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Thursday, May 22, 2014

Expectancy of Interest Argument Against Property Inclusion in Marital Estate

In filing for a Brooklyn divorce, one of the first things both sides will seek to establish is a full accounting of a couple's assets, income, and interests. It is then up to the court to determine whether such property is divisible as part of marital property, or whether it should be retained solely by one spouse as separate property.

What is considered marital property and what is considered separate is a determination that varies from state-to-state. Generally, though, assets acquired during the marriage are marital. Those acquired before or received under special circumstances may be held separate.

As the recent case of Coburn v. Cook shows, this determination can impact not only whether a party gets to keep the property in question, but may also impact how other property is divided.

This is a case out of Vermont, which, like New York, is an equitable distribution state.  This means the court is going to seek to divide marital assets equitably (which does not necessarily mean "evenly").

The dispute upon appeal to the Vermont Supreme Court was whether a husband's "expectancy interest" in a property should have been lumped in with the other marital assets.

Here, the parties married in 1997. They had a daughter in 1999 and separated in 2010. The court issued a final divorce order in 2013, when the wife was 48 and husband 55.

Prior to the marriage, the wife had her own horse stabling and training business, with property valued at $260,000. The husband assisted, and as a labor intensive operation, it was worth more when they worked together than when she worked alone. The husband also worked various other jobs. In 2010, prior to the couple's separation, the husband's mother deeded a 160-acre family farm to her son, though she retained a life estate and the power to sell or mortgage the property during her life. That property was appraised at $425,000, plus there was an adjacent empty lot he owned valued at $15,000. The parties also owned a small joint business together valued at $40,000.

The court analyzed both parties' employment and living situations, with the husband living with his mother and working part-time as a bus driver and the wife continuing to work in her stabling business and also running the business she started with her husband.

The court awarded the wife the horse stabling property, an adjacent lot, the couple's joint business and other personal property. The husband was awarded his mother's farm, the adjacent lot and other items of personal property. The court determined the value of the wife's award was around $436,000 while the husband's was around $453,000. No spousal support was awarded.

The husband appealed, arguing that the court wrongly included his mother's farm in the marital estate. He held that the terms of the warranty deed meant that he held an interest that would be considered similar to that of a beneficiary in a will or revocable trust. The court overlooked this fact, he contended. As such, the wife retained a disproportionate share of the marital estate. 

The Vermont Supreme Court agreed with him on the first argument. While noting that the court has a wide range of discretion in determining what is marital property, the court harkened back to earlier case law that held any interest a spouse held as a beneficiary under a revocable trust or will wasn't deemed marital property, ripe for court-ordered distribution, if the settlor was still alive. The reason was that the property was or interest was a mere "expectancy."

The court ruled that in the Coburn case, the husband's interest in the property was inchoate, or not fully developed, and therefore could not be distributed as marital property.

The same kind of outcome could generally be expected in New York, though the major exception with expectancy of interest would be pensions or retirement benefits. The courts have ruled that these are earned by both spouses in a marriage, and may be considered as marital assets available for division.

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

Additional Resources:

Coburn v. Cook, May 2, 2014, Vermont Supreme Court

More Blog Entries:

Baby Boomer Divorce Requires Financial Preparation, May 2, 2014, Brooklyn Divorce Lawyer Blog

Tuesday, May 20, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse is not grounds enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact substance abuse had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year in their previous hometown in Nebraska.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work. She admitted prior methamphetamine use, saying she was clean for seven years, but then relapsed in 2012. She conceded that authorities had removed her children before due to her drug use. She later completed a court-ordered program, and the children were returned. She admitted to another relapse in March 2013, but said the girls were not present.

Later, after a period of time during which social workers could not reach her, she came into the offices at the agency's request. She indicated the girls were with her mother, she had been staying with a boyfriend and had been using. Social workers noted her odd behavior during the interview, which involved wildly swinging emotions, from laughing to crying to anger. A drug test confirmed substances in her system, and staffers who administered the test believed she was under the influence at the time.

Child protection workers arrived at the grandmother's home the next day. They found the residence to be spacious, clean, appropriately furnished and the children appeared well taken care of.

The mother stated she visited the children with the grandmother's supervision, but that she ultimately wanted the girls back in her care. She said she changed her phone number, ended a number of unhealthy relationships and was willing to attend inpatient treatment.

