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Mark Gilmer, Esq.

Saturday, July 12, 2014

Druckman v. Ruscitti - Resolving Paternity Disputes in New York

Years ago, the issue of paternity was largely decided on circumstantial evidence.

Today, our Brooklyn paternity lawyers know the process is decidedly less complex, often resolved with a simple DNA test.  When a father is not married to the mother of a child, there is no presumption of paternity absent an acknowledged paternity, signed by the father, or other order of affiliation entered by the court. The latter involves recognition that the man in question is the biological father of the child.

There are often circumstances in which a man alleged to be the biological father may have doubts regarding the veracity of that claim. Before signing an acknowledgement of paternity, it is always wise to request a DNA test.

Bear in mind, however, that should that test confirm paternity, the father becomes legally obligated to pay child support for his offspring, at least until such time the child reaches adulthood. However, absent such a test, the father may not have any legal rights to parenting time visitation or the other benefits parents typically enjoy.

This has more frequently become an issue as more couples are choosing to delay marriage, sometimes deciding never to get married at all.

These matters aren't to be taken lightly, and should always be made after careful consultation with an experienced family law attorney.

In the recent case of Druckman v. Ruscitti, the Nevada Supreme Court was tasked with weighing the extent to which an unmarried father may share custody rights where his paternity is sufficiently established according to statute, but the district court has never established a child custody order.

Here, both parties were unmarried but had a child together. The father signed an acknowledgment of paternity shortly after the child's birth, satisfying the legal requirement for equal custody rights and child support obligations. 

The pair discussed moving out-of-state, but broke up before doing so. The father moved out of the home. The mother subsequently relocated to another state with the child, absent the father's knowledge or consent. The pair had never established a child custody or support order within the district court.

When the father learned of the move, he filed for the child's immediate return, with a request to be awarded joint legal and primary physical custody. The mother filed her own motion, requesting sole legal and primary physical custody of the child.

The district court held that statutes that would normally govern relocation of an established custodial parent (such moves usually have to be approved by the court) did not apply here because there was never a court order. The court subsequently granted joint legal custody to both parties, with primary physical custody going to the mother.

Upon review, the Nevada Supreme Court found that unmarried parents  have equal custody rights regarding their children so long as there is no judicial custody order to the contrary. That acknowledgment of paternity gave the father the opportunity to enter into the custody proceeding as an equal to the mother.

However, because the pair weren't married and there was no judicial custody order, the mother was free to leave the state with the child without court approval. This scenario might have been avoided had the father sought a custody order immediately after separating from the mother.

 If you need to speak with a paternity lawyer in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:
Druckman v. Ruscitti, June 26, 2014, Nevada Supreme Court

More Blog Entries:

Parental Consent for Child Travel, Here and Abroad, June 24, 2014, Brooklyn Child Custody Lawyer Blog

Friday, July 11, 2014

In re Guardianship of Madelyn B. - Same-Sex Couple Custody Dispute

In the last several  years, 19 states have legalized same-sex marriage, with New York being one of those. Largely, issues regarding marriage and divorce have followed the same principles as any other.

However, our Brooklyn family law attorneys have seen that issues regarding child custody matters involving same-sex couples are decidedly more complex. This stems from the fact that even when both parties have an equal hand in raising the child, only one is a biological parent. Unless a child is legally adopted by the other, the non-biological parent's rights to custody in the event of a split could be limited.

This was the scenario before the New Hampshire Supreme Court in In re Guardianship of Madelyn B. In that state, same-sex marriage was legalized in 2010. The two women in this case had been romantically involved since 1997, and both considered themselves to be in a fully-committed marital relationship. The non-biological mother took the last name of the biological mother, the two shared a home and bills and lived like any other married couple. However, they were never formally married, as the state did not yet recognize their union.

In 2002, the biological mother in the case became pregnant via sperm donor, and the two raised the child together, with the non-biological mother retaining guardianship of the girl and being actively involved in her life. However, when the child turned 6, the couple ended their relationship.

During that time, the non-biological mother secured guardianship of the child, paid weekly child support, and engaged in regular visitation with the child. She also provided her with food, clothing and gifts.

This arrangement continued until, several years later, the biological mother became engaged to a man and stopped cashing the checks. The non-biological mother continued to send them anyway. The biological mother then informed her ex the child no longer wanted a relationship with her, that there would be no further communication and cut off all contact.

