Divorce Lawyers Directory Blog

Kobe Bryant’s Wife to Get Huge Divorce Settlement

2012-01-26T09:40:00.001-08:00

While Kobe Bryant’s divorce has not yet been finalized, initial reports indicate that his soon-to-be ex-wife, Vanessa, will receive a huge settlement including several pieces of property. Three of the couple’s Newport Beach mansions have already been transferred into her name. These properties are reportedly worth approximately $18.8 million.

Since Kobe and Vanessa never signed a prenuptial agreement, she is entitled to receive half of their marital assets in the divorce settlement. That should net her about $75 million plus additional money for spousal support and child support. Kobe and Vanessa also plan to share both physical and legal custody of their two daughters.

Vanessa Bryant filed for divorce in December, citing irreconcilable differences as the grounds. Kobe Bryant has had a reputation for marital infidelity for many years, dating back to an incident involving a young girl in Edwards, Colorado in 2004.

Interestingly, this has been a relatively low-profile divorce compared with other celebrities such as Kim Kardashian and Demi Moore who have recently filed for divorce. The couple released a statement last month when the divorce was filed requesting that their privacy be respected during this difficult time.

Man Files for Divorce after 77 Years of Marriage

2011-12-29T12:48:00.000-08:00

This is one situation that just leaves a bad taste in your mouth. A 99-year-old Italian man is filing for divorce after 77 years of marriage because he discovered his wife had an affair in the 1940s. The man discovered a packet of musty old love letters when clearing out an old chest of drawers in his house just before Christmas. When he confronted his wife, she admitted to the affair, and despite all of her pleas she was unable to talk him out of the divorce.

Something about this just seems wrong. The couple has five children, twelve grandchildren, and one great-grandchild as part of their 77 year marriage. And while it is understandable that the discovery of an extramarital affair can lead to feelings of anger, betrayal, and heartbreak, this is not your ordinary situation. The affair occurred more than 60 years ago. At some point, it may be more appropriate to look the other way and forgive the person you have spent more than three quarters of a century with.

Very few people stay married for 50 years, and it is almost unheard of for a couple to exceed the 75 year mark. In those cases, you would expect the marriage to end in “till death do us part.” Unfortunately, that will not be the case for this Italian couple, and it is very sad to see such a long standing marriage end in divorce.

Perhaps there is a moral to this story. If you engaged in an extramarital affair more than a half century ago, discard the old love letters. What are you saving them for? They can only serve to hurt the person you have been married to your entire life.

Demi Moore to Divorce Ashton Kutcher

2011-11-18T10:09:00.001-08:00

Actress Demi Moore has announced that she plans to file for divorce from her husband, Ashton Kutcher. The 49-year-old actress, who has starred in movies such as A Few Good Men and Ghost has been married to the newest star of the hit sitcom Two and a Half Men since 2005. Kutcher, who is 16 years younger than Demi Moore, has been rumored to have engaged in extramarital affairs.

Demi Moore released the following statement regarding her impending divorce: “It is with great sadness and a heavy heart that I have decided to end my six year marriage to Ashton. As a woman, a mother, and a wife, there are certain values and vows that I hold sacred, and it is in this spirit that I have chosen to move forward with my life.”

The actress is no stranger to failed marriages, as this is her third. Prior to Kutcher, she was married to rock musician Freddy Moore and then more notably to actor Bruce Willis.

Kim Kardashian Files for Divorce

2011-10-31T12:32:00.000-07:00

Reality star Kim Kardashian is filing for divorce this morning. This announcement has been made just 72 days after she married her boyfriend, Kris Humphries. This may rank as the shortest marriage ever following a $10 million wedding. Perhaps her family will be a little more hesitant to spend the big bucks next time Kim decides to walk down the aisle.

Kardashian will not seek an annulment. She prefers to file for divorce, citing irreconcilable differences as her grounds. Her lawyer has handled several other high profile celebrity divorces, including those of Britney Spears, Maria Shriver, Angelina Jolie, and Ryan Reynolds.

The unhappy couple has not made any statements definitively explaining the reasons they decided to call it quits so soon after tying the knot. However, TMZ has speculated that a major issue with their marriage centered on where the couple would eventually live. The seven-year NBA veteran who currently plays for the Nets was intent on eventually moving back to Minnesota, where he grew up and played college ball. It seems that the frozen tundra does not agree with Kardashian, who prefers to stay near her family in Los Angeles. Southern California is also a much better location for her thriving career as a reality star.

It seems shocking that such an important detail as where they wanted to live long term never came up in a conversation before the wedding. But then again, they were only dating for nine months before getting married.

It is also possible that Kardashian has grown tired of Humphries living it up on her family’s money. Due to the NBA lockout, he has plenty of free time to go out and party with his friends.

Prenuptial Agreements and Same Sex Marriages

2011-09-07T13:40:00.000-07:00

Several states, most notably New York, have legalized same sex marriages in recent years. While this has been a huge victory for human rights in general and the gay community in particular, it has also raised several new challenges for our legal system with regard to same sex divorce.

In many ways, the rules governing same sex divorces mirror those governing divorces between heterosexual couples. However, same sex marriages are often entered into under vastly different circumstances than heterosexual marriages. It is not uncommon for same sex couples who have been together for many years, and in some cases for decades, to get married when living in a state that has recently legalized same sex marriages.

In these long term relationships, couples typically have amassed a considerable amount of property and assets during the course of their relationship which are not considered “marital property” because the couple had not legally been allowed to get married earlier in their relationship. Clearly, this property represents what would be considered marital property for heterosexual couples who have entered into marriage as part of a long term monogamous relationship. Yet, due to technicalities of law, same sex couples who have acquired property and assets together during their longstanding monogamous relationship may have a difficult time dividing this property in the event that their relationship ultimately ends in divorce.

For this reason, same sex couples should carefully consider the effect marriage will have on the property they have acquired during their relationship before they marry, and how that property will be divided in the event of a divorce. It becomes extremely important for these longstanding couples to strongly consider entering into a prenuptial agreement before they get married so that these issues can be considered calmly, intelligently, and thoughtfully while they are still in love. Without a prenuptial agreement, couples may be forced to consider these issues for the first time while engaged in a highly charged divorce action, where all civility is often (and ill-advisedly) thrown out the window.

In many circumstances involving same sex marriages, prenuptial agreements are crucial, and should be drawn up and signed well before the wedding is to take place. Naturally, a skilled and experienced family law attorney is the best qualified person to give advice regarding prenuptial agreements, and to draft these agreements for you and your partner. It is important to give your lawyer several months prior to the date of your marriage to negotiate, draft, and if necessary, revise your prenuptial agreement. This will ensure that the final agreement produces the fairest possible result for each partner.

Will Smith Divorce Rumors Circulate

2011-08-25T16:39:00.001-07:00

The gossip tabloid In Touch Weekly recently reported that the marriage of Will Smith and Jada Pinkett Smith is on the rocks. In fact, they have gone as far as to claim that the high profile Hollywood couple has filed for divorce. The rumors seem to stem from other rumors that Will Smith caught his wife in bed with Mark Anthony, the costar of her latest movie.

However, the couple and their children have been broadcasting a different version of the state of their marriage. Will’s son Trey tweeted, “Will and Jada getting a DIVORCE. NOT TRUE AT ALL!”

Will and Jada also released a statement yesterday saying, “Although we are reluctant to respond to these types of press reports, the rumors circulating about our relationship are completely false. We are still together, and our marriage is intact.”

While this statement doesn’t seem to be a resounding endorsement of the depth of their love for one another, it certainly does not indicate that a divorce is looming on the horizon. Only time will tell whether the couple is doing damage control while they sort out serious problems or whether these rumors are actually much ado about nothing.

Maria Shriver Files for Divorce

2011-07-27T13:34:00.000-07:00

Maria Shriver has sent a message to her estranged husband, Arnold Schwarzenegger: “Your marriage is being terminated. Hasta la vista, baby.” Earlier this month, Shriver finally made her decision official when she filed for divorce after 25 years of marriage to the Governator. The divorce action cites “irreconcilable differences” as her reason for initiating these proceedings.

While Schwarzenegger had been accused of committing extramarital affairs for many years, Shriver has always stood by his side. However, several months ago Schwarzenegger confirmed that he had fathered a child with a woman on their household staff. This revelation proved to be more than their marriage could withstand.

