Constructive Emancipation in Divorce: A Steep Evidentiary Burden

Alan R. Feigenbaum

New York Law Journal, August 21, 2025 —

One of the most glaring contradictions in the practice of matrimonial law is that divorce litigation proceeds all the way up through the start of a trial without being governed by the rules of evidence. But when a trial starts, perhaps years after the divorce action has been commenced, all of a sudden the rules of evidence are front and center.

The danger posed by this contradiction should be obvious: an attorney can prosecute an argument or arguments for the better part of 80 to 90 percent of the duration of a divorce litigation without concern for questions such as (1) is this hearsay, and if so, is there a hearsay exception that applies; (2) is this document authenticated; (3) can I get this document in evidence even though its author is no longer alive; (4) is this a business record, and many more.

But when trial starts, the unchained litigious arguments that an attorney can make in motion papers and at oral argument on motions without evidentiary restriction are met with a gigantic brick wall, and that attorney had better be ready with concrete evidence.

That brings us to the subject of constructive emancipation of children in divorce, which to my mind incorporates one of the most challenging and complex burdens of proof in the scheme of the many claims that can be made in the context of divorce litigation.

In the recent decision of L.E. v. Y.E., 2025 NY Slip Op 51038(U) (Family Court, Westchester County, May 2025), the petitioner-father sought to discontinue his child support obligations for his three children on the basis that they had been constructively emancipated. Prior to the father’s modification petition, the mother had been awarded sole legal and physical custody, with the father having “supervised and/or unsupervised access” with the children.

The father ceased paying all support in 2023, and alleged that “despite his efforts, the children have refused to see him for six years, and by their choice and not his actions, and as a result, are constructively emancipated.”

Read more on our website.

Practice Tip: Using Plain English in Divorce Agreements

Alan R. Feigenbaum

New York Law Journal, June 26, 2025 —

In this author’s opinion, one of the great disservices that we, as lawyers, are told in law school is the notion that using “legalese,” pseudo-Latin prose, and/or long-winded lawyer sounding words and grammar somehow puts our ability to convey a written point in a manner that far surpasses the ability of non-lawyers to do the exact same thing.

My National Institute for Trial Advocacy Instructor once told me that it was not the polished prose of the “Bobby Donnell” character (Dylan McDermott) in the late 1990s television show known as The Practice whose advocacy skills were worthy of praise, but instead, the down to earth, Plain English advocacy of the less suave character known as “Jimmy” (Michael Badalucco).

The more that I draft separation or other agreements in divorce cases, the more I am convinced that the Plain English, “Jimmy” style of written (and oral) advocacy is a much surer bet in terms of trying to avoid future disputes over the meaning of written words in those same agreements.

That brings us to Justice Jeffery S. Sunshine’s recent decision in E.S. v. H.G., 2025 NY Slip Op 50610(U) (Kings Cty., 2025).

In E.S., the parties entered into a stipulation of settlement (the “agreement”) resolving their divorce in 2006. At the time of the divorce (also in 2006), the parties had two minor children, ages four and six. Post-judgment litigation ensued when the mother sought to enforce the Agreement due to the father’s child support arrears.

At the time of the post-judgment application seeking enforcement on child support that is the subject of E.S., the parties—“who are both attorneys”—represented themselves. The father claimed that after the mother sought enforcement, he paid $82,400.37 in child support and “owes no other arrears for child support”. The mother disagreed.

Read more on our website.

In the News

Below is a roundup of our attorneys’ recent awards, recognitions, media, and other accomplishments from around the country.


The Unhappiest (or Happiest, for Some) Month of the Year – January is National Divorce Month (Or Is It?)
January 25, 2024 – In this LinkedIn Article, Stacy D. Phillips shares her thoughts on what has become to be known as National Divorce Month.

 
My In-Laws Asked Me to Relinquish Any Claim to $100,000 They Gave Us as a Down Payment for Our House — On the Day We Closed. Is That Legal?
January 25, 2024 – Ory Apelboim was interviewed by MarketWatch discussing marital property rights within postnuptial agreements.
 
Stacy D. Phillips named one of the 2024 Top 10 Super Lawyers of Southern California
January 18, 2024 – Stacy D. Phillips has been named one of the 2024 Top 10 Super Lawyers of Southern California, an honor she has achieved every year since 2013.
 
Stacy D. Phillips named one of the 2024 Top 50 Women Super Lawyers of Southern California
January 18, 2024 – Stacy D. Phillips has been named one of the 2024 Top 50 Women Super Lawyers of Southern California, an honor she has achieved every year since 2005.
 