The biological mother filed a motion to terminate her ex-spouse's guardianship, on the grounds that the child no longer wanted to see her and that the only reason it was initiated in the first place was so the child could remain on the other woman's health insurance. She further noted her new husband was in the process of completing formal adoption proceedings.

The non-biological mother moved for an immediate hearing. The family court denied the motion by the non-biological mother and terminated her guardianship. She appealed, asserting the termination of guardianship without a hearing or discovery was erroneous and the court was wrong to deny her motion to intervene in the adoption.

The Supreme Court reversed, finding the guardianship issue needed to be resolved before the adoption could proceed. Further, the presumption of "paternity" or parentage is not driven by biological paternity, but rather by the state's interest in the welfare of the child and the integrity of the family. Citing previous case law, the court noted that a relationship between a non-biological parent and a child two or older that results from the pair living together in a parent/child relationship is "not to be lightly dissolved." Statutes regarding paternal rights, the court held, are to be equally applied to both women and men, and the court found the non-biological mother in this case had stated sufficient facts to stake a claim for presumed parentage under state law.

The lower court's decision was vacated and the case remanded for further proceedings consistent with this view.

If you are dealing with child-custody issues in New York City, call our offices at (718) 864-2011.

Additional Resources:

In re Guardianship of Madelyn B. , July 2, 2014, New Hampshire Supreme Court

More Blog Entries:

Parental Consent for Child Travel, Here and Abroad, June 24, 2014, Brooklyn Family Law Attorney Blog

Thursday, July 10, 2014

Reville v. Reville - Property Division and Proper Disclosure of Marital Assets

In any divorce action, both parties are legally responsible to be forthcoming about existing assets, which must be considered for distribution within the marital estate. Disclosure of an asset doesn't mean it will necessarily be lost to the owner, but it may reduce the share of other assets awarded to the party allowed to keep it.

Our Brooklyn divorce lawyers recognize this unfortunately creates a powerful incentive for parties to conceal assets. But make no mistake: The court considers such action a form of fraud, and the consequences can be harsh, whether the concealment is discovered immediately, or many years down the road. 

That was the case in  Reville v. Reville, weighed recently by the Connecticut Supreme Court. Here, the allegedly undisclosed asset was an accrued but unvested pension fund.

The parties divorced in May 2001, following a 14-year marriage. Incorporated into the final divorce decree was alimony and child support paid to the wife, as well as equitable distribution of marital property consistent with a written separation agreement.

Four years after the divorce, the wife filed an amended post-judgment motion with the court, asking that the case be re-opened and the final decree set aside because her ex, a partner with one of the world's largest professional services networks, had failed on all four financial affidavits to list the existence of a pension fund. The ex-wife asserted she relied on those affidavits in considering the scope of her former husband's assets, and that the pension was sizable - likely valued at more than $2 million. She alleged that had she known of the fund's existence, she would not have signed off on the separation agreement because it lacked a provision for her to receive any amount of interest or other form of compensation for waiving her share. She asserted her ex should forfeit the account entirely, as he had intentionally concealed it.

The trial court considered first whether the account was marital property, and secondly whether the defendant fraudulently failed to disclose it. The court found evidence, amid conflicting testimony, that the defendant disclosed it verbally, and therefore the plaintiff was not entitled to distribution.

The state supreme court reversed.

The court indicated there are three elements the plaintiff needed to show in order to be granted relief: No unnecessary delay on her part following discovery of the fraud, clear proof of fraud and the reasonable probability that the outcome of a new trial would be different in light of the new information.

The court found the plaintiff had achieved this threshold. The trial court had erroneously relied on a previous case, establishing a "deeply flawed legal framework" for its decision, meaning the outcome was also faulty.

The state supreme court disagreed with the trial court's conclusion that the account was not marital property subject to distribution. The account should have been considered in the dissolution agreement, the justices ruled.

Hiding assets isn't the only way parties in a divorce can commit fraud in the proceedings. There have also been instances in which parties overstate debts, report lower than actual income or report higher than actual expenses. Any of these actions could result in denying the other party a fair settlement.

Having an experienced legal team on your side to knowledgeably approach the case and aggressively defend your interests is essential.

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

Additional Resources:
Reville v. Reville, July 8, 2014, Connecticut Supreme Court

More Blog Entries:

Stanley v. Stanley - Marital Misconduct and Impact on Property Division in New York Divorce, June 9, 2014, New York City Divorce Lawyer Blog


Tuesday, July 8, 2014

Shielding Yourself From Your Deceased Ex-Spouse's Debt

It's common following the death of a former spouse to be struck by a flood of mixed emotions.