Based on the divorce action filed by Shriver, it does not appear that the couple had entered into a prenuptial agreement 25 years ago. As a result, she will most likely receive an equal share of the action star’s massive assets as part of the ensuing division of marital property.

Schwarzenegger initially submitted a request to the judge that Shriver’s rights to spousal support be terminated. However, he has since withdrawn this request and seems prepared to provide her with a spousal support amount to be determined at a later date. He will also pay her attorney’s fees.

While she will most likely receive a sizable chunk of his wealth, his numerous assets should provide plenty for both of them to live comfortably for the rest of their lives. Besides, he can probably land a role in Terminator 5 if his funds start running low.

NY Passes Same-Sex Marriage Bill – What Does it Mean for Divorce?

2011-06-30T15:43:00.001-07:00

Last week, the State of New York passed legislation making same-sex marriages legal. New York joins Connecticut, Iowa, Massachusetts, New Hampshire, Vermont, and the District of Columbia as the only states that have made same-sex marriage legal. However, New York is by far the most high profile state on this list, and it is estimated that they have more same-sex couples than the other five states combined. This was a major victory for proponents of same-sex marriage, and it might transform the debate on the national level. The law will go into effect in 30 days, and same-sex couples should be able to get married by late July.

While most same-sex couples are celebrating their new ability to legally enjoy the same benefits that married heterosexual couples do, it is still worth discussing how this law will impact those marriages which are unable to stand the test of time. In other words, how will New York’s same-sex marriage laws affect same-sex divorce?

In general, it appears that the current New York State divorce laws should not need to be altered to accommodate same-sex divorces. The laws should apply equally to same-sex marriages as to heterosexual marriages, and since most of the laws are already worded in gender-neutral language, they should not need to be altered at all.

Currently, divorce laws do not refer to “husband and wife,” but instead refer to “spouses.” In addition, spousal support statutes refer to the “monied” and “non-monied spouse,” while child custody laws talk of the “custodial” and “non-custodial” parent. All decisions related to child custody issues will still be made based on what is in the best interest of the child. Similarly, equitable distribution or marital property laws will still apply in the same ways that they do for heterosexual couples.

It will still be important to work with an experienced divorce attorney who can make sure that your interests and the best interests of your children are protected during this difficult time. However, it seems that same-sex divorces should not be any more complicated than heterosexual divorces. Of course, in such an acrimonious situation, there is no guarantee that the process will go smoothly.

The Complexities of Calculating Child Support

2011-05-25T15:48:00.001-07:00

Most states have enacted laws requiring non-custodial parents to pay child support for all dependent children in the event of a divorce. While the rules for calculating child support vary from state to state, many states have simplified this process by awarding child support based on a percentage of the non-custodial parent's income. However, there are a variety of factors which can make this simplified calculation much more complicated.

Editor's note: The following illustration of this point is based on New York State child support laws. It is important to understand that in other states, the laws might be slightly different. Therefore, you will need the assistance of a divorce attorney who is familiar with your state's child support laws.

In the state of New York, non-custodial parents are required to pay child support based on the following percentages of their gross income:

17% for one child
25% for two children
29% for three children
31% for four children
At least 35% for five or more children

If all of your children were with the same partner, this calculation is quite simple. For example, if a man has a gross income of $100,000 and four children, he will have to pay the mother $31,000 a year in child support if they get divorced and she is awarded custody of the children. However, if this same man fathered a child with a different mother prior to marrying his wife, this additional child will have to be accounted for when determining his total child support payments.

In this case, the mother of the first child would receive $17,000 as dictated by state law. This total would then be deducted from the man's gross income before determining his child support payment to his ex-wife. Therefore, instead of receiving $31,000 for their four children, she will only be entitled to $25,730, which is 31% of the remaining $83,000 that makes up his gross income.

This is just one example of how determining child support can become more complicated than it appears. In order to ensure that your child support is calculated properly, you will need the assistance of an experienced family law attorney.

Divorce and Taxes – Five Important Tips

2011-04-18T11:18:00.001-07:00

Divorce can complicate many areas of your life, especially if you have young children. One particular area complicated by divorce is the filing of taxes. The increasing complexity of divorce agreements has made determining what each spouse owes the IRS more complicated than ever.

Here are five tips to help recently divorced couples with the filing of their taxes:

The calendar year will determine your marriage status. If your divorce was finalized in the 2011 calendar year, you are still considered officially married when filing 2010 taxes. If your divorce was finalized at any point during the 2010 calendar year, you cannot file as a married couple – even if you spent the majority of the year married.
Paying taxes on the house. If you get the house in the divorce, you may end up owing taxes on it since capital gains taxes apply to the recently divorced. In general, a married couple will not have to pay capital gains taxes on their primary residence if the gain is less than $500,000. However, as a newly single person, that figure will drop to $250,000. Therefore, if you house has appreciated by more than $250,000, you will end up owing taxes on it if you decide to sell it.
Joint custody doesn't necessarily let you claim the kids as dependants. Child custody arrangements are becoming increasingly complicated as more and more parents are getting creative with these agreements. If you are designated as the custodial parent by court order, you will definitely be able to claim your children as dependents. However, such an order often does not exist. In these cases, the parent who has custody for the majority of time is generally considered the custodial parent. In cases where custody is 50/50, only one parent will be able to claim the same child as a dependent. If you have more than one child, you and your ex-spouse can split the dependency of the children so that you can each receive the tax benefits. If you only have one child, you should consider switching off years so that each of you can receive the tax benefits every other year.
Spousal support will give you a tax break. In most cases, paying spousal support will reduce your tax liability. However, these payments must be mandated by a written separation or divorce agreement, and they cannot be considered child support.
No tax break on child support. While spousal support is considered tax deductable, child support is not. This is something to consider when apportioning values for spousal support and child support.

Divorce Rates are Rising – Is the Recession Ending?

2011-03-22T15:26:00.001-07:00

One of the rare positives accompanied by the recession which began in 2008 has been a drop in the divorce rate. Over the past two and a half years, the number of divorces filed across the country has been steadily declining.

There is a logical reason for this association. Many unhappy couples simply cannot afford to end their marriage during tough economic times. As a result, many of these couples are trapped in failing marriages due to financial constraints.

However, it is unlikely that the forced prolonging of these marriages will ultimately rekindle the spark that has been lost. When money is tight, it often increases the tension in a relationship. It is rare to find a couple that can step back from their economic woes to focus on repairing their marriage.

Recently, the divorce rate has begun rising for the first time since late in 2008. Could this be a sign that the recession is finally coming to an end? It will probably take a little time to determine this for certain, but a rising divorce rate is often a good predictor that better economic times are around the bend.

Of course, no one ever likes to see the divorce rate rising. However, unhealthy marriages will always exist, and it is nice to know that people will once again have the financial freedom to end these relationships and get a fresh start on life.

Dominic Barbara Suspended 18 Months by NY Bar

2011-02-17T16:49:00.001-08:00

The New York State Bar Association has recently suspended lawyer Dominic Barbara for 18 months due to a variety of sanctions and grievances filed against him. Before his suspension, Barbara had received nine letters of caution, nine admonitions, and two advisements from the Attorney Grievance Committee. This is hardly a stellar record.

The majority of complaints levied against Barbara involved a failure to return unearned retainer fees and the improper supervision of inexperienced employees. Both of these offenses are considered highly unethical, and would be grounds for suspension in most states throughout the country. It appears that Barbara's actions finally caught up with him.

The bulk of Barbara's practice involved matrimonial and divorce cases. However, he is most well-known for his work on high profile cases involving Jessica Hahn and Joey Buttafuoco.

Barbara's suspension highlights an important point that must always be kept in mind when evaluating potential lawyers – maintaining a high profile practice does not always translate to providing exceptional quality legal services. It is important to look past surface grandstanding and evaluate the substance of a potential lawyer's record. If Dominic Barbara's clients were to have done a more thorough job researching his background before retaining him, they might have decided to keep looking. Now he will have a year and a half to rethink his practice methods before being allowed to handle a case in the state of New York again. However, this latest high profile mark on his record may be the one that finally dooms his reputation once and for all.

Who Determines the Religious Practices of a Child?

