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Wednesday, January 7, 2015

Taylor v. Taylor - Equitable Distribution Is Not a 50/50 Split

When it comes to division of property and debts in New York, the goal of the courts is fairness through equitable distribution.

Although the term "equitable" would seem to indicate "equal," this is generally not the case. First, the court will determine whether certain assets or debt is "marital" or "separate." Whatever is marital must be at least weighed in the context of all other factors, while separate property/debts/assets will not be considered.

But beyond simply the nature and amount of these elements, the court will consider the length of the marriage, the contribution each party made to the marriage, the financial burden of support and custody of children and each party's current and future earning potential. Because these all vary so greatly from case to case, the courts often do not adhere to a strict 50/50 split of assets and debts.

Our Brooklyn divorce attorneys are experienced in hashing out these details in negotiation and, if necessary, in the courtroom.

The recent case of Taylor v. Taylor, before the New York Supreme Court, Appellate Division, Second Department, is an example of how equitable distribution works in practice.

Here, husband and wife were married several decades before filing for divorce in 2008. A final judgment was granted in November 2012, with the family law judge valuing the marital home at $510,000 and ordering the sale of that to be split equally between both parties. However, the court declined to divvy up their bank accounts 50/50 and also awarded wife an owned condominium in Florida, determining it to be her separate property.

Husband appealed on grounds the bank accounts weren't distributed between parties and further the Florida home should have been deemed marital property.

With regard to the bank account issue, the court noted by the time a final judgment was issued on this matter, the pair had not functioned as an economic team for six years. It would not make sense, the appellate court found, to divide between them what had clearly been separate for many years at that point.

With regard to the Florida home, the court found the matter was not properly before the court because the husband failed to assemble a proper record on appeal. At trial, plaintiff presented evidence the money she used to purchase the property in Florida - after she separated from her husband - was paid for with money gifted to her by her father and her son, collectively. When appealing this decision, husband brought no evidence to counter this or show plaintiff failed to meet her burden of proof showing the home was separate property.

Although there are no hard-and-fast rules about what is marital property and what is separate, the courts generally find the following property to be separate:

  • Property acquired before marriage
  • Property acquired by inheritance
  • Property acquired by gift from a party other than spouse
  • Personal injury compensation
  • Property described as separate in a written agreement of the parties

All other property the court generally considers marital property for purposes of distribution. These may include bank accounts, IRAs, stocks, bonds, household furniture, motor vehicles and all other property acquired during the marriage - and sometimes before.

But again, this doesn't necessarily mean a 50/50 split. It simply means that property will be considered as a piece of the greater whole, with the court given a broad range of discretion in determining which factors to give greater weight.

If you are contemplating a divorce in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Taylor v. Taylor, Dec. 3, 2014, New York Supreme Court, Appellate Division, Second Department

More Blog Entries:

Retaining Inheritance During New York City Divorce, Dec. 1, 2014, Brooklyn Divorce Lawyer Blog


Thursday, January 1, 2015

New York Uncontested Divorce Closest Thing to San Diego's "One-Day Divorce"

In divorce law, there are plenty of horror stories. There have been cases in which people believed a divorce was finalized, only to find out years later it wasn't. There are couples who spend hours filling out reams of paperwork, only to find out months later they have to start over because a certain box wasn't checked.

That's in addition to the emotional trauma of the situation. The reality is, divorce is a legal process that be extremely confusing, even though the goal of both people seems fairly straightforward: To restart their lives as separate individuals.

In San Diego, the superior courts recently began initiating a "One Day Divorce" program. It's not actually a one-day process. It's only open to county residents who aren't represented by a lawyer and who filed for divorce six months prior and seek a judgment. The only cases eligible are those where there is an agreement on division of debt and property, spousal support and parenting plans. Legal professionals work with them for half an hour to help them get all the proper paperwork filed in order to secure a quick judgment.

Still, the "one day" terminology is somewhat of a misnomer, as most people who seek the program have actually been trying to get a divorce for at least a year.

Our Brooklyn uncontested divorce attorneys know that while there is no similar "One Day Divorce" program here in New York, the closest thing is an uncontested divorce. In some respects, this option is not only faster than a "One Day Divorce," it's also less expensive.