What also strikes many people is that they may suddenly become burdened by their ex-spouse's debt.  Our New York City divorce lawyers know this often comes as a complete surprise for exes, particularly when the divorce agreement was clear about which party would be responsible for which debt.

The problem is that agreements between former spouses - including court-ordered divorce agreements -are not binding on creditors. The bank is only looking at the names on the original credit agreement or loan. There is little concern from the creditor regarding who actually pays - so long as someone pays. If your name is still on the agreement, that someone is more than likely going to be you.

Given that money issues are often a great source of contention leading to divorce, this problem arises with a fair amount of frequency. People breathe a sigh of relief when the final divorce documents are signed, thinking they'll no longer have to deal with the other person's poor financial decisions. But unless decisive action is taken by your divorce lawyer at the time of a split, you may find that is not entirely true.  

In cases where both parties are alive, if one doesn't abide by the agreement, the other can take him or her to court to enforce the order. However, creditors don't recognize divorce agreements, as they aren't party to them.

This is true no matter where you live in the U.S., though it could be worse if you lived in a community property state, where all assets and debt acquired during the marriage are considered as belonging equally to each spouse.  New York, as an equitable distribution state, is not one of these. But that doesn't mean this won't be a problem if your ex passes before the debt is paid off.

Options for those in this situation are limited: File a claim against your ex's estate (and hope that it's solvent), pay the bill or file for bankruptcy (in extreme cases). 

We understand none of these options are especially desirable. The good news is they can be averted - but only if both parties engage in proper planning prior to and during divorce. 

It involves eliminating your personal liability for debts assigned to your spouse at the time  of the divorce. This is sometimes referred to as an "accord and satisfaction" or a "novation" directly with the creditor. These agreements serve to free you from any responsibility to continue paying a debt - regardless of what happens to your spouse.

Bear in mind, however, that creditors often aren't game for this unless it can be shown your ex has sufficient funds and/or assets to be able to cover the debt on his own. But attempts should be made with any creditors holding debt for which you might otherwise be liable. It's the only way to circumvent the possibility of being made responsible for the entire balance should your ex pass away. 

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

Additional Resources:

Your dead ex-spouse's debt can become your problem, June 25, 2014, By Jeanne Sahadi, CNN Money

More Blog Entries:

In re: Thomas - Bankruptcy Court Deems Mortgage Lien Non-Dischargeable "Domestic Support Obligation," June 24, 2014, New York City Divorce Lawyer Blog

In re: Thomas - Bankruptcy Court Deems Mortgage Lien a Non-Dischargeable "Domestic Support Obligation" - See more at: http://gilmerlegal.com/lawyer/2014/06/24/Bronx-Divorce-Lawyer/In-re-Thomas---Bankruptcy-Court-Deems-Mortgage-Lien-a-Non-Dischargeable-Domestic-Support-Obligation-_bl13947.htm#sthash.khvNT8lr.dpuf 


Tuesday, June 24, 2014

In re: Thomas - Bankruptcy Court Deems Mortgage Lien a Non-Dischargeable "Domestic Support Obligation"

The Bankruptcy Appellate Panel for the Sixth Circuit recently ruled that a divorce husband is obligated to pay his ex-wife the full $12,500 reimbursement for mortgage liens and obligations, despite his Chapter 13 bankruptcy filing, because these debts were classified as "alimony, maintenance or support."

This case highlights an issue our Brooklyn divorce attorneys unfortunately encounter all too often, which is one spouse initiates a bankruptcy action in the midst or immediately following a divorce.

This can complicate matters for a host of reasons, particularly as it relates to debt. For example, let's say both spouses shared a credit card. The family court judge declares both parties should split that debt. But then, one spouse files for bankruptcy, allowing protection in the form of an automatic stay and, ultimately, discharge of responsibility for that debt. Suddenly, despite what the divorce decree says, the other spouse is stuck holding the entire bill.

There may be some remedies available in these situations, but the approach varies depending on the facts of the case, so it's important to speak with an experienced attorney.

The good news is that federal bankruptcy law will not allow anyone to shirk domestic responsibilities to their ex-spouses or children. That is, no matter what kind of bankruptcy they file, they aren't off the hook for spousal maintenance or child support.