2011-01-16T13:31:00.000-08:00

An interesting case was recently decided in New York regarding the ability of the Court to intervene in a parents’ dispute regarding the religious practices of their child. There is an unusual twist in this case, since both parents practice the same religion – Judaism. However, the father’s religious beliefs are more rigid than the mother’s beliefs, creating an issue when the child was in the presence of her mother for visitation.

The father currently has custody of the child and the mother was afforded certain visitation rights. However, the father objected to the mother’s more lenient interpretations of religious doctrines, including:

Kosher dietary laws
Appropriate dress code for their daughter
Restrictions regarding the use of TV and the Internet
The speaking of Yiddish vs. English in the house

The father was seeking an alteration to the terms of visitation set forth in the child custody agreement. Instead of spending every other weekend from Friday afternoon through Sunday evening with her mother, the child would only get to spend three Sundays a month with her mother.

The Court found that it was in the best interests of the child to continue the current visitation schedule of every other weekend from Friday afternoon to Sunday evening, claiming that the father’s proposed alternate schedule would prevent the mother from sustaining a meaningful relationship with her daughter.

Furthermore, the Court ruled that the mother must adhere to the father’s standard of religious practices since the law states that the custodial parent has the final say regarding the child’s religious upbringing and practices, as long as there are no violations of any specific terms set forth in the divorce agreement. Since the father’s preferences did not violate the terms of the divorce settlement or present a danger to the child, the Court refused to interfere with the religious dispute between the parents.

It appears that if your child’s religious upbringing is important to you, it is in your best interest to define the terms of this upbringing, as well as who has the right to make decisions regarding the child’s religious development, during the crafting of the divorce agreement. Otherwise, the ultimate decision will likely fall squarely with the custodial parent.

Scarlett Johansson and Ryan Reynolds File for Divorce

2010-12-29T16:21:00.001-08:00

Earlier this month, Scarlett Johansson and Ryan Reynolds filed for divorce in Los Angeles. Johansson, 26, and Reynolds, 34, decided to end their marriage after only two years. They were married in a wilderness retreat in Canada in 2008.

The couple cited irreconcilable differences as the reason behind their divorce. Each of them has been forced to spend extensive time away from home working on location of the films they star in. It appears that this distance proved to be too much for the couple to survive.

However, it does appear that the breakup was rather civil. Reynolds and Johansson released a joint statement saying, "After long and careful consideration on both our parts, we've decided to end our marriage. We entered our relationship with love and it's with love and kindness we leave it."

While their divorce has not yet become final, Reynolds and Johansson quickly became two of the most eligible bachelors in the Hollywood scene.

Eva Longoria Files for Divorce

2010-12-03T13:31:00.001-08:00

Desperate Housewives actress Eva Longoria has filed for divorce after discovering that her husband, San Antonio Spurs guard Tony Parker, cheated on her with multiple women. Parker reportedly had an affair with the wife of his teammate, Brent Barry.

Longoria learned of the affair with Barry's wife when she found hundreds of text messages between Parker and Barry in her husband's cell phone. Parker has also had an affair with Alexandra Paressant, a French woman who he met at his own wedding.

It is likely that this divorce can get messy, considering the sizable assets of Parker and Longoria. Parker has a lucrative basketball career, and Longoria has a lucrative acting career. Their relationship has been quite acrimonious ever since Longoria learned of Parker's infidelities. As a result, the division of marital property may not go very smoothly.

Longoria is not the first woman with a high profile professional athlete husband to file for divorce due to marital infidelity. Last year, Tiger Woods and his wife divorced after she discovered Woods had cheated on her repeatedly during their marriage.

Divorce Insurance

2010-10-22T10:33:00.001-07:00

For many years, it has been common practice for people to insure their cars, homes, lives, and personal property. There are even some insurance companies, such as Lloyds of London, which will insure body parts for athletes and celebrities who make their living based on the condition of these parts. Recently, the concept of insurance has been taken to a whole new level. A company was established that will insure your marriage against divorce.

John Logan is a North Carolina entrepreneur who endured a "world-class nasty divorce" back in 2001. After adding up the massive expenses associated with his divorce, Logan began to question why people don't have an opportunity to protect themselves from this extreme financial burden. And like that, WedLock Divorce Insurance was born.

WedLock began selling divorce insurance policies last month, and the company already has several policy holders. Just as with life insurance, you can decide how large you want your policy to be. Your monthly premium will be based on the total amount of money you would receive in the event of a divorce. There is one catch though. You must have your policy for at least three years before filing a claim. This rule is designed to prevent people from setting up a policy after they realize their marriage is irrevocably broken in an attempt to minimize the damage to their bank account.

Is this a good idea? Clearly, it will relieve some of the financial burden experienced during a divorce. But by taking out a divorce insurance policy, are you dooming your marriage from the start?

This is different from a prenuptial agreement. Those agreements are designed to clearly establish how assets will be distributed in the event of a divorce, and they are commonly used to protect individuals entering into a marriage on significantly unequal financial footing. These agreements are especially useful in second marriages when a couple wants to make sure their assets go to their children instead of their spouse.

In contrast, divorce insurance isn't protecting assets acquired prior to the marriage. It is just a safety net to ensure that you do not squander valuable income paying for an expensive divorce. I can't imagine starting a marriage off with that discussion. But apparently, there are some people out there who think it is a good idea. After all, they bought policies.

McCourt Divorce Trial Concludes with Fate of the Dodgers Hanging in the Balance

2010-09-30T10:12:00.001-07:00

This week, the 11-day divorce trial of Frank and Jamie McCourt, the owners of the Los Angeles Dodgers, came to a close. One of the most contentious points to be decided in this trial is the couple's bitterly contested marital property agreement, which will ultimately decide how their assets will be distributed. The disputed assets include ownership of the Dodgers, Dodger Stadium, and approximately 300 acres of property around the ballpark. The judge has 90 days to issue his ruling on the case.

It appears that the couple signed two conflicting versions of the marital property agreement. In one version, Frank is awarded sole ownership over the Dodgers. In the other, the team is classified as "community property" which would require ownership of the team to be shared equally by both parties.

Jamie McCourt's attorneys have argued that the purpose of the marital property agreement was to protect the couple's homes from business creditors. During their 30 year marriage, the couple regularly placed all of the businesses in Frank's name and the title to their homes in Jamie's name in order to accomplish this goal. However, the marital property agreement was also intended to ensure that the McCourts maintained the same rights they enjoyed while living for many years in Boston. Under Massachusetts law, all marital assets acquired during the marriage are divided equally, regardless of who holds the title.

Frank McCourt's attorneys vehemently argued that the marital property agreement affording Frank sole ownership of the Dodgers was in fact the legitimate agreement. They claim that Jamie never desired to be the legal owner or primary financial stakeholder in the Dodgers. Furthermore, they insist that this version of the agreement was her idea. However, as a practicing family law attorney for many years, it seems unlikely that Jamie McCourt would sign away her rights to such a valuable asset without receiving fair compensation in return.

As the judge begins to deliberate over the arguments brought forth by each side, the fate of the Dodgers hangs in the balance. Ultimately, in the short term, the franchise may be the big loser since the ownership dispute will most likely not be resolved before off-season free agent signings begin, and many high profile players may be hesitant to sign with a team mired in such uncertainty.

Tiger Woods Finalizes Divorce

2010-08-25T16:25:00.001-07:00

This week, Tiger Woods officially finalized his divorce with his former wife, Elin Nordegren. While the details of the divorce settlement have not been made public, Nordegren is rumored to have received more than $100 million from Tiger.

This can be considered a major victory for Nordegren since the couple had entered into a prenuptial agreement which would have provided her with a vastly smaller settlement. In general, the courts will almost always uphold the terms of a prenuptial agreement even if they are lopsided, provided both parties had proper legal representation. Therefore, Tiger had no obligation to give her such a large sum of money as part of the divorce settlement. This raises the obvious question, "Why did he agree to break the terms of his prenuptial agreement?"

There are two possible explanations for Tiger's willingness to give Nordegren such a large settlement. The first involves his children. Tiger has made it abundantly clear that he would like to remain an important part in his children's lives. By giving Nordegren more money, it is possible that he was able to secure a more favorable child custody agreement.

The other explanation involves his image. To this date, Elin Nordegren has been remarkably quiet regarding the infidelities of her ex-husband. Even in her recent People magazine interview, she was careful not to bash Tiger. It is possible that as part of the terms of the divorce, she has agreed to remain quiet on the issue, or at the very least to not malign Tiger Woods to the media.

