For thirty years the ex-husband in Janet O. v. James O., slip op. 51985 (Sup. Ct. N.Y. County, October 17, 2006) had not made one single child or spousal maintenance support payment. By living in places like Barbados, the Dominican Republic, and Mexico, he had offshore asset protection and the ability to hinder any enforcement proceedings on behalf of his ex-wife or their three sons. After the divorce, the ex-husband remarried and adopted his new wife's two daughters. Meanwhile, his ex-wife and three sons were relegated to a life of hardship, poverty, and public assistance.
One of their sons even had to quit college to become a construction worker to support the ex-wife. Likely to have little practical effect on the absconding ex-husband were: the seizure of New York bank accounts, income tax refunds and lottery winnings; the denial of new and renewed passports; driving license restrictions; and the referral of cases for criminal prosecution as mentioned by New York City's Office of Child Support Enforcement and pursuant to N.Y. Dom. Rel. §§ 244; 244 (a) - (d); & 245 or N.Y. Civ. Prac. L & R §§ 5241 & 5242. Given the ex-husband's default for decades, the Janet O. Court did however indicate it would seek the ex-husband's extradition.
Letters Rogatory In Foreign Jurisdictions
Although it was not financially feasible for the above ex-wife, a Letter Rogatory / Legal Assistance Request might have helped her situation many years ago. Letters Rogatory can often be effective against a divorcing spouse or non-custodial parent who has hidden assets by cross-border money laundering or otherwise parked them offshore. By prosecuting a Letter Rogatory pursuant to exceptions to bank secrecy laws, evidence of assets hidden in a foreign jurisdiction may be elicited from bank witnesses or others. This is true because a foreign court granting a request for a Letter Rogatory, might ultimately compel a foreign witness to respond to written questions about assets.
As the changed and sanitized Letter Rogatory / Legal Assistance Request to The District Court of Amsterdam partly demonstrates, some foreign courts direct that an oral examination of a witness instead be taken. A request for a Letter Rogatory may also have to be translated from English into another language used by a foreign court. Many times a Letter Rogatory is sought pursuant to The Hague Convention, Taking of Evidence (1970) No. 20, as a "letter of request". Furthermore, a New York Court may issue such a request to a foreign court as mentioned by Fed. R. Civ. P. 28 (b); Fed. R. Civ. P. 4(f)(2)(B); and/or the N.Y. Civ. Prac. L & R:
Rule 3108. Written questions; when permitted. A deposition may be taken on written questions when the examining party and the deponent so stipulate or when the testimony is to be taken without the state. A commission or letters rogatory may be issued where necessary or convenient for the taking of a deposition outside of the state.
Suing Non-Parties Domestically
Suing a non-party to a pending divorce or child support case may also become a critically important part of an asset search or recovery. Business entities; family members; attorneys; financial advisers; etc., can all be non-parties hiding assets. These non-parties sometimes abuse foreign bank accounts; trusts; or shell companies to hide assets as the nominee of a divorcing spouse or non-custodial parent. They can be sued for fraudulently hiding assets pursuant to New York State's version of the Fraudulent Conveyance Act codified at N.Y. Debt. & Cred. Law §§270-281) and or cases like Bloomfield v. Bloomfield, 721 N.Y.S. 2d 15 (1st Dept 2001).
Joining those hiding marital assets as "necessary parties" to a pending divorce as described by "Suing When Marital Assets Are Hidden In Divorce", may also be possible pursuant to Schmidt v. Schmidt, 99 A.D.2d 775 (2d Dept 1984) and Solomon v. Solomon, 136 A.D. 2d 697 (2d Dept 1988). Suing a non-party can too be necessary to prevent the dissipation or transfer of marital assets, as discussed by Panish v. Panish, slip op 50881(N.Y. Sup. Ct. Suffolk County, April 15, 2005). Furthermore, if a non-party hiding assets is not sued at the time of a divorce, then the right to recover an asset might be permanently lost.
Such was the case in Jackson v. Brinkman, 2006 slip op 50015; 814 N.Y.S.2d 561(Sup. Ct. Kings County, January 6, 2006), where an ex-husband alleged that title to a marital residence had been fraudulently conveyed to his former mother-in-law. The Court in Jackson, ultimately found that the ex-husband was barred on res judicata grounds from seeking a recovery because he had neglected to sue his former mother-in-law as part of his earlier divorce.
Copyright 2007-2009 Fred L. Abrams
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