The Kiley Law Firm Blog

“If you want it, here it is, come and get it, but you better worry ’cause it’s costs some cash.”

I was a first year law student attending my first day of class at the College of William and Mary and espoused with a thirst to for knowledge – to learn “the law.” Socrates would have been proud.

The course was titled, Property 101. Professor Pompous stood before the class. “Who among you,” he queried, “believes that possession is 9/10th of the law?” I raised my hand. So did many of my classmates; the rest wondering if it was a trick question. “Put down your hands,” he said with a smile. “By the end of the year you will learn that ‘possession’ is meaningless. The rule of law prevails.”

And so we journeyed through the course – from real property to personal property:

• Leasehold rights passed from lords to knights.
• Title chains lost and gained.
• Adverse possession? An ownership obsession.
• Riparian rights about the water? Does it matter – cash or barter.
• Who owns the air? Sometimes its shared.
• The statute of frauds; decisions narrow and broad.
• Equitable conversion and ownership reversion.
• Inter vivos gifts and partnership rifts.

He went on and on.   

By May, I was convinced. Later, imbued with confidence and my knowledge of “the law”, I emerged from the ivory tower of learning, passed the bar exam and began to practice law. It took about a month to learn that everything Professor Pompous taught me was a fairy tale. If John’s tool shed is on Jane’s land, she needs to pay a lawyer to sue him to have her day in court. That takes time and money. If she wins, he can appeal. If he loses the appeal and he still doesn’t remove the shed, she’s got to sue to enforce the judgment. If she doesn’t have the patience or the money, she loses.

My world was shattered. It was like learning that there was no Santa Clause, that the Easter Bunny didn’t eat the carrot I had left the night before.

I looked it up. When Professor Pompous graduated from law school, he worked for a “white shoe” corporate law firm long enough to have a cup of coffee. Then he decided to teach. He didn’t know jack.

In the real world, possession may not be 9/10 th of the law, but it’s better than half.

In New York State, parents are legally obligated to support their children until they become emancipated at age twenty-one (or sooner, under certain circumstances). The child support laws are codified as Domestic Relations Law § 240(1-b), commonly known as the Child Support Standards Act. DRL §240(1-b) requires each parent to pay support based upon a percentage of gross income (less deductions for NYC taxes, social security and medicare payments). Payment is based upon a schedule: 17% if one child; 25% if two children, 29% if three children, 31% if four children, and at least 35% if four children or more. The law is gender neutral; so the formula applies to any parent, male or female, as long as they are non-custodial, meaning that the child does not live with them. Enforcement of the law becomes more complicated when a parent has children with more than one partner.

To illustrate my point, consider the plight of the licentious Easter Bunny (EB). He is biologically challenged by the tendency of his species and genus to profusely propagate. Simply put, Mr. Sylvilagus Dicei is a male whore. He tries to fertilize any Easter egg he encounters. But his baby mamas have to pay for carrots and a lair on Watership Down and that costs a lot of cabbage.

He’s married to Mrs. Rabbit and has four children: Flopsy, Mopsy, Cotton-Tail and Peter. Unbeknownst to his spouse, he also has a bunny with a Dutch baby mama, named Miffy. When he fails to support his little bastard, Miffy takes him to court and establishes paternity. The judge tells EB that he has to pay to play. EB is an independent contractor and makes $100,000 per year (after the appropriate deductions) on his Easter gig and royalties from the sale of Beatrix Potter books. The judge awards Miffy 17%, or $17,000. She brings an enforcement action which she serves upon him at his personal residence.

When Mrs. Rabbit greets the process server, she is hopping mad. She sues for divorce on grounds of adultery and is awarded custody. On a pendente lite motion she demands child support for her four children. She presumes that she will receive 31% of EB’s annual income or $31,000, but the judge awards her a lesser sum. He properly rules that the formula for child support must take into account EB’s legal obligation to Miffy’s son. He deducts $17,000 from $100,000 and awards Mrs. Rabbit $25,730 which is 31% of $83,000. Because she snoozes, she loses $5,250. It’s not fair, but the law is the law.