Take into consideration, for example, the fact that those enrolled in the San Diego program aren't represented by a lawyer. This definitely saves money in the short term. However, the benefit of an attorney outweighs the cost, particularly in an uncontested situation, in which we can help complete the process for as little as $399, plus filing fees. That's because even if you agree on the major points, the fact is sometimes you aren't always thinking clearly in the midst of this process, or there may simply be points you overlooked. We make sure all relevant aspects are considered and your rights and interests are protected. In the end, this saves a significant amount of money.

And while a "One Day Divorce" in fact takes one year or more, an uncontested divorce can be completed sometimes in as few as 30 days, so long as you've lived in New York for at least a year and both parties can attest the union has been irretrievably broken for at least the last six months.

Although New York was one of the last states to adopt the "no-fault" divorce, couples no longer have to cite a specific reason - such as adultery, abandonment, cruelty, incarceration, etc.

With uncontested divorce, the fewer details to sort out, the quicker things will go. However, you don't want to risk the possibility of overlooking important details or signing away important rights. That's why it's so important to have an attorney helping to guide you through the process.

Divorce is usually unpleasant, but it doesn't have to be torturous or lengthy. We can help you close this chapter of your life and start fresh.

If you are contemplating a divorce in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

San Diego court offers one-day divorce, Dec. 4, 2014, By Lyndsay Winkley, Union Times San Diego

More Blog Entries:

Lubrano v. Lubrano - Dealing With Debts in New York Divorce, Dec. 7, 2014, Brooklyn Uncontested Divorce Lawyer Blog


Friday, December 26, 2014

Incarcerated Parents in New York May Lose Parental Rights

The Bureau of Justice Statistics reported in December 2013 there were more than 1.5 million prisoners in state and federal prisons throughout the country.  In New York State, roughly 32,000 are held within the state jail system and another 56,000 are incarcerated within the state prison system. There are also 122,000 offenders on probation and another 40,000 on parole.

What's more, the BJS reports some 52 percent of state inmate and 63 percent of federal inmates have minor children. In fact, the percentage of minor children with an incarcerated increased by nearly 80 percent between 1991 and 2007. This is estimated to be around 2.7 million children, with the majority having a child age 4 or younger.

 This poses some unique and sometimes overwhelming challenges for families - and by extension, the family courts. While most social service agencies will seek to preserve and restore the parental relationship for parents facing shorter sentences, for repeat offenders and those facing longer terms, the other parent or guardian may seek a finding of abandonment and termination of parental rights. This is also true when the crime of which the offender is convicted was against children or was especially violent.

Our New York City family law attorneys recognize the process of seeking termination of parental rights due to incarceration can be an arduous one.

The federal Adoption and Safe Families Act allows the action to be taken if a child has been in foster care for 15 of the most recent 22 months. This does not apply to children who living with friends or family members (known as private placement). Still, some find this especially troubling because, according to the Annie E. Casey Foundation, the average prison term for most parents - even those accused of non-violent drug or property crimes - exceeds 15 months. The law does say, however, termination must be based on the court's finding of a "compelling reason." Simply asserting this lapse of time isn't going to be enough.

Typically, the court must issue a finding of neglect or abandonment.

This was the issue recently before the New York Supreme Court, Appellate Division, First Department in In re Z.J. Lewis.

The father was incarcerated for nearly two years when child welfare authorities sought a finding of abandonment as related to the father. The court granted this request, finding the father's incarceration did not excuse him from parental obligations. Further, the child welfare agency was not required to show it used diligence to reunited the family, but there was no indication the agency in any way hindered communication.

State law allows termination of parental rights of incarcerated parents when the parent fails on more than one occasion to cooperate with efforts to assist the parent to plan for the future of the child or arrange visits with the child.

However, state law does allow reinstatement of parental rights if a permanent placement of the child is not found within a certain time frame. Again, though, this is only true when the child is in foster care while the parent is imprisoned.

Our experienced New York family law attorneys are committed to helping you achieve the goals that will best benefit your children and you - whether that is preserving the relationship between an incarcerated parent and child or severing the ties of a toxic or non-existent relationship.

Call our New York City family law offices at (718) 864-2011.

Additional Resources:

In re Z.J. Lewis, Nov. 25, 2014,  New York Supreme Court, Appellate Division, First Department

More Blog Entries:


Monday, December 22, 2014

Wallace v. Wallace - On Calculating Child Support in New York

While New York City family courts are granted a broad range of discretion with regard to determination of child support, they are guided by Section 413 of the Family Court Act. The law offers a general percentage and dollar amount for support, depending the number of children and income of paying parent.

