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Matrimonial Law

Monday, July 21, 2014

Preparing Yourself Digitally for a New York City Divorce

In the past 20 years, technology has significantly altered the way in which we live our lives - from the way we communicate to the way we manage our money to the way we store personal archives. Our New York City divorce lawyers recognize that it has also changed the way in which we end our marriages.

Digital files can make it easier to track unscrupulous transactions and efforts to hide assets. Social media can come into play in matters of child custody and sometimes division of assets (depending on how open both parties are with their postings). Electronic communication between parties can be presented as evidence supporting one conclusion or refuting another.

Still, the law is often decidedly antiquated and, and in many ways, struggle to keep pace. This is why it's imperative for individuals to take charge of protecting their own interests in this regard. Consultation with an experienced attorney, even if you are still on the fence about whether to file, can help you determine what steps you will need to take to protect your digital profile and information. Given that so much of our lives have become so heavily dependent on technology, it's an important consideration. 

USA Today recently published an article offering some useful advice on how to prepare your online self for a separation and subsequent divorce.

The first element involves changing passwords. Many couples view it as a sign of trust that they can share passwords, though some might argue it displays the exact opposite. The Pew Research Center indicates nearly 70 percent of couples share at least one password to an online account. Either way, an ex with access to passwords to your social media accounts, your bank accounts or your credit card accounts can be detrimental to you, particularly if the split is acrimonious.

Secondly, if you have shared services with your ex, such as a joint social media profile or Apple iCloud account or ID, it may be time for a change. Continued use of a shared account is going to give your ex access to almost everything you do, including your location, what your purchasing, photographs, new contacts and emails.

Thirdly, if you share a tablet or computer, erase those of anything that would hold information regarding your passwords, tax returns, credit card information or browsing history. On gadgets such as smartphones and tablets, you may want to consider a full factory reset to make certain the device is clean.

Additionally, you may want to restrict the privacy settings on your social media. Consider that if you stay "friends" with an ex, he or she will be able to view whatever you post. Know too that friends of friends may grant him or her access to your information, so it may be worthwhile to trim your friends list. If you choose not to take that action, just be judicious in what you post, and always be cognizant of how certain pictures or words might be used against you in family court. Examples might include posting pictures of vacations or gifts you share with your new love interest, trashing your ex online, or talking about work life or recent large purchases.

While it's important to protect your information and digital assets, it's important that you not transfer funds from a joint account to your single account without first clearing it with your attorney to ensure you can legally do this without penalty.

Any other specific concerns about divorce or family law, contact our Brooklyn law office at (718) 864-2011.

Additional Resources:

Divorcing? 5 things to do online now, July 11, 2014, By Kim Komando, USA Today

More Blog Entries:

 


Monday, May 26, 2014

White v. Howard - Life Insurance Policy May be Considered a Form of Alimony

Divorcing couples tend to think of "alimony" as monthly payments made in the form of cash to one spouse or the other, usually for a finite period of time that terminates by a certain date or in the event  of remarriage. For the most part, this is exactly true.

However, the Georgia Supreme Court recently handed down a ruling in White v. Howard indicating that other assets (namely, a life insurance policy) could potentially be considered alimony for purposes of divorce. Brooklyn alimony attorneys recognize that this could make certain elements of divorce a bit messier for family courts seeking to ensure both sides are treated fairly.

This case involved a pair married for 35 years at the time of their separation. In the final divorce decree, the court indicated that neither party would be entitled to alimony, but did order the following:

  • That the husband obtain a life insurance policy worth $100,000 that named the wife as the beneficiary and maintain that policy for 12 years.
  • That the wife was to receive half of the husband's pension.
  • That the husband was supposed to make partial payments on the mortgage of the home in the wife's name until such time that the property was sold.

The court specifically stated in its order that these items were to be considered matters of equitable distribution of property - and not alimony. That order was issued in 2007.

