Quality of Life and Family Law in New York & California

When my Brooklyn granddaughter arrived two years ago, I came to New York thinking that I’d split my time between there and California. But I fell in love, not just with my granddaughter, but also with New York: the place, the people, the climate and the law, so I decided to move here.

Clearly, New York is better that California because there are actual seasons, rain and snow, and mass transit everywhere, so I can easily visit my granddaughter who lives two hours by train down the Hudson River from my home. In the little I’ve seen of New York courts so far from my pro bono work, it seems that New York has a lot of advantages for families and children. They are generally dealing either with divorce court or family court for almost all other matters reducing the “crossover” issues that follow California families back and forth from family to juvenile to probate divisions. New York divorce records are entirely confidential and other family records are available only by special application.¹ They also have a little better chance at receiving appointed counsel if they need it and therefore fewer self-represented litigants in family matters. ²

And yet . . . both New York and California have a lot in common. Both are progressive states that strive to help all their people. Both have a wine industry, sailing and good baseball teams. They also approach child custody and child support in similar ways. Both use the best interest standard to determine custodial plans. ³ Both have custody mediation although California’s process is mandatory and uses professional mental health providers while New York custody mediation is voluntary and uses extensively-trained community volunteers. Both have independent actions available for grandparents to sue for visitation and both consider the child’s preference with more weight given as the child matures. Both allow children to address the court directly. California has a statutory mandate that requires the Court to hear from children above age 14 upon request. New York case law establishes the preferred practice to hold an in camera interview on the record with only the child and his/her attorney present and it may be reversible error to disallow if the children had not otherwise been able to communicate their views to the Court. ⁴

New York and California also both use mathematical formulas to set a presumptively correct amount of child support based on the “income shares” theory that a child is entitled to the same share of parental income before and after separation. Both use algorithms but California’s requires a computer program while even the mathematically challenged like myself can calculate the New York version. New York differs from California in that the percentage of time each parent spends with the child is not part of the formula. As a result, a parent with more than half of custodial time or a parent with equal time but less money will receive child support from the other parent. If they have more than half of the time, they get full support; if they have equal time but less income, the amount is discretionary, but they will generally receive support. As to duration of the obligation, New York requires parents to support their children to age 21, California only to age 18 or 19 if still a full-time high school student living at home.⁵

Both states have similar automatic restraining orders prohibiting the unauthorized transfer of assets or changes in insurance pending final judgment of dissolution. California also restrains parties from removing the child from the state or applying for a new or replacement passport. Both states have similar provisions for compulsory disclosure of financial information upon filing divorce. While California mandates ongoing updates of disclosure as circumstances change during the pendency of the divorce, New York does not. ⁶

And yet . . . California does have a lot going for it that New York lacks. I miss California’s mediterranean climate, sailing on the San Francisco Bay, visiting the best wine area in the country, and going to see the Giants play. California also has more advantages for families and children in court. It was the first state to establish no-fault divorce in 1970 while New York was dead last in 2010.  There are seven different grounds for divorce here including adultery that still may result in a denial of spousal support. Fiduciary duties of loyalty and care between spouses are more evolved in California, covering the entire length of the marriage and setting out remedies for breach.⁷ New York has no statutory law on fiduciary duty, and case law limits the duty to time of divorce only. ⁸ And California is a community property state so everything earned, accumulated or received during the marriage (e.g. wages, benefits, property, the value of a business etc.) except for separate property owned prior to marriage, gifts or bequests, as well as all liabilities incurred are equally split at dissolution. ⁹ Although New York is an equitable distribution state and not one of nine community property states; most property acquired during marriage is presumed to be marital property. In practice, everything is generally split equally regardless of title except businesses. Non-business owner spouses who do not participate in the business operation generally receive far less than half the value of the business. To make an equitable disposition of marital property upon divorce, New York courts should consider 14 factors very similar to the 20 factors California courts use to determine permanent spousal support. However, the equitable distribution factors, unlike California’s spousal support factors, appear to be a guideline with no requirement that the Court make any record findings. ¹⁰ And, until last fall, New York actually considered a spouse’s “enhanced earning capacity” from awards, degrees and prizes (e.g. Nobel) to be a marital asset to be valued and distributed at dissolution. ¹¹

Both states use a similar formula considering both income and expenses to reach temporary spousal support but New York now also mandates the formula be used to set presumptively correct permanent support although it retains discretion to adjust where appropriate.  It’s unclear whether this will be better or worse for families and their counsel. A formula for permanent support certainly increases predictability but significantly reduces judicial discretion.¹²

Maybe, the best thing is to combine the states. This approach has certainly worked for the Giants.¹³  Combining both states means that I can continue to visit friends and family, teach and work in the Bay Area.  I come west when the east is too cold, to see the Giants play, buy wine, and go sailing. I can also avoid litigating fault divorce, retain more judicial discretion for permanent spousal support, and hold parties to a stricter fiduciary duty.  Sounds pretty good.

[1] N.Y. Domestic Relations Law § 235, N.Y. Family Court Act §166.
[2] The latest official study I could locate shows that roughly a half of NYC family law litigants rather than California’s two thirds appear unrepresented.
[3] California mandates record findings on specific best interest factors defined by statute where New York relies on case law with no requirement for record findings with the sole exception of a history of domestic violence. Cal. Fam.Code § 3011 and N.Y. Domestic Relations Law § 240(1).
[4] Cal. Fam.Code § 3042; Koppenhoefer v. Koppenhoefer, 159 AD2d 113 (2d Dept 1990);  Matter of Brice v. Mitchell, 184 A.D.2d 1008 (4th Dept 1992).
[5]N.Y. Domestic Relations Law § 240(1)(b), N.Y. Family Court Act § 413, and Cal. Fam.Code § 3011.
[6] Cal.Fam.Code § 2100 and N.Y. Domestic Relations Law § 236 B(4).
[7] Cal.Fam.Code § 721 and § 1100-1101.
[8] Manes .v. Manes, 277 A.D.2d 359 (2000).
[9]Cal.Fam.Code § §760,770 & 802.
[10] N.Y. Domestic Relations Law § 236(1) and § 236 B(5)(d);  Compare Cal.Fam.Code § 4320.
[11] O’Brien v. O’Brien, 66 NY2d 576 (1985).
[12] The new law caps annual income available for both temporary and permanent support at $175,000. The court can deviate from the formula where it finds the presumed award unjust or inappropriate in a particular case based on specific factors quite similar to California’s discretionary permanent support factors under Cal.Fam.Code § 4320. The law also establishes a presumptively correct duration of permanent support based on the length of the marriage with  adjustments that must be based on the same factors for non-guideline support. N.Y. Domestic Relations Law § 236B(6).
[13] When you combine their New York and California records, the Giants have won the most games in baseball, 23 National League pennants, 20 World Series competitions, and 8 World Series championships. I don’t want to talk about the Miracle Mets who killed my Baltimore Orioles in 1969 or the damn Yankees so pardon me Oakland A’s fans for not getting into American League details.