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Thursday, December 12, 2013

In re Custody of B.M.H. and De Facto Parentage Rights in New York

Blended families have increasingly become the norm over the last several decades, as the divorce rate has crept past 50 percent. 

This has meant that many adults have found themselves assuming "de facto parentage" as it relates to their stepchildren, in many cases raising them since birth and becoming the only father or mother those children have known. 

But what rights do stepparents - or other de factor parents, such as homosexual spouses - have if the marriage doesn't work out? 

Our Brooklyn family law attorneys know that case law results have been mixed, suggesting these issues might soon wind their way to the U.S. Supreme Court. In the meantime, a number of cases continue to be battled out at the state level. 

Most recently, in the case of In re Custody of B.M.H., the issue is the scope of stepparent rights. The Washington state couple had a child together in 1995 during a two-year relationship. The two subsequently broke up. The woman went on to have a second child with another biological father, to whom she became engaged. However, her fiance was killed three months into her pregnancy. The father of her first child came back into the picture soon after. The two married and he raised the second child from birth.

However, the couple later divorced. At issue here is what rights does the father in this case have relative to the second child. Although the two continued to co-parent both children, the former stepfather technically had no legal rights to the child - even though he was tightly bonded with the child and was the child's father in all other respects. 

At the heart of this case, and so many others, is who qualifies as a parent. Legally, a parent is someone who is considered, by virtue of certain connections to a child, to have constitutionally-protected rights, as well as legal obligations, as it pertains to that child. 

In most cases, unless state law indicates otherwise, the termination of a marriage will result in the stepparent becoming a legal stranger to the child. Some state will allow for reasonable visitation, and there are a few cases where former stepparents have successfully petitioned the court for a non-parent custody. But those are generally only successful in cases where the former stepparent can prove the legal parent is unfit. 

In New York, de facto parentage has been rejected in the course of recent case law. Specifically, in the ruling of Debra H. v. Janice R., the courts ultimately upheld the rights of a woman who was in a civil union with her same-sex spouse at the time her spouse was artificially inseminated to produce a child. However, the way the law was interpreted allowed that such rights were only recognized when a couple was involved in some type of formal, recognized relationship. 

Ultimately, that has had the effect of the court rejecting the notion of so-called "functional parents," or those who participate in critical aspects of a child's life, without the actual legal protections afforded to the other parent. 

In many ways, this interpretation has failed to meet the needs of so many of New York's non-traditional families. 

If you are weighing issues of child custody in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

De Facto Parentage and the Rights of Former Stepparents, Dec. 10, 2013, By Joanna L. Grossman, Justia Verdict

More Blog Entries:

Successfully Negotiating the Terms of Your New York City Divorce Settlement, Nov. 17, 2013, Brooklyn Family Law Attorney Blog

Sunday, December 8, 2013

Identifying Assets in a Brooklyn Divorce

Recently, our  family law attorneys in Brooklyn wrote about ways to uncover hidden assets that your soon-to-be-ex might be trying to hide. 

Now, the case of a Suffolk County woman illustrates the importance of making this a priority before the divorce settlement is reached and a decree is finalized. The case of Bellino v. Bellino, Superior Court of Suffolk County, illustrates judges have little sympathy for those who fail to conduct due diligence in uncovering all assets in the course of a divorce proceeding. 

In this case, the former wife (the plaintiff) had requested that the court grant an injunction on numerous bank accounts, trading accounts and investment trust accounts held by her ex-husband (the defendant), claiming he hid them from her during the course of their union. Some of these accounts were offshore, and the wife claimed she had no knowledge whatsoever that her ex owned them during the course of their marriage. 

The defendant filed a cross-motion, indicating that the claims made by the ex-wife were false and inflammatory and demanding that she be forced to cover his cost for defense fees, as well as be made to pay sanctions for bringing the action in the first place. 

Although the judge initially granted a temporary restraining order on the bank accounts, he ultimately denied both parties' requests in their entirety. 

The couple first proceeded with divorce actions back in the spring of 2009. Over the course of several months, both parties agreed to a settlement of four stipulations, which included a custody and parenting time agreement, a child support and spousal maintenance agreement, a resolution as to equitable distribution of property and the distribution of retirement assets. 

The divorce was finalized in the spring of 2010, with the four stipulations incorporated into the final judgment. 

However, the plaintiff filed a new action in January 2012, alleging that the four stipulations reached were the result of "financial blackmail," as well as improper and inadequate discovery of assets. Specifically, she said there was an estimated $3.3 million in undisclosed assets to which she would have been entitled to access in the divorce - had she known about it. 