Four years later, the wife remarried. Shortly thereafter, the husband filed a pro se motion (meaning without an attorney) seeking to terminate all three of these benefits, arguing they were a form of alimony that should be terminated when she remarried.

The wife responded with a motion to dismiss and a request for attorney's fees. The husband retained an attorney and subsequently filed a motion to modify alimony. A trial court held a hearing and issued a ruling in favor of the wife, dismissing all claims and granting attorneys fees. The court cited the earlier specification that these elements were not alimony, but part of equitable distribution of marital property. 

The husband did not fight back on the issue of the ongoing mortgage payments or pension, but he did appeal the decision as it related to the life insurance policy. He insisted this was a form of alimony. 

The state supreme court ultimately agreed with him. 

The court first explored the definition of periodic alimony, which is when maintenance payments are slated for an indefinite period of time, making the total amount indefinite as well. The court indicated that such orders could be modified if the financial circumstances of either party changed substantially. By contrast, with equitable distribution of assets, the assets in question are fixed, and the trial court doesn't have the authority to modify a final order on these matters, regardless of a change in circumstance. Also, lump sum alimony payments (those wherein the spouse receives a set amount of maintenance to be paid at one time) cannot be modified.

The wife argued in this case that the life insurance policy was a form of either lump sum alimony or equitable distribution, therefore not subject to modification.

The court disagreed with this because of the uncertainty that comes with a life insurance policy - specifically, the unknowable fact of how long the husband is going to live. That means it could be worth the 12 annual premiums he paid, or it could be worth $100,000, plus whatever premiums he paid up until the point he died. Because the value could not be determined, it was subject to modification.

Further, the court cited a previous case (Hawkins v. Hawkins) wherein the court had already established that the obligation to carry life insurance for the benefit of the other spouse is in fact a form of periodic alimony.

On these grounds, the supreme court reversed the trial court's ruling on this matter and remanded for reconsideration, based on the wife's remarriage.

If you are interested in alimony modification in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

White v. Howard, May 19, 2014, Georgia Supreme Court

More Blog Entries:

Court: Phone Sex Not Grounds for Resetting the Divorce Clock, May 18, 2014, Brooklyn Divorce Lawyer Blog

 


Wednesday, April 23, 2014

Contested Divorce in Manhattan Results in Reduced Divorce Awards

Our New York City uncontested divorce lawyers know that while it can sometimes be difficult to get on the same page with your soon-to-be-ex, there is sometimes much to be said for the benefits of compromise.

This was illustrated recently by a long-running, high-profile, bitterly contentious Manhattan divorce involving an attorney at a well-known law firm and his wife.

The New York Daily News reports that a judge overseeing the divorce proceedings scolded the wife, saying she had "bit the hand that fed her" by initiating public attacks against her husband during the case. In doing so, the judge found, she had tangibly decreased the value of his partnership with his employer, and therefore was stripped of the majority of her $2.5 million divorce settlement.

The two parties had aggressively fought one another for years, and, according to the judge, had both demonstrated behavior that was both uncooperative, troubling and offensive. While in court, they shouted at one another, made inappropriate comments and gestures to each other and sometimes each ran out into the hallway to scream it out in the middle of the proceedings.

The pair married in January 1988. They share two children together, ages 19 and 15.

They would later say they were "never happy" together, but they didn't formally split up until 2007, when they were both placed under arrest for domestic violence of each other. The wife, a stay-at-home mother, later successfully obtained an order of protection barring the husband for their home on E. 78th Street.

The allegations of abuse were detailed in several media reports, but the criminal charges were later dropped.

However, the couple was in the news again in 2011 when, still enduring the divorce, the wife complained that her husband had refused to pay $12,000 for a hearing aid for their daughter, and yet had just purchased an engagement ring worth well over $200,000 for his Playboy playmate fiancee. The fiancee later broke off the relationship.

