Robert G. Smith, PLLC
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Amount Of Permanent Spousal Maintenance To Be Doubled Unless Husband Provides Religious Divorce Within Sixty Days. Constitutionally Permissable Intrusion On Religious Freedom Or Sui Generis S-O-B Rule ?

New York divorce lawyers should take heed of Mizrahi-Srour v. Srour, decided by the Appellate Division, Second Department on April 13, 2016.  It was an appeal after trial.  The wife granted sole custody of the parties' children, spousal maintenance of $100 per week for five years, which would be increased to $200 per week if the husband  did not provide a religious divorce ("Get")  to the wife within 60 days, child support of $401.21 per week, which would be reduced to $370 per week if the spousal maintenance increased to $200 per week,  support arrears of $47,324, distributed 70% of the marital assets to the wife and awarded a $ 70,000 counsel fee to the wife's attorneys.

The parties operated a family business in which the husband had a 50% interest. Before the trial the husband was directed to exchange tax returns and other financial documentation within 45 days, and advised that a failure to comply could result in sanctions.  The trial court later directed that all discovery be completed by a later date; and it issued an order for the appraisal of the husband's business.  The husband failed to provide discovery and the cost of the business appraisal the trial court issued a preclusion order barring the introduction of certain evidence of business finances.

The Appellate Division affirmed.  It held that the husband's repeated failures to provide discovery were willful and contumacious, and that the trial court's preclusion order justified the sanction imposed.  It held that the child custody determination met the legal affirmance standard of a sound and substantial basis in the record.  The imputation of income to the husband was affirmed on the basis of his prior income and its determination that the husband's account of his finances was incredible. 

The provision increasing the durational maintenance award to the wife's by $100 per week to adjust for the adverse economic consequences which would result to her from the husband's  refusal to grant her a religious divorce was held to be proper and not an impermissible interference with religion.   The 70 % distribution to the wife was made because the husband and frustrated any attempt to value the family business, which he apparently abandoned.  That left the contents of the known marital estate as the marital residence, two life insurance policies, and retirement funds.  The $70,000 counsel fee award was based upon the disparity of economic resources as well as the husband's obstructive litigation tactics.

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