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You Can't Go Back! Or Can You?
In 2009 the Court of Appeals articulated a new rule for Family Law practitioners, referred to by some as the “don't look back” rule. The court stated:
As a general rule, where payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. ' The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.
Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 421 (2009).
The court in Buntzman used this rule to deny a wife's attempts to recoup money that was spent during the marriage to pay the husband's maintenance obligation to his former wife and to pay back the husband's school loan that was taken out during the marriage. Although not explicitly stated, it seems apparent that the court's reasoning with respect to the previously existing obligation is that the parties go into the marriage with their eyes open and that, unless otherwise explicitly agreed to, it is understood that marital funds will be used to pay those obligations. The court does clearly state, with respect to the student loan, that since it was both incurred and paid off during the marriage, the loan was a marital obligation for which responsibility was to be shared between the spouses. After all, had the advanced degree led to an economic benefit, the other spouse would have been entitled to a share in its value. The court simply did not want courts reviewing economic decisions made during the course of a marriage, or attempting to adjust for the fact that certain payments made from separate property may have benefited both spouses ' or even the non-titled spouse alone.
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The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
Use of Deferred Prosecution Agreements In White Collar Investigations
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How AI Has Affected PR
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The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.