When it comes to equitably dividing the assets that have been gathered during the course of a marriage in a divorce –retirement assets from pensions to IRAs to Annuities are important ones. Though many couples are busy fretting about who’s going to get the house or how custody agreements are going to be determined – there’s also something to be said for the importance of properly splitting retirement accounts and plans. After all, depending on the income of either spouse and the age of those spouses when the divorce takes place, retirement savings can frequently be one of the most valuable assets that any person owns. As such, we regard them as a very important matter to consider when figuring out which assets should go where for the best interests of both parties.

Unfortunately, the issue with retirement savings is that they have their own unique intricacies. These packages of money are subject to various complicated factors, such as tax implications, and this can mean that people struggle to handle them appropriately when figuring out how to divide assets. As a family lawyer, I’m left to do what I can to guide my clients carefully when they’re making decisions about financial plans and the potential options that might be available to them during the divorce.

Do You Have to Share Your Retirement Savings?

This is a question that many people have when they approach me with matters regarding the distribution of assets during a divorce.  The short answer is probably yes to the extent that the assets were earned during the marriage.  Portions of retirement assets which were earned before the marriage or after the end date of the marital estate (often the filing date of the divorce), are usually separate property and not shared on the other hand.  People often wonder whether they can avoid sharing their savings with their soon to be ex-spouse in some way. However, most of the time, if you are going through a divorce or legal separation and your spouse or you have some money sitting in retirement savings accounts, then you will be required to share these assets amongst yourselves in an equitable fashion – either through negotiation with collaborative lawyers, an agreement made in mediation, settlement negotiations or through litigation in which a decision will be made for you by the courts of New York if your case is one of the few that does not settle before the ultimate trial. In certain cases, the assets that have built up within a retirement savings account may be awarded to one single party – but this only takes place when specific circumstances are in play. Continue reading ›

Divorce and the Marital Residence

Divorces often aren’t easy. I have spent a number of years now guiding clients through the complications of divorce throughout Long Island, and New York.  I’ve seen very few cases, although they exist, where there is a big dispute over lower priced property like furniture.  Often if there is a dispute over assets it involves higher priced items like the marital residence. For most couples undergoing divorce, the biggest shared asset to consider is the family real estate, marital residence or former matrimonial home, as it is referred to in legal circles. The family home is an emotive subject, and often the largest asset to share amongst parties – though investments, businesses, savings, retirement assets and pensions could be worth more or be considerable assets too.

Although it’s possible to leave the concerns of asset distribution to a judge – I often find that this leads to dissatisfaction for both spouses involved. In most cases, it seems that couples are best served when they exercise their right to come up with personal solutions themselves.  My office gets involved with litigated matters, settlement negotiations, and alternative dispute resolution like mediation and collaborative law.

Agreeing on an Outcome

I often find that if both parties within a divorce still have a civil relationship, and would prefer to end their marriage with a simple, clean, and quick break – selling the property might be a good idea. The only issue that presents itself here is that the individuals involved will need to think about how the proceeds from the home are going to be divided between spouses. Regardless of how you choose to break up the family home, it’s important to remember that if you can agree to a solution using mediation or collaborative law, you can often find a solution that both parties can live with. If the attempt to come up with a solution outside of the courtroom fails, like through settlement negotiations between the lawyers on a case, then the judge presiding over the divorce case in New York will need to make a determination based on existing facts and laws. However, that process will remove the parties’ ability to create a better arrangement between themselves – sometimes causing both parties dissatisfaction with the outcome. Continue reading ›

There are various subcategories of issues that need to be addressed in a divorce settlement or final order from acourt. Not only do you need to make decisions about various different things – including the debt that you and your spouse have gathered over the years – but you also need to think about what steps you can take to protect your financial future. Parties sometimes expect their debt and loans will be split in a certain way – only to find that a court may see things differently.

Just like a marital home, and various other assets, debt acquired during the course of a marriage can be regarded as marital debt, and therefore allocated between the spouses involved. Commonly, this means that couples during a divorce will have a choice to either settle the responsibility for debt before filing for divorce in a negotiation, mediation, collaborative law or other process, or a determination or agreement will be made while a divorce makes its way through the court system.  Ultimately, the court will make the decision if the parties do not settle ahead of time.

The New York Domestic Relations Law indicates that financial obligations taking place through a marriage which aren’t the sole responsibility of one spouse, can be offset against the total marital assets that need to be divided. However, there needs to be some kind of proof showing that the debts in question were created for marital purposes. In other words – it’s up to the person who is claiming marital debt to prove that the debt they’re referring to was incurred for marital purposes (like paying household bills, rather than a separate vacation for example). Continue reading ›

There are many reasons why couples may choose to get a divorce at a later stage in their lives. Indeed, divorces cantake place for many of the same reasons attributed to younger breakups – including financial pressures, infidelity and more. Between 1990 and 2010, the divorce rate for people between the ages of 50 and older in the U.S. doubled according to a study by sociologists at Bowling Green State University, indicating that the further we move into the future, the more natural it is to consider divorce as a solution to an unhappy marriage. One thing I notice regularly about divorces that take place between older partners, is that there are a different set of concerns in play than the worries that might have taken precedence during divorce at an early stage. For instance, when seniors get a divorce, the main focus is on both the immediate and future financial security of those individuals. Child custody, parenting time, and child support might still be at issue.  Often, however, with more mature couples, there are no issues regarding child support and child custody – as the children have grown into adults who can care for themselves. Instead, the primary issues are on things like the distribution of pensions and 401ks, the choice of whether a house is sold or kept, and whether maintenance, alimony or spousal support should be awarded.

In mature people and senior divorce cases, the financial issues can be particularly crucial because if both of the people involved are already retired, then there is less likelihood that either spouse will be in a position to create new assets or income. Even if one individual is still working, they may choose to retire and find that their earned income ceases. One of the first considerations in these divorce circumstances will often be maintenance. While many young couples agree to maintenance agreement that provides support for an ex for a shorter period of time, those exiting in long-term marriages might be seeking maintenance for a longer duration.  The New York 2016 maintenance law does contain not only guidelines for maintenance amounts based on income, but it also has guidelines for the duration of post divorce maintenance. Continue reading ›