The judge clarified that those earlier reports were misleading; the daughter had already received hearing aids, but the argument was over who should be responsible for paying them. But the damage was already done at that point, as the initial report resulted in the attorney being placed on a sarcastic "Lawyer of the Month" list on a popular legal website.

The husband then asserted to the court that all the bad publicity had harmed his practice, causing him to suffer financially and reduce the overall value of his partnership. Once valued at roughly $5 million, he said his stake had been reduced to approximately $630,000.

The wife countered that the reduction was due to the economy and her husband's own failure to work hard.

However, the judge sided with the husband. Where the wife had initially stood to earn half of the original $5 million value of the firm, the judge determined that her public tongue-lashing of her husband would result in her share being reduced to just 17 percent.

An uncontested divorce is certainly not for everyone, but there are a fair number of instances in which this kind of proceeding can preserve not only the value of assets, but the value of each party's dignity.

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


Wednesday, October 23, 2013

Informal, Long-term Marital Separations Can be Risky

It's one thing in a marriage to take some time apart, re-evaluate your priorities and determine whether this is a union worth saving. 

It's quite another to spend years in a virtual legal limbo, working toward neither divorce nor reconciliation and with no clearly outlined definition for the support or care of children, property use or division or the management of debts and investments. 

Our Brooklyn divorce lawyers know that this is the scenario in which many couples find themselves, and it often results in unpleasant surprises. it's unfortunate because there are ways to legally protect yourself, even if neither of you is quite ready - financially or emotionally - for a divorce. 

One of the best options is a legal separation. This is not something that is required of couples prior to a divorce. Rather, it's a way for couples to sort out some of the details of living in two separate domiciles, while still technically remaining married. 

In New York, legal separations, unlike divorces, are not something the court grants. There are no applications and it's not something for which agreements are formally approved. Rather, a separation, much like a prenuptial agreement or a marital agreement, is a contract between you and your spouse. Ideally, this contract will spell out who is going to be responsible for paying which bills, where the children are going to live, whether one spouse will pay the other child support, what the visitation schedule is going to look like, what's going to happen to shared marital property - and really any other aspect you want to include. 

It is highly advisable that you have an attorney counseling you through this process, helping you draw up the language of the agreement and informing you of any aspects you may have overlooked. If an agreement is poorly-worded, it can have unexpected and sometimes serious consequences for both parties, especially in complicated cases. 

So why have a separation agreement at all? While we generally espouse the many benefits of a clean break through an uncontested divorce, that's not always ideal. In some cases, considerations like military benefits or health care insurance comes into play. Ending the marriage could mean leaving one spouse at an extreme disadvantage. 

Other times, there are religious reasons. Couples don't want to be together anymore, but their faith won't allow them to legally divorce. A separation agreement can be a compromise. 

In other cases, couples are simply unsure whether this is what they truly want. Rushing into a divorce isn't appealing. They both want time to sort through not only their finances, but their emotions as well. A legal separation can provide that opportunity. 

Where we see bigger problems is when couples separate without a legal separation agreement. We're not talking about a few weeks in a hotel after a major fight. We're talking about years of simply living apart, with no formal agreement to define the terms of that space. There are a number of issues that can arise.

First of all, you are in a position of having zero control over the handling of marital assets. You can't control what your spouse is spending, saving, investing or earning - and worse, you may have no real knowledge of it either. Being in the dark about financial decisions that directly affect you is never a good idea. Plus, the fact that you no longer share a residence means your spouse may have ample opportunity to hide certain assets. 

Secondly, you could be seriously impacted if your spouse moves out-of-state - or worse, out of the country. New York divorce laws may not be applicable if your spouse has established residency elsewhere. Understand that a lot of states have passed severe restrictions on things like alimony, which could significantly impact what you walk away with if your spouse chooses to file for divorce in his or her new home state. 