In bringing her request for an injunction, the ex-wife listed numerous accounts in the U.S., as well as England and the Bahamas. Based on the existing balances, the plaintiff said she was entitled to at least $1.6 million in liquid assets, which she unknowingly waived. She argued that the stipulations reached represent an "unconscionable bargain that no honest or fair person would accept" in light of the new information. 

The restraining order, she said, was necessary to prevent the defendant and/or his agents from removing, withdrawing, selling, transferring or disposing of those assets after it became apparent she knew of them. 

The defendant countered that the plaintiff's claim was a "sham," and that the report given by the plaintiff to the court did not reflect accurate balances in the existing accounts. He pointed to several inaccuracies, including one line item that indicated a Bank of America deposit account that was in fact a credit card account. 

Further, he asserted that his income was only about 25 percent of what it had been prior to the collapse of the world market - and his marriage. He had been forced to borrow from his retirement accounts, the equity in his home and even cash out a life insurance policy in order to make ends meet. 

In response, the plaintiff provided an updated list of assets to the court. 

However, the judge ultimately denied her request, stating that the facts of the case were in sharp dispute and the plaintiff had failed to convincingly establish her position - specifically that the four stipulations were reached as a result of fraud on the part of the defendant. The judge noted that the plaintiff had the means and opportunity to thoroughly research the defendant's existing assets prior to the dissolution of the marriage, and did not do it. 

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

Additional Resources:

Bellino v. Bellino, April 12, 2013, Superior Court of Suffolk County

More Blog Entries:

Uncovering Hidden Assets in Brooklyn Divorce, Nov. 16, 2013, Brooklyn New York Divorce Lawyer

Friday, December 6, 2013

Post-Nuptial Agreements and Stay-at-Home Moms

There are many reasons why a career woman chooses to become a stay-at-home parent, though most anticipate that at some point, they will return to the workforce. 

However, what many who have walked this path are now finding is that re-entry into the work world isn't as smooth as they had anticipated. Matters can become especially thorny when the precursor for that re-entry is a divorce filing. Not only did many of these individuals fail to account for the possibility that their marriage might crumble, they didn't factor in the major financial blow that a break from the paid workforce would deliver in the long-term. Their skill sets are often dated. Their contacts are rusty. There is a gaping hole in their resumes and their opportunities have shrunk significantly. 

 A post-nuptial agreement can often address such financial sacrifices made by one spouse. Those assisting a spouse with an advance degree, such as a medical degree, may also benefit, as well as those who are starting a business together. 

Most are familiar with the pre-nuptial agreement, drawn up just prior to marriage. However, the post-nuptial agreement is gaining in popularity. It was recently given a fair amount of ink when media mogul Rupert Murdoch and his wife, Wendi Deng, divorced. The pair had several post-nuptial agreements. 

But such contracts aren't solely for high-income wage earners. In fact, it's something more couples should consider. While such a move may seem out-of-line to a couple starting a family together, it's important that the stay-at-home spouse consider the  financial ramifications he or she could face if the union fails. 

Economists estimate that the average stay-at-home mother will lose roughly $1 million of income over the time devoted to their children. That includes not only the loss of wages, but also the 401(k) contributions and the accumulation of Social Security benefits. 

A recent New York Times article referred to the decision of career women to stay-at-home with their young children as "opting out." The article highlighted how a number of these women, highly successful in their own right before the decision to stay at home with young children, are now struggling financially in the wake of collapsed marriages. While their husbands went on to continue rising the corporate ladder, many former stay-at-home mothers re-entering the workforce find they must accept mid- or low-level positions, even when they once held senior titles. Often, their incomes are only a fraction of what they earned before they left. 

In the end, these women are getting the short end of the stick. Many times, women are stepping out during what would otherwise be the peak years of their career. That's a major sacrifice, although one that is sometimes not as well-acknowledged by spouses - or the courts. 

A post-nuptial agreement serves as a kind of insurance policy for the spouse who is opting out. Theoretically, if you step out of the work force for a period of 10 years, you may never be able to recoup what you've lost. At least with a post-nuptial agreement, you can be assured of a more secure financial future, as your spouse will have less room to argue against the value of your contribution. 

That's not to say that stay-at-home parenthood isn't worth it. After all, your children are only little for a short time, and those early years pass quickly. There is indeed great value to investing your time and energy on them.

However, understand that the arrangement may shift the entire framework of your marriage, and perhaps not for the better. Working through this together may make you stronger as a couple. Or it may not. Either way, you should be prepared. 