She did later attend outpatient treatment, but then relapsed again and was admitted for residential treatment. At this point, the state filed a petition alleging that the girls should be classified as "children in need of assistance." This essentially would take formal custody away from the mother.

The mother was not represented by an attorney in court. She did not object to any of the state's exhibits and she presented no evidence of her own. The court declined immediate adjudication, instead calling for another hearing. Yet again, the mother had no legal representation, and did not refute any of the items the state entered into evidence. 

Subsequently, the court ordered the girls to be formally placed in the care of their maternal grandmother.

At that point, the mother retained a lawyer and appealed. The appellate court reversed, finding that the state failed to meet its burden of proof to show that the girls needed to be adjudicated as children in need of assistance. The state then sought review from the Iowa Supreme Court.

The high court indicated that simply showing that a parent was a methamphetamine addict - without more - isn't sufficient evidence to establish that there is an immediate risk of physical injury to the child.

In New York, there have been cases where a parent with a history of substance abuse was chosen to be a more fit parent than other relatives. An example is Worowski v. Worowski, a 1983 decision rendered by the Appellate Division of the Supreme Court of New York, First Department. Here, the court ruled that a mother with a history of alcoholism who was improving was a more fit parent than a 74-year-old father who had little to no meaningful interaction with the child.

This is not to say that New York family courts will turn a blind eye to children who suffer as a result of a parent's addiction. However, addiction alone is not necessarily enough to warrant stripping the parent of custody rights. Every case will be different.

Consulting an experienced family law attorney is the best way to determine your options.

If you need assistance in dealing with New York ACS, call our offices at (718) 864-2011.

Additional Resources:

In re: Interest of J.S., April 25, 2014, Iowa Supreme Court

More Blog Entries:

Failure to Follow Brooklyn Child Custody Orders Can Result in Sanctions, May 1, 2014, Brooklyn ACS Attorney Blog

Sunday, May 18, 2014

Court: Phone Sex Not Grounds For Resetting Divorce Clock

A family law judge in Maryland held that a couple's phone sex with one another did not reset the clock on their divorce, which was filed on the grounds of a 12-month separation. The two had not been physically intimate during that time, but the wife contended they had "engaged in marital relations."

The allegation had the potential to derail the divorce proceedings entirely, as filing on the grounds of a separation required that the couple had not "cohabited." But is sex cohabitation? If so, does phone sex count?

New York City no-fault divorce lawyers know that this finding is relevant to New Yorkers because our state has significantly less previous case law on such matters than other states, having only adopted no-fault divorce legislation in 2011.

No-fault divorces in New York may be granted if husband and wife have lived apart pursuant to a written agreement of separation for at least one year or if the relationships has been "irretrievably broken down" for at least six months prior to the filing. Any indication that the couple has been intimate during this time won't necessarily force the couple to restart the proceedings, but it could certainly be used by one of the parties to delay matters.

Like Maryland, New York retained its fault-based divorce grounds, and just added the no-fault divorce ground. Prior to this addition, there were other fault-based grounds for divorce that could have been applicable if one spouse moved out. These included abandonment of 12 months or more, cruel or inhuman treatment that causes a spouse to discontinue cohabitation for 12 months or more or confinement of one spouse in prison for three or more years.

Today, family courts are less concerned with determining who is wrong in the situation and more concerned with whether the union is over, and if so, how to reach equitable solutions on matters of property distribution and child custody.

In the case of Bergeris v. Bergeris, the pair married in 2006. In 2010, the wife retained a restraining order against her husband, and he moved out. The order expired six months later, and the two continued to live separately. They did for a time resume a sexual relationship, but that ended in March 2011, after which they did not share in-person, intimate contact. However, the pair did exchange text messages and phone calls that were of an explicit sexual nature.

By March 2012, the husband had already filed for divorce, but amended his complaint on the grounds of a one-year, uninterrupted separation. The wife refuted this on the basis of their intimate electronic communications.

The questions before the court were whether sex should be considered the same as cohabitation in determining whether a couple is truly separated, and secondly, whether electronic sexual encounters should be considered.

The trial court ruled that "without cohabitation" should be interpreted as "without sexual relations," and that phone sex is considered part of a sexual relationship. That meant separation clock would have to be reset to the time of their last intimate communication.