Consider also the possibility that you might meet someone new. Some people might see this as a positive. However, starting a relationship while you're still legally married and not legally separated is generally frowned upon in divorce court. It's only been three years since York became the last state in the country to pass a no-fault divorce law, meaning you don't have to offer up a reason for the split. However, that doesn't  mean infidelity won't factor into the ultimate divorce agreement. 

It's understandable that many couples approach divorce with trepidation. Separations agreements allow you to take your time, while still protecting yourself. 

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

Additional Resources:

Putting Off Divorce? Ten Ways Long-term Separations Can Do Women More Harm Than Good, Oct. 3, 2013, By Jeff Landers, Forbes.com

More Blog Entries:

Brooklyn Family Law Attorneys Discuss Divorcing Like Adults, Oct. 6, 2013, Brooklyn Legal Separation Agreement Lawyer Blog


Wednesday, November 16, 2011

Same sex marriage equality and Defense of Marriage, Matrimonial Attorney, Brooklyn, NY

I am a Brooklyn, New York City Matrimonial Lawyer.  1-718-864-2011.  A number of my  LGBT clients currently in  same sex relationships ask me this question, now that I can get married in New York, will I have equal protection under the law?


Read more . . .


Monday, October 31, 2011

How do I get an uncontested Divorce? Brooklyn, New York City Uncontested Divorce Attorney. Low Fees. No Fault. .1-718-864-2011

I am a Brooklyn, New York City based lawyer that provides low cost divorce solutions for those who are ellgible to file for divorce in New York State.  My low fee from $499 plus filing fees for an uncontested no fault divorce is one of the lowest rates in the legal community. This is the true cheap fast divorce!  Please contact me at 718 864 2011.


Read more . . .


Friday, July 1, 2011

New York passes Same Sex Marriage Equality Act of 2011. By Brooklyn, New York LGBT Family Law and Matrimonial Attorney.

On June 24, 2011 Governor Andrew Cuomo signed into law the right of same sex couples to get marriage licenses. The law will go into effect on July 24, 2011. New York will be the sixth and the most populous state (19.4 million residents) to do so. Iowa, Vermont, New Hampshire, Massachusetts and Connecticut issue marriage licenses to same-sex couples, as does the District of Columbia.

Many believe that the passing of the law gives momentum to ending marriage discrimination at the state and federal level. Prior to the passing of the law most New York City employers already offered equal benefits to couples in domestic partnerships. Many see the federal recognition of same sex marriage as an uphill battle. Matter of fact in 2006, the New York Court of Appeals ruled that there is no constitutional right to same-sex marriage in New York. Some opponents of same sex marriage support a U.S. constitutional amendment defining marriage as between a man and a woman.  Matter of fact, gay marriage is banned in 39 states in this country.

Another complicated legal issue is the legal rights New York same sex couples are afforded in states that do not recognize same sex marriage. Two constitutional principles arise, full faith and credit and equal protection. The Full Faith and Credit Clause—Article IV, Section 1, of the U.S. Constitution—provides that the various states must recognize legislative acts, public records, and judicial decisions of the other states within the United States.Although the Full Faith and Credit Clause has been applied to family issues such as Order of Protection, the Violence Against Woman’s Act, and child support it is unlikely, unless the Supreme Court strikes down all laws banning gay marriage, that States are going to be required under Full Faith and Credit to recognize any marriage they don’t want to.  Presumably states that don’t recognize gay marriage will be expected to recognize gay marriage pursuant to the equal protection clause.

It is clear that most of the opponents of gay marriage based this opposition upon moral or religious grounds. As a way to balance the various interests involved, an agreement was reached on more protections for religious groups that oppose gay marriage and fear discrimination lawsuits.

The Law Office of George M. Gilmer drafts prenuptial agreements (“prenup”), cohabitation agreements and practices matrimonial law. Please stay tuned for future articles in these areas.  I have over ten years of legal experience.  Contact me if you have any other questions concerning same sex marriage.


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