This case brings up an important consideration regarding prenuptial agreements. While it is difficult to compel your estranged spouse to break the terms of the prenup, it is possible to do so if you have the proper bargaining chips. Often, money is a small price to pay for some of these other considerations.

New York Passes No-Fault Divorce Legislation

2010-07-15T13:26:00.001-07:00

New York has recently passed a bill which will reform the state's permissible grounds for divorce. When this bill goes into effect at the end of the summer, no-fault divorces will be granted in New York.

This is a watershed moment in New York divorce law. For years, all of the other 49 states have granted no-fault divorces. New York has finally taken an important step to bringing their statutes in line with the rest of the country.

According to the bill, a divorce can now be granted if a marriage has been "irretrievably broken for a period of at least six months." However, in order for a no-fault divorce to be granted, the following issues must be resolved between the two spouses:

Equitable distribution of marital property
Payment or waiver of spousal support
Child support
Child custody and visitation
Payment of legal counsel and expert fees and expenses

Prior to passage of this bill, without a separation agreement, one spouse had to allege fault on the part of the other spouse in order for a divorce to be granted. Acceptable fault grounds included:

Cruel and inhuman treatment
Adultery
Abandonment
Confinement of one spouse in prison

Two companion bills were also passed. One requires mandatory spousal support, while the other dealt with legal counsel fees. Both of these laws will take effect in the fall.

NY Court of Appeals Rules that Same Sex Couple’s Civil Union in Vermont is Grounds for Non-Biological Parent to Seek Custody

2010-06-24T10:02:00.001-07:00

The New York Court of Appeals has recently ruled on a case which will most likely have far-reaching implications over other similar family law cases regarding child custody among same sex couples. In Debra H. v. Janice R., the court ruled that Debra, the non-biological, non-adoptive parent in a same-sex couple should be recognized as a parent and granted her the right to seek custody or visitation of their child.

While the ruling goes against a prior 1991 decision, it does not undermine the previous ruling. In that case, the Court of Appeals ruled that the lesbian partner of the natural birth mother has no visitation rights despite demonstrating a parental relationship with the child. Although the facts in the current case closely resemble those of the original, there was one important distinction which enabled the Court to rule against the precedent set in 1991.

Prior to the birth of the child, the same sex couple entered into a civil union in Vermont. As a result, Vermont law recognizes both women as parents. Therefore, the non-biological parent did not need to file formal adoption papers to be considered a parent under law.

The New York Court of Appeals decided that under the principle of comity, which recognizes the laws of a sister state, the couple's civil union in Vermont qualified both women as a "parent" under New York's Domestic Relation Law. By giving comity to the Vermont law, the Court was able to avoid undermining a prior precedent while simultaneously providing the partner of the biological mother recourse to continue her parental relationship with her child.

It is important to note that this decision does not grant the non-biological parent custody or visitation rights. It simply grants her the ability to fight for that right in court.

NY Appeals Court Rules Distribution of Marital Property is Not Affected by Wife’s Adultery and Deception

2010-05-25T12:50:00.001-07:00

The New York Court of Appeals recently ruled that a woman's adultery and deception of her husband was not outrageous enough to affect the division of marital property. The woman let her husband believe that he was the father of a child she had with another man.

The husband learned of his wife's affair when the child was three years old. A DNA test confirmed that the child was in fact fathered by another man. At this point, the wife acknowledged that he was not the father, prompting the husband to file for divorce.

As part of the divorce action, the husband claimed he was entitled to recover damages for the money he spent supporting a child that he was fraudulently led to believe was his own. He also sought to recover fees for the collaborative law process used to settle their divorce, and he argued that his wife's actions should impact the division of their marital assets.

In a 6-1 ruling, the Court of Appeals found that the wife's actions did not reach "egregious" levels warranting a break with Equitable Distribution laws. They did, however, award the husband his share of the collaborative law fee.

The Court ruled that "it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets."

Previous instances where the courts have found circumstances egregious enough to warrant adjusting the division of property include:

Levi v. Levi (2007), where a spouse attempted to bribe a judge
Halvell v. Islam (2002), where one spouse viciously assaulted the other in front of their children

In this particular case, the Court determined that the wife's adultery did not fall outside the bounds of typical marital fault. As a result, they refused to adjust the division of property. The additional deception which led her husband to believe he was the father of someone else's child for three years did not appear to factor into the decision of whether her actions reached egregious levels.

NY Appellate Court Rules Property Law Trumps Contract Law in Unusual Divorce Case

2010-04-29T10:36:00.001-07:00

In a highly unusual divorce case, the New York Court of Appeals was forced to rule on whether contract law or property law takes precedence in settling who would control the rights to contested property.

After a long term marriage, a childless couple filed for divorce. After two years of contentious litigation, the couple signed a formal stipulation of settlement, finally settling their divorce action. As part of this stipulation of settlement, equitable distribution of marital property was agreed upon in the following way:

The husband would receive the marital residence and one other parcel of real estate
The wife would receive one parcel of real estate and $250,000
Each party would keep any bank and brokerage accounts that were titled in their own separate names

The agreement specified that the parties were to execute deeds to the real estate in order to convey title to each other as stipulated by the settlement agreement. However, before the divorce was officially granted by the judge, and before any deeds could be drawn up, signed, and money exchanged, the husband unexpectedly died. At the time of his death, the couple was still legally married.

Since the divorce had not been made official, the real estate owned by the parties jointly as a married couple was owned as Tenants by Entirety, a special form of real estate ownership that applies only to married couples. Under the doctrine of Tenants by Entirety, each party maintains an undivided share of the entire property, and ownership is not divisible. The entirety is only broken by:

A judgment of divorce
One party executing a deed conveying his or her interest to the other party (or to a third party)
The execution of a deed declaring that the property is to be held as Tenants in Common, which is a divisible form of ownership (in the event of the death of one party, 50% of the property passes to the decedent's estate, not to the survivor)

In this situation, none of the above requirements had been met before the husband died. Therefore, the wife still technically held title to the property under Tenancy by Entirety.

The husband's heirs (brothers and sisters) sued to obtain possession of the property, claiming that the wife should be legally required to execute deeds to them for the two parcels of real estate in accordance with the stipulation of settlement, which was a signed, valid contract between the husband and wife. In return, she would receive the $250,000 owed to her in compensation for the property. This money would be paid by the deceased husband's estate.

The husband's heirs claimed that contract law applied, making the terms of the stipulation of settlement binding, even though a divorce had not officially been granted and deeds had not been drawn up or signed. The wife claimed that since the couple was still married at the time of death, the title to all three parcels of real estate went to her by operation of law, as sole surviving Tenant by Entirety.

The New York Court of Appeals ruled in favor of the wife, declaring that only a divorce or the actual conveyance of a deed could break the Tenancy by Entirety. Since neither existed in this situation, the title to the property became owned solely by the wife at the time of the husband's death. In this case, the law of property trumped the law of contracts, making the provisions in the settlement agreement unenforceable. As a result, the wife reaped a windfall.

Several actions could have been taken to avoid this unintended result:

The parties could have executed deeds on the same day that they executed the stipulation of settlement. The deeds could have been held in escrow by the lawyers pending the exchange of the $250,000.
The draftsman of the agreement could have included very specific language in the stipulation stating that the parties intended that by the execution of this agreement, the Tenancies by Entirety of all three parcels of real estate were simultaneously dissolved and broken even in the absence of an executed deed. Instead, from that day on, the parties would own the properties as Tenants in Common until such time as deeds could be signed conveying the properties.

Either of these two actions would have resulted in the husband's heirs receiving the property he intended to bestow on them. This case is just one example of why it is so important to be represented by an experienced divorce attorney who will not overlook the unexpected.

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2010-04-26T13:36:00.001-07:00

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New York Appeals Court Overturns Wife’s Attempt to Set Aside Equitable Distribution Agreement

2010-03-30T12:28:00.001-07:00

In Label v Label, a New York Appeals Court recently ruled unanimously to reverse an order of the trial court which partially vacated a portion of the equitable distribution settlement between both parties. In the original agreement, the wife waived her interest in her husband's business in return for other benefits:

The marital residence
$120,000 in cash
High levels of spousal support and child support

In 2007, the wife hired an independent appraiser to calculate the value of the business as of the commencement date of the divorce action, 2004. He estimated the value of the business to be $1,042,890. Based on this information, the wife entered into the agreement whereby she waived her rights to a portion of the value of the business.