Upon review, the Maryland Court of Special Appeals agreed with the first part of the trial court's ruling - that sex equals a form of cohabitation - but disagreed that phone sex qualified. The justices pointed to a persuasive argument presented by the husband, which was that there was a legal standard problem in how to define "phone sex," and there was also an evidentiary problem in determining whether it happened in the first place.

Therefore, the court held, instances of electronic or telephonic communication of an intimate nature - absent physical sexual contact - isn't considered cohabitation for the purposes of divorce proceedings.

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

Additional Resources:

Bergeris v. Bergeris, April 30, 2014, Maryland Court of Special Appeals

More Blog Entries:

Negotiating a Fair New York City Divorce Settlement, May 5, 2014, New York City Divorce Lawyer Blog

Friday, May 16, 2014

Boulds v. Nielson - Just Because You Weren't Married Doesn't Mean You Won't End Up in Court

Cohabitation has quickly become "the new normal" for couples in the U.S., with women more commonly choosing to live with men first before marriage, and many of those relationships never being legally formalized.

However, Manhattan divorce attorneys know that just because a couple wasn't married doesn't necessarily mean that disputes won't be handled in court, or that former cohabitants won't have to divide property or pay support.

In the recent case of Boulds v. Nielson, the Alaska Supreme Court supported the lower court's findings, which essentially handled the separation of a cohabiting couple much the way it would a divorcing one.

Here, the pair were together 16 years. During that time, they lived together, raised children together and owned property together. He claimed her as a dependent on his taxes. However, they never married.

The court determined that their union had been a legal domestic partnership, and as such, matters of child custody and property and asset division could be appropriately litigated in family court.

The proceedings were largely uncontested, save for the issue of certain insurance and retirement accounts. Namely, these involved an insurance death benefit, a 401(k) retirement account and a union pension. The holder of these counts argued that they belonged to him alone. His former girlfriend argued otherwise.

The court found that the insurance death benefit and the 401(k) account were his alone, but the union pension benefits were not, and could be considered a domestic partnership asset subject to division.

The man appealed that federal law barred division of his union pension with a non-spouse, and that the lower court had erred in considering only his initial intent to share the pension with his then-girlfriend for the benefit of their kids.

However, the state high court rejected the notion that federal law barred distribution of union pension benefits to non-married spouses. Under state law, the court found, she was entitled to half.

This mirrors what we might expect to see at the conclusion of a New York City divorce trial, though each state varies a great degree on what it considers to be a "common-law marriage" or a "domestic partnership," and legal protections vary greatly.

In New York, domestic partnerships can be obtained through the city clerk's office. Though they were more heavily utilized for homosexual couples before gay marriage was green-lighted, they are still available, and aren't limited to gay and lesbian couples. Among the benefits of a domestic partnership:

  • Entitlement to health insurance benefits;
  • Authorization to be awarded monetary compensation for a partner who dies in the line of duty as a firefighter, police officer, school crossing guard, correctional officer or sanitation worker - or any other city worker killed in the course of duty.
  • Be considered in housing subsidy arrangement;
  • Afforded all next-of-kin visitation rights in hospitals, nursing homes and health care facilities;
  • Entitlement to receive workers' compensation benefits from eligible spouses.

Still, equitable division of property in the event of a separation for a couple with a domestic partnership or who are simply cohabiting is not necessarily a given.That's why we usually recommend drafting a cohabitation agreement that spells out all relevant division of property, should you decide to part ways.

These matters can be more complex than they appear on the surface, and the advice of an experienced family law attorneys is typically warranted.

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

Wednesday, May 14, 2014

New York City Pet Custody Issues Likely to Increase

When people welcome a pet into their home, they commit to loving it forever - and they usually do. The same is often true of couples who commit to love one another forever, though sadly, about half the time, it doesn't work out that way.

Being that New York City is such a dog-centric place, it's a wonder that the first real case of pet custody we saw was last heard in December. The puppy custody battle in Travis v. Murray made it all the way to the New York County Supreme Court. The judge in this case clearly struggled with the decision, noting that while most humans regard their dogs as fellow humans, the law in the state still technically regards them as "chattel," where their fair market value is the greatest consideration.

