THE LAW IS THE LAW, BUT WHICH LAW APPLIES TO YOU?

By Sari M. Friedman, Esq.
General Counsel. FRALI, FRANY

Have you ever wondered why a friend seemingly got a better deal in his or her divorce or custody suit than you did? Is it your lawyer's fault? Or is it a matter of case law where you live? You have probably heard the terms "case law" or "statutory law". But did you know how these laws can affect you?

Statutory Law

Law is the product of legislation by the Federal and State governments. In the area of Domestic Relations, the Federal government usually leaves it to individual states to enact their own laws.

The State Legislature in Albany enacts laws such as:

  • What constitutes grounds for divorce
  • How child support is determined
  • Standards for division of property
  • Standards of maintenance, etc.
Case Law

Once the statutory laws are enacted, the courts interpret the intent and meaning as they decide cases. This is called Case Law.

For example, in 1980, the State Legislature enacted the equitable distribution law (Domestic Relations Law, section 236) which significantly changed the laws of the State. Before this law, title determined ownership. Now the basis for property distribution is equitable distribution of "marital assets", which usually is property acquired during the marriage with the exception of gifts or inheritance.

A good deal of case law was developed to interpret what constitutes a marital asset and what type of distribution would be deemed equitable. Legislation and case law work together to establish State law. But it doesn't end there, All Case Law is Not Equal

In New York State, there is the Court of Appeals and under it are four appellate divisions. Unless the Court of Appeals set the rule for the
entire state the appellate division rulings are controlling on all lower State courts. One appellate division's ruling however is not binding on the other three. So what does this mean?

One department may issue a decision that is totally different from the law established in another division. The ultimate appellate decision
becomes controlling on all lower courts, but only on those courts in its division.

So it may be geography that determines much of the outcome of your case. The first appellate department covers Manhattan, the Bronx and surrounding areas. The second department covers Long Island, Westchester County, Queens, Brooklyn, Staten Island, and surrounding areas. The third and fourth departments divide upstate New York.

Although a decision in one appellate division is not binding on the others, it is influential. Nevertheless, a department has the right to
issue a decision that is different from the decision issued by another department. You might find, for example, in custody cases, that judges in Manhattan courts are more likely view differently then a judge in another part of the state a mother who works outside the HOME as compared to a mother who stays at HOME.

What Does New York State Law Say About Joint Custody?

Speaking of custody, forty-three state have a Joint Custody Law. Unfortunately, New York, although one of the more enlightened states, is
not one of them. The only way to get joint custody in New York is to have both parties agree to it. This is often difficult to achieve because litigants do not want to give the other parent greater rights than the law demands. But if it were law in New York State, experience in other states shows that most people are law abiding and will accept the dictates of the Court.

Conclusion

So what can you do about it? You can use your citizenship rights to influence Albany. Organizations like the Fathers' Rights Association, would welcome your help in their Albany lobbying efforts. The organization will help you direct your letters appropriately to members of the State Assembly and Senate asking for legislative changes that recognize today's changing family.