However, in 2008, the wife stole documents from her husband's home office indicating his intent to sell his interest in the business for $1,820,000. As a result, the wife obtained an updated appraisal of the business, listing its value at $3,640,000. Based on this information, she moved to set aside only that portion of the settlement agreement that provided for her waiver of any interest in the business, claiming that he fraudulently withheld vital information from her regarding negotiations for the sale of the business, which began in 2007.

The trial court initially approved the motion; however, the appellate court overturned the ruling based on several important points of law:

The court cannot set aside only one portion of an agreement while allowing the other party to retain all of the benefits; if the agreement is to fall, then the entire agreement must fall.
An agreement between spouses which is fair and reasonable on its face will be enforced according to its terms, absent proof of fraud, duress, overreaching or unconscionability.
The husband had no special duty to disclose his preliminary negotiations for the sale of his business to the wife.
The proper valuation date for the business was the commencement date of the divorce action.

The last point is particularly important. The commencement date of the divorce action was 2004. Therefore, any increase in value to the business over the next three years would not be considered marital property, and the wife would not have a right to receive any of this increased value as part of her divorce settlement. As a result, the court ruled that the husband's actions did not constitute fraud, since he had no legal obligation to disclose information that was not relevant to the value of the business in 2004.

Determining the Religious Background of a Child after a Divorce

2010-02-25T14:06:00.001-08:00

When parents of different religious backgrounds divorce, it can lead to a bitter struggle over the religious identity of the children. Often, when parents cannot resolve this issue themselves, the court will step in and settle the dispute.

An unusual case was just settled in Chicago. The court found the father, Joseph Reyes, in contempt for exposing his daughter to Christianity after he violated a court order preventing him from exposing her to any religion other than Judaism. The reason the case is so unusual is that the divorce has not been finalized.

Reyes converted to Judaism after his daughter was born, but he returned to Catholicism after separating from his wife, Rebecca. He pleaded not guilty to the charges, citing freedom of religion as his defense.

Rebecca received a temporary restraining order after learning that Reyes had their daughter baptized last November. She claims that while they were a couple, Joseph had agreed to raise their daughter exclusively in the Jewish faith. Rebecca's lawyers filed the contempt charges with the court after Joseph recently took their daughter to Holy Name Cathedral, an action in clear violation of the restraining order.

It is not common for a judge to grant a restraining order prohibiting a parent from exposing the child to other religions before the divorce action is finalized and child custody is granted to one parent. Once the divorce is finalized and custody is established, it is common for the court to order that the child be raised in the religion of the custodial parent, especially where there is creditable evidence presented during the trial that the parents had agreed during the marriage to raise the children in one particular religion.

That would have been easy in this case, because the father had converted to Judaism during the marriage, and that is strong evidence that the parties intended to raise their children Jewish. Furthermore, Reyes never renounced Judaism to return to the Catholic faith until after separating from his wife.

It is possible that the conduct that triggered the court's injunction was the father attempting to have the child baptized, an action completely inconsistent with raising her Jewish. In this case, the court, sensing the stubbornness on the part of the father, wanted to stop these actions at once. Had it not been for the blatant conduct on the part of the father, it is unlikely the court would have granted the injunction prior to the finalization of the divorce.

If the parents had been willing to exercise a little civility and good faith toward one another, the proper outcome would have resulted in the child being raised and educated in the Jewish faith, since that was the obvious intent of the parents before they separated. The father would then have the right to expose their daughter to Christianity during his parenting time, explaining that this was his background. However, he would not be able to baptize her or teach her that she is a Christian.

The court has the responsibility of protecting children from warring parents who act inappropriately and can do harm to the child, whether that is their intention or not. This is clearly an issue that should have been settled by the parents and not left up to the determination of the court. Unfortunately, the selfishness of the parents forced the court to get involved.

Reyes' claim of freedom of religion is not a valid defense of his actions. He has the freedom to practice the religion of his choice; however, he does not have the freedom to force this choice on a helpless child, especially when this choice is in contradiction of the agreement the parents made while they were still a couple. In this case, the facts clearly support the mother's argument, and while the court's decision was somewhat unusual, they appeared to make the right call.

Child Custody and International Law

2010-01-25T10:56:00.000-08:00

A recent case in New York highlights some interesting points about child custody cases involving international law. In Sanjuan v. Sanjuan, the courts granted the father's motion to dismiss a divorce and custody action in the state of New York, stating that the appropriate jurisdiction for the divorce action was the Philippines.

This case involves various aspects of international law, as well as the Uniform Child Custody Jurisdiction Act (UCCJA). Under the terms of the UCCJA, a child's "home state" is defined as the state (in this case, the country) where the child has legally resided for at least the past six months. The important term here is the word "legally." If the child were kidnapped or otherwise illegally removed from her home state, her new home state would not be recognized as a legal jurisdiction for a divorce action.

In this particular situation, the father had moved with his daughter to the Philippines approximately 13 months ago and proceeded to initiate a divorce action over there. Shortly thereafter, the wife tried to file for divorce in New York, but her original action was dismissed for failure to obtain proper jurisdiction. In other words, she failed to serve her husband properly with a summons in the Philippines.

Since there was no prior custody order and the mother knew of her child's whereabouts, the father left New York with his daughter legally. The mother then failed to commence a custody action within the required six month period (her original action was dismissed, and she did not bring another one until a year later). Once their daughter's residency had passed the six month mark without a valid filing for divorce and custody in New York, her legal residency became the Philippines.

As a result, the courts ruled that the mother's long-delayed action in New York should be dismissed in favor of the father's action previously filed in the Philippines. Generally, the courts do not favor competing actions seeking the same relief, and they will always try to find some statutory mandate to resolve the conflict. In this case, the UCCJA provided the proper legal guidelines.

This particular case was brought and decided in the New York courts. The Philippine court had nothing to do with this decision, although they will undoubtedly have the responsibility of ultimately deciding which parent gets legal custody over their child.

International Child Custody Case Resolved after 5 Years

2009-12-28T11:56:00.000-08:00

Last week, a five year international child custody battle was resolved when New Jersey resident David Goldman was reunited with his 9-year-old son Sean. Sean's mother, a native of Brazil, took him there in 2004. She never returned to the United States; instead, she stayed in Brazil, divorced Goldman, and remarried. Goldman has been trying to get his son back ever since.

Last year, after Sean's mother died in childbirth, Goldman sued in both American and Brazilian courts to obtain custody of his son. However, Sean's stepfather refused to give up custody. Unfortunately, it took a tremendous amount of pressure on the part of U.S. politicians for the Brazilian courts to finally reach the correct decision in the matter. On December 22, Brazil's chief justice ruled that Sean should be returned to his father.

While Sean's mother was alive, the decision of which parent would retain custodial rights to Sean was up for debate. Both parents would have been considered fit parents in the eyes of the court. Therefore, Sean's mother and father had an equally valid claim to custody of their child.

It is important to note that since Sean's relocation to Brazil occurred without the express permission of David Goldman, it could be considered abduction, as governed by the Hague Convention. As a result, Sean's mother was unfairly denying Goldman the right to spend meaningful time with his son, and she would need to prove in court that this relocation was in the best interests of the child.

However, once Sean's mother died, David Goldman legally had an indisputable right to retain custody of his child. Sean's stepfather could not legally challenge this issue. When only one biological parent is living, that parent is the only person under American law who can hold a valid custody claim to the child. In order to deny David Goldman custody, Sean's stepfather would have to prove that Goldman was an unfit parent. According to American law, he would have to either be:

Adjudicated a criminal
A child molester
Proven to pose a real and serious danger to the child

Since David Goldman was not considered unfit by these standards, he should have been awarded custody of his son immediately following his ex-wife's death. The fact that the Brazilian courts took so long to release Sean to his biological father was an absolute travesty of justice. Fortunately, they eventually got it right.

When both parents are still alive, custody will generally be awarded based on what is in the best interests of the child. In the United States, child custody issues are gender neutral, and do not favor either the father or mother. The following questions will be used to determine who receives custody if both parents contest the issue:

Who is the more nurturing parent?
Who can provide the warmer, more loving home?
Who can provide the best supervision?
Who can provide the best education?
Who will make the best decisions regarding the child's well-being?