But before we get to the conclusion of that case, New York City custody lawyers would note that we are far from the only place dealing with this issue - though every state has tended to handle it a bit differently.

Vermont, for example, recently ruled in the case of Hamet v. Baker, where a couple married for nearly a dozen years had agreed on the division of everything else - except the dog. The 11-year-old pointer was undeniable loved greatly by both the husband and wife, who had no children together.

Prior to a hearing to decide the matter, counsel for both parties indicated that the court would consider who was most active and caring toward the dog, and underscored the fact that the court would not enforce a visitation schedule, even if both parties agreed to it.

Both testified at the hearing to strong emotional ties toward the dog. The husband, a veterinarian, took the dog to work with him daily. The wife spent time walking the dog in the woods each day. Each was involved in the dog's daily care.

The court ultimately awarded custody to the husband, finding that though either party could provide the dog a good life, the husband was favored because the dog was used to the routine of going to work with him each day. This was weighed against the dog's familiarity with the marital home, which the wife was keeping in the divorce settlement.

The wife appealed the court's refusal to entertain a joint custody arrangement, but the state's supreme court affirmed, holding that a family court can't enforce visitation or shared custody orders for animals.

Here, the court took an approach that quasi-humanized the animal. It considered the animal's best interests, similar to the way we might consider a child's best interests. However, it declined to allow for joint custody, the way it would normally do in a child custody case.

In New York, Manhattan Justice Matthew Cooper oversaw the Travis case. Prior to the conclusion in that case, Cooper was quoted by the New York Post as saying that he was surprised he hadn't seen more of these cases up until that point, and that he expects more will be heard in the future.

The Travis case involved a 2-year-old miniature dachshund puppy named "Joey." Each of the two divorcing women asserted that she was able to provide the most loving, stable home for the dog.

The judge noted that the only similar prior case to arise before the court involved an older Labrador mix. In that case, the wife agreed to drop the matter due to the dog's old age, and the canine did die just a few months later. Cooper noted that given Joey's age, this case was unlikely to be resolved by death.

The judge went on to say that case law was just beginning to evolve in this arena. 

He declined to use a strict property analysis in the Travis case. The judge then looked to standards adopted by other state courts, as the record in New York for these kinds of cases is limited.

For example, the 1999 case of Raymond v. Lachmannhad established that the concept of a pet as merely household property is "outmoded." There, the judge took into account the well-being of the dog, the well-being of an elderly cat in the home and the relationship he shared with each party. Essentially, certain intangibles transcended ordinary actual ownership or right to possession.

The judge determined that a single hearing - not to last more than a day - should be held to determine who will get full and final custody of the creature. Joint custody or visitation arrangements would not be entertained, and each side would have a chance to present their case.

A date on that hearing is still pending.

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

Wednesday, May 14, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse alone is not ground enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact that substance abuse has had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict alone is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work.

Friday, May 9, 2014

Grandparent Visitation Rights in Brooklyn Not a Given

The relationships shared with grandparents can have a positive and profound impact on the life of a child. This is something that the courts recognize in cases where grandparents seek visitation rights with the children. However, a court's response may be greatly tempered by the 2000 U.S. Supreme Court ruling in Troxel v. Granville, which essentially asserts that a fit parent will act in the best interests of the child, and therefore his or her wishes must be given special weight.

Still, it is heartbreaking for the grandparent of a beloved child to be told they are no longer welcome to spend time with the child. This is particularly true if you were heavily involved in the child's life prior to that point. If it's at all possible to resolve the case out-of-court, that's the most desirable option. Still, Brooklyn family law attorneys know in some cases, grandparents - and other relatives - can successfully seek court-ordered visitation rights, where the court deems it in the best interest of the child.

A number of recent cases illustrate this, including Eaton v. Paradis, reviewed by the Maine Supreme Judicial Court, In re S.B., reviewed by the North Dakota Supreme Court and Kulbacki v. Michael, also reviewed by the North Dakota Supreme Court.

In the Eaton case, the parental grandmother sought de facto parental rights to her son's children, who had lived with her for a time, after the mother regained custody. The children initially lived with their mother, but she asked the children's paternal grandmother if she could take them for a while, as she was being abused by her boyfriend. The children's father was also living at the residence, and three months later, sought to obtain sole custody of the children due to ongoing domestic violence issues. The court granted the motion, allowing the mother supervised visits.

