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Uncontested No Fault Divorce

Wednesday, August 20, 2014

Brooklyn Divorce Attorneys: Help With Divorce by Publication

Some people want nothing more than to never see their spouse again - if only they could be found first.

Divorce in cases in which one spouse can't be located are challenging because one of the key points in any civil court case is serving notice to the other side of what is occurring, affording them due process and the opportunity to respond accordingly.

However, if you can't locate your spouse, you aren't expected to remain married to them indefinitely. Our Brooklyn divorce lawyers are familiar with a process called divorce by publication, which allows parties to obtain a valid divorce, even when one of the parties cannot be found. The process is also sometimes referred to as a "no signature divorce," because the other party is not available to provide a signature on the notice forms or other documents.

While a missing husband or wife would seem a cause of great alarm for some, for others, it may be a rather unsurprising continuation of a pattern, perhaps even a core reason for seeking a divorce in the first place. Others may involve spouses who have been separated and out of contact for years, but never officially sought a divorce. 

Divorce by publication is only allowed in situations where a judge has been convinced, based on a sworn declaration, that the person initiating the divorce has tried diligently to find the other party to no avail.

In order to satisfy the judge's concerns that you have conducted a thorough search, you will likely require the guidance of an experienced divorce lawyer.

He or she will likely begin by searching the following places:

  • Within the five branches of the U.S. Military.
  • The Board of Elections where your spouse was last known to reside.
  • The New York Department of Motor Vehicles.
  • The Post Office in the region where your spouse was last known to reside.
  • A search of telephone and Internet directories in the area your spouse was last known to reside.
  • Any known living relatives or friends with whom your spouse may still be in contact.

All of these efforts must be carefully documented. If any of these searches turns up a lead, it must be followed through with an investigation. If a person is found with your spouse's same name, a full investigation must be conducted to confirm his or her identity before notice of divorce action is served.

If all of this turns up nothing, at that point, we can file a motion requesting the court allow for an Order of Publication. The request will list all search efforts and demonstrate to the judge that you made every reasonable effort to locate your spouse, and yet were unsuccessful.

If the judge grants and order of publication, that order must be published as a legal notice in a newspaper. The notice will clearly state you are seeking a divorce action against your spouse. This will effectively serve as legal "notice" and "summons."

In order to be valid, an Order of Publication has to be published in the newspaper within one month of the judge signing off on it. The order will specify which publication the notice will appear, and will most usually be one in the jurisdiction where your spouse was last known to live. Additionally, the order will specify how many times the notice has to appear, usually three times within a three-week period.

If there is no response from the spouse within a month of the the final notice, you are entitled to file for divorce by default. That means once your papers are approved by a judge, your divorce can be granted. While every case is different, the entire process for divorce by publication in New York usually takes about one year.

To learn more about how we can help, contact us today.

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

More Blog Entries:

Preparing Yourself Digitally for a New York Divorce, July 21, 2014, Brooklyn Divorce by Publication Lawyer 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

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, April 18, 2014

Brooklyn Divorce Lawyers Help You Make a Clean Break

In filing for a divorce in Brooklyn, many couples weigh important issues such as child custody, division of property and how to divvy up debts.

However, it's also important to have a divorce attorney review your insurance situation to see whether policy updates are appropriate. This goes for health insurance, but also life insurance, property insurance and auto insurance. It's also important to review all property that is legally in each party's name, as it could impact future liability for that property. A case recently before the Florida Supreme Court reveals what can happen when these important steps aren't taken.

In Christensen v. Bowen, the court ruled that an ex-husband could he held vicariously liable for the negligence of his ex-wife, who had caused a fatal crash, simply by virtue of the fact that his name remained on the title of the vehicle. The court found that this was true even though he'd had no control over the vehicle since he had first purchased it for his then-wife as a gift several years earlier. He never drove it, didn't have a key, didn't have access to the garage where it was kept and didn't live with his ex.