The case of In re: Thomas was a bit more complicated for the fact that the reimbursement the ex-wife sought was not technically in either one of these forms.

Here, the couple first divorced in 2003, with the husband relinquishing interest in the home for the wife's agreement to hold him harmless from the obligation to pay on the two outstanding mortgages on the home. The two reconciled and remarried the following year, but again divorced in 2007. Here again, the husband agreed to give up whatever interest he had in the home. He was obligated to pay child support, and the two agreed they would split the second mortgage debt. He deeded his interest in the home to her.

Prior to the conclusion of the divorce, an $8,000 lien was attached to the property. The house was sold soon after, with the wife negotiating the lien down to $5,000.

In the divorce decree, the husband was required to reimburse his ex $7,500 for the second mortgage and $5,000 for the lien.

Soon after, the husband filed for relief via Chapter 13 bankruptcy.

The ex-wife filed a priority unsecured claim for domestic support in that bankruptcy case, citing the $12,500 he owed her.

He countered that claim was not a form of domestic support, and further that the claim was satisfied once the home was sold.

In order to determine who was right, the court relied on the findings in Long v. Calhoun (In re Calhoun), also known as "the Calhoun test." This standard holds that in order to be considered a support obligation if:

  • The state court or both parties intended to create a support obligation.
  • The obligation has the actual effect of providing support that is necessary.
  • The obligation is reasonable.
  • If the obligation is unreasonable, and the first two criteria are met, how much should be discharged so as to make it reasonable?

Here, the court pointed to uncontested testimony from the ex-wife that her own income was enough to cover both mortgages. Therefore, the support was necessary. Additionally, the court found it likely that the order allowing the ex-wife to keep proceeds of a possible sale of the home, while requiring the husband to cover any deficiencies, was likely intended to help provide the children's need for a home.

The court further found the obligation was reasonable, and therefore ordered him to pay it.

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

Additional Resources:

In re: Thomas , June 3, 2014, Bankruptcy Appellate Panel of the Sixth Circuit

More Blog Entries:

Stanley v. Stanley - Marital Misconduct and Impact on Property Division in New York City Divorce, June 9, 2014, Brooklyn Divorce Lawyer Blog

Tuesday, June 24, 2014

Parental Consent for Child Travel, Here and Abroad

Summer is the most popular season for travel. The biggest concern of some families: Trying not to over-pack.

However, for families with contentious child custody agreements, Brooklyn family law attorneys recognize that the subject of international travel can quickly become a major dispute.

If the party attempting to travel has family in another country, they may feel it especially important to bring the child to experience the culture and spend time with extended family. On the other hand, the party disputing the travel may have concerns about disruption of the parenting time agreement, and maybe even fears parental abduction.

Both viewpoints are legitimate and deserve fair consideration by the court when the two sides can't come to a mutual agreement prior to the trip.

Successful initiation of an international trip under these circumstances will involve planning the trip far in advance. That way, if issues do arise, they can be dealt with well before there is a time crunch to have these matters resolved.

Similarly, the parent wishing to challenge the travel should contact a family law attorney as soon as possible to explore potential options.

Generally speaking, children traveling within U.S. borders with just one parent or without either don't have many requirements and aren't greatly restricted. In other words, grandma doesn't necessarily need a parental consent form to take the children to the summer vacation home, although it couldn't hurt to have one just in case.

Special travel requirements for children are primarily reserved for those who are traveling overseas or crossing international borders. These tighter controls are intended to protect children from international custody disputes and kidnapping situations.

The requirements vary by country of destination. Your attorney can help you consult with the consular office from that nation to find out exactly what documents will be necessary for the child to travel there.

This does not excuse a parent from having to obey the orders of the family court stateside, if they wish to remain in good standing with the local courts.

In general, most minors are going to need a passport for international travel. The only exceptions would be Canada and Mexico when traveling by land or sea. In applying for a passport, at least one of the child's parents or legal guardians needs to be with the child at the passport office to sign a Form DS-11 before the passport agent. If both parents share custody and the other is not able to be present at the passport office, the other parent has to submit a Form DS-3053, which is a notarized Statement of Consent.

With regard to parent consent for specific trips, these forms aren't required for all international destinations. Usually, however, the U.S. Department of State recommends the child traveling with one parent have one from the other parent. There is no official form, so parents can draw up their own (samples are online, and your attorney can help). Some countries mandate that the letter be notarized.