Three years later, the mother sought primary custody of the children, alleging that the children were living solely with their grandmother, not their father, and that she was being denied visitation with the children. The grandmother responded with a petition for de facto parental rights of the children, which her son supported.

The grandmother presented evidence that they had lived with her most of their lives. She took them to counseling, medical and dental appointments. Their mother rarely visited, but they sometimes stayed with their father. The mother presented evidence that she had married (to a non-abuser), and she and her husband were both employed. She conceded that for a time, she suffered abuse and drug addiction, and she sought the grandmother's help for the safety of the children. However, she said she never relinquished her parenting role, and the children call her "Mommy."

The trial court denied the grandmother's request, finding that while she had a "parent-like" relationship with the kids, neither the children nor parents had acknowledged her as a parent, which is a criteria Maine courts require in these cases.

The grandmother appealed. The state supreme court vacated the earlier ruling, pointing to new state case law that further outlined de facto parenthood. The court ordered the case remanded and reviewed in light of the new standard.

In re S.B., an unmarried couple with three children appealed an order granting grandparent visitation of their children with their paternal grandparents. The grandparents asserted that it was in the best interests of the children and would not interfere with their parental relationship. The grandmother testified that she was extremely close to the oldest child and had a strong relationship to the second. The third child the grandparents did not know as well because she was born at a time when the grandparents had a falling out with the parents.

The parents testified that the children were not suffering from lack of visiting their grandparents, and that the relationship is filled with tension, which creates a negative environment for the kids.

The court responded by granting extensive grandparent visitation. Later, the grandparents filed an order of contempt against the parents for failure to comply. The court found the parents in contempt, but instead of sanctioning them, modified the order to allow for less visitation.

Upon appeal, the court ruled the visitation order to be reversed and reconsidered in light of the standard that gives special weight to the wishes of the parents.

In Kulbacki, a mother appealed a final divorce decree that included a provision to grant her abusive ex-husband's mother with regular visitation of the children. The state supreme court did end up reversing that decision on the basis that the trial court had unduly placed the burden on the mother to prove that the grandparent visitation order was not in the best interest of the child, as opposed to placing the burden on the grandparent to prove why it was.

These cases are some of the most complex in family court, and the laws that govern the courts on these matters are relatively new. Grandparents pursuing visitation rights - or parents trying to block them - need to consult with an experienced law firm.

If you are seeking grandparent visitation rights in Brooklyn, call our offices at (718) 864-2011.

Monday, May 5, 2014

Negotiating a Fair New York City Divorce Settlement

Whether your split is amicable or acrimonious, consulting with an experienced New York City divorce attorney to negotiate a fair settlement agreement can be in everyone's best interest. Even in a bitter separation, a fair agreement can help to neutralize the tension, which is especially important in cases where children are involved.

Recently, the New York City divorce settlement of former Governor Eliot Spitzer resulted in a $7.5 million lump sum award to his ex-wife, Silda, reportedly as part of a postnuptial agreement. She will also be allowed to remain in the family home and her living expenses, which include a housekeeper and healthcare, will be maintained. In addition, she will receive $100,000 annually to mete out to charitable organizations of her choice, and she will be paid $240,000 annually either until she remarries or dies.

The couple, who met at Harvard and married in the late 1980s, have three adult daughters together. She had stood by her husband during his concession that he'd patronized a high-end prostitution ring. They filed for divorce in January.

The fact that these two have a long marital history and were still able to negotiate an agreeable divorce settlement within a matter of months speaks first to the power of postnuptial agreements and secondly to what is possible when two parties are willing to compromise.

While it may seem that the former governor conceded a great deal to his ex, one must consider that he has a substantial amount of wealth. Also, his attorney's fees for a drawn-out battle would have likely been significant and the length of the union would likely have meant that the courts would have favored Silda anyway. Plus, both parties don't want to do anything to further mar their reputation, as both continue to serve public roles.

Divorce negotiations often deal with a host of interrelated issues. It's not just about money. It's not just about property. It's not even just about the kids. So many intense emotions may come into play, and we understand that what matters immensely to one person might not matter to another. It's important to find a middle ground.

