Articles Posted in Divorce

There are many different ways to handle the complexities of a New York divorce. Often, as a divorce attorney that also offers mediation and collaborative law, I receive calls from Review-Attorney-Picture-300x199clients who aren’t sure what kind of process they want to use for their marital issues. In some situations, clients may want to access my assistance for legal advice, but then they also want to use me as a mediator too. Unfortunately, this isn’t an option that I can provide, because, in my view, it would potentially harm the neutral ground required for a successful divorce mediation process.

In New York divorce mediation, I find that the process works best when both spouses come together in neutral territory and discuss their issues with a third-party who is objective in the case. If, as an attorney, I met with one side of the case before mediation, then this can lead to discomfort for the other party. Some clients would even feel as though they’re not getting a “fair” experience. Though, in some rare instances, it’s possible for me to have a very brief conversation with one spouse before the mediation begins, however, I wouldn’t give my legal advice until the person indicates that they’re happy to use my service as an attorney, whether that is review attorney, negotiator or litigator.

If it turns out that the person that I speak to wants to use my services as a divorce mediator, and their spouse is willing, then it may help for the spouse I had talked to before to reveal any information he or she had shared with me one-on-one. This can “clear the air” for a mediation process.  This way each person can consent to mediate with me with full disclosure of all information. Typically, however, I will recommend that spouses interested in divorce mediation bring the other party to their initial consultation so that we can all discuss the process together. Continue reading

It’s impossible for anyone to predict the future with complete accuracy, as the world we live in is often a very unpredictable place. However, we can look back at the Window-Mediation-300x200lessons that we’ve learned over the years and use what we know in the present to guide predictions about the years ahead. That’s exactly what I plan to do with this blog post about mediation in 2019. This blog is conjecture and should be taken as nothing more than my best guess at what will be available in terms of alternative dispute resolution and mediation options for couples in 2019 and the years beyond.

My previous blog post discussed the complexities that we saw in mediation throughout 2018. Many aspects of mediation are likely to stay the same going forward, while other elements are bound to change. For instance, mediation will always be a helpful alternative dispute resolution option for couples who would prefer to avoid things like court-room trials and litigation. Additionally, as we move into 2019 at least, it seems that the grounds for divorces done with divorce mediators or otherwise will remain the same too. As I mentioned in my last blog, all the couples I have worked with during divorce mediation have chosen the no-fault divorce law for their procedure, since the No-Fault law was passed in 2010, while other grounds do remain available. The no-fault solution simply means that it is neither side’s fault, it’s simply the marriage that is irretrievably broken.  Fault doesn’t need to be admitted or proven for the divorce to go ahead. Continue reading

One important thing that we know about divorce mediation in December 2018 is that we can work through the settlement issues with the knowledge of the current laws that areMediation-Contract-300x200 in effect.  This includes the effect of the taxability or non-taxability of maintenance (alimony) and child support for separation and divorce agreements signed before 2019.  I know general taxation principles as they apply to divorce and family law, as every experienced matrimonial lawyer and divorce mediator should.  As always, however, I give a little disclaimer here and say check with your tax adviser, such as your Certified Public Accountant or tax lawyer, for tax advice as I do not give tax advice.

Sometimes things seem to wind down a little for a Law and Mediation Office as we move towards the end of the year.  People tend to want to deal less with their legal issues.  Less court appearances are scheduled because of the holidays, holiday parties and vacations schedules.  The same is often true on the divorce mediation side of things.  So why does it happen?  It could be that people do not want to deal with resolving their family law issues during the holidays.   People also might want to save their money to spend on gifts, trips and otherwise.  At times a couple might know that they need to move on from their marriages but want to keep it peaceful with the family until after the New Year.  Others might want to wait to start their new lives and new resolutions in the New Year.  Interestingly, I understand that the belief that January has the highest volume of divorce filings is a myth. Maybe people start working towards that in January, or soon after, but historically, according to an article in the Atlantic, August and March apparently have the most divorce filings.  Continue reading

There are several options when it comes to determining what happens with the marital home in a New York divorce. Of course, the court may award the home to HouseRealtor-284x300either party and require the party receiving the home to buy out the other spouse. A court may also order the sale of a marital residence, and divide the proceeds using the equitable distribution method. Alternatively, the court could defer the sale of a marital residence either by agreement or by order of the court.