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

Additional Resources:

The Opt-Out Generation Wants Back In, Aug. 7, 2013, By Judith Warner, The New York Times

More Blog Entries:

Divorce in the Courts vs. Divorce Within the Religious Community, Nov. 24, 2013, New York City Divorce Lawyer Blog


Wednesday, December 4, 2013

Brooklyn Divorce - Not Just an Adversarial Approach

Second to the decision to move forward with divorce proceedings, the next biggest choice you will need to make is who to hire as your lawyer. 

Here, it's important to resist the urge to believe that all Brooklyn family law attorneys are essentially the same (they aren't), or that a "bulldog" approach is the most effective in the courtroom (it isn't). 

What many people fail to realize is that the person they choose to represent them in court can set the tone for the entire proceedings. That means that if you hire an attorney who is aggressive, you may be setting the stage for a highly confrontational divorce. It's of course natural that there will be elements upon which you disagree, but approaching the courtroom as a battlefield isn't always going to get you the desired. In fact, it may serve to only further complicate matters, put your children in the middle and prolong your ability to move on, all while racking up legal fees. 

Certainly, there may be times when you need your lawyer to stand firm in order to protect your interests. However, a willingness to compromise over smaller matters is sometimes more advantageous in the long run than a refusal to ever bend on anything. This is because it's not only the other side you'll be ticking off if you are constantly at war over every little thing. Judges too tend to have little patience for lawyers who are unwilling to make any concessions whatsoever, particularly when it comes to simple procedural matters. This doesn't do you any favors. In fact, it's probably only going to be a waste of time and money. 

While there are situations in which one spouse may be ordered to pay the other's attorney fees, the reality is that usually, each person ends up paying their own fees. This is something to remember as your case moves through the process. 

The other thing to keep in mind is that roughly 9 out of 10 divorce cases will settle before going to trial. Even if you and your spouse can't stand each other, odds are you will probably still be able to reach a settlement. It's going to be tougher, though, if your attorney won't allow compromise. 

Generally, an attorney who is unwilling to compromise probably isn't offering you a realistic picture of what is likely to be the outcome of the case. The truth of the matter is, in very few cases are you going to see one side get all of the property, all of the time with the kids, all of the spousal support. It just rarely ever happens that way unless there are extreme circumstances. If you aren't getting a reasonable assessment from your lawyer, you will ultimately find yourself unprepared when the final settlement or decree is handed down. 

But perhaps the greatest disadvantage from hiring an overly aggressive lawyer is that you may find that working with your ex in the future could be much more difficult. Particularly if you have minor children, you will almost certainly need to remain in each other's lives in at least some capacity until those children reach adulthood - and probably beyond. A lawyer who pushes you into less compromise setting the stage for a long-term, adversarial relationship.

We recognize that not all divorces are going to be uncontested. There may be major issues upon which you and your soon-to-be-ex disagree, and you will need a lawyer with experience and a backbone who is willing to stand up for you. However, we urge you to choose your battles - and your lawyer - wisely. 

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

Additional Resources:

Think You Want a Bulldog Lawyer? Think Again. Nov. 26, 2013, By David Centeno, The Huffington Post

More Blog Entries:

Attaining Equitable Property Division in a New York City Divorce, Nov. 18, 2013, Brooklyn Uncontested Divorce Lawyer Blog

Thursday, November 28, 2013

Should You Divorce to Get Better Benefits?

Many different government programs in the United States are written in such a way that a marriage penalty is created.  For example, the tax code has some penalties for married couples when both spouses earn higher incomes and/or have similar incomes that, when combined, push them into a higher tax bracket.  Getting married can also cause some couples to lose means-tested benefits.  Now, the Huffington Post also reports that couples are considering divorce because of restrictions found in Obamacare.

New York divorce lawyers know that it can sometimes make sense to cohabitate with a cohabitation agreement, rather than get married, for financial reasons.  For couples who are already married, however, divorce isn't very likely an option except in the most extreme circumstances. 

 Divorce to Save Money on Insurance

According to the Huffington Post article, Obamacare provides subsidies for a couple up to $62,000 per year.  However, a single person can qualify for subsidies by making $46,000 per year or less. This means that two people who each make $40,000 would both receive subsidies to buy insurance while they would lose subsidies entirely and face hundreds or thousands of dollars in extra costs just for being married.

This has resulted in at least some couples considering ending their marriage and living together.  One couple, interviewed for the Huffington Post, said that marriage was not important to them and that divorce might make sense to avoid the steep marriage penalty. 