Stacy D. Phillips named one of the 2024 Top 100 Super Lawyers of Southern California
January 18, 2024 – Stacy D. Phillips has been named one of the 2024 Top 100 Super Lawyers of Southern California, an honor she has achieved every year since 2006.
 
Disarming the Narcissist: with guest expert Wendy Behary
January 11, 2024 – Lois J. Liberman hosted this webinar with Wendy Behary, an author and expert on the subject of narcissism and the approach one should take when dealing with narcissists.
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In the News

Below is a roundup of our attorneys’ recent awards, recognitions, media, and other accomplishments from around the country.


October Is National Domestic Violence Awareness and Prevention Month: My Appeal to You

October 19, 2023 – In this LinkedIn Article, Stacy D. Phillips discusses her thoughts and advice on National Domestic Violence Awareness and Prevention Month.

Celebrity Divorce Lawyers Explain Why There Have Been So Many A-List Splits: ‘It Almost Seems Contagious’

October 19, 2023 – Brett S. Ward was interviewed by People Magazine discussing the numerous amounts of celebrity divorce cases. 

ASK STACY (Vol. 7) – Celebrity Decouplings and Getting Personal About My Likes

October 17, 2023 – In this LinkedIn Article, Stacy D. Phillips answers questions from her readers and podcast listeners and shares her “hot takes” and insights on the issues.

Blank Rome Partners Recognized in the 2024 Lawdragon 500 Leading Family Lawyers

October 13, 2023 – Blank Rome LLP is pleased to announce that 17 Matrimonial and Family Law partners have been named to the 2024 Lawdragon 500 Leading Family Lawyers.

The ‘Final Straw’ That Led to Sophie Turner and Joe Jonas’s Divorce

October 6, 2023 – Michelle M. Gervais was interviewed by DailyMail.com discussing the custody battle resulting from the separation of Joe Jonas and Sophie Turner.

Attention New York Divorce Lawyers: Learn Insurance Law

October 4, 2023 – Alan R. Feigenbaum authored this New York Law Journal article discussing insurance law distinctions in divorced parent cases.

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Attention New York Divorce Lawyers: Learn Insurance Law

New York Law Journal, October 4, 2023 ●

Alan R. Feigenbaum and Marilyn T. Sugarman* ●

By a show of hands, how many matrimonial lawyers practicing in the state of New York have heard of the “Age 29 Law”? Anybody? We didn’t think so. Neither of these authors had ever heard of it either.

All of that changed, however, on July 27, 2023, when the Appellate Division, First Department, issued its decision in B.D. v. E.D., 2023 NY Slip Op. 03971.

Before exploring the facts of B.D. v. E.D., we must understand, as best we can, the contours of the Age 29 Law which was enacted almost 15 years ago.

As we are living in a time where, sadly, reading has become passé, rather than dig into the annals of insurance law texts, we elected to find out what the Age 29 Law is through—what else—a Google search.

In order to obtain health insurance coverage under a parent’s policy pursuant to the Age 29 Law (L 2009, ch 240) the “young adult” must satisfy certain criteria: (1) be unmarried; (2) be 29 years of age or under; (3) not be insured by or eligible for comprehensive health insurance through his/her employer; and, (4) live, work or reside in New York State or the geographic area of the health insurance company’s service. In addition, the parent must be covered under the applicable policy, or, pursuant to a right under COBRA or state continuation coverage law. We note that the “young adult” does not have to reside with either parent, be financially dependent on either parent, or be a student.

At issue in B.D. was the mother’s 2022 motion to direct the father to pay for continued medical insurance coverage under the Age 29 Law for the parties’ then 26-year-old daughter until she turned 29. At the trial court level, the Honorable Ariel D. Chesler denied the mother’s motion, and the mother appealed.

Read more on our website.

*Marilyn T. Sugarman serves as special counsel at The Mandel Law Firm.

Daughters of Divorce Must Pay Sorority Expenses—Sometimes

New York Law Journal, September 1, 2023 ●

Alan R. Feigenbaum ●

Do you, in 2023, believe that you have your finger on the pulse of what it means to go through the process of sorority “rush”?  If your answer is “no,” head on over to the immersive world of #bamarush, #bamarushtok, #bamarushtok2023 and/or #RushTok.

Give yourself 5 to 10 minutes observing the lengths to which sorority rushers prepare for the rush experience, not to mention the lengths to which parents bury social media with this TikTok and that TikTok about how they are lending a helping hand in filling their daughters’ rush “bags.”