So for example, as of March 2014, a parent with one child must pay 17 percent of his or her income in support. If his or her annual income is between $45,000 and $45,099, the amount of the annual obligation will be $7,650, or $637 a month. If two children are involved, that parent will be required to pay 25 percent of his or her income, up to $11,250 annually, which breaks down to $937 a month. The maximum amount a parent can be compelled to pay is 35 percent. So if a parent in that income bracket has five children, the most that parent could be compelled to pay is $15,750 a year, or $1,312 a month.

But again, these guidelines are general. The courts may take into consideration the income of the other parent, special needs of the children and any relevant mitigating or aggravating circumstances.

Our New York City child support lawyers recognize these can be complex matters, and it's our goal to ensure your rights are protected and interests furthered.

Although child support payment amounts can be modified once set, that can only happen when one party can show a material change in circumstance, such as loss of a job or remarriage. Barring that, payment amounts will not change. That's why it's so important to make sure you are properly represented in the initial phases of negotiation, when child support is first being set.

While family law provisions can vary from state-to-state, most adhere to this "material change" requirement when considering whether to modify support payments.

The recent case of Wallace v. Wallace, before the Georgia Supreme Court, involved an appeal of an initial order, where mother of three minor children alleged the court wrongly calculated child support payable by the active duty serviceman father. The pair agreed to joint legal custody, with mother granted primary physical custody.

The court awarded a child support amount of $1,300 monthly, but allowed for a a deviation of $400 monthly in travel expenses so he could see the children. That meant the actual support payments would be $900 monthly.

Mother later appealed on the grounds of allowing that $400 deviation. The court never indicated how the deviation from the presumptive amount would benefit the best interests of the children, and therefore failed to satisfy one of the basic foundations of family law.

The Georgia Supreme Court agreed, and also found the trial court erred in not considering father's $3,555 monthly housing compensation as part of his gross monthly income. Therefore, the court reversed and remanded for further proceedings.

We understand these cases can be both sensitive and complex. In order to ensure your rights are protected and your children are provided for, consult with an experienced legal professional.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

 Wallace v. Wallace, Nov. 24, 2014, Georgia Supreme Court

More Blog Entries:

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, New York City Child Support Lawyer Blog


Friday, December 19, 2014

Report: Divorce Rate Falling for Three Decades

One out of every two marriages ends in divorce. At least, that's the statistic that's been cited for many years now, and it's the one that makes people wary of marriage. In fact, people have become so reticent when it comes to marriage, that people are marrying much later in life than their parents. Many grew up where divorce was the norm, and many had absent fathers. Those who do marry are more likely to stay together.

So that "half of all marriages" thing? It's not exactly accurate anymore.

According to a New York Times analysis of a myriad of data sources, it was noted the divorce rate peaked in 1981 at 5.3 divorces per 1,000 people. It then fell in 1990 to 4.7 per 1,000 and then further in 2011 to 3.6 per 1,000. Marriage rates have declined significantly during this time too. It's estimated divorce rates have fallen nearly a quarter since 1979.

In New York State, courthouses in 56 of 62 counties have reported aggregate declines in the last 15 years in the divorce rates.

Our Brooklyn divorce lawyers know that while these figures are encouraging, the issue is an increasing number of people are having children and living as families without the formality of marriage. There is nothing wrong with this per se, but it can complicate matters if and when the couple decides to split or if one passes away. It can leave one person uniquely disadvantaged when it comes to property division or acquirement, particularly if the union was a longer one and lives were more closely intertwined.

Further, there is extensive research supporting the assertion that children of unmarried parents are at greater risk for a host of problems, from poverty to school failure to imprisonment.

One of the ways unmarried couples might consider protecting their own interests and those of their children is by entering a cohabitation agreement. This is a legal contract negotiated by both parties who choose to live together but are not married. It establishes the legal rights of both individuals in the event of a break-up or death. These agreements can be as broad or as specific as you wish, and usually discuss division of debts and property.

While both parties can express desires with regard to child custody and child support, the court will always consider the best interests of the child - regardless of a prior agreement between parents. A court may consider the agreement, but usually, one parent can't waive rights to child support payments, visitation, etc.

The process of drawing up a cohabitation agreement need not be complicated or time-consuming, and usually only require the services of a single lawyer.

