September, 2020

This is a continuing discussion of Legal Myths and Reality, because those informed are always the most successful.

MYTH:  New York law is set in stone, and not easily changed.

REALITY:   A MONUMENTAL CHANGE!  The law is constantly changing as legislators struggle and strive to make the law reflect reality and the current state of life in New York.  Like everything else in life, the law ebbs and flows.   One of latest changes is the ever-evolving law about divorce and distribution of property in a divorce, and spousal support in a divorce.  This change is monumental!  It reflects the constant swinging of the pendulum in our lives, from right to left, and back.

In the 1970’s, when I first began to practice law, in a divorce in New York State property was divided according to the name on the property.  For example, if the house was in the husband’s name, he became the sole owner after a divorce.  Clearly this could subject the less powerful partner to harassment and worse during a dysfunctional marriage. Spousal support during and after a divorce was based on gender, i.e., the wife received the support on the theory that most women worked in the home and not in the general workforce and needed financial support.  Clearly, this did not reflect actual life of women as more and more came into the general workforce.

In 1980 divorce law underwent a massive change.  Our state instituted “equitable distribution” of property, somewhat as a result of the women’s movement.   (As it turned out, this change did not always deal well with women.)  Property would now be divided, not according to the name on the property, but equitably. Equity would take into account ten items, now fifteen.  Among those items was the age and health of both parties, and the number of years of marriage, among other factors.  Not ONE of the factors had anything to do with “fault” in the marriage, with the possible exception of a “catch-all” factor.  That catch-all factor meant anything that would make the distribution of certain and more property to one spouse over the other “just and proper”.  That phrase was slippery to get hold of, and finally the courts decided that the “just and proper” factor must be something that would be so awful that it would “shock the conscious”.  One example of this is the attempted murder of the other spouse.  Surely that must shock the conscious. However, another court decided that threatening to shoot the spouse by placing a rifle to her head was not shocking enough to award her a larger share of the property!

One of the problems, other than the obvious one of possibly making an inappropriate division of property, is that if a spouse cannot show conduct shocking enough, then there can be no discussion of fault in the marriage and in the lawsuit.  There can be no investigation of the wrongdoing.  It is just shut down. The property will be divided equitably, without taking fault into account.

A new law has now been passed.  It is an amendment to the law setting out the factors to be considered in property division and support.  The new law requires that domestic violence be considered as a factor that can make the property division not equal, but equitable.  Essentially, the party against whom the violence was committed can get more of the property, including spousal support.  This new law has now added the issue of fault back into the distribution of property, for the first time since 1980.

Those who like the new amendment to divorce law say that domestic violence can have physical, emotional and psychological effects on the victim, and so should be taken into account to shift the division of property and spousal support.

Those opposing the amendment say: 1.  It will force the victim to relive the abuse if (s)he wants a more favorable decision; 2.  If a claim is made in order to shift the property settlement, the accused spouse now has the right to explore the elements of the abuse claims.  This can be done by extensive victim and witness questioning in writing and in person, under oath.  To avoid this, an abused spouse might accept an unfair settlement to avoid the distressing process; 3.  The abused party must prove the claims, which, if proven, can expose the abuser to being prosecuted for a crime.  The accused party can then claim Fifth Amendment rights to avoid self-incrimination.  This can limit the proof in the divorce.  And then what? Creative lawyers can carry this result on and on.

Those opposed to the law also say that introducing fault for the first time since 1980 in a divorce case has just opened a huge can of worms, and may go against the exact spirit of the no-fault equitable distribution law.  Clearly, the pendulum has swung back to consideration of fault in a divorce case.

MYTH: Newly enacted laws are exactly what they seem to be.

REALITY:  New York police disciplinary records are now going to be open to the public just as records of other professions for which licensing is required.  Some of these professions are doctors, attorneys, and teachers. Records of these groups can be accessed under the Freedom of Information law.  However, in the short several weeks since the new police law was enacted, disputes have arisen.  Some say the new law does not go far enough, some say it goes too far.  Those opposed to the current formation of the law say that the only complaints that will be available to the public are those that are found to have merit and are true.  Those that are not found to be meritorious may not be disclosed.  Opponents say that as long as the police judge themselves, then it is too easy for those police judges to find no merit, sweep the whole thing under the rug, and people will never see the complaint. More importantly, people will never see the process by which the judgment was made.  The message to police is just don’t issue discipline, and the whole matter remains secret.

Those in favor of the new law say that the new law is a significant step from where we were, and treats police just as othered licensed professions.  For example, claims against teachers that are not substantiated may not be discovered by the public.

All sides agree that there is no perfect solution since the problem is so deep-rooted, and again, time will tell how well it works.

MYTH: In law, as in life, there is only one way of doing things.

REALITY:  There can be many ways to handle events and in governing.  In New York City, as in many New York State cities, the power to appoint police commissioners and hire and fire police officers belongs to the mayor of the city.  The New York State Attorney General believes that many New Yorkers have lost faith in law enforcement, and that the divide between officers and the public must be bridged.   Some argue that when a mayor appoints the police commissioner, chief of police and officers, this links the political fortunes of the Mayor and City Hall to the Police Department.  She believes that police departments in New York are wrongly treated differently from all other governmental agencies, are not subject to legislative oversight, and can make rule changes without a public hearing.  She believes that police agencies should not police themselves.  The Attorney General believes that an independent commission should be appointed to handle these acts, thereby taking them out of the hands of politicians.  The commission could include appointees of each common council, mayor, county attorney or city attorney and city comptroller.  She notes that Detroit and San Francisco have similar arrangements, and they successfully handle police issues.   Many police agencies call this recommendation unnecessary and political.

 

Giving attention to legal myths is not wrong.  It can be a starting point for developing an interest in the law.  However, if legal issues are important in your life, for instance regarding custody of your children or money payable for any reason, it is wise to consult a lawyer who can advise you on the truth of legal myths.  This discussion is not intended to render legal advice on specific cases or to express an opinion on any specific case.

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