Standards of Proof for Overcoming Presumptions in Matrimonial Actions
The presumption growing out of a prima facie case remains only so long as there is no substantial evidence to the contrary. When substantial evidence to the contrary is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.[1]
The presumption that separate funds are transmuted into marital property when commingled may be rebutted by establishing by clear and convincing proof that the account was created only as a matter of convenience.[2]
Banking Law &s;§675(a) provides that both depositors named on a joint account presumptively have an undivided one half interest in the moneys deposited. That presumption may be refuted by direct proof or substantial circumstantial proof which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience.[3]
A spouse’s conveyance of inherited property, which is separate property to herself and her husband as tenants by the entirety creates a presumption that the property was marital.[4] In order to rebut this presumption, that spouse is required to come forward with clear and convincing proof that she did not intend plaintiff to have an ownership interest in the property, but merely placed his name on the deed for the sole purpose of convenience.[5]
[1] Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78. (Citing Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435.)
[2] Crescimanno v. Crescimanno, 33 A.D.3d 649, 822 N.Y.S.2d 310 (2d Dep't 2006).
[3] In Lagnena v. Lagnena, 215 A.D.2d 445, 626 N.Y.S.2d 542 (2d Dep't 1995), the Appellate Division noted that Bank Law &s;§675(a) provides that both depositors named on a joint account presumptively have an undivided one half interest in the moneys deposited. That presumption may be refuted by direct proof or substantial circumstantial proof which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience.
[4] Chiotti v. Chiotti, 12 A.D.3d 995, 996, 785 N.Y.S.2d 157 (3d Dep't 2004); Arnold v. Arnold, 309 A.D.2d 1043, 1044, 765 N.Y.S.2d 686 (3d Dep't 2003); Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686, 736 N.Y.S.2d 453 (3d Dep't 2002).
[5] Campfield v. Campfield, 95 A.D.3d 1429, 944 N.Y.S.2d 339 (3d Dep't 2012); Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 (3d Dep't 2011); Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 (3d Dep't 2007); Kay v. Kay, 302 A.D.2d 711, 713, 754 N.Y.S.2d 766 (3d Dep't 2003).
The presumption growing out of a prima facie case remains only so long as there is no substantial evidence to the contrary. When substantial evidence to the contrary is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.[1]
The presumption that separate funds are transmuted into marital property when commingled may be rebutted by establishing by clear and convincing proof that the account was created only as a matter of convenience.[2]
Banking Law &s;§675(a) provides that both depositors named on a joint account presumptively have an undivided one half interest in the moneys deposited. That presumption may be refuted by direct proof or substantial circumstantial proof which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience.[3]
A spouse’s conveyance of inherited property, which is separate property to herself and her husband as tenants by the entirety creates a presumption that the property was marital.[4] In order to rebut this presumption, that spouse is required to come forward with clear and convincing proof that she did not intend plaintiff to have an ownership interest in the property, but merely placed his name on the deed for the sole purpose of convenience.[5]
[1] Potts v. Pardee, 220 N. Y. 431, 433, 116 N. E. 78. (Citing Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435.)
[2] Crescimanno v. Crescimanno, 33 A.D.3d 649, 822 N.Y.S.2d 310 (2d Dep't 2006).
[3] In Lagnena v. Lagnena, 215 A.D.2d 445, 626 N.Y.S.2d 542 (2d Dep't 1995), the Appellate Division noted that Bank Law &s;§675(a) provides that both depositors named on a joint account presumptively have an undivided one half interest in the moneys deposited. That presumption may be refuted by direct proof or substantial circumstantial proof which is clear and convincing and sufficient to support an inference that the joint account had been opened in that form only as a matter of convenience.
[4] Chiotti v. Chiotti, 12 A.D.3d 995, 996, 785 N.Y.S.2d 157 (3d Dep't 2004); Arnold v. Arnold, 309 A.D.2d 1043, 1044, 765 N.Y.S.2d 686 (3d Dep't 2003); Rosenkranse v. Rosenkranse, 290 A.D.2d 685, 686, 736 N.Y.S.2d 453 (3d Dep't 2002).
[5] Campfield v. Campfield, 95 A.D.3d 1429, 944 N.Y.S.2d 339 (3d Dep't 2012); Currie v. McTague, 83 A.D.3d 1184, 1185, 921 N.Y.S.2d 364 (3d Dep't 2011); Burtchaell v. Burtchaell, 42 A.D.3d 783, 787, 840 N.Y.S.2d 449 (3d Dep't 2007); Kay v. Kay, 302 A.D.2d 711, 713, 754 N.Y.S.2d 766 (3d Dep't 2003).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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