Such agreements can also be beneficial for same-sex couples and families. Even though New York recognizes the union - and all the rights and responsibilities that come along with that - other states do not. In instances where the marriage may not be recognized, a cohabitation agreement can outline some of the key points of consideration.

Our experienced divorce lawyers are encouraged to hear that marriages are stronger. It's our goal, though, to make sure all families are stronger - not just those who have been formalized by a marriage contract.

If you are contemplating a divorce in Brooklyn or wish to consult a lawyer about a cohabitation agreement, call our offices at (718) 864-2011.

Additional Resources:

How We Know the Divorce Rate is Falling, Dec. 3, 2014, By Justin Wolfers, The New York Times

More Blog Entries:

 

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, Brooklyn Family Law Attorney Blog

 


Monday, December 15, 2014

Constructive Emancipation in New York City Child Support Law

In the state of New York, parents have a legal duty to support their children until the age of 21, unless they are sooner emancipated.

This "doctrine of constructive emancipation" is derived from the Child Support Standards Acts and corresponding case law in New York.

Some of the circumstances under which children might become emancipated prior to turning 21 might include:

  • The child gets married
  • The child joins the military
  • The child becomes economically independent
  • The child voluntarily and without cause abandons the parent's home, against parent's will, for purpose of avoiding parental control

Our Brooklyn child support attorneys understand that in cases reflecting that last circumstance, courts have consistently ruled children (who are technically also legal adults) forfeit their right to demand support in these circumstances.

While cases asserting economic independence can be fairly straightforward (it's easy enough to prove a child got married), it's a bit more difficult when the claim is abandonment. It's more of a subjective determination.

In cases where a custodial parent sets certain reasonable rules and the child leaves in order to not to have to follow those rules, courts have found this can amount to "abandonment" for these purposes. But non-residential parents can also claim abandonment if the child unreasonably refuses all visitation and contact. If the child is under 18, courts will often look closely to examine whether it is at all possible to reconcile the relationship. If it is not, only then will constructive emancipation be considered.

Recently, the New York Supreme Court, Appellate Division, First Department, weighed just one such case, reviewing dismissal of a father's petition seeking child support from the child's mother. In Matter of Jose R. v. Yvette-Ortiz M., custodial parent (father) sought to compel mother to pay support for their 18-year-old son.

However, the lower court dismissed his petition,finding he'd voluntarily and without good cause abandoned his mother. She presented evidenced, later also reviewed by appellate court, showing that for a full year, her son refused to see her or speak with her. He offered no explanation and declined to speak before the court.

During this time, mother made numerous attempts to repair and maintain a relationship with her son. She presented evidence of phone calls, letters, cards, e-mails, social media messages. In no case did he respond or give any indication of why he was silent.

Although the court would not speculate on the cause for son's silence, the judge did rule there was no indication the mother had prompted this deterioration in the relationship. As such, the appellate division affirmed the lower court.

These cases are complex, and certainly, we understand few parents take pleasure in this type of action because it often means their relationship with their children is not in a good place. They worry whether it will ever be again. And yet, they cannot continue to send money to someone to whom they never see or speak. Courts generally will not order reimbursement for any past payments, but they will halt them from that point forward.

Note, however, the courts have clearly stated that in cases where communication breakdown is caused by the parent, it's unlikely child support will be terminated.

In either case, allegations alone are not likely to be enough when it comes to proof of constructive emancipation. Our attorneys will help ensure you are prepared to make your case effectively before the court.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

In Matter of Jose R. v. Yvette-Ortiz M., Dec. 2, 2014, New York Supreme Court, Appellate Division, First Department

More Blog Entries:

Retaining Inheritance in New York City Divorce, Dec. 1, 2014, Brooklyn Child Support Lawyer Blog

Wednesday, December 10, 2014

Wong v. Liu - Showing Up for Court in Divorce Case Critical

In any court case - civil or criminal - it's important to show up.

In criminal court, failure to appear can result in a warrant for arrest, additional jail time and fines. In a civil case - including divorce - you likely aren't going to be jailed for skipping out, but repercussions could still be quite severe in terms of asset division, support payments and parenting time arrangements.

There may be situations in which your divorce lawyer can appear in court on your behalf. However, there are times it is imperative for you to be there as well.

We certainly understand a divorce is draining. Court dates also might conflict with work or child care arrangements. However, if absence from court isn't excused, you may find you are stuck with the hand you are dealt. If you're not there to speak on your own behalf, the judge is only hearing one side of the situation - and it's probably not favorable to you.