However, we would advise this couple to think carefully about what benefits they might lose. People who cohabitate do not have the same protections as a legally married couple, nor do they have the same rights. In cases of a medical emergency, for example, a spouse would typically have the right to visit in a hospital and to make decisions on behalf of his or her husband or wife, while this would not be the case if the couple was merely living together. A person can also qualify for Social Security benefits based on his or her spouse’s work record, and is exempt from certain inheritances taxes when obtaining money or property after a spouse’s death.

Still, these benefits may not outweigh the added costs associated with the marriage penalties inherent in Obamacare.  Getting a divorce to save money and avoid the marriage penalty isn’t a new thing, as some couples have also divorced in the past in order to avoid the penalties in the tax code. The IRS has taken steps to stop the practice of couples divorcing at the end of the year and remarrying at the beginning of the next, as many were doing this because they could then file as single.  However, there do not seem to be any legislative fixes in the works to prevent a couple from divorcing to get larger subsidies for healthcare coverage.

The larger point illustrated here is that health care coverage can be a major consideration when debating divorce, and yet is too often overlooked. The same can be said for cashing out certain retirement accounts or making other financial decisions with major tax implications before speaking to an experienced, affordable Family Law attorney in New York.  

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

More Blog Entries:

Informal, Long-Term Marital Separations Can be Risky http://gilmerlegal.com/lawyer/2013/10/23/Matrimonial-Law/Informal, Oct. 23, 2013, Brooklyn Uncontested Divorce Lawyer Blog

Tuesday, November 26, 2013

Protecting a Business in a Brooklyn Divorce

Many couples who divorce are concerned about how assets will be divided.  Things become even more complicated when there is a family business that is closely held or privately owned, as both spouses may have an interest in continuing to run the business or in continuing to own a portion of it.  It is essential for a couple who is divorcing to understand how the law will treat their shared family business, and a divorcing spouse who wants to protect his or her interest in the business should consult with an experienced New York family court attorney.

Your Business and Your Divorce

Recently, the Huffington Post wrote about the messy divorce of a deli owner in Carnegie who indicates that her husband gave away secret family recipes, making it possible for his mistress to create a knock-off deli that serves similar classic foods that were the trademarks of the famous Carnegie deli.

The case is not the first of its kind where one spouse accuses the other of misusing proprietary business information.  Another example of this type of messy divorce occurred when a famous fashion designer split up from her husband and accused him of trying to create a knock-off clothing company that made use of her designs. 

These types of divorces are a clear illustration of the importance of protecting a business from the outset. If you own a family business and are getting married, it is advisable to have a prenuptial agreement in place that makes clear that all business property and trade secrets belong only to the spouse who has a claim to the business going into the marriage.  

Keeping private business information secret, even from your spouse, can be a good idea when it is important that the information doesn’t fall into the wrong hands and when you want to maintain your own individual ownership of the business rather than sharing it.  If you do share secrets about the business and you have an agreement in place making clear that the business and its assets belongs to you alone, you should be able to take legal action to obtain an injunction to prevent the sharing of company secrets.

If you start a business over the course of your marriage and have no prenuptial agreement in place, it becomes trickier to protect the company from the consequences of a divorce. A post-marital agreement could be used in these cases to protect your business interests in the event of a divorce.

If no premarital or post-marital agreement is in place and you and your spouse work on the business together, then it may become necessary to divide the business or buy your spouse out in the event that your marriage ends. This may require working with a business valuation expert and you may also need to take aggressive steps to prevent a vindictive spouse from doing something to undermine the success of the business during divorce. An attorney can help you to protect the business and can explain exactly what your options are for protecting your interests in the company during your divorce.

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

More Blog Entries:

Brooklyn Collaborative Divorce an Alternative for Amicable Exes, Oct. 11, 2013, New York City Divorce Lawyer Blog

Sunday, November 24, 2013

Divorce in the Courts vs. Divorce Within a Religious Community

For those who are not religious, divorce in civil court is sufficient to move on with their lives.  A divorce obtained in family court legally dissolves a marriage and the agreement reached in family court is the one that is given legal effect and that the state will enforce in terms of custody and asset division. A  Brooklyn, New York family court attorney help clients follow the legal steps necessary to obtain a divorce within the courts and to arrive at a fair settlement through either litigation or out-of-court mediation or negotiation.