If one parent is taken out of the picture, either by death or imprisonment, the remaining biological parent has priority over any other individuals, including grandparents, step-parents, aunts and uncles, or siblings, unless the other parent is proven to be unfit by the standards listed above.

NY Appellate Court Rejects Expansion of Constructive Abandonment to Include Social Abandonment as Grounds for Divorce

2009-11-30T10:28:00.001-08:00

New York is the only state in the country that still requires one spouse to prove fault to obtain a divorce when the other spouse refuses to agree to it. Currently, New York only grants a divorce for the following fault grounds:

Cruelty
Abandonment for one year or more
Adultery
Confinement to prison for three years or more

Judicial decisions have expanded abandonment to include "constructive abandonment," or the failure and refusal of one spouse to engage in sexual relations with the other for a period of one year or more, thus constituting an "abandonment" of marital obligations.

Recently, the appellate court heard a case that attempted to expand constructive abandonment to include "social abandonment" for one year or more. In Davis v. Davis, the wife claimed constructive abandonment as grounds for divorce. However, she did not accuse her husband of refusing to engage in sexual relations for one year or more, which is the traditional cause for this fault ground. Instead, she claimed that her husband refused to engage in social interaction by:

Refusing to celebrate with her or acknowledge Valentine's Day, Christmas, Thanksgiving, and her birthday
Refusing to eat meals together, attend family functions, or accompany her to the movies, shopping, restaurants, and church services
Leaving her at the hospital emergency room
Generally ignoring her

A lower court had granted the husband's motion to dismiss the cause of action for constructive abandonment, affirming that he was not guilty of this action. The court asserted that constructive abandonment is limited to the refusal of sexual relations despite repeated requests to resume relations for one year or more. The court rejected the grounds of social abandonment, which the wife argued took place in this situation, asserting that it represents a claim of "irreconcilable differences" between spouses, which would in effect establish a "no-fault" divorce in New York.

The court argued that it was up to the legislature, not the courts, to establish a no-fault divorce. The appellate court agreed with the lower court's ruling, effectively ending the debate over whether social abandonment was an appropriate fault ground for divorce.

Currently, the only way to obtain a no-fault divorce in New York is for both spouses to sign a written separation agreement, file it with the courts, and live separate lives abiding by the terms of the agreement for one year or more. At this time, the terms of the separation agreement may be transferred to an official divorce agreement.

Determining Child Custody through Litigation

2009-10-28T10:43:00.000-07:00

A child custody battle, whether as part of a divorce action or a separate action (generally after the divorce, where one of the parents is seeking a change of custody terms), can be one of the most contentious and unnerving forms of litigation you may ever experience.

The law does not favor either parent by gender, and each case is driven by the unique facts involved. The sole question to be answered in an initial custody action is, "What is in the best interests of the child?"

In an action to modify a prior custody ruling, there is an additional question to be answered: "What has changed since the prior custody order (or agreement) that would warrant a change of custody at this time?"

The courts will often seek the aid of unbiased health care and educational professionals to help them reach the best possible decision. Often, forensic psychiatrists or psychologists will be called on to conduct a thorough investigation and evaluation of each child and each parent involved in the custody litigation. This evaluation may include "significant others" such as grandparents or other caretakers who have contact with the children.

This investigation will attempt to determine:

Who is the better parent?
Which parent, if any, is attempting to exercise mind control over the children to the detriment of the other parent?
Which parent may be interfering with the other's visitation rights?
Any other factor that might have an impact on answering the question, "What is in the best interests of the child?"

The court will also appoint a Law Guardian, or attorney for the child, who is an independent lawyer charged with the responsibility of representing the child's interests, separate and apart from either parents' interest in the litigation. If the child is old enough and mature enough to express his own desires regarding which parent he wishes to live with, the Law Guardian will make that viewpoint known to the court. The Law Guardian will advocate for the child's wishes as long as he believes this viewpoint was not the result of parental brainwashing.

In most cases, if a child has reached the age of 13 or 14, his wishes will be factored into the court's final decision, provided he demonstrates appropriate levels of maturity for his age.

The cost of all professional fees, including the forensic evaluators, Law Guardian, and any other professionals appointed by the court, will be paid by the mother and father, proportional to their respective income and other financial conditions. These fees, in addition to each parent's own attorney's fees, can quickly escalate, resulting in an enormous financial cost to each party.

The litigation of a custody proceeding often also results in enormous emotional costs to both parents as well as the children involved.

For all of these reasons, it is in the best interests of everyone involved to try and negotiate a balanced settlement agreement crafted by the divorce attorneys for each parent so that the financial and emotional costs of litigation can be avoided entirely.

New York Passes New Child Support Legislation

2009-09-29T10:20:00.001-07:00

The state of New York has recently passed new legislation expanding the base income for mandatory child support
from $80,000 to $130,000. Any income above $130,000 may or may not be subject to the court awarding child support. This will be left entirely to the discretion of the court.

Prior to this new legislation, the courts have customarily awarded child support up to a discretionary base income of approximately $200,000. Any income above this level has generally been exempt from child support. However, with the expansion of the mandatory base income from $80,000 to $130,000, the discretionary cap is likely to rise as well. It is still uncertain how high it will go.

When the courts exercise discretion to go beyond the mandatory base, they consider lifestyle and standard of living factors. Sending children to private school, consistently taking extravagant vacations, and providing children with extracurricular activities such as music lessons, dance lessons, or summer camp will often influence the court's decision as to whether to award child support on a higher income than the mandatory base of $130,000.

While there is a basic formula for awarding child support, it is important for your divorce lawyer to be aware of these additional factors which may lead the court to use discretion in altering the ultimate dollar figure. Hiring an inexperienced divorce lawyer may result in a child support award that poses a serious financial burden on you and your family.

Legal Separation

2009-08-27T10:21:00.001-07:00

In most states, a legal separation can be achieved in one of two ways:

Through a comprehensive agreement between the two parties
By court decree

Whenever possible, you want to avoid the second option, since a court trial can be just as involved and expensive as a divorce trial. For the most part, the issues are the same, and once you're going through a trial, you might as well go for the divorce. It's the same work and the same cost, so you may as well finalize it and make it official.

In most cases, a legal separation is achieved through a negotiated settlement between both spouses, leading to a Separation Agreement, which is a formal contract that covers issues such as:

Child custody
Visitation
Child support
Spousal support
Equitable distribution of marital property
Life and health insurance
A waiver of estates rights

Essentially, this agreement will cover any issue necessary to enable the couple to put their lives on separate tracks and move forward as individuals. Naturally, the agreement provides that the couple will live separate and apart, free from the authority and control of one another, as if each were single and unmarried.

It is a contract where the terms must be strictly followed. The only restriction for each party living under the terms this agreement is that they may not get re-married because they are not yet legally divorced. However, each person is free to date and even live with someone else, since all of the issues of the separation have already been dealt with. A court may not change the terms of a written separation agreement unless it determines that the terms of the original agreement are unconscionable.

Most states have laws that allow either party involved in the separation agreement to obtain an uncontested divorce after living separate and apart for a required period of time. At this time, the terms and provisions of the separation agreement will become the basis for the divorce agreement. The judge will simply have to sign the final divorce decree.

If you and your estranged spouse are able to work out a separation agreement amicably, it is a much better way to go about your divorce. You and your spouse will have negotiated all of the terms without the intervention of the court. This enables you to maintain control over the entire process.

Don’t Lose Sight of What’s Best for Your Child

2009-07-30T11:35:00.001-07:00

It is easy to get caught up in the bitterness and animosity you feel for your estranged spouse during a divorce proceeding. Often, feelings of anger and betrayal may drive a person's motivation during such a difficult time. Unfortunately, in many cases, the person you end up hurting is not your spouse but your child.

When a divorcing couple has young children, it is important to make sure that their best interests are kept in mind when deciding issues of child custody. While feelings of bitterness and spite might motivate you to want to "stick it to your ex," in the long run, this behavior will only cause your children to suffer.

Children deserve to maintain positive, close relationships with both parents, provided neither parent is abusive or negligent in any way. To attempt to deny your ex his or her right to spend meaningful time with your children is unconscionable.

