a child support order.  Here is the link to the Uncontested Divorce Forms and Instruction Booklet.  Remember, that unless you qualify for and make application for "in pauperis" status, you will need to write checks out to your local County Clerk's office for various filing fees, starting with the Index number application.  Here is the link:  http://www.nycourts.gov/divorce/forms.shtml

WHAT IS A LEGAL SEPARATION?

One of the most common questions I get asked is:  "What is a legal separation" along with, "what is the difference between a separation and a divorce?  Let's start with what a "legal separation" means in New York State.  This refers to a document, executed in the form that would entitled a deed to be recorded, which settles all issues which would be addressed during a trial, except for grounds for divorce.  Thus, it would cover custody, child support, maintenance, equitable distribution and legal fees.  A separation agreement is the document which is executed by both parties, typically drawn by a lawyer advocating for one party.  There must be a total agreement on all issues.  This comes under the category you can lead a horse to water but you can't make a horse drink.  Thus, you may have the best of intentions, wanting an amicable agreement, but if the other person is not on board, that person will not execute the agreement.  However, once an agreement is executed, you have a CONTRACT.  Thus, if there are important issues which may need to be enforced some day, such as support or installment payments, you may want to take it further and convert the CONTRACT into a judgment of divorce.  Otherwise, if the other party does not comply, your only remedy is to sue on a breach of contract.  Whereas if a party does not comply with a judgment of divorce, there are legal remedies, such as contempt of court.

FAMILY COURT PROTECTION FOR PERSONS IN "INTIMATE RELATIONSHIPS"

People may not be aware, but should be, that the Family Offense Statute, which is implemented in both Family Court and the criminal courts, now includes protection for people in "intimate relationships."  The original statute limited Family Offense protection to victims that were narrowly defined.  To bring a family offense petition, the original statute required the Petitioner to establish a "family" relationship, defined as spouse, parent, sibling, etc., or have a child in common.  This necessarily left out persons involved in "intimate relationships" such as same sex couples, domestic partners, boyfriend-girlfriend situations, and even senior citizens who often choose not to re-marry because they wish to preserve inheritance rights for their grown children and grandchildren.  The definition of a Family Offense now includes persons involved in "intimate relationships."  A court will look at the nature and type of relationship (need not be sexual), the frequency of interaction and the duration of the relationship.  Casual acquaintances and ordinary relationships are specifically excluded from the statute.  

From the Office of Prevention of Domestic Violence:  "In domestic violence cases, an order of protection can be issued in criminal and/or civil court. The civil venue for these proceedings in New York State is 

Family Court; domestic violence victims must fall within the Family Court‘s personal jurisdiction, and then the allegations must fit within the ―family offense‖definition, described below, in order for the victim to request a civil order of protection.

Domestic Violence is Legally Defined by a Combination of Relationship and 

Behavior.  New York State does not define ―domestic violence‖ for criminal court and Family 

Court proceedings. Instead, New York State uses the term ―family offense‖ to 

capture certain crimes3 when they are committed between ―family or household 

members.‖ Before the 2008 Expanded Access amendment, ―family or household 

members‖ included persons: related by consanguinity (blood relatives) or affinity (through marriage); 

married or formerly married; or with a child in common. Individuals who were married to, formerly married to, or had a child in common with the person who had abused them, were eligible to petition for an order of 

protection in both criminal court and Family Court. Those who fell outside of that 

definition could proceed in criminal court, but were not eligible for Family Court. 

Limitations of New York’s “Family Offense” Structure

Over the years, New York State‘s laws have provided increasing protections for

those domestic violence victims who fell within the ―family or household member‖ 

definition. However, those same protections did not extend to many other victims.  A victim seeking a divorce, separation, or annulment, can also request an order of protection in another civil court, Supreme Court.  Family offenses/crimes: disorderly conduct, harassment in the first degree, harassment in the second 

degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse 

in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of 

the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, 

stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third 

degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, 

criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third 

degree or an attempted assault.   Many people felt that the definition inappropriately excluded 

a large number of similarly situated victims from access to a critical civil remedy, including dating or unmarried couples, same sex couples, and adolescent and many elder couples, and that the definition no longer reflected the nature of families and households 

today. 

The 2008 Expanded Access Law

In 2008, New York State expanded its legal definition of ―family or household 

member‖ to include, ―…persons who are or have been in an intimate relationship 

regardless of whether such persons have lived together at any time.‖4 For the 

purposes of this report, we will refer to these newly qualified individuals as 

―intimate partners.‖5 This change in definition means that intimate partners now 

have the same legal rights and protections as victims who were already covered 

by the law. These benefits include the following:

an intimate partner victim can seek an order of protection from Family 

Court in addition to, or instead of, pursuing criminal court options;

the court must enter the order into the statewide Order of Protection and 

Warrants Registry, which police consult when called to enforce an order of 

protection; police officers must, when responding to a domestic violence complaint, 

complete a Domestic Incident Report (DIR), regardless of whether a crime 

is alleged or an arrest is made, and must provide the victim with a copy;

police officers must make an arrest according to the mandatory arrest

provisions for family offenses in the Criminal Procedure Law § 140.10(4); 

and police officers must determine which party is the primary physical 

aggressor when two parties both allege domestic violence misdemeanors. 

The law enumerated factors the court may consider in determining whether a relationship is an 

"intimate relationship," including, but not limited to: the nature or type of relationship, regardless of 

whether the relationship is sexual in nature; the frequency of interaction between the persons; and the 

duration of the relationship. The law also clarified that “Neither a casual acquaintance nor ordinary 

fraternization between two individuals in business or social contexts shall be deemed to constitute an 

’intimate relationship.’"