For some individuals, however, a legal dissolution of a marriage by a family court is not the only step necessary. In many religions, there are different procedures associated with ending a marriage in the eyes of the religion and the eyes of the community. For example, many Catholics who divorce will seek an annulment from their church so they can get remarried. Within the Orthodox Jewish community, the faith’s decree of a divorce is even more essential for someone to move on with his or her life. In the Orthodox Jewish community, the decree of divorce is called a “get.”

Divorced Woman Speaks Out About Struggles Dissolving Her Marriage In Her Community

A recent article in the New York Post highlighted this disconnect between a civil divorce and a religious divorce. The article featured the story of one woman who married four-and-a-half years ago and who divorced in civil court in 2010.  The divorce in the New York courts officially ended the couple’s marriage and established a custody arrangement in which the child’s father received custody every other weekend as well as every Tuesday and Thursday. The mother has custody outside of the 12 hours per week that the child spends with the father.

Despite being legally divorced, however, the woman who wishes to date and someday get remarried is unable to do so because her husband will not grant her a get, which is necessary to be seen as divorced within the Orthodox Jewish Community. 

The woman indicates that she has tried everything she can to get her ex-husband to agree to give her the get so that they can move on. The couple has been through negotiations, and their families have tried to come up with a solution. However, he has proposed only that she override the custody agreement and pay him a huge sum of money in exchange for the get.

The unfortunate situation is one that the civil courts can provide little relief for -- at least after a divorce agreement is reached.The divorce is finalized in civil court already and under separation of church and state and religious rules within the Orthodox community, the civil court’s decree of divorce has no impact on the ability to obtain the get.  While the couple could perhaps have negotiated this issue at the time of the divorce if they reached a divorce settlement agreement outside of court, civil divorce and any religious institutions procedures for ending a marriage are entirely separate procedures. Just as one cannot legally dissolve a marriage by getting an annulment or get, a civil divorce also doesn’t guarantee that the couple will be separated in every possible sense.

In other cases, a couple may decide to simply separate and lead separate lives, so as to avoid the hassle of unwinding their marriage in the eyes of the church. In these cases, a formal legal separation is best pursued to protect a clients legal rights and long-term financial well-being. 

Our New York City divorce attorneys are available for consultation at (718) 864-2011.

More Blog Entries:

 New York No-Fault Divorce in Its Third Year, Oct. 26, 2013, New York City Divorce Lawyer Blog

Monday, November 18, 2013

Attaining Equitable Property Division in New York City Divorce

A man in Colorado recently stunned divorce attorneys during a deposition when he told them he had converted $500,000 in marital assets into gold and then proceeded to dump that gold into a massive landfill - all in an effort to avoid giving his soon-to-be-ex-wife a penny in their divorce settlement. 

While our New York City divorce attorneys have seen many shades of vindictiveness in the course of aiding countless marital dissolutions, this may be among one of the worst examples. 

Even assuming that he is telling the truth and no longer has possession of the gold, such actions are extremely rare. More commonly, we run into situations where one spouse attempts to hide assets from another. This is why hiring a good divorce lawyers is so critical in these cases. There are a number of methods your divorce lawyer can use to help you uncover those assets and ensure that you have access to all relative marital property. An attorney who is both dedicated and experienced is going to be central to the success o such efforts. 

Courts in New York honor a system of asset division in divorces called "equitable distribution." Equitable in this case does not mean equal. In fact, more than likely, you're not going to see a 50-50 split. The court's goal is going to be having each spouse walk away with as fair a deal as possible, based on a number of factors, including what each is going to need in order to move forward. 

In many cases, we have found that couples without children can amicably reach conclusions about how to divide property on their own, without any help from the courts. In choosing to decide between themselves how assets will be divided - without court intervention - couples can file for an uncontested no fault divorce (which our offices offer for $499). These tend to be far less expensive, less time-consuming and more amicable. 

However, we also understand that sometimes it may not be possible for a separating couple at odds to reach an agreeable solution on their own. In these cases, the court is going to weigh a number of factors in choosing how property is going to be divvied up. Among those factors are:

  • The length of the  marriage;
  • How much each spouse earned in income when they first married and how much they earned at the time the divorce was filed;
  • The health and age of each spouse;
  • Which spouse is going to retain primary custody of any common children (or if they both intend to share custody equally);
  • The rights to health insurance, pension and inheritance that one spouse may lose as a result of the divorce;
  • The future outlook of each spouse's finances;
  • The details of tax consequences to each spouse;
  • If there has been any wasteful dissipation or unfair encumbrance of marital assets by one spouse (dumping $500,000 in gold bars in a landfill would certainly count under this item). 