While statutes regarding vicarious liability vary from state-to-state, the general principle of respondeat superior is that a third party can be held liable for the actions of another when he or she had the right, ability or duty to control the activities of the violator.

In this case, the ex-wife was involved in a deadly crash while driving a vehicle that, according to the title, was co-owned by her ex-husband.

The widow of the driver who was killed filed a personal injury lawsuit against not only the driver, but also her ex-husband on the grounds of vicarious liability. The case went to trial and the jury determined that while the former husband's name was on the title, he had no beneficial control over the car, and therefore wasn't liable.

However, the widow appealed, and the appellate court reversed the findings of the lower court on the grounds that the ex-husband did have beneficial ownership of the car in terms of property rights.

The general theory is that as a joint owner of that vehicle, he had the legal right to take possession of the car and could have potentially prevented his ex-wife from using the car, if he so chose, and therefore shielded himself from liability. However, neither the district court nor the state supreme court, which affirmed that ruling, addressed the fact that the wife too had an equal right to possess the vehicle. So it's unclear how the ex-husband could have asserted a superior legal right.

The far easier option would have been to have his name removed from the title as co-owner before the pair finalized the divorce. The fact that he did not is likely going to place him in a great deal of financial trouble, particularly because the vicarious liability claim isn't likely to be covered under any existing insurance policy.

That is, he probably didn't pay for an insurance policy on a car that he owned, but for all intents and purposes belonged to his ex. Further, her insurance firm probably wouldn't cover him as an insured because the two are no longer legally related or household residents. That means he could be paying for the judgment out-of-pocket - and personal injury verdicts are generally not dischargable even in a bankruptcy.

Having such matters handled at the time a divorce is finalized can save those dissolving their marriage a great deal of heartache in the future.

Contact our Brooklyn divorce attorneys at (718) 864-2011.

Thursday, March 20, 2014

Separation Agreements Fall in Wake of No-Fault Divorce in New York

A recent report by The New York Law Journal indicates that since the introduction of the no-fault divorce in New York state, the number of legal separation agreements has plummeted, even as the number of marriages dissolving has spiked. 

Our Read more . . .

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

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

Tuesday, November 12, 2013

Uncovering Hidden Assets in a Brooklyn Divorce

We never want to believe that someone about whom we once cared could be so low as to work actively to deceive us. 

Of course, that's why so many marriages crumble in the first place, so it should come as no surprise when ex-spouses don't play fair when it comes to divorce. 

Our Brooklyn divorce attorneys know that while many soon-to-be-exes might be inclined to simply let go of any shared assets and liabilities just to be done with the whole thing, it's important that you fully understand what that's going to mean for your financial future and that of your kids. Making an informed decision is going to mean having a clear picture of everything that is on the table. 

Unfortunately, hidden assets can be a major problem between spouses, even those whose separations are relatively amicable. Assets that were acquired during marriage are, per New York law, subject to consideration and possibly division between the two spouses. Still, that doesn't stop some individuals from attempting to hoard certain valuables or conceal certain accounts. 

In most cases, an experienced divorce lawyer can help review the most common (and some of the not-so-common) ways exes try to conceal assets. 

Understand first that both you and your spouse will be required to submit a financial affidavit. This is a sworn legal document in which you attest to all of your assets and liabilities to the best of your knowledge. It's basically your word and your soon-to-be-ex's. As you may have learned in the breakdown of your marriage, that may not be solid enough evidence upon which to rely. 

Again, your attorney can help initiate a number of formal requests to determine whether there is anything that has been omitted or overlooked. 

The places where he or she will probably tell you to start will include: 

Your tax returns and 1099s. This will give you an idea of whether bank account interest and reported dividends in brokerage accounts have been disclosed. 

Look through public records to see whether there are any properties your spouse owns that he or she failed to reveal. 