We recognize that while that might not be possible with every couple - some may need to take serious matters to court -  there can be a lot of benefits to negotiating. Here are some indications that negotiation (as opposed to litigation) might make the most sense for you:

  • You and your spouse are able to communicate. You may not be best buddies, but you can talk about the kids, finances and other issues.
  • You're both interested in minimizing the overall costs of the divorce process.
  • You still respect one another. You may no longer be in love, but you don't hate one another and may even believe it could one day be possible to be friends.
  • Privacy is important to both of you. Keep in mind that if you take your case to court, whatever paperwork you file will be subject to public record.

It's not a decision you necessarily need to rush. Discussing your options with an experienced divorce attorney can help you be more effective during the settlement negotiation process.

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

Saturday, May 3, 2014

Baby Boomer Divorce Requires Financial Preparation

Just because a couple is planning to file an uncontested divorce in Brooklyn does not mean that financial preparation goes out the window, particularly for those in the baby boomer generation.

These are folks at the peak of their careers, perhaps nearing retirement with children in college or beyond. They may have a fair amount of acquired property, a wealth of savings in stocks or retirement accounts - all of these things need to be considered before coming to the table in an uncontested divorce proceeding. This is true even when the pair hasn't been married for decades.

Consider that just two short decades ago, Fidelity Investments tabulated that one out of every 10 people over the age of 50 was filing for divorce. Today, it's one out of every four.

Women in particular may be the hardest hit if proper planning isn't involved. The fact is that a divorce at any age can be a significant blow to the finances, as well as the heart, those who are nearing retirement or who haven't been in the workforce for many years may find themselves facing financial insecurity. This is especially true if one party was the dominate one in making financial decisions.

One of the first things we often recommend in these cases is obtaining a full, clear picture of the couple's finances. That means looking at not just the bank accounts, but the retirement and brokerage accounts as well. It also means pulling both credit scores. What some fail to consider is if one person was handling the majority of the finances, putting most of the bills in their own name, the other person may have a lower overall credit score, even if they were contributing equally to the payments.

Sometimes, it may also be worthwhile to consider having personal mail forwarded to a separate post office box so they can make sure that the information they are gathering is all received and accurate.

Both parties, regardless of their roles in the relationship, should probably begin to work on compiling an emergency savings. This is often a step that can be taken prior to filing. This will help both parties not only pay for whatever costs they may incur during the divorce, but also cushion the blow for unexpected expenses that may arise afterward.

Another matter that we see creating a lot of tension between long-married spouses is the house. People become very emotionally attached. This is understandable. However, it's important to keep a cool head in such matters. The asset may not be worth it to keep, especially if your income will be essentially halved. Beyond just the mortgage payments, will you be able to keep up with the maintenance? And if you do think you might want to sell it when you enter retirement, is it going to be worth less than what you owe? If so, you may want to consider selling now so that you can both split the deficit.

A spouse who didn't work for most of the marriage is probably going to endure a tougher transition, but there are ways to bridge income gaps if you are smart about it. Your divorce lawyer can help you to negotiate a health insurance benefit plan that your ex-spouse pays as part of the divorce agreement. There may also be ways to divvy up the debt so that you aren't burdened with more than you can handle.

Just because a divorce isn't contentious doesn't mean there aren't a lot of details to sort out. We can help.

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

Additional Resources:

Divorcing Baby Boomers: How to Get a Financial Grip, April 30, 2014, By Donna Fuscaldo, FOXBusiness

More Blog Entries:

Contested Divorce in Manhattan Results in Reduced Awards, April 23, 2014, Manhattan Divorce Lawyer Blog


Friday, May 2, 2014

I am a U.S. Lawful Permanent Resident – Can My Green Card Be Taken Away?

Most of our clients are well aware that the process of obtaining a green card through a U.S. employer or a U.S. relative can take several months to several years. Because of the lengthy processing times, it is typically a cause for much celebration once a foreign national receives the green card and becomes a lawful permanent resident (LPR).

Many lawful permanent residents think that once they receive their green card, their responsibilities are over and they do not need to worry about their immigration status in the United States ever again. Unfortunately, that is not exactly the case. When a foreign national becomes an LPR, the national does enjoy the unrestricted rights to live, work, and travel in and outside of the U.S. without the need for obtaining a visa. However, becoming an LPR also subjects the foreign national to many critical responsibilities. If the LPR fails to fulfill these responsibilities, the U.S. government can take away the LPR’s green card and permanent residence.