It's important to note that in all matters, the court is going to take into account the child's best interest. Therefore, a court will not seek to hinder travel of a child where such an experience may be beneficial. However, neither will the court allow it if there is evidence to suggest the other parent may abscond or the experience could be harmful.

Call us today to learn more about how we can help.

Contact our Brooklyn Family Law offices at (718) 864-2011.

Additional Resources:

Parental Permission to Travel With Minors, June 2014, By Jenny Harrington, Demand Media/USA Today

More Blog Entries:

Requests for New York Child Custody Modifications Must be Convincing, June 15, 2014, Brooklyn Family Law Attorney Blog

Sunday, June 22, 2014

Owen v. Owen - Ensure Your NYC Prenuptial Agreement is Enforceable

A recent divorce case reviewed by the West Virginia Supreme Court calls into question the validity of prenuptial agreements, and whether there are some circumstances in which they can't be enforced.

New York City prenuptial agreement attorneys would point out that established case law in West Virginia varies somewhat from what the courts have found in New York.

But before we explore the latter, let's look at the case of Owen v. Owen, and how this can serve as a lesson to those contemplating a prenuptial agreement in New York.

In this case, the husband and wife were married in 1981. Each had been married previously, and had custody or partial custody of children from these earlier marriages. Husband was 38, while wife was 23. Four days before the wedding, a prenuptial agreement was drafted by an attorney who had represented the husband in prior matters.

The wife was not given a copy of the proposed agreement before agreeing to sign it. However, the husband did have access to it, and did make some edits. The attorney who drafted the agreement reviewed the general terms with the wife, but did not discuss specifics with either the husband or wife.

The wife would later testify she did not receive a copy of this document until she filed a petition for divorce in 2005. The agreement stated neither party would seek spousal support, that if children were born of the marriage, they would be supported equally, each parent demanding no more than half from the other, and that all personal property holdings would be free and clear of claims from the other in the event of a divorce. At the time, the husband's net worth was noted to be nearly 14 times that of the wife.

The couple were married more than two decades and had two children together. The wife filed for divorce in 2005, but the pair reconciled. However, she filed for divorce again in 2011. The husband sought enforcement of the prenuptial agreement.

However, the wife insisted the prenuptial agreement was unenforceable because she was not privy to the extent of her husband's asset at the time the agreement was signed.

A family court order invalidated the prenuptial agreement on the grounds the wife did not at the time of signature have full knowledge of the contents of the agreement. Additionally, despite express language in the agreement stating otherwise, the wife did not have independent counsel advising her with regard to the agreement. It was contested whether the attorney who drafted the document ever indicated he could represent her interests, though the husband had told the wife the lawyer represented them both.

Additionally, the court noted the provisions regarding child support ran contrary to state law, as such payments are based on parental income in consideration of the best interests of the child - not what parents agreed to before the children were born.

This invalidation of the prenuptial agreement was later upheld by both the appellate and the state supreme court.

New York courts, however, have in some recent cases displayed a willingness to enforce prenuptial agreements, even in cases where they seem inherently one-sided.

A good example is Barocas v. Barocas in 2012. In this case, the wife, a native of Guyana, married her husband when she was 20-years-old, without a high school diploma. She had $2,500 in assets at the time, while the husband had nearly $600,000. The prenuptial agreement indicated the wife waived all rights to all husband's property in the event of a divorce, and also that she would forfeit any jewelry or other gifts given to her by the husband.

Clearly, the agreement was incredibly one-sided.

At the time of the divorce, the wife had an IRA valued at $30,000, while the husband had a net worth of $4.6 million.

Still, the courts chose to affirm the enforcement of the prenuptial agreement, finding the wife entered into it voluntarily. A key point in the case was that an attorney, hired by the husband to represent the wife on the issue prior the marriage, advised her not to sign the document. She did so anyway.

The court did find there were some factual issues regarding the wife's waiver of spousal support in the agreement, and that issue was remanded for further proceedings.

The question in these cases is not so much whether the agreement is fair, but whether both parties entered into the agreement voluntarily. Expect too that any issues pertaining to the care and support of the children will be subject to heightened scrutiny by the court.

If you are interested in information about New York City prenuptial agreements, call our offices at (718) 864-2011.