Our Brooklyn divorce attorneys understand this was recently the scenario in Wong v. Liu, before the Supreme court of New York, Appellate Division, Second Department. Here, a father appealed the decision made by the judge on a day he failed to appear in court.

The court, upon his failure to appear, granted his ex-wife's petition for sole legal and physical custody of their child.

The pair had been involved in what appears to have been an arduous custody battle. In the course of this, the mother testified and was cross-examined on several dates. On the day of the final hearing, the father did not appear. His attorney contacted him, and was told he "did not wish to appear." That message was conveyed to the court, whereupon the court awarded the mother full custody.

Soon after, the father filed a motion to vacate that order, requesting that his absence be excused. Six months later, the court reviewed his motion, and denied. Soon after, though, he was awarded certain visitation.

The father appealed all three orders - the order granting sole legal and physical custody of the child to his ex, the order denying his motion and the order awarding some visitation.

The appellate court declined to entertain the appeal of the first order, because orders entered on default of the appealing party are not appealable by that party. The decision of whether to reconsider the matter is within the sound discretion of the trial court. The only way a person could successfully vacate such an order would be to prove that the excuse for default was reasonable. That would maybe establish a cause of action or defense.

However, that did not happen here, the appellate court found, and so the trial court's ruling was affirmed.

The court doesn't necessarily have to decide the matter in favor of the other spouse. It could alternately decide to reschedule the hearing or dismiss the underlying case or motion. The outcome usually depends on the reason given.

An experienced divorce attorney can advise you of what may be considered "reasonable default" or provide explanations for why you didn't show up in court. Simply not wishing to come is not one of them. It's worth noting judges tend to have little patience for repeated absences.

There are sometimes valid reasons for why a person might not be able to make it to court or request a rehearing. But if you anticipate this might at all be an issue, it will be imperative to have a skilled divorce lawyer working to protect your rights and best interests.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Wong v. Liu, Oct. 1, 2014, Supreme court of New York, Appellate Division, Second Department

More Blog Entries:

How to Win your Child Support Case in Family Court, Part 2, Oct. 8, 2014, Brooklyn Divorce Lawyer Blog


Sunday, December 7, 2014

Lubrano v. Lubrano - Dealing With Debts in New York Divorce

Disputes over finances are among the No. 1 sources of contention among married couples in New York, and it's one of the top reasons listed for divorce.

Most divorcing couples deal with division of debt on some level, though as we emerge from a deep national recession, more than most are grappling with this issue. That means division of debt in divorce becomes a key point of contention. It's less about who retains assets and more about divvying up the remaining bills. Couples must also be mindful that creditors are not bound by divorce agreements, meaning even if the family court assigns your ex a certain debt, you may still be legally liable for it if he or she doesn't pay timely.

 Still, that divorce agreement can later used to hold the ex in contempt and force him or her to pay you back.

 Our Brooklyn divorce lawyers know that as New York is an equitable distribution state, courts will strive to divide both assets and debt in a way that is considered fair. This does not necessarily mean equal, however. Courts will weigh each spouse's income, future earning potential, role in incurring the debt, etc.

Generally, it doesn't matter whose name is on the account; if the debt was acquired during marriage, it's considered a joint marital debt. However, final determination rests with the court.

In the recent case of Lubrano v. Lubrano, before the Supreme Court of the State of New York, Appellate Division, Second Judicial Department, the family court initially assigned $8,000 worth of consolidated debt to husband. However, appellate division reversed on the grounds wife failed to provide sufficient documentary evidence that the debt consolidation was, in fact, marital debt - meaning it was acquired in the course of the marriage.

Still, the court did find husband responsible for paying $9,000 in support arrears, $150 weekly in continuing support, $50,000 for wife's equity in home loan and another $38,000 in wife's attorney's fees (the last one due primarily to the fact the husband reportedly took numerous actions to delay proceedings). In deciding these matters, the court also took into account the disparity of income between parties (husband made substantially more), the relative merits of each position and also each party's conduct throughout the proceedings.

Although finding husband's actions objectionable, this was not enough to overcome the looming question of whether the $16,000 in consolidated debt was in fact marital debt, and thus, the court declined to make husband one-half responsible for paying it.

This is indicative of the fact that just because a debt exists during the course of the marriage doesn't automatically make it marital debt. An experienced attorney can help separating parties weigh all viable options with regard to debt relief during divorce.