Clearly, child custody may be one of the most contentious issues you will have to deal with in your divorce. For most divorcing couples, both parents will want to spend as much time as possible with the children. Frequently, scheduling issues make custody arrangements extremely complicated. However, it is important to keep a level head during this difficult process and always remember that your priority when deciding custody should be to make the transition to divorced life as smooth as possible for your children.

A good divorce attorney will always try to help remove any animosity from this discussion and guide you and your estranged spouse through the custody process in a way that works to keep the best interests of your children at heart. If your divorce attorney fails to do this, you are most likely working with the wrong lawyer, because in the end, it is in your best interests to always put what is best for your children first.

Spousal Support

2009-06-24T15:55:00.001-07:00

The payment of maintenance, sometimes referred to as spousal support or alimony, is entirely up to the discretion of the courts in most states. Unlike child support, which is mandated by statute as to the amount (based on a specific percentage of each parent's income), spousal support may be granted or denied at the judge's discretion, and the amount of this payment is not fixed based on statutory laws.

Years ago, before most states enacted Equitable Distribution laws, a spouse could be granted alimony based on a disparity of incomes between each party, and based on the financial needs and accustomed standard of living achieved during the marriage. If spousal support was granted, it would last for the life of the needy party, or until his or her remarriage.

Before 1980, spousal support would be denied, as a matter of law, in the event a divorce
was granted on grounds against the needy party. For example, if a wife, who never worked, were found to be guilty of cruelty or adultery, she would be barred by law from ever collecting spousal support, no matter how egregious the conduct of the husband was during the marriage.

In the early 1980s, most states rectified this inequity by establishing Equitable Distribution laws. Today, most states grant spousal support according to genuine need. It is designed to be rehabilitative in nature in order to provide the needy spouse sufficient time to complete an education (or re-education) so that he or she may be able to return to the workforce and earn a decent living. Therefore, spousal support is generally limited to a short period of time, depending on the duration and circumstances of the marriage.

It is not uncommon for spousal support to only last for one year when the marriage was short. For a longer marriage, spousal support may last for as long as five years. The presence of young pre-school children at home is often a factor in determining spousal support, since the custodial parent may need to stay home with the children for a number of years.

In situations where the couple filed for divorce after a very long marriage, a spouse who stayed at home for many years and who is beyond the age where he or she could reasonably retrain for employment might be granted lifetime spousal support. Regardless, marital fault will no longer disqualify you from receiving spousal support; it is determined on the basis of need.

The court will consider the following factors when determining the amount and duration of spousal support:

Income disparity between each party
The lifestyle and needs of the "poorer" spouse
The ability of the "wealthier" spouse to support him/herself after paying maintenance
The ability of the needy spouse to gain or regain full employment
The duration of the marriage

Of course, you do not have to leave this issue up to the courts. You and your estranged spouse can negotiate these issues with the help of your divorce lawyer. This will save you a great deal of time, aggravation, and legal expenses.

Do I Need A Prenuptial Agreement?

2009-05-28T14:30:00.001-07:00

One of the most common questions asked by couples about to enter into a marriage is, "Do we need a prenuptial agreement?" Unfortunately, the answer to this question is very vague: "It depends."

First, let's talk about the typical situation where a prenuptial agreement is not necessary. When both partners are at relatively the same stage in life, a prenuptial agreement is generally not important. The same life stage can be defined as:

Both people are marrying for the first time
Neither has any children from a prior relationship
Both have similar incomes
Neither party has acquired any significant assets

A prenuptial agreement is necessary in situations where there is a disparity in assets or wealth between the marrying parties, or where one or both parties has children and wants to ensure that his or her wealth goes to the children.

In a typical prenuptial agreement, one or both parties agree to give up certain property rights that would be bestowed upon that party by law as a result of marriage. A prenuptial agreement allows each party to be able to dictate where his or her wealth will be distributed in the event of an untimely end to the marriage, whether through death or divorce.

The marrying couple can agree to just about anything in a prenuptial agreement. It can be unfair or imbalanced, as long as it is not unconscionable. In order to ensure that a prenuptial agreement will be upheld in court, both parties must have equal representation in the negotiation and execution of the agreement, and the agreement must contain as an exhibit a comprehensive financial statement of each party.

These agreements are highly technical documents, and it is important to have an experienced matrimonial law attorney draft it. Also, it is important to never sign a prenuptial agreement without having it reviewed by your attorney.

Equitable Distribution

2009-04-23T15:21:00.001-07:00

Years ago, ownership of title to property was the determining factor as to which spouse would receive the property after a divorce. For example, if the marital residence was purchased during the marriage but only one spouse was listed on the title to the property, that spouse would always receive the house in the divorce, regardless of which spouse contributed the money to purchase the home. Similarly, a bank account, pension account, 401K plan, or business that was titled in one spouse's name would be awarded to that spouse in its entirety.

During the 1970's and 1980's, the philosophy of "marriage as an economic partnership" began to develop. As a result, many states passed legislation modifying divorce laws so that title would no longer be the determining factor in the distribution of marital property during a divorce.

Today, in most states where Equitable Distribution is the law, property is defined in one of two ways:

Marital property
Separate property

Any property acquired during the marriage, regardless of who holds the title, is considered marital property. The only exceptions to this are:

Gifts
Inheritances
Personal injury awards

The above exceptions as well as any property or assets acquired prior to the marriage and kept separate (not co-mingled) are considered separate property.

Some assets can be partly marital and partly separate. For example, if a husband was enrolled in his employer's pension plan for 5 years prior to the marriage and then for 20 years during the marriage, then 80% of the pension would be considered marital property and 20% would be considered separate property. The 20% would be distributed to the titled spouse, while the 80% would be distributed equally to each party.

Equitable Distribution does not necessarily require equal distribution. For example, if a business was established during the marriage but was worked exclusively by one spouse, the value of the business does not necessarily have to be split equally. If the husband worked the business with no contributions from the wife, the court can look to the wife's other contributions to the marriage (i.e. homemaking, child rearing, entertaining clients) and determine an "equitable" percentage of the business to award to the wife. That percentage will often be less than half.

Normally, assets such as homes, cars, boats, bank accounts, pensions, IRAs, 401Ks, and other forms of savings and investments will be distributed equally. Businesses where there is unequal active participation of each spouse will generally be distributed unequally, similarly to businesses where only one spouse participated.

As a result of Equitable Distribution laws, couples entering a marriage should consider a prenuptial agreement, especially in situations where there has been an unequal accumulation of assets prior to the marriage.

Child Support

2009-03-25T14:40:00.001-07:00

The concept of child support stems from the principle that it is the duty of both parents to adequately support and provide for their children according to their means and ability. Frequently, the issue of child support is one of the central focal points in a divorce case.

Several decades ago, child support was entirely subject to the discretion of the court, and the results were inconsistent across the country. States, counties, and individual judges within the same judicial districts differed drastically in the way in which they awarded child support. No one knew what to expect in any particular case.

However, this changed in the 1980's, when every state passed legislation following a federal model Child Support Standards Act. The child support statutes enacted by each state were nearly identical, ensuring that child support awards would be consistent throughout the country.

The new uniform child support statutes are based on the premise that both parents must support their children in proportion to their respective incomes. While the non-custodial parent will always be required to pay child support in a fixed, stated percentage to the custodial parent, theoretically the custodial parent will likewise be expected to utilize the same percentage of his or her income toward the support of the children. Typically, state child support laws regulate child support based on a percentage of gross income.

For example, in the state of New York, the non-custodial parent will pay:

17% of gross income for the support of one child
25% for the support of two children
29% for the support of three children
35% for the support of four or more children

While these percentages may vary slightly from state to state, all states mandate roughly similar percentages to this. It is important to consult your divorce lawyer to find out the exact percentages in your state.

The above-stated percentages are mandatory and are usually referred to as "basic child support." In addition to basic child support, both parents are also required to contribute to "extras" or "add-ons" in proportion to their respective incomes. These "extras" include:

Unreimbursed medical expenses
Educational expenses
Prescription drugs
Dental expenses
Extra-curricular activities
Child care expenses

The apportionment of these "extras" is based on relative income, so that if one parent earns $100,000 and the other parent earns $50,000, the ratio of the apportionment would be 2:1. If their incomes are equal, then the split is 50/50.

The majority of states require child support to be paid until the child is 18. However, there are a few states that require it until age 21.