It is not common to see a deferred sale of a marital residence when it is not be agreement. This is because a deferred sale by agreement may require the parties to co-own the house for a set period before selling the home or force the non-titled spouse to wait to receive payment for the home. This presents a host of issues, many of which may be insurmountable for a couple in the midst of a divorce. The deferred sale of a marital residence can, however, be included in a divorce settlement if sufficient thought is put into the agreement and the parties are willing to agree on certain issues.

A court can order that the sale of a marital residence be deferred, absent an agreement between the parties. Typically, a court would only do this for the sake of the couple’s children. For example, a court may consider the following when deciding whether to defer the sale of a marital home:

  • The age of the children and what grade they are in;
  • How long the children have lived in the home;
  • The financial ability of the spouses to obtain housing; and
  • The economic detriment to the spouse who would not receive the home.

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One of the most significant decisions in a New York divorce is what happens with the couple’s marital home. In most cases, a couple’s most valuable asset is their couple-house-move-200x300home. Aside from the financial value, there are often other considerations such as the emotional value a house has to one or both parties. In most cases, the couple can work out which party stays in the marital home and what offsets are appropriate. However, if that is the parties are not able to agree, then a judge will determine what happens with the marital home.

Usually, on my Long Island and surrounding area cases, I find that the Judge’s position is that if an agreement about the house is not made, the court will order the house sold and the proceeds divided.  Given both the financial and emotional value of a home, though, some might prefer not to sell the house unless the parties desire to do so. However, there are circumstances in which a New York divorce judge will force the sale of the marital home.  Particularly when the finances would not allow one spouse to remain in the home, a sale of the home is usually the case.

In New York divorce cases, one of the judge’s most important roles is to preserve the value of the couple’s assets. Indeed, under New York law, a judge is given broad discretion to act regarding the determination of title to the property.  Likewise, when discussing equitable distribution, if the court believes either of the parties is wastefully dissipating the couple’s assets, the court may make appropriate rulings. Thus, if retaining ownership of the marital home will result in the dissipation of the couple’s assets, the court can order the home be sold. For example, if the parties are not able to afford the mortgage payment for the marital home because the primary breadwinner in the family lost her job, the court may intervene and order that the home be sold rather than go through the foreclosure process. This is even the case if one of the spouses objects to the sale of the home.

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When a court sets out to divide a couple’s assets in a New York divorce case, the court will not simply split the assets down the middle, but instead it will employ aOutsidequarrelcouple-300x200 system called “equitable distribution.” Under an equitable distribution analysis, a court considers several factors when determining the allocation of assets. Importantly, however, only certain assets that are determined to be “marital property” are subject to equitable distribution. Thus, a party’s separate assets – i.e., those that were obtained before the marriage – will remain with the party to whom they originally belonged.

As a general matter, under the New York Domestic Relations Law, courts will consider assets that were accumulated during a marriage as marital property. Of course, certain exceptions can make the determination of what constitutes marital property fairly complex. For example, a question that often arises is how courts consider pension benefits and the provision of future health care benefits.

Pension Benefits Are Usually Subject to Equitable Distribution

The pension benefits that a party accrues while married will typically be held to be a marital asset that is subject to equitable distribution. The portion of benefits that was obtained before the marriage, however, will not be included as marital property because it was accrued before the marriage.

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As we have previously discussed in past blog posts, a New York family court can order payment from one spouse to another of maintenance during the pendency of Nursewithman-300x200the divorce as well as after the divorce is final. Payments made during the pendency of the divorce are called temporary maintenance, pendente lite maintenance or sometimes spousal support, and payments made following the divorce are termed spousal maintenance or post-judgment maintenance.