Comb through pay stubs and compare them to bank statement deposits. This will give you an idea of whether there is money generated that is unaccounted for. Just as an example, if your spouse earns $15,000 a month, but yet only $8,000 of that is deposited into the bank account that was disclosed in the financial affidavit, there may well be bank accounts that are not disclosed. 

Compare payment receipts for all the major bills, including car loans, utilities, mortgages, credit cards, etc. If any of those bills are being paid through bank accounts that haven't been disclosed, that's a red flag that there are assets about which you haven't been told. 

Ask your attorney about issuing a subpoena to your spouse's employer in order to request any and all documentation relating to benefits, stock options, deferred compensation plans or retirements. Get the information directly from the source.

Use common sense. if your monthly expenses appear to exceed your spouse's monthly income, at least based on the papers you've received, there may well be another source of income or other hidden assets. 

Look closely at all financial statements on all bank accounts. If there are transfers that don't appear to make sense, press for more information about what those accounts are and where that money is going. 

Also take a close look at all credit card statements. You want to see if there have been any significant purchases of things like artwork or jewelry or other valuables that your spouse failed to disclose. 

Ask your lawyer about conducting a deposition with your spouse. Having him or her questioned under oath - where lying can carry a potential felony charge - can be an effective way to elicit information they may not have otherwise been eager to provide. All you're looking for are honest answers. Sometimes, you need a little more help than others in getting them. 

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

Additional Resources:

Discovering Hidden Assets: What Your Spouse Hasn't Disclosed During Your Divorce, Oct. 30, 2013, By Bonnie Sockel-Stone, Huffington Post

More Blog Entries:

Informal, Long-Term Marital Separations Can be Risky, Oct. 23, 2013, Brooklyn No-Fault Divorce Lawyer Blog

Tuesday, October 29, 2013

Brooklyn Divorce Asset Division: Don't Overlook These Key Items

One of the greatest points of contention in any divorce is often how property will be divided. 

If your goal is to file for an uncontested divorce in Brooklyn, you and your soon-to-be-ex are going to need to be on the same page about how assets are going to be split. 

We have seen couples literally sit down with a checklist and hammer out each item, one-by-one. If your separation is an amicable one, this can be an easy, low-cost way to fairly divvy it all up. 

However, we do find that in the course of this process, there can be items that are overlooked or improperly evaluated. If the process starts to get too complex, you may want to seek help from a financial or legal professional to help you sort through the details. 

To begin with, understand that actual dollar values don't necessarily match what they might be on the surface. Let's say we're talking about a piece of real estate, a house, with an appraised value of $225,000. This could seem fairly straightforward, until you consider that you're actually underwater on it, having taken out a loan of $275,000. Or that approximately 10 percent of the sale price -- $25,000 in this case -- will be spent on the sale, including realtor fees and closing costs. Then you factor in rising property taxes and other factors, and this "asset" has become a liability. That's not to say that the two of you can't still reach a quick and reasonable agreement on the matter. It's just that both of you should have a full understanding of the shifting valuation. 

Of course, a house is one of those obvious assets that you're going to analyze. Where it can get especially tricky are those assets that are not necessarily tangible. 

For example, you don't want to forget benefits from former employers. Think retirement accounts such as 401Ks and pension plans, deferred compensation plans and stock options. Keep in mind again that the dollar amount of these accounts may be a bit misleading, so you may want to have them evaluated by a professional third-party. 

Beyond that, don't overlook memberships to things like golf courses and country clubs. You may never have cared much about this while you were married, but the truth is these clubs often cost a lot of money to join and maintain membership. In that sense, it becomes an asset to be divided. 

You'll also want to review any gifts you gave one another during the marriage. You may find those items aren't worth quibbling over (i.e., a piece of jewelry or clothing items). However, in some cases, these items have substantial value and they should not be overlooked. Even if you aren't interested in taking back the actual item, it can be considered a factor in how you divide other important assets. 

Don't forget also to take time to review any patents, trademarks, royalties or copyrights your spouse owns. Even if they aren't worth a lot now, they could be in the future, and you may want to make sure you continue to have a stake. 