Data on the cost of being in a sorority varies; you will find some outlets claiming that, for example, it costs students more than $4,000 per semester to belong to a sorority at the University of Alabama. Other outlets show that cost to be between $7,465 and $9,445 at the same university. A general range of costs can also be found on the internet, suggesting $1,000 to $4,750 per semester. In any event, to be blunt, sorority expenses are not cheap.

Which brings us to this question: in a New York divorce, who pays for sorority expenses? We can look to Judge Sondra Mendelson-Toscano’s decision in C.A.B. v. D.S.B. (Family Court, Nassau, NYLJ 7/11/23), for guidance.

Read more on our website.

In the News

Below is a roundup of the recent awards, recognitions, media, and other accomplishments of our attorneys from around the country.

Chambers High Net Worth 2023 Highly Ranks Blank Rome Matrimonial & Family Law Group and Attorneys
July 20, 2023 – Chambers High Net Worth 2023 has highly ranked Blank Rome’s Matrimonial & Family Law practice group in California and New York as well as co-chairs Kristina Royce and Brett S. Ward and partners Marilyn B. Chinitz, Norman S. Heller, Lois J. Liberman, Morgan Fraser Mouchette, Stacy D. Phillips, and Mary T. Vidas.

Blank Rome’s Linda Kornfeld and Stacy D. Phillips Named 2023 Top Women Lawyers by Daily Journal
June 22, 2023 – Linda Kornfeld and Stacy D. Phillips have been named 2023 Top Women Lawyers by the Daily Journal.

Marilyn B. Chinitz Named Notable Woman in Law 2023 by Crain’s New York Business
June 21, 2023 – Marilyn B. Chinitz has been named a 2023 Notable Woman in Law by Crain’s New York Business, which recognizes “leading female attorneys in New York who are furthering justice and keeping the cogs of commerce spinning.”

Stacy D. Phillips Named a 2023 “Most Influential Person” by Los Angeles Business Journal
June 6, 2023 – Stacy D. Phillips was listed in the 2023 Los Angeles 500 Most Influential People by the Los Angeles Business Journal, marking her eighth consecutive year being honored in this prestigious listing of leaders and executives.

Stacy D. Phillips and Kristina Royce Named 2023 Top 100 Lawyers by the Los Angeles Business Journal
May 22, 2023 – Stacy D. Phillips and Kristina Royce have been named 2023 Top 100 Lawyers by the Los Angeles Business Journal.

Marilyn B. Chinitz and Lois J. Liberman Recognized in Spear’s 500 Legal Indices 2023
May 11, 2023 – Marilyn B. Chinitz and Lois J. Liberman were recognized in Spear’s 500 Legal Indices 2023 Family Law Index.

Michelle M. Gervais Recognized in Tampa’s Top Women in Law by Tampa Style Magazine
May 9, 2023 – Michelle M. Gervais was named one of Tampa’s Top Women in Law by Tampa Style Magazine.

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Defining your Marital Lifestyle in Divorce Post-Pandemic: Longing for (or Moving on from) the Life that Once Was

Alan R. Feigenbaum

In one of its hallmark songs, the Rock and Roll Hall of Fame band AC/DC proclaimed, “money talks.” For better or for worse, those two words find a way of ringing true in many facets of life, and contested divorce litigation is no exception. Yet during the year-long, or perhaps longer now, pandemic, if you find yourself in the middle of a divorce proceeding you might be questioning whether or not money talks anymore or has instead been tucked away until a time when normal life resumes.

The subject of your lifestyle during a marriage is bound to come up in divorce when you are quarreling over issues of child support and/or spousal support. For example, in the child support arena, when considering whether or not to award support above New York’s statutory cap for combined parental income, the law in New York considers the standard of living that a child would have enjoyed had the family unit not dissolved.

Then there is spousal support, which your lawyer will tell you, if being up front can be an ocean of uncertainty. You may have heard that New York, some years ago, established formulas for determining spousal support. But in high-net-worth cases, with incomes above and beyond the statutory cap for spousal support, those formulas can quickly give way to a focus on many factors including, you guessed it, the marital lifestyle (a fancy way of describing how you and your family lived economically during your marriage).

What do we mean by living, or lifestyle? What type of residence do you have and in what neighborhood? Do your children attend public or private schools? Does your family vacation, and if so, how many times per year and at what cost? Where do you dine out, and how frequently? At which stores do you buy clothing for you and your children? Do you belong to a gym or other private club, and if so, is it “high end”? Or, maybe you have a personal trainer at home?