In the best case scenario, both parties would work to pay down all debt prior to divorce. This allows for both sides to make a clean break, and just work on divvying up assets. Of course, we understand this is not always possible. In those situations, divorcing couples should seek the counsel of an experienced lawyer.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Lubrano v. Lubrano, Nov. 19, 2014, Supreme Court of the State of New York, Appellate Division, Second Judicial Department

More Blog Entries:

Uncontested Same-Sex Divorce in New York Easier Than in Other States, Oct. 12, 2014, Brooklyn Divorce Attorney Blog


Monday, December 1, 2014

Retaining Inheritance During New York City Divorce

Marriage is about sharing almost everything, and that includes the generous gifts received by close relatives.

However, when a relationship starts to crumble, this view can be significantly altered. By then, it could be too late to retain inherited assets, such as vacation homes, heirloom jewelry or other gifts - even when it's clear those assets weren't ever supposed to go to a spouse in the first place.

The determination for what is considered marital property versus what's considered separate property varies to a great degree depending on the state where you live. Generally, the goal for the person who directly inherited the item is to work to have the inheritance considered separate property, while the goal of the other person is to have it lumped into marital property. In the end, the inheritor may still keep the item/money/home, etc., but the value will be considered when divvying up the other assets and debts.

Our New York City Divorce lawyers recognize, generally speaking, assets acquired during marriage through inheritance are usually considered by law to be separate property, and can remain so throughout the marriage. That means the asset can't be distributed in divorce and its value can't be weighed with regard to other distributions.

However, there is a possible exception to this, and that is if at any point that inheritance was converted in some way to a marital asset. For example, if you inherit a lump sum from a deceased grandparent and then place that amount into a joint account, it could be considered a marital asset because it's co-mingled with marital money.

If you have received an inheritance and want to make sure those funds/assets stay with you - regardless of the outcome of the marriage - take the following into consideration:

Negotiate a prenuptial or postnuptial agreement. These are not always 100 percent airtight. However, it could help to shield certain assets - including your inheritance - in the event of a divorce. Such an agreement can spell out how each spouse will forgo his or her rights to any inheritance or major gift given to the other during marriage.

Many people see these agreements as extremely unromantic. On the other hand, people are generally more realistic today than years ago about the prospect of a successful marriage. It's better to parse through some of these issues so that, if you do separate, they do not become bitter points of contention.

The other way benefactors can protect their newly-acquired assets is to save documentation. Whatever record there is that can indicate the gift/item/money was intended for one spouse only. Sometimes a gift-tax return can be helpful for this purpose, as it usually indicates the specific beneficiary for whom the asset was intended and exactly how much it was worth.

We would also note it's generally a good idea to maintain separate accounts. This can help spouses avoid arguments later, except in cases where the gift/inheritance was in fact granted to both parties.

Finally, it's often recommended that spouses rely on trusts for large assets or gifts. This would prevent the gifted item from becoming marital property.

Anyone with questions about how to protect assets in the midst of a split should contact an experienced divorce attorney.

If you are contemplating a divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

How to Keep Your Inheritance in a Divorce, Nov. 9, 2014, By Neil Parmar, Wall Street Journal

More Blog Entries:


Thursday, November 20, 2014

Smithie v. Smithie - Equitable Distribution in Brooklyn Divorce

The way property is distributed in a divorce depends a great deal on where division takes place. Generally, there are two types of property distribution in divorce: Community property and equitable distribution.

Community property rules require judges to simply divide the couple's joint assets in half. The benefit is there a quick, clean division of marital property. However, there is no consideration for fair asset/debt division and no consideration of employment prospects, age and/or health of either party. Those consideration can be weighted in the determination of spousal and child support, but not for assets.

The other kind of asset division in divorce is equitable distribution, which is the rule followed in New York. Judges in these cases will consider what is fair, given the circumstances, even if the division doesn't end up 50/50.  In these cases, judges weigh division in light of the couple's circumstances. This option allows judges a great degree of discretion, which means the power of the argument presented by your lawyer can make a big difference.

That's why hiring a Brooklyn divorce lawyer with experience is so key in these situations.

An example of how "equitable" is not always "equal" was the recent case of Smithie v. Smithie, before the Supreme Court of the State of New York, Appellate Division, Second Department.

Here, parties were married for 10 years and had three children together before divorce papers were filed.