There may be ways for each spouse to retain a larger chunk of certain assets by arguing necessity on one of these grounds. Alternatively, there could be an argument to be made that the property in question is not marital property, but rather separate property.

Generally, marital property is going to be all of that which was acquired by either or both during the marriage - regardless of who actually holds the title. (The same principal applies to debt as well.) The courts for the most part are going to consider marital property as any income earned during the marriage, any property bought with that income, any property bought at all during the marriage and any retirement benefits earned during the course of the marriage.

Conversely, separate property is going to be that that you had or acquired prior to the marriage, property received as an inheritance or gift (except from the other spouse), any personal injury compensation or any property that is defined as separate in a prenuptial agreement or any other sort of marital contract. 

Each case is going to be different. If you are weighing a divorce filing in New York and have questions about what you might be able to expect in terms of asset division, call us today. 

Our New York City divorce attorneys are available for consultation at (718) 864-2011.

Additional Resources:

Teller County man claims he dumped gold in landfill during divorce dispute, Oct. 24, 2013, By Lance Benzel, The Gazette

More Blog Entries:

 New York No-Fault Divorce in Its Third Year, Oct. 26, 2013, New York City Divorce Lawyer Blog

Monday, November 18, 2013

Will I Lose My Home If I File Bankruptcy?

Filing Bankruptcy is one of the hardest financial decisions a person faces when in debt.  The decisions made during this time affects the entire household and your family relies on you to make the best decisions for the family.  Hiring an experienced Bankruptcy attorney is the only way to ensure your rights are protected and you do not lose property wrongfully during a New York Bankruptcy proceeding.


If you file for Federal Chapter 13 Bankruptcy and your Chapter 13 plan is approved, the short answer is no, you most likely will keep your property.  In Chapter 13 Bankruptcy, a debtor repays all or a portion of debt through a repayment plan over a period of three to five years.  In exchange, you keep your property (car and home), with the assurance you keep up with payments on any loans secured by the property, and keep making your Chapter 13 plan payments.


If you file for Federal Chapter 7 Bankruptcy, which is a liquidation bankruptcy, you may not retain your real property (home).  Which is the reason you must tell your NY Bankruptcy Attorney about all items you own.  The equity in your home will determine whether you can keep your home.  In Chapter 7 Bankruptcy, you’re asking the Bankruptcy court to discharge most of the debts you owe.  In exchange for a discharge, the Bankruptcy Trustee can lawfully take any property you own that is not exempt from collection.  They can sell the property and distribute the proceeds to your creditors.  New York State property exemptions include some equity in your home and car, retirement funds, public benefits, and most household goods, furniture, furnishings, clothing (other than furs), appliances, books, some jewelry, and musical instruments.


Will I lose my house?

Whether or not you can keep your home in a NY Chapter 7 filing will depend on the amount of equity (equity is the fair market value of the home less the amount of outstanding debt against the property) you have in your home, and whether or not you are in default under your mortgage instruments.


If you have no equity in your home, or if you are able to exempt all of your equity, your home will not be liquidated by the bankruptcy trustee to satisfy unsecured creditors.  And, if you are current on your monthly payments and not otherwise in default under your mortgage documents, your lender will not foreclose.  Therefore, if you have either no equity or your equity is exempt, and you are current on your monthly payments and not in default, you may generally retain your home in a Chapter 7 Bankruptcy.


Your Household Furnishings and Goods

Generally, your furnishings, household goods, and clothing are exempt from liquidation in a Chapter 7 bankruptcy.  There may be exceptions, however, if you have items of extraordinary value, such as antiques or valuable artwork.  Specific exemptions are available for jewelry; however, the exemption amount is limited.


New York Property Exemptions


The comprehensive list below details New York State Exemptions; however, you may be eligible for additional Federal Property Exemptions.  Contact Attorney Gilmore for more information on filing Chapter 7 or Chapter 13 and retaining your property.


George M. Gilmer, Esq.

26 Court Street

Brooklyn, New York 11242









Real property including co-op, condo or mobile home, to $150,000 for the counties of Kings, New York, Queens, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester, and Putnam; $125,000 for the counties of Dutchess, Albany, Columbia, Orange, Saratoga, and Ulster; $75,000 for the remaining counties in the state.