Our offices in New York help LPRs fulfill their responsibilities and maintain their permanent residence. We are happy to provide these services to clients all over the country.

What are an LPR’s Responsibilities?

When a foreign national becomes an LPR, the national must make sure to pay taxes on all income earned in the United States. The responsibility to report income and pay taxes rests wholly on the LPR and the U.S. government takes this responsibility very, very seriously. Additionally, it is also the responsibility of the LPR to refrain from voting in U.S. elections. Only U.S. citizens may vote in elections and voting unlawfully is considered a very serious crime in the United States.

Moreover, it is also the LPR’s responsibility to actually live and reside in the United States. The failure to meet this responsibility is one of the most frequently cited reasons why LPRs lose their green cards, because many LPRs will spend several months to several years outside of the country and will not maintain ties to the U.S. or apply for a re-entry permit. Upon trying to re-enter the country after such a long absence, the immigration officers feel that these LPRs have abandoned their permanent residency and do not allow the LPRs to enter.

If you are an LPR and you need to travel outside of the U.S. for a period of six months or longer, contact our Brooklyn or New York office and speak to one of our skilled attorneys who can explain how you can apply for a re-entry permit and how you can maintain your permanent residency.




Thursday, May 1, 2014

Failure to Follow Brooklyn Child Custody Orders Can Result in Court Sanctions

Parents who are separating or divorcing often turn to the courts to help them establish a parenting time plan that is both fair to the parents and beneficial for the children.

Unfortunately, our Brooklyn child custody attorneys have seen cases where some parents have used children as a weapon against the other parent. This can backfire, though, because family law judges tend to treat these sort of actions with disdain.

This is what happened recently in the case of Shindell v. Shindell, reviewed by the Wyoming Supreme Court. Although this was an out-of-state case, it's a good example of the sanctions judges may place on parents who fail to comply with child custody orders.

According to court records, the parents divorced in 2004, and the mother was given primary residential custody of their two daughters. Over the years, the father filed numerous complaints against the mother for failure to comply with custody orders. The district court responded by issuing specific orders to the mother and demanding her compliance.

Then in 2012, the father moved to Indiana and remarried. He attempted to arrange for his daughters to fly to his home to spend spring break. However, the mother learned that the father had pets in the home, and was concerned for the health of their oldest daughter, who suffered from severe asthma. She consulted with a doctor, who reportedly advised that the girl not be exposed to those conditions. Thus, she did not put either girl on a plane to visit their father. The two also didn't visit their dad during the summer, although he was entitled to summer visitation via the court order.

In August, the father filed a motion for order to show cause why the mother should not be held in contempt of court for refusing to comply with the communication and visitation decree. A hearing was held, and the mother presented evidence of the daughter's health risk in visiting their father. However, there was also evidence she had violated court orders by refusing to facilitate communication between the girls and their father and also failing to notify and include the father in decisions regarding the girl's education, medical care and other matters.

For example, she enrolled the girls in a new school without consulting the father.

As a result, the district court found the mother in contempt of court. For this, the court ordered that the mother:

  • Pay for plane tickets for the girls to see their father during the following winter break and spring break;
  • Ensure there was unfettered communication between the girls and their dad;
  • Pay the father's attorney's fees and court costs, as well as pay the costs for the guardian ad litem.

The mother subsequently appealed that ruling, but it was upheld by the state supreme court. The court determined that the mother was thoroughly aware of her responsibilities, and chose to ignore them. Regarding the issue of her daughter's health, the court deemed that it was a legitimate concern, but rather than simply ignore the order, she had a responsibility to seek a modification from the court.

The mother had attempted to argue that the court failed to consider the girls' preferences, as she indicated they did not want to visit their father. However, she did not make them available for testimony, saying she did not want to have them involved. For this reason, the high court ruled that the lower court didn't abuse its discretion in failing to consider it. 

The bottom line is that not complying with orders of the court can result in serious consequences. If you believe a modification is in order or want help in enforcing the order that currently is in place, it's best to consult with an experienced lawyer. 

Those looking for help with New York City child custody disputes, should call our offices at (718) 864-2011.

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