After reaching a child custody agreement (joint legal and physical custody), all other issues, including asset division, were decided at a nine-day trial. There, trial court found proceeds of sale of marital property should be divided straight down the middle.

Neither side was happy, and both appealed. Ultimately, appellate court - which holds a discretion as broad as that of the trial court judge - modified the ruling on several points.

First, with regard to the house, where wife was to reside, the court found it unfair to split proceeds 50/50. Instead, proceeds of sale would be split 70/30 in favor of plaintiff.

Further, the appellate division ruled lower court erred in failing to consider a $17,000 diamond ring husband gave wife as marital property. Thus, the court ruled this should be equitably distributed, deciding here to split the value down the middle, requiring wife to pay husband $8,500.

Some considerations family judges will weigh when determining a fair distribution of property include:

  • Length of marriage
  • Age of both parties
  • Physical and emotional health of both spouses
  • Income or property brought into the marriage by either party
  • Standard of living established due to marriage
  • Any written agreements made during marriage regarding distribution of property
  • Economic situation of both parties, including income and earning potential
  • Contribution of each spouse to the other of the education, training and/or earning potential of the other spouse
  • Tax consequences of the distribution
  • Present value of the property
  • Need for custodial parent to remain in home and retain possession of household effects
  • Marital debts and liabilities

Because there are so many relevant factors, it's important that an experienced family law attorney weigh specific facts of your case before determining assets for which you may want to fight, and those of which you want to be absolved.

If you are contemplating a divorce in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Smithie v. Smithie, Nov. 12, 2014, Supreme Court of the State of New York, Appellate Division, Second Department

More Blog Entries:


Saturday, October 25, 2014

Same-Sex Marriage Gets Implied Victory With High Court Declining Case

The U.S. Supreme Court declined review of a same-sex marriage case. Advocates on either side of the aisle had pressed for action, seeking a definitive ruling on whether the Constitution guarantees same-sex marriage rights.

 But by declining, the court effectively opened the door for same-sex marriages in as many as 11 states. The appeals presented to the court were from states where same-sex marriage bans had been struck down - Utah, Indiana, Wisconsin, Virginia and Oklahoma. By allowing the appellate courts' rulings to stand, gay marriages effectively become legal in those states.

What's more, because those decisions impact not just individuals states but their entire respective circuits, we are likely to see gay marriage approved also in West Virginia, Kansas, Colorado, Wyoming, North Carolina and South Carolina. Those states are under the jurisdiction of the same appellate courts. Other states outside those jurisdictions have been left in a place of uncertainty.

Our Brooklyn family law attorneys know that New York has allowed same-sex marriages since 2011. That means same-sex divorce in New York is also much more streamlined than in other states. By the justices deciding not to intervene in these pending appeals, it may make the process even easier, particularly for those who move out-of-state.

The core issue is whether homosexual couples in all 50 states should have the same equal protection and/or due process right to marry that "traditional" couples enjoy. Those who support the bans say it was a matter of voters' rights, and the appellate courts' decisions were an infringement of those bans.

Prior to this ruling, there were 19 states - plus the District of Columbia - that allowed same-sex marriage. It was banned in 31 states. Now, this decision to allow the appellate court rulings to stand makes it so that same-sex marriage is legal in 30 states (plus D.C.). There are also a few that offer some protections short of marriage, such as domestic partnerships and civil unions, but divorce in those places can be a tricky issue.

Given the complexity surrounding this continued patchwork of laws creates, why wouldn't the Supreme Court simply agree to decide the issue once and for all? Likely, it has to do with the fact that the high court looks to take on cases it views as the "best vehicle" for deciding a particular issue. Usually, that means arguments on both sides have to be both strong and clear.

The judges did not offer any explanation for why they chose not to resolve the issue now, but many speculated it was this "best vehicle" standard that prompted them to delay taking it on.

However, many are still anticipating a landmark decision on the issue from the high court within the next year or two. It's been estimated that roughly 80 marriage equality lawsuits are pending in 31 states that have current bans. A review by the Supreme Court would put those lawsuits on hold. However, by standing on the sidelines, the justices have chosen to wait to see how those battles play out before weighing in.

For help with same-sex family law matters Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Supreme Court Won't Hear Gay Marriage Cases in New Term, Oct. 6, 2014, By Bill Chappell, NPR

More Blog Entries:

In re the Marriage of Evans: Be Cautious of Pre-Disclosure Agreements, Sept. 15, 2014, Brooklyn Family Law Attorney Blog


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