marital standard in New York

2015The court considered the relevant factors (see Domestic Relations Law § 236 [B] [6] [a]), including the marital standard of living, the length of the marriage and age of the parties, that plaintiff would continue to receive substantial income from her ownership interest in Agravina and from the parties’ Income Trust, that she was to receive millions of dollars of assets in equitable distribution, and that she had secreted millions more in marital assets (see Bayer v Bayer, 80 AD3d 492, 492-493 [1st Dept 2011]; Hartog v Hartog, 85 NY2d 36, 51-52 [1995]).

2015(Hartog v Hartog, 85 NY2d 36, 51 [1995].) Legislative history makes clear that the purpose of the 1986 amendment was to “require the court to consider the marital standard of living” in making maintenance awards.

2009Since the complained of testimony of defendant’s wife concerned “ ‘daily and ordinary exchanges between the spouses’ unprotected by the marital privilege” (People v Parker, 49 AD3d 974, 978 [2008], lv denied 10 NY3d 868 [2008], quoting People v Melski, 10 NY2d 78, 80 [1961]; see People v O’Dell, 36 AD2d 774, 774 [1971]), counsel cannot be faulted for not asserting the privilege.

2008First, statements made by defendant to his wife concerning his plans and activities on the evening of the murders were nothing more than “daily and ordinary exchanges between the spouses” unprotected by the marital privilege (People v Melski, 10 NY2d 78, 80 [1961]; see People v O’Dell, 36 AD2d 774 [1971]; People v LaPlanche, 193 AD2d 1062, 1063 [1993], lv denied 82 NY2d 756 [1993]) and were, in any event, essentially repeated to the Baltimore County police lieutenant who interviewed him (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 74 [1982]; People v Weeks, 15 AD3d 845, 846 [2005], l

2014The marital privilege only applies to those statements made in confidence and “that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” (Poppe v Poppe, 3 NY2d 312, 315 [1957]; see also Parkhurst v Berdell, 110 NY 386, 393 [1888].) The term communication encompasses oral communications and conversations between husband and wife, as well as, “knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital

2008Moreover, defendant’s conduct in pulling out a gun and simultaneously directing his wife “to get down” when she otherwise wanted to open the door to the Baltimore police when they first knocked on the door within hours of the murders were properly found to constitute threats and, therefore, also unprotected by the marital privilege (see People v Mills, 1 NY3d 269, 276 [2003]; Poppe v Poppe, 3 NY2d 312, 315 [1957]; People v Edwards, 151 AD2d 987 [1989], lv denied 74 NY2d 808 [1989]).

2014(See Hopkins v Grimshaw, 165 US 342 [1897]; People v Harris, 39 Misc 2d 193 [Sup Ct, Bronx County 1963].) “Communication between spouses ‘is presumed to have been conducted under the mantle of confidentiality.’ ” (People v Fediuk, 66 NY2d 881, 883 [1985], quoting People v Fields, 38 AD2d 231, 233 [1st Dept 1972].) “This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation disclosures to a spouse may be induced by absolute confidence in the marital relationship.

2011Defendant contends that County Court erred in allowing his wife, a prosecution witness, to give certain testimony because it violated the marital privilege (see CPLR 4502 [b]; CPL 60.10; People v Fediuk, 66 NY2d 881, 883 [1985]).

2013However, “[t]he determination of an appropriate maintenance award requires [, among other things,] a delicate balanc[e] of each party’s needs and means [or ability to pay]” (Mairs v Mairs, 61 AD3d 1204, 1208 [2009] [internal quotation marks and citation omitted]; see Domestic Relations Law § 236 [B] [6] [a]; McAuliffe v McAuliffe, 70 AD3d 1129, 1134 [2010]; Lorenz v Lorenz, 63 AD3d 1361, 1363 [2009]; Gaglio v Molnar-Gaglio, 300 AD2d 934, 939 [2002]).

2013However, “[t]he determination of an appropriate maintenance award requires [, among other things,] a delicate balanc[e] of each party’s needs and means [or ability to pay]” (Mairs v Mairs, 61 AD3d 1204, 1208 [2009] [internal quotation marks and citation omitted]; see Domestic Relations Law § 236 [B] [6] [a]; McAuliffe v McAuliffe, 70 AD3d 1129, 1134 [2010]; Lorenz v Lorenz, 63 AD3d 1361, 1363 [2009]; Gaglio v Molnar-Gaglio, 300 AD2d 934, 939 [2002]).