Additional Resources:

Owen v. Owen, June 4, 2014, West Virginia Supreme Court

More Blog Entries:

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences, May 28, 2014, New York City Prenuptial Agreement Lawyer Blog

Friday, June 20, 2014

New York City Stepparent Adoption Process Requires Careful Legal Review

Blended families are more frequently becoming the norm throughout the U.S.

With this, our New York City family law attorneys have seen a growing number of stepparents who wish to legally remove the "step" from the relationship with the initiation of a formal adoption.

There can be a host of benefits to making the tie between parent-and-child a legal one. There is of course the emotional aspect of it. Additionally, there may be certain health care and other benefits that may only be conferred from the stepparent to the child if he or she is considered the legal parent. Plus, it ensures that should anything happen to the other spouse, the stepparent will have the unquestionable right to assert child custody.

In most cases, unless the other biological parent is deceased, the first step toward a formal stepparent adoption is termination of parental rights of the other biological parent. For some, this is a relatively simple matter, particularly if the other parent's absence involves, for example, an extended period of incarceration that is unlikely to end soon.

In New York, a biological parent can voluntarily choose to forfeit their parental rights and responsibilities. In other cases, it may be necessary to seek a court order to forcibly terminate parental rights. In order for the latter to take place, the biological parent whose rights are in jeopardy must have abandoned the child, or in other words have had no contact for a period of six months or more. Even then, termination of parental rights are not necessarily guaranteed. It will be up to the stepparent and his or her spouse to prove why such action is in the best interest of the child.

The recent case of Wayne G. v. Jacqueline W., before the Nebraska Supreme Court, was an example of where the termination of parental rights for the purpose of stepparent adoption was upheld. Although this is an out-of-state case, the same legal principles are applicable here in New York.

In this case, a couple met in California, had a daughter together there and then separated, with the mother taking the child to Nebraska in 2006. Five years later, the father sought to establish paternity and parenting time. The mother responded by affirming he was the biological father, but asserted he was not a fit parent, and filed for termination of his parental rights.

At the hearing, the mother presented evidence from numerous witnesses of past physical abuse, not just on her but on previous spouses and even children. She also provided documentation of his extensive struggle with crack cocaine addiction, and his lengthy criminal record, which included felony convictions. She also indicated that his parental rights to other children had been terminated. Further, she had remarried and her new husband wished to adopt the girl, who called him "daddy."

The father conceded his checkered past, but insisted he had changed his life in three years preceding and was ready to be a father to the child in question. He testified he'd been two years clean, was properly medicated and had a good relationship with his long-term girlfriend's children.

The county court sided with the mother in finding termination of the biological father's parental rights were in the best interest of the child. An appellate court affirmed, and so did the state supreme court.

Courts generally will not agree to terminate parental rights unless there is strong cause to suggest it is in the child's best interests. Evidence of prior abuse, drug addiction and abandonment may all lay a solid foundation for this claim. There could be other grounds as well, depending on the circumstances in your case.

Contact us today to learn more about how we can help.

Call our New York City Family Law offices at (718) 864-2011.

Additional Resources:

Wayne G. v. Jacqueline W., June 6, 2014, Nebraska Supreme Court

More Blog Entries:

Davidson v. Carrilo - Importance of Attorney Representation in Brooklyn Child Custody Matters, May 30, 2014, New York City Family Law Attorney Blog

Wednesday, June 18, 2014

Always Consider Tax Implications in Brooklyn Divorce Asset Division

When it comes to property division in divorce, there is no one-size-fits-all answer that is going to work in every case. That said, our Brooklyn divorce attorneys believe there is often a right and a wrong answer in each individual case, depending on the assets in question and the people involved.

It's our goal to ensure each eligible asset is included and carefully considered prior to any sort of division or liquidation efforts. The key is to have someone with experience on your side. Often, there can be unintended consequences with certain types of account divisions and liquidation that could end in an unfair penalty or burden on one party or the other if your counsel isn't careful.

To understand our approach, it's first important to get a sense of how the state views asset division in a divorce. New York follows the equitable distribution model. This is a method that aims to divide a couple's marital belongings fairly. To be clear, "equitable" does not mean "equal."

It's not uncommon for a spouse who worked for years as a stay-at-home parent to receive the lion's share of the divorce settlement, after the judge weighs each spouse's income, age, health, marriage duration, nest egg and probable future financial circumstances.

That scenario, however, is becoming less common as it is more likely that both spouses have maintained careers outside the home.