*Husband & wife may double



In re Pearl, 723 F.2d 193 (2nd Cir. 1983)

Personal Property

Bible; schoolbooks; books to $500; pictures; clothing; church pew or seat; stoves with fuel to last 60 days; sewing machine; domestic animal with food to last 60 days, to $450; food to last 60 days; furniture; refrigerator; TV; radio; wedding ring; watch to $1,000; crockery, cooking utensils and tableware needed, to $5,000 total (with farm machinery, etc.)


Burial plot without structure


Cash, the lesser of either $2500, or an amount that, with annuity, totals $5000; in lieu of homestead


Health aids, including animals with food


Lost earnings recoveries needed for support


Motor vehicle to $4,000 and $10,000 for disabled person (husband and wife may double)


Personal injury recoveries to $7,500 (not to include pain and suffering)


Security deposits to landlord, utility company


Trust fund principal to 90% of income


Wrongful death recoveries for person you depended on, needed for support

5205(1)-(6), Debtor & Creditor 283(1)




Debtor & Creditor 283(2)




Debtor & Creditor 282(3)(iv)


Debtor & Creditor 282(1)


Debtor & Creditor 282(3)(iii)




5205(c), (d)


Debtor & Creditor 282(3)(ii)


Annuity contract benefits due or prospectively due the debtor, who paid for the contract; if purchased within 6 months prior & not tax-deferred, only $5,000


Disability or illness benefits to $400 per month


Life insurance proceeds left at death with the insurance company pursuant to agreement, if clause prohibits proceeds from being used to pay beneficiary creditors


Life insurance proceeds and avails if the person effecting the policy is the spouse of the insured

Insurance 3212(d), Debtor & Creditor 283(1)


Insurance 3212(c)


Estates, Powers & Trusts7-1.5(a)(2)


Insurance 321(b)(2)


Alimony, child support needed for support


Property of business partnership

Debtor & Creditor 282(2)(d)


Partnership 51


ERISA-qualified benefits needed for support, includes IRAs


IRAs needed for support


Keoghs needed for support


Public retirement benefits


State employees


Village police officers

Debtor & Creditor 282(2)(e), 5205(c)


Debtor & Creditor 282(2)(e), 5205(c)


Debtor & Creditor 282(2)(e), 5205(c)


Insurance 4607


Retirement & Social Security 110


Unconsolidated 5711-o

Public Benefit

Aid to blind, aged, disabled, AFDC


Crime victim compensation


Home relief, local public assistance


Social security


Unemployment compensation


Veterans benefits


Workers compensation

Debtor &Creditor 282(2)(c)


Debtor & Creditor 282(3)(i)


Debtor & Creditor 282(2)(a)


Debtor & Creditor 282(2)(a)


Debtor & Creditor 282(2)(a)


Debtor & Creditor 282(2)(b)


Debtor & Creditor 282(2)(c)

Tools of Trade

Farm machinery, team, food for 60 days, professional furniture, books & instruments to $600 total


Uniforms, medal, equipment, Emblem, horse, arms and sword of military member





90% of earnings from milk sales to milk dealers


90% of earned but unpaid wages received within 60 days prior (100% for a few militia members)



5205 (d) (e)

Wild Card

$1,000 if no homestead claim


Sunday, November 17, 2013

Successfully Negotiating the Terms of Your New York City Divorce Settlement

In a recent blog post entry, our New York City divorce attorneys discussed the benefits of a negotiated divorce versus a litigated one. Choosing the former can save you and your spouse a great deal of time, money and emotional energy. 

That said, it doesn't mean the process won't be somewhat draining. After all, we're talking about a major life change for everyone involved. You may both recognize the split as something that is both necessary and ultimately positive. But that doesn't mean you won't at any point feel sad or overwhelmed or angry or have moments of doubt. 

A successfully negotiated divorce settlement doesn't mean that you deny your emotions or overlook your concerns. However, it does mean that you both need to be on the same page about the ultimate goal: An overall amicable separation that is fair and will leave you both in a better position to begin the newest chapter of your lives.

As you prepare to sit down face-to-face with your soon-to-be-ex to work through the details - whether in a collaborative divorce process  or through a mediator - there are some tips you may want to keep in mind that could ultimately bolster your success. 

The first of those is, as much as possible, avoid letting your emotions dictate the tone of the discussions. This does not mean you can't acknowledge what you feel or where it is you are coming from. However, keep in mind that the goal of these meetings is to reach a point where you can move forward. Laying bare every past iniquity is not going to get you there. Think of these meetings as a business transaction, which is what they ultimately are. You are trying to untangle the life you had with this person. This may inevitably dredge up some hard feelings. That's why seeking mental health counseling on the side can be an important part of the process. But understand that the purpose of divorce settlement negotiations is to outline the legal terms of dissolution. By maintaining as much of an emotional distance from the process as possible, you increase your effectiveness at the table. 