2013The marital standard of living and the pendente lite child support award of $3,000 per month was relevant to what would constitute a'mst and appropriate child support award (see Holterman v Holterman, 3 NY3d 1, 10 [2004]; Lago v Adrion, 93 AD3d 697 [2012]).

2013The marital standard of living and the pendente lite child support award of $3,000 per month was relevant to what would constitute a'mst and appropriate child support award (see Holterman v Holterman, 3 NY3d 1, 10 [2004]; Lago v Adrion, 93 AD3d 697 [2012]).

2022Here, considering the relevant factors, including the ages of the parties, the lengthy duration of the marriage, the parties' respective present and future earning capacities, the distribution of marital property, as well as the parties' marital standard of living, the Supreme Court providently exercised its discretion in awarding the plaintiff nondurational maintenance in the sum of $25,000 per month for the first five years, reduced to the sum of $20,000 per month for an additional five years until the plaintiff reaches age 65, and the sum of $12,000 per month thereafter until the death of e

2009The fact that a wife has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living (see Hartog v Hartog, 85 NY2d at 36 ; see also Summer v Summer, 85 NY2d 1014, 1016 [1995]).

2008Moreover, the Supreme Court properly found that, under the circumstances, the marital privilege did not apply to the defendant’s communications with his wife (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]; People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People v Fediuk, 66 NY2d 881 [1985]).

2008First, statements made by defendant to his wife concerning his plans and activities on the evening of the murders were nothing more than “daily and ordinary exchanges between the spouses” unprotected by the marital privilege (People v Melski, 10 NY2d 78, 80 [1961]; see People v O’Dell, 36 AD2d 774 [1971]; People v LaPlanche, 193 AD2d 1062, 1063 [1993], lv denied 82 NY2d 756 [1993]) and were, in any event, essentially repeated to the Baltimore County police lieutenant who interviewed him (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 74 [1982]; People v Weeks, 15 AD3d 845, 846 [2005], l

2014The marital privilege only applies to those statements made in confidence and “that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” (Poppe v Poppe, 3 NY2d 312, 315 [1957]; see also Parkhurst v Berdell, 110 NY 386, 393 [1888].) The term communication encompasses oral communications and conversations between husband and wife, as well as, “knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital

1985It has long been the rule, only recently reaffirmed by this court that the marital privilege is "[n]ot protective of all communications [between husband and wife, and] attaches only to those statements made in confidence * * * 'that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship’ ” (Matter of Vanderbilt [Rosner —Hickey], 57 NY2d 66, 73 ; see also, Parkhurst v Bedell, 110 NY 386 ; Poppe v Poppe, 3 NY2d 312 ).

2016The privilege also “does not extend to communications between spouses in which they are jointly advancing a criminal conspiracy or aiding each other in the commission of an on-going crime” (People v Watkins, 63 AD2d 1033, 1034 [1978] [internal quotation marks and citation omitted], lvs denied 45 NY2d 785 [1978], cert denied 439 US 984 [1978]), nor does it apply “when the substance of [the] communication ... is revealed to third parties” (People v Howard, 134 AD3d at 1154 [internal quotation marks and citation omitted]).

2016The privilege also “does not extend to communications between spouses in which they are jointly advancing a criminal conspiracy or aiding each other in the commission of an on-going crime” (People v Watkins, 63 AD2d 1033, 1034 [1978] [internal quotation marks and citation omitted], lvs denied 45 NY2d 785 [1978], cert denied 439 US 984 [1978]), nor does it apply “when the substance of [the] communication ... is revealed to third parties” (People v Howard, 134 AD3d at 1154 [internal quotation marks and citation omitted]).

2008Moreover, the Supreme Court properly found that, under the circumstances, the marital privilege did not apply to the defendant’s communications with his wife (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]; People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People v Fediuk, 66 NY2d 881 [1985]).

2004Moreover, the Supreme Court properly found that, under the circumstances, the marital privilege did not apply to the defendant’s communications with his wife (see Matter of Vanderbilt, 57 NY2d 66, 73 [1982]; People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People v Fediuk, 66 NY2d 881 [1985]).