Spouse's may agree on all the surface issues - one gets the car, the other gets the house, one pays the credit card, the other pays the mortgage, etc.

Where it can start to get tricky is when we examine how some of these decisions impact your taxes and other long-term financial health.

For example, if the spouses agree to liquidate the 401(k), that's likely going to mean a huge tax bill the following year on which you likely weren't counting and probably won't have the capital on hand to cover. That can be the start of a downward financial spiral.

Another potentially costly mistake some couples make is choosing to hold onto the family home. For many people, we find this is a purely emotional decision. Unfortunately, the cost of keeping a family home on one income simply isn't sustainable for most people, and it can result in more debt for both parties than it's worth. A prime example is a wife who is forced to refinance the mortgage in order to take the husband off the loan, only to find out that he doesn't qualify to take on the new mortgage solo.

Typically, however, the most mistakes occur because there is a failure to fully consider the tax implications of asset division.

Let's say the husband decides to keep a home with $500,000 equity. Meanwhile, the wife cashes out the 401(k) valued at the same dollar amount. The reality is that up to one-third of that account could go to taxes. On the surface, it may all look even, but the facts will ultimately bear out otherwise.

In most situations, your Brooklyn divorce lawyer will look to liquidation of assets as a last resort. The reason is that this action in itself is taxable. Meanwhile, a transfer of assets between spouses is not something on which the government can issue a tax.

Assets should always be assessed on an after-tax basis. It's important to make sure the cost basis of investable assets are fully understood. If you own a business, you'll want to make sure there is a good business valuation on any real estate, equipment, customer bases, etc. All collectibles should be appraised. Additionally, we generally advise it's a bad idea to liquidate a 401(k) (if it's at all avoidable), and warn against selling any asset without first getting a fair price. This protects both parties.

Tax considerations are especially important when weighing the division of stock, options and deferred compensation rights.

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

Additional Resources:

Not always a rose: avoiding thorny asset liquidation issues in divorce, June 14, 2014, By Deborah Nason, CNBC

More Blog Entries:

Requests for New York Child Custody Modifications Must be Convincing, June 15, 2014, Brooklyn Divorce Lawyer Blog

Sunday, June 15, 2014

Requests for New York Child Custody Modifications Must be Convincing

Family court judges aren't apt to create a disruption in the lives of children by altering the child custody agreement unless it can be proven that there is a good reason for it.

Brooklyn child custody modification lawyers know that in order to alter a previously-established parenting arrangement, the moving party needs to show there has been a material change in circumstances. He or she must also show why a modification is in the best interests of the child.

Courts will generally strive to place children in a joint physical custody arrangement, wherein both parents share equally (or at least equitably) in parenting time. However, sometimes that is simply not possible, particularly if one or both parents is moving out of the area.

A move would be considered a "material change," but whether it is in the best interests of the child to stay or go will be up to the court, regardless of who held primary custody originally.

This was the issue at hand in the recent case of Schroeder v. Schroeder, reviewed by the North Dakota Supreme Court.

According to court records, the pair married in 1999 and had two children, one in 2000 and another in 2002. Five years after the birth of their second child, the pair sought a divorce. According to the original custody agreement, they were awarded joint legal and physical custody of the children.

Two years later, the mother moved out-of-state, and sought to obtain primary physical custody of the children. The father opposed the motion, and subsequently filed his own, requesting primary residential custody. Each indicated there had been a material change in circumstances requiring an alteration of the earlier custody agreement.

The district court sided in favor of the father.

Another two years passed. The mother informed the father that the following year, she intended to move to  yet another state. Around the same time of her move, the father moved to Florida, with both the children. He dropped the children off with their mother in her new home state for their summer parenting time. While the children were in her care, she filed a motion to amend judgment, again requesting primary physical custody. The father opposed.

In August of that year, the father moved for an order to show cause why the other shouldn't be held in contempt when she failed to return the children to him in Florida following the conclusion of their summer visit. In September, the court denied the mother's motion, reasoning there had been a material change in circumstance, but she failed to establish that her request was in the best interest of the children. The court further ordered her to return the children to their father in Florida.

The mother appealed, saying the district court erred in failing to fully consider her arguments. The state supreme court addressed them one-by-one.

In the first argument, she contended the father "has expressed in correspondence" to both her and the kids his intention to infringe upon and restrict her parenting time. However, she did not submit to the court any copies of such correspondence, and neither did she provide affidavits by either child that supported this allegation.