Under the New York Domestic Relations Law, section 236(B), a court is required to consider a formula based on income and certain factors when determining a deviation from the formula guidelines for the appropriate amount of temporary maintenance, spousal support or maintenance. By and large, the factors are similar for the two types of awards, with the difference being that spousal support or temporary maintenance is designed only to last during the divorce proceeding. When it comes to determining whether a court can order one spouse to pay for another spouse’s medical expenses, the first place to look is at the factors outlined in section 236(B).

The statute lists a number of factors that a judge should consider, none of which explicitly mention the payment of medical expenses. However, several of the factors tangentially relate to medical expenses. So, in effect, a court could indirectly take a party’s medical expenses into account.

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One of the most critical and often overlooked issues in a New York divorce is how the parties will obtain health insurance. Many families, especially those with only one working partner, rely on health insurance benefits that are obtained through the working party’s employer. However, in the event a couple divorces, those insurance benefits will no longer be available to the non-working spouse and arrangements will have to be made to provide for their health insurance.

One option a non-working spouse has to obtain health insurance after a divorce is to obtain COBRA benefits. COBRA is a federal law that requires insurance companies to extend coverage to qualifying beneficiaries in the event of a qualifying event. Commonly, COBRA benefits are offered to an employee when their position is terminated; however, COBRA benefits are also available for spouses after a divorce.

One downside of COBRA benefits is that they can be quite costly because the employer will no longer be covering any of the cost. Thus, determining how each spouse will obtain health insurance benefits and how those benefits will be paid for is often a contested issue.

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Going through a New York divorce or couple split is often very difficult for all of the parties involved, including any children of the divorcing couple. Children are often unwitting parties to the entire process, yet their lives can change significantly as a result. It is not uncommon for children to resist the fact that their parents are getting divorced or separated. Consequently, they may take one parent’s side over the other.

When it comes to a New York family law court’s custody orders, however, children are obligated to follow the visitation or parenting time arrangement set forth by the court. While a judge will listen to a child’s wishes in regards to visitation, ultimately the court will consider factors other than the child’s expressed preferences when determining whether visitation with the non-custodial spouse is appropriate. If the court determines that the non-custodial spouse has parenting time or visitation rights, then the child must attend visitation.

If a child refuses to honor court-imposed parenting time, courts have several available courses of action, depending on the reasons why the child does not want to participate in visitation with the non-custodial parent.  A child of employable age can be deemed constructively emancipated if without good cause he/she refuses to have a relationship with the non custodial parent.  But the parent seeking emancipation has the burden.  I have previously blogged about constructive emancipation and have represented a number of people in such cases. For example, in one case, the non-custodial parent could have been relieved of their child-support obligation if the child is determined to have “abandoned” the parent, but in this linked case the petitioning parent did not show a lack of justification for the abandonment.

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As we approach the end of the calendar year, taxes are on everyone’s mind.  Perhaps people are thinking more about taxes than usual because of the passage of the new tax law by Congress at the end of 2017.   To many who have been through a New York divorce or separation, the tax implications of dissolving a marriage are incredibly important and must be part of the overall discussion regarding other issues, such as the division of assets and child custody.

One issue that frequently arises in New York divorce cases is which parent is able to claim a child or children as a dependent for tax purposes. The ability to claim a child as a dependent can have a significant effect on a party’s tax liability.

For the most part, only one person can claim a child as a dependent on their tax return. However, a custodial parent can waive their right to claim certain benefits, such as the child’s personal exemption, the child tax credit, and the tuition and fees deduction. Notably, a custodial parent could still retain the head-of-household filing status, the child and dependent care credit, and the earned income credit. However, according to the IRS, if the parties have multiple children the parties can either agree on how to split up the dependency credits or a court may make that determination.

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