2023We disagree. "[T]he fact that she has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living" ( McCaffrey v McCaffrey, 107 AD3d 1106 , 1107 [3d Dept 2013] [internal quotation marks and citation omitted]; see Bean v Bean , 53 AD3d 718, 723 [3d Dept 2008]).

2012The fact that a wife has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living” (Ndulo v Ndulo, 66 AD3d 1263, 1265 [2009] [citations omitted]; see Bean v Bean, 53 AD3d 718, 723 [2008]).

2013In modifying this award we determine “the amount of earnings necessary to enable the [wife] to become self-supporting [by] . . . reference to the standard of living of the parties, as well as the earning capacity of each party; and these factors carry more weight in [this] marriage of long duration” (Garvey v Garvey, 223 AD2d 968, 970 [1996]).

2013In modifying this award we determine “the amount of earnings necessary to enable the [wife] to become self-supporting [by] . . . reference to the standard of living of the parties, as well as the earning capacity of each party; and these factors carry more weight in [this] marriage of long duration” (Garvey v Garvey, 223 AD2d 968, 970 [1996]).

2012As the husband asserts, the findings of fact and conclusions of law contain inconsistencies and internal contradictions as to matters including the amount that he paid toward the wife’s monthly expenses while the divorce was pending. * Nonetheless, finding that the award is supported by the record and that the court gave appropriate consideration to the pertinent factors in addressing the “delicate balanc[e] of each party’s needs and means,” we defer to Supreme Court’s discretionary determinations as to the amount and duration of maintenance (Mairs v Mairs, 61 AD3d 1204, 1208 [2009] [internal

2010The trial court has discretion in addressing this issue so long as the pertinent statutory factors— including the marital standard of living—are considered (see Carman v Carman, 22 AD3d 1004, 1008 [2005]; see also Bean v Bean, 53 AD3d 718, 723 [2008]).

2024We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" ( id. at 491-492), in other words, that a pension "is a form of deferred compensation" ( Olivo v Olivo , 82 NY2d 202, 207 [1993], citing Majauskas , 61 NY2d at 491-492).

2024We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" ( id. at 491-492), in other words, that a pension "is a form of deferred compensation" ( Olivo v Olivo , 82 NY2d 202, 207 [1993], citing Majauskas , 61 NY2d at 491-492).

2014The marital privilege only applies to those statements made in confidence and “that are induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship.” (Poppe v Poppe, 3 NY2d 312, 315 [1957]; see also Parkhurst v Berdell, 110 NY 386, 393 [1888].) The term communication encompasses oral communications and conversations between husband and wife, as well as, “knowledge derived from the observance of disclosive acts done in the presence or view of one spouse by the other because of the confidence existing between them by reason of the marital

2008While “disclosure acts” as well as words may be protected by the marital privilege (People v Daghita, 299 NY 194, 199 [1949]), here the acts were either daily and ordinary exchanges between spouses or acts which were not “induced by the marital relation and prompted by the affection, confidence and loyalty engendered by such relationship” (Poppe v Poppe, 3 NY2d 312, 315 [1957]), and thereby beyond the bounds of the privilege (see People v Melski, 10 NY2d 78, 81 [1961]).

2016The marital privilege “does not protect every remark between spouses during a marriage” (People v Howard, 134 AD3d 1153, 1153 [2015], lv denied 27 NY3d 965 [2016]) and, more to the point, does not “forbid inquiry into the personal wrongs committed by one spouse against the other” (id. at 1154 [internal quotation marks and citation omitted]).

2016The marital privilege “does not protect every remark between spouses during a marriage” (People v Howard, 134 AD3d 1153, 1153 [2015], lv denied 27 NY3d 965 [2016]) and, more to the point, does not “forbid inquiry into the personal wrongs committed by one spouse against the other” (id. at 1154 [internal quotation marks and citation omitted]).

2013The wife correctly notes that “[t]he fact that [she] has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living” (Ndulo v Ndulo, 66 AD3d at 1265 ; see Williams v Williams, 99 AD3d at 1096 ).

2013The wife correctly notes that “[t]he fact that [she] has the ability to be self-supporting by some standard of living does not mean that she is self-supporting in the context of the marital standard of living” (Ndulo v Ndulo, 66 AD3d at 1265 ; see Williams v Williams, 99 AD3d at 1096 ).

