Over 30 years of experience in divorce & family law

THE DANGER OF TAKING INCONSISTENT POSITIONS

 

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that one must be careful to avoid taking inconsistent positions in completing paperwork and official governmental forms (under penalty of law or perjury) in unrelated Court cases, which may be at odds with claims made in their divorce case.

Inconsistent PositionIn a recent case determined by the Appellate Division, 2nd Department in New York, the wife had previously filed for two bankruptcies (and it can be assumed that her debts were discharged on each occasion). In those petitions, the wife had alleged, in part, that she was not entitled to any alimony, maintenance, or support payments. Thereafter, in the divorce case, the husband asserted that the wife was not entitled to any maintenance because of her prior inconsistent positions in the Bankruptcy Court cases. The wife was awarded maintenance by the lower Court and the husband appealed.

The Appellate Court did not agree with the husband and awarded the wife lifetime maintenance. The Appellate Court looked at the timing of the bankruptcy cases in relation to the divorce case. The Appellate Court determined that the parties were still married at the time the bankruptcy petitions were filed, and the wife did not have to list any possible future rights to maintenance payments in her bankruptcy petitions, which were filed years before the divorce judgment was issued by the lower Court.

I often wonder whether doing such mundane tasks as participating in a real estate tax reduction administrative hearing (which is commonplace here in Nassau County) could result in prohibiting the party in a divorce from claiming their real property is worth more than the amount adjudicated as the value at the administrative hearing. This blog does not suggest an answer to this question, as I am unaware of any cases which may have addressed the point.

This is just one example (of many potential instances that come to mind) where the Court could prohibit a party from taking a position in their divorce case which is inconsistent with a position previously taken in another adjudicated case. Thus, any person contemplating or participating in a divorce case in New York should evaluate positions they have taken in other litigation with their divorce attorney, as they may have a bearing on the outcome of their divorce case.
Focusing on the needs of the client, the complexity of the case and the results sought have always been a hallmark of my Long Island practice over the past 30 years. Feel free to contact me, H. Michael Stern, Esq.,a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter.

Please contact me by phone at 516-747-2290 or by email: hmsternesq@gmail.com.
My office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

written by: H. Michael Stern, Esq.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York. This is attorney advertising. Prior results do not guarantee future outcomes.