Secondly, she indicated the children were distraught about their move to Florida, saying they'd had little time to say goodbye to friends, teachers and family members. The court didn't doubt  her firsthand accounts of this, but said the allegation ignores that the children would have had to relocate regardless, whether they lived with her or their father.

Thirdly, she argued the children had a tough time being separated from their half-siblings. Again, the court indicated they would be separated regardless of which parent was awarded custody.

Fourth, she asserted that her older child preferred to stay with her. While the preference of a mature child is generally weighted by the court, the mother provided no affidavit from the child to back this assertion.

Fifth, she indicated that the schools in her new home state were superior to those in Florida, and could better meet the needs of the children, one of whom was developmentally disabled. However, she failed to provide any information to the court to prove this.

Finally, she alleged that the children would be living with their paternal grandfather, whom she claimed routinely threw large parties with copious amounts of alcohol. However, the father denied he and the children would be living with his father, and further, contended his ex-wife hadn't provided any proof of her allegations.

Based on all this, the court indicated that while a move by both parents was considered a material change in circumstance, the mother failed to prove that staying with her would be better for the children.

If you are contemplating a Brooklyn child custody change, call our offices at (718) 864-2011.

Additional Resources:

Schroeder v. Schroeder, May 2014, North Dakota Supreme Court

More Blog Entries:

Davidson v. Carillo - Importance of Attorney Representation in Brooklyn Child Custody Matters, May 30, 2014, Brooklyn Child Custody Lawyer Blog

Friday, June 13, 2014

Report: 1 in 3 Marriages With Sick Spouse Ends in Divorce

Couples vow on their wedding day to care for one another in both health and sickness. However, a new study conducted by researchers at the University of Michigan suggests a growing number of spouses aren't holding up the latter half of that bargain. One-third of marriages in which a spouse falls ill ends in divorce, researchers say.

It appears whatever flaws exist in a union become amplified with the stress and hardship of one spouse falling seriously ill.

Divorce attorneys in New York City recognize that these cases require special attention. For example, issues of health insurance become matters of key importance. Judges deciding child custody may factor in the ill parent's ability to provide for the child's day-to-day needs. Spousal support, too, may be ordered to the ailing person, where it otherwise might not have been, depending on the severity of the illness and expected outcome.

For this study, researchers sifted through data on more than 2,700 marriages and outcomes over the course of two decades, beginning in 1992. The study authors analyzed how the onset of one of four serious physical illnesses affected marriages. Specifically, they looked at cancer, lung disease, stroke and heart problems. What they found was 31 percent of those marriages affected by one of these illnesses ended in divorce.

Women in particular seem to be at a double disadvantage. Men were most often the ones who developed these diseases, so they were at higher risk of becoming widowed. Conversely, when it was the woman who fell ill, there spouse was twice as likely to file for divorce, as compared to when the situation was reversed.

Researchers didn't specifically delve into this disparity as part of the formal data mining, but they did generate a few theories. The first theory is that social expectations and gender norms regarding care taking could make it tougher for males to provide care to ailing wives. Secondly, because men tend to die sooner, the more they age, the more prospective partners they may find among divorced women.

This same pattern has borne out in previous studies. In both 2001 and 2009, researchers at the Penn State School of Medicine analyzed the issue and found married women are more likely to become separated or divorced following a terminal illness diagnosis.

If an ill spouse maintains health insurance through the other, sometimes it can be best to postpone or cancel the divorce proceedings, if at all possible, in order to ensure continued health care coverage through the course of the illness. However, sometimes that simply isn't ideal or possible. In those cases, a divorce attorney can work to have your spouse's health insurance coverage continue as part of the divorce settlement or spousal maintenance award, at least until Medicare, Social Security Disability or some other form of insurance and/or financial assistance can be made available.

Additionally, spouses in this situation may need additional assistance with estate planning documents. Records for health care power of attorney, advanced medical directives and your will may need to be revised. One must be careful how this is done, however, because once a divorce is filed, most assets are likely to be lumped into the "marital estate" and can't simply be gifted or transferred without prior approval from the court.

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

Additional Resources:

'Til sickness do us part: How Illness Affects the Risk of Divorce, May 1, 2014, University of Michigan's Institute for Social Research

More Blog Entries:

Boulds v. Nielson - Just Because You Weren't Married Doesn't Mean You Won't End Up in Court, May 16, 2014, New York City Divorce Lawyer Blog

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