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Promoting Peace during the Holidays

Stacy D. Phillips

There is almost nothing else that brings underlying family tensions to a head quite like the holidays. For separating, separated, divorcing, and divorced families, this time of year can be highly emotional and stressful. The primary reasons that personal relationships break down—mismatched value systems and power struggles over things big and small—are often on display at the Thanksgiving table or when planning Christmas/Hanukkah gifts for your children or in deciding which side of the family to visit at which time.

We can anticipate that, much like everything else 2020 has impacted, this year’s family in-person and virtual gatherings may be uniquely high on tension and disagreement. Many people are anxious about their health amid another rise in COVID-19 cases or uncertainties surrounding their personal financial situations in the current economy. Add in the political and social unrest in this country and you have a recipe for feeling like you have a lack of control over what is happening in your world.

Like addressing the emotional, psychological, and legal wars of separation and divorce, finding peace during the holidays often requires responding rather than reacting, positive thinking instead of negative strategies, and finding new peaceful solutions to ongoing differences. Despite the political, cultural, and public health uncertainties, there are many opportunities to making the 2020 holiday season a peaceful one.

Reach Out & Be Kind

At the beginning of the COVID-19 lockdowns, people were more likely to empathize with each other, make sacrifices, and reach out to each other with a heightened sense of humanity to say: “we are in this together.” Now that we are nearly nine months into the pandemic, many people, especially those that are separating and divorcing, are fighting over things that are not quite earth-shattering and hating each other with a vengeance.

This holiday season remember that people are struggling, whether impacted by COVID-19 or those who lost work. In addition to focusing on what you can do for others by making that extra donation to the food bank and expressing gratitude to doctors, nurses, first responders, and essential workers, call and check in on family and friends. They may be having a tougher time with loneliness than anyone realizes. When you look back on this time many years from now, you will want to remember the holidays as a positive time when you could focus on others and set aside the strife.

Cooperate to Make New (or Simplify Old) Traditions

If there was ever a year to be flexible and cooperate with your ex for the good of your children, 2020 is it. Many of us will experience frustration that, because of COVID-19, we cannot have the same large family gatherings or have our children easily split time between both parents.

Although nobody knows when the pandemic will end, we will all have to find patience and adapt to the current circumstances. That does not mean old traditions need to end and we should resign ourselves to being alone. Instead, there are new opportunities to see relatives from both your and your ex’s families via Zoom and find creative ways to share time with old friends and family members and carry out old traditions together virtually. Make time for your ex’s family and in-laws if you can, even if only online. When deciding who to have at your table (safely!) or which relatives to invite to Zoom, be as inclusive as possible.

Take Care of Yourself COVID-19 has taken a heavy toll on us physically and psychologically. Not only has the disease directly impacted many of us, but we have all been hit with fatigue and stress. Many of us have been rightfully concerned about others and may be caring for someone else during this time, but do not forget that your physical and mental health matters too. Find time to engage in more of what you love about the holidays. Continue to get regular and proper exercise to vent frustration, tune up your mind and body, and give yourself more energy to face challenges. When you have taken care and control of yourself, it is that much easier to let the happiness and positive energy from the holidays happen.

Mediation for Family Law Disputes—Is It a Cure-All, a Band-Aid Precursor to Litigation, or Something in Between?

Alan R. Feigenbaum

If during the ongoing COVID-19 pandemic you, and/or your spouse, have made the decision to part ways, then there’s a good chance you have considered or read about mediation as a potential way forward. Mediation, including online mediation, is seemingly all the buzz right now. It has become an integral part of the judicial systems in California, Florida, New Jersey, Pennsylvania, and New York.

Think before you act. All else being equal—if you were asked whether you prefer to “mediate” or “litigate,” you probably would choose the former. What you should consider, carefully, is whether or not your family dynamic and your relationship with your soon-to-be ex-spouse is suitable for mediation.

What are the factors to consider when you make your decision? What due diligence should you undertake before saying “yes” or “no” to mediation? Cost is an obvious factor, but let’s dig deeper. Start by asking a simple question: how did your spouse treat you during the marriage—emotionally, financially, as a parent, as a partner? If the answer to all of these categories is resoundingly awful, then think twice about mediation. It may be emotionally taxing to dredge up what has played out during your marriage when you make this calculus, but the alternative is to dive right into the process, cold. Continue reading