Secondly, we would suggest that both parties be open to compromise. Presumably, if you've opted for a negotiated divorce as opposed to a litigated one, you have both voiced the determination at the outset not to turn this into an epic battle. You may not be the best of friends, but you don't want to walk away hating each other either. To some extent, that may mean a willingness to let go. That doesn't have to mean anything extreme, such as giving up custody of your kids. However, it may mean being open to hearing your spouse out and truly considering their reason for asking for a concession. The hope is that he or she is going to then extend that same courtesy to you. In the end, this kind of cooperation is going to result in a plan you are both more likely to feel good about - or at least will be willing to accept. 

Finally, do not be afraid during the course of this process to take a break. If you are feeling overwhelmed, call a time-out. If you are not understanding all of the legal jargon that is being tossed back and forth, request some time to review it in greater detail and gain a better understanding of what it means to you. What's at stake here is the landscape of your future, so don't hesitate to take a breather if that is what you need to do. Recognize that one meeting may not be enough to resolve every difference. It may take several meetings before you reach a good place with it - and everyone involved should be understanding of that process.

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

Additional Resources:

Divorce Confidential: How to Prepare for a Settlement Meeting, Oct. 31, 2013, By Caroline Choi, The Huffington Post

More Blog Entries:

Brooklyn Collaborative Divorce an Alternative for Amicable Exes, Oct. 11, 2013, New York City Divorce Lawyer Blog

Wednesday, November 13, 2013

Choosing Between a Negotiated or Litigated Divorce

As many decisions as there are to make in beginning a marriage, there are equally as many in deciding the way you want to end it. 

Arguably, the latter has the potential to be more important. For example, choosing a negotiated Brooklyn divorce over a litigated divorce can result not only in saving  you both an inordinate amount of time and money, it is likely to leave you walking away from the table far more amicably than if you'd battled it out in court. In hindsight, that is almost certainly more valuable than who you ultimately hired as the wedding caterer or officiant. 

Our Brooklyn divorce attorneys know that a negotiated divorce often isn't without contentious issues to resolve. Rather, it means that you both decide the way you are going to resolve your differences isn't going to involve bitter, drawn-out fights that drag on for years, draining your finances, your emotions, the patience of your loved ones and the stability of your children. 

That said, we recognize that there won't be a one-size-fits-all approach for every couple. Thankfully, there are several options available for those who are looking for a more peaceful path. 

The first is a cooperative divorce. In a cooperative approach, you and your spouse are still each represented by your own lawyer. Through your attorneys, you and your spouse work through some of the touchier issues such as child custody and asset division, to reach amicable resolutions. These negotiations take place outside of a courtroom. There are a number of benefits to this approach. Because you are both still represented by attorneys, you ensure your legal rights are preserved. By keeping it out of the courtroom, you avoid extensive delays and an inherently adversarial approach. In a cooperative divorce, you are both on the same page about the end goal being working through differences to reach fair resolutions. 

The second option is a collaborative divorce. This is very similar to a cooperative divorce, except that in addition to your respective attorneys, there may be more professionals involved. It may cost a bit more (still less than a litigated divorce), but you will have the benefit of access to experienced financial planners and mental health professionals. This approach is much more comprehensive, and makes sure that the emotional and financial resources of your family are preserved throughout each phase of the process. 

And finally, your third option is mediation. This approach is a bit different from the first two in that you are both unrepresented by legal counsel. Instead, there is a neutral mediator who is there to help you and your spouse carve out a plan that is going to work for you. This is not for everyone, particularly if there are some serious points of contention between the two of you or if you have trouble effectively communicating with one another or if you feel your soon-to-be-ex may be manipulative or dishonest. You will lack the benefit of a legal professional who will act as your advocate and ensure your rights are protected. 

We strongly urge anyone considering divorce to least set up an initial consultation with an experienced divorce lawyer to help you carefully weigh the options. You don't have to make a commitment right away, but you should at least have the benefit of a professional opinion so you can make an informed decision about the best approach for your situation. 

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

Additional Resources:

Divorce Confidential: Should I Negotiate or Litigate My Divorce? Sept. 25, 2013, By Caroline Choi, Huffington Post

More Blog Entries:

Informal, Long-Term Marital Separations Can be Risky, Oct. 23, 2013, Brooklyn Uncontested Divorce Lawyer Blog

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