Another item to keep in mind is money loaned to other people that will be repaid to your spouse. So let's say your spouse's brother borrowed $8,000 from you both during the marriage. He's continuing to pay that back to your spouse. You are entitled to a portion of that money. Inheritance is another matter that may add complexity.

Again, if you find some of this is getting to complicated or contentious, don't hesitate to ask for help from an experienced divorce lawyer, It may still be possible to have an uncontested divorce, but above all you want to make sure that your future is secure. 

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

Additional Resources:

Divorcing Women: Don't Forget These Marital Assets, Oct. 16, 2013, By Jeff Landers, Forbes.com 

More Blog Entries:

Divorcing But Still in Business Together: Our Brooklyn Divorce Lawyers Weigh In, Sept. 13, 2013, Brooklyn Uncontested Divorce Lawyer Blog

Saturday, October 26, 2013

New York No-Fault Divorce In Its Third Year

This month marks the third year of  no-fault divorce in New York, marking the passage of historical legislation that made this state the last in the union to pass such a measure. 

The intent of the law is to make it easier for couples to divorce, without having to ascribe blame to one party or another. It's not been without its hitches. Ultimately, however, it's an option that many soon-to-be-former couples are embracing, as it is generally cheaper, faster and less contentious than a traditional split. 

While we don't have updated figures for 2013, we do know that the Business Review in Albany reported that in the first year since the passage of the law, divorce filings in New York spiked 8 percent, for a total of nearly 65,000 filings. Figures for 2012 surpassed that. 

Prior to the passage of this law, couples who wanted to dissolve their marriage in New York had to accuse the other of some egregious offense like cruelty, imprisonment, abandonment or adultery. Those who had simply fallen in love were forced to lie, a phenomenon referred to in the New York Times as "institutionalized perjury." Some spouses had to falsely testify to wrongdoing of the other just to make the proceedings final. 

The old law forced one spouse to legally take the blame in a case. It eliminated the possibility of mutual consent, of two people who had simply made the adult decision to move on. 

The only other alternative was to legally separate for at least one year. For many couples, that proved a unique hardship. 

In the end, legislators came to the conclusion that forcing one side to take the blame offered no advantage to either party. In fact, it usually ended up harming children, as it tended to escalate conflict within the proceedings. 

For most divorce-seeking couples, the law has generally worked as intended. However, issues have arisen. 

There had been an issue for a while with some judges who interpreted the law differently than others. In cases where couples had cited that the union was simply "irretrievably broken," some judges called for a jury trial. That meant that those in different jurisdictions were sometimes facing different standards than those in other areas of the state. It also meant that the process continued to be drawn out, despite the reform efforts. 

However, in June of last  year, Manhattan Supreme Court Justice Laura Drager ruled that parties were not entitled to jury trials in these instances and that due process rights were not infringed upon in the event such a trial was not granted. 

A state assembly bill, A4269-2013, was introduced earlier this year that would have amended domestic relations law to exclude jury trials in no fault divorce actions. However, the bill has been sidelined in judiciary since February. 

In the meantime, there have been instances in which judges allowed some no-fault divorce claims to be contested, forcing parties to testify on the stand to a series of personal questions they likely hoped to avoid by filing a no-fault action in the first place. One example was a 79-year-old woman who was made to testify - for hours -  as to the length of time since she and her husband had engaged in sexual relations, why she was dissatisfied with his refusal to fix things around the house and his estrangement from their children. 

That's exactly the kind of thing legislators had hoped to avoid when they first passed the law.

To ensure your rights are protected, call us today.

If you are contemplating a  no-fault divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Divorces Drag on Even After Reform, May 6, 2012, By Sophia Hollander, The Wall Street Journal

More Blog Entries:

Uncontested Divorce in Brooklyn With Children for Lowered Fee of $499, Sept. 24, 2013, Brooklyn No-Fault  Divorce Lawyer Blog


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