This is a definition of convenience for this report: ‘intimate partner’ is commonly used to refer to a 

broader category of individuals that includes married and formerly married and those with a child in 

common.NYS Expanded Access Report October 12, 2011

This change impacted other legal areas that reference the family or household

definition as well, such as: 

enhanced criminal contempt charges that apply only to violations of family 

offense orders of protection;

alternative voting options that maintain the confidentiality of the victim‘s 

address; and

protections against workplace discrimination based on an individual‘s 

status as a domestic violence victim.

Since most enhanced provisions in domestic violence-related laws reference the 

family or household definition, future laws will likely utilize this more inclusive 

definition of victim of domestic violence. For example, during the 2011 legislative 

session, the Social Services definition of ‗victim of domestic violence‘ was 

amended to include the new category of ‗intimate partner.‘6 Social Services laws 

and regulations had already included unrelated individuals living in the same 

household or having regular access to one another‘s household, but adding the 

intimate partner category created a more comprehensive definition, so that all 

individuals who are eligible for a civil order of protection have corresponding 

eligibility for residential and non-residential domestic violence services."

The new "superwomen" -- Edith Windsor (US v. Windsor) and Attorney Roberta Kaplan, and their fight to overturn the Defense of Marriage Act

Tomorrow, March 28, 2013, the U.S. Supreme Court will hear arguments on whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.  We would like to wish Roberta Kaplan, Esq., partner at Paul, Weiss, Rifkind and longtime attorney for Edith Windsor luck tomorrow.  Roberta has called herself a “stress junkie,” and arguing this matter before the US Supreme Court doesn’t get much more stressful. 

Here is link to an interview with Attorney Kaplan, conducted by Victor Li,  from approximately two years ago, from AmLawDaily:

http://amlawdaily.typepad.com/amlawdaily/2011/02/robertakaplanqa.html

Huge Prenup Win: Victory for Elizabeth Cioffi-Petriakis

Elizabeth Cioffi-Petriakis just won a huge decision in her favor.  It took years, but the Plaintiff said she did it at the trial level once she decided to go pro se (without lawyers), after spending $475,000.00 in legal fees.  By establishing fraud in the inducement and breaking the pre-nup, she stands to receive half of the marital estate, which is said to be worth many million of dollars.  This will have a big impact on cases in the State of New York.  Here is the decision of the Second  Department:


"Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D37430
T/hu
AD3d Argued - January 9, 2013
DANIEL D. ANGIOLILLO, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2012-01250 DECISION & ORDER
Elizabeth Cioffi-Petrakis, respondent, v Panagiotis
Petrakis, appellant.
(Index No. 8252/08)
Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Stephen Gassman and Cheryl
Y. Mallis of counsel), for appellant.
Weg and Meyers, P.C., New York, N.Y. (Dennis T. D’Antonio and Derek M. Zisser
of counsel), for respondent.
In an action, inter alia, to set aside a prenuptial agreement, the defendant appeals, as
limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Bennett,
J.), entered February 6, 2012, as, upon a decision of the same court (Falanga, J.), dated December
12, 2011, made after a nonjury trial, is in favor of the plaintiff and against him setting aside the
prenuptial agreement.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
In general, New York has a “strong public policy favoring individuals ordering and
deciding their own interests through contractual arrangements” (Matter of Greiff,92 NY2d 341, 344;
see Bloomfield v Bloomfield, 97 NY2d 188, 193). “However, this right is not and has never been
without limitation” (Kessler v Kessler, 33 AD3d 42, 45). “[T]he State is deeply concerned with
marriage and takes a supervisory role in matrimonial proceedings. . . . Indeed, in numerous contexts,
agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond
that afforded contracts in general” (id. at 46 [citation omitted]). Thus, while “there is a heavy
presumption that a deliberatelyprepared and executed written instrument manifests the true intention
February 20, 2013 Page 1.
CIOFFI-PETRAKIS v PETRAKISof the parties” (Brassey v Brassey, 154 AD2d 293, 295), an agreement between spouses or
prospective spouses may be invalidated if the party challenging the agreement demonstrates that it
was the product of fraud, duress, or other inequitable conduct (see Christian v Christian, 42 NY2d
63, 73; Petracca v Petracca, 101 AD3d 695; Weinstein v Weinstein, 36 AD3d 797, 798; Lombardi
v Lombardi, 235 AD2d 400).
“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s
authority is as broad as that of the trial court and includes the power to render the judgment it finds
warranted by the facts, bearing in mind that due regard must be given to the decision of a trial judge
who was in the position to assess the evidence and the credibility of witnesses” (D’Argenio v
Ashland Bldg., LLC, 78 AD3d 758, 758).
Here, the Supreme Court reasonably resolved credibility issues in favor of the
plaintiff, and its determination that the defendant fraudulently induced the plaintiff to execute the
prenuptial agreement was supported by the evidence. With respect to the material facts underlying
the plaintiff’s claim, the Supreme Court found that the plaintiff’s testimony was “credible,”
“convincing,” “unequivocal,” and consistent with “additional corroborative evidence,” and that any
“inconsistencies” in her testimonyrelated to “insignificant” matters. Bycontrast, the Supreme Court
found the defendant’s “credibility to be suspect,” due in part, to his “patent evasiveness.” The
Supreme Court’s credibility findings are supported by the record. The plaintiff’s claim in this case
rested largely on the credibility of the parties, and we decline to disturb the Supreme Court’s
determination with respect thereto (see Reid v Reid, 57 AD3d 960). On the particular facts of this
case, the Supreme Court correctly determined that the plaintiff sustained her burden of establishing
grounds to set aside the prenuptial agreement (cf. Petracca v Petracca, 101 AD3d at 695).
The defendant’s remaining contentions are without merit.
ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
February 20, 2013 Page 2.
CIOFFI-PETRAKIS v PETRAKIS"