1989Communications that include threats are not protected by the marital privilege because the threats indicate that the communication is not being made in reliance upon the marital relationship (see, People v Mohammed, 122 Misc 2d 504 ; see also, People v Patterson, 39 NY2d 288, 304 , affd 432 US 197 ; People v Dudley, 24 NY2d 410, 415 ).

1984The court, therefore, conducted a hearing in the absence of the jury (People v Dudley, 24 NY2d 410 ), to determine whether the communications were within the marital privilege (CPLR 4502, subd [b]).

1982These are not the kinds of skills which can be viewed as rendering this defendant capable of competing in today’s job market to supplement her spousal support (Kay v Kay, 37 NY2d 632, 637-638 ), especially when viewed in light of the disparity between the amount of support plaintiff is capable of providing to maintain the marital standard of living, and the amount actually awarded.

1981However, the standard for permanent alimony payments is the marital standard of living assuming that the supporting spouse is able to pay it (Kay v Kay, 37 NY2d 632, 635 , and cases cited therein).

2014(See Hopkins v Grimshaw, 165 US 342 [1897]; People v Harris, 39 Misc 2d 193 [Sup Ct, Bronx County 1963].) “Communication between spouses ‘is presumed to have been conducted under the mantle of confidentiality.’ ” (People v Fediuk, 66 NY2d 881, 883 [1985], quoting People v Fields, 38 AD2d 231, 233 [1st Dept 1972].) “This presumption is not rebutted by the fact that the parties are not living together at the time of the communication, or that their marriage has deteriorated, for even in a stormy separation disclosures to a spouse may be induced by absolute confidence in the marital relationship.

1985While the dissent would distinguish People v Fields ( 38 AD2d 231, 233 , affd on opn below 31 NY2d 713 ) on its facts, the marital privilege was applied there in even more extreme circumstances: the husband had established residence with another woman and told his wife that his purpose in coming to see her — when the critical admissions were made — was to kill her.

2008Moreover, the Supreme Court properly found that, under the circumstances, the marital privilege did not apply to the defendant’s communications with his wife (see Matter of Vanderbilt [Rosner—Hickey], 57 NY2d 66, 73 [1982]; People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People v Fediuk, 66 NY2d 881 [1985]).

2004Moreover, the Supreme Court properly found that, under the circumstances, the marital privilege did not apply to the defendant’s communications with his wife (see Matter of Vanderbilt, 57 NY2d 66, 73 [1982]; People v Patterson, 39 NY2d 288, 304 [1976], affd 432 US 197 [1977]; cf. People v Fediuk, 66 NY2d 881 [1985]).

2024In the years since Majauskas , we have consistently held that pension rights attributable to work during marriage are marital property ( id. at 210; Burns v Burns , 84 NY2d 369, 376 [1994]; DeLuca , 97 NY2d at 145).

1995In making that determination, the court must take into consideration the marital standard of living and defendant’s ability to be self-supporting (see, Hartog v Hartog, 85 NY2d 36 ; Pilato v Pilato, 206 AD2d 928 ; Burns v Burns, 193 AD2d 1104, 1105 , mod on other grounds 84 NY2d 369 ).

2024We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" ( id. at 491-492), in other words, that a pension "is a form of deferred compensation" ( Olivo v Olivo , 82 NY2d 202, 207 [1993], citing Majauskas , 61 NY2d at 491-492).

2024We reasoned that a pension right is marital property because it is received "in lieu of higher compensation which would otherwise have enhanced either marital assets or the marital standard of living" ( id. at 491-492 ), in other words, that a pension "is a form of deferred compensation" ( Olivo v Olivo , 82 NY2d 202, 207 [1993], citing Majauskas , 61 NY2d at 491-492 ).

2016None of the wife’s testimony that related to defendant’s actions and statements on the day in question concerned communications that “would not have been made but for the absolute confidence in, and induced by, the marital relationship” (People v Wilson, 64 NY2d 634, 636 [1984] [internal quotation marks and citation omitted]).

1993The court properly permitted defendant’s wife to testify concerning the time her husband arrived home on the morning of May 14, 1987, as well as her discovery of a duffel bag and its contents later that day, because those observations were not " 'communications’ ” protected by the marital privilege (People v Wilson, 64 NY2d 634, 636 ).