Co-Parenting

2009-02-25T11:10:00.001-08:00

Co-parenting enables children to reap the benefits of being raised by both parents in the event of a divorce. The archaic belief that custody should be awarded to the mother is no longer viewed as the standard by the courts. Today, it is widely acknowledged that fathers are just as qualified to raise children as mothers. Therefore, to benefit the children and save the divorcing couple thousands of dollars in litigation fees, many divorce lawyers encourage their clients to settle custody issues by agreeing to joint custody, or co-parenting.

Frequently, co-parenting plans will divide the time children spend with each parent relatively equally, providing each parent an opportunity to raise their children and enjoy spending large amounts of time with them as they grow up.

In order for a co-parenting arrangement to work, certain factors must exist:

Both parents must live close to each other, either in the same school district or close enough so that the children may be easily transported to school from either parent's house. This will also allow children to participate in extra-curricular activities and enjoy social time with their friends, regardless of which home they are staying in.
Both parents must be able to agree on important parenting decisions concerning schooling, extra-curricular activities, religious training and upbringing, and medical care. Both parents must be willing to attend parent/teacher conferences, sporting events, and other school sponsored events. Parents must also be able to agree on disciplinary measures when necessary.
Holidays and school vacation time will generally be shared, where appropriate, or alternated from year to year.
Each parent must provide financial support proportional to his or her income. Since co-parenting arrangements generally provide each parent with relatively equal time with the children, time shouldn't be a major factor in allocating child support.

Ultimately, the people who benefit most from a co-parenting arrangement are your children. They will receive all of the emotional and intellectual support that each parent can provide, which can be a salvation for them in the midst of a traumatic divorce.

Divorce Mediation

2009-01-12T15:42:00.001-08:00

Divorce mediation is an alternative to a traditional divorce that is becoming a very popular way for couples to settle their marital dispute. It offers couples a way to retain complete control over their divorce while resolving all disputes in an amicable way.

Mediation works best for couples who have a desire to maintain a positive post-divorce relationship, and who are able to communicate and work together well enough to reach an amicable solution to their dispute.

The mediator is a neutral party who is approved by both spouses. He will help both couples work together to resolve all of the major points of the divorce. The mediator does not have the authority to make any decisions in this process. His role is just to facilitate the discussion between both spouses.

Divorce doesn't have to bleed you dry of your life savings, but it can if you go to trial and engage in a bitter and protracted divorce proceeding. In mediation, the two people who know their own personal situation best can plan out their future without the adversarial process of a traditional divorce.

The result of a successful mediation is a better divorce agreement that is beneficial to both parties. The mediator knows the law and will help guide the couple into an agreement that will be approved by the court. Mediation will also take much less time and cost much less money than a traditional divorce.

Mediation can work out all facets of a divorce agreement, including child custody, child support, spousal support, and distribution of marital assets.

Forget About Marital Fault

2008-12-29T14:08:00.001-08:00

Just about every jurisdiction in the country now views marriage as, among other things, an economic partnership. Furthermore, New York is the only state that has not already adopted no-fault divorce in one form or another. So why even worry about the issue of marital fault?

Getting bogged down in issues of marital fault serves no productive purpose in your divorce proceeding. It is wasteful of your marital assets, and raises the level of acrimony in your divorce action.

Instead, you should spend your time and resources focusing on financial and child custody issues. A skilled divorce lawyer can guide you through the complexities of division of marital property, spousal and child support, custody and shared parenting, and preparing for a future living in separate households. These are the important issues in a divorce. Harping on who is at fault does not help you resolve them, and it delays your ability to move on with your life.

In this day and age, it is important to resolve the issue of "fault" as quickly as possible so that the real issues at stake can be tackled directly and solved intelligently. If your lawyer spends too much time talking about the issue of fault, you may want to consider different representation. With proper legal guidance, your divorce can be achieved quickly and without bankrupting your marital estate.

Equitable Distribution

2008-11-18T14:49:00.001-08:00

There is a growing trend across the country to view marriage as an economic partnership. As a result, most states have adopted the philosophy of "Equitable Distribution" in determining the division of marital property and assets in the case of a divorce. In most states, this has become the law, along with "Community Property."

Under Equitable Distribution, title to the property does not determine ownership. If an asset is acquired during the marriage, even if one spouse holds the sole ownership of the title, it is treated as "marital property." In the event of a divorce, both spouses will be able to share the asset.

There are two exceptions:

If the asset was purchased completely with the pre-marriage funds of one spouse, and the funds remained separate and identifiable at all times prior to the purchase of the asset.
If the asset was acquired as a result of a gift to one of the spouses from a third party (such as a parent), and the title always remained in the name of the spouse who received the gift.

However, assets that were acquired with pre-marriage funds can still be treated as marital property in certain situations. For example, if a couple purchases a house for $500,000, and one spouse uses pre-marriage savings to put a $100,000 down payment on the house, then the remaining value of the asset will be split between both spouses. So if by the time of the divorce, the house has appreciated in value to $800,000, then $700,000 will be split between both spouses after the $100,000 down payment is credited to the spouse who provided it.

Your divorce lawyer should be able to predict the division of assets fairly accurately. By analyzing assets in advance and determining the dollar distribution mandated by the law, your lawyer can guide you to a more amicable settlement agreement with your estranged spouse. This will save you a great deal of time, money, and headaches from protracted litigation. Ultimately, you will end up with the same amount of money regardless of the course of action you choose.

How to Deal with Spousal Abuse

2008-10-10T10:42:00.001-07:00

Spousal abuse can be a very traumatic experience. Often as a marriage unravels and moves towards divorce, the incidence of abuse can increase, making daily life all the more difficult to endure.

It is important to never tolerate abuse from your spouse, or from anyone for that matter. In abusive situations, there are both legal and practical steps you can take to remedy your situation.

The most effective legal option is to get a restraining order on your spouse. This is a court order preventing your spouse from engaging in certain conduct, and it often delineates physical boundaries which cannot be crossed by your spouse. Frequently, your abusive spouse can be forced to move out of the house without the right to return for any reason.

If your children are being abused as well, your lawyer can establish visitation agreements allowing your spouse to see the children only at specified times and in specified places. In extreme cases, supervision of visitation may be ordered. These agreements can occur before divorce proceedings are finalized.

It is also a good idea to contact the police whenever you have been abused. It is important to establish a record of these events to be used as evidence in your divorce. Unfortunately, the police are sometimes reluctant to get involved in domestic disputes, so they may not be of great help to you. But at the very least, you will start building a case against your spouse.

There are also people you can see in your community for help and assistance. Counselors and support groups can be very helpful in cases of abuse. If your children have been abused, you may want to contact social services. Also, don't be afraid to lean on family and friends. They can be your strongest allies and help you get through one of the toughest times of your life.

Paternity and Divorce

2007-11-27T11:21:00.000-08:00

Sometimes, with divorce, come arguments over child custody and even paternity. Paternity cases focus on establishing that the presumed father is the biological father of the child. In addition, a paternity suit can determine custody and visitation of the child, order a parent to be monetarily responsible for the birth of a child, and can order a parent to pay for day care expenses that were incurred because of work.

Paternity cases are often filed by the mother of a child in order to establish financial assistance, such as childcare. In other circumstances the father of a child can file a paternity case in order to establish visitation or custody with their child. Mothers who file for paternity are in effect giving rights to the father for visitation with the child. On the other hand, a father who files paternity will also be required to pay the mother for child support and other expenses related to the upbringing of the child. In instances when there is a question as to who the biological father of the child is, accurate and reliable DNA paternity tests can be done.

To find out more about paternity, child custody, and child support, click here.

Why Get a Prenuptial Agreement?

2007-07-20T07:06:00.000-07:00

A prenuptial accord is a contract between two people about to wed that details how assets will be distributed in the event of divorce or death. There are two types of prenuptial agreements (commonly called "prenups"): a marriage contract for people who are about to be married and a cohabitation agreement for unmarried couples. A variation for people who are already married is called a postnuptial agreement.

Most people think that only the very wealthy seek prenups, but that is not the case. Couples of modest means are increasingly turning to them for their own purposes. For example, a couple about to be married may use a prenup to outline what will happen to their property when they die so that they can pass on separate property to their children and still provide for each other. Without a pre-existing prenuptial agreement, a surviving spouse might have the right to claim a large portion of the other spouse's property leaving much less for the kids.

Prenups are most often used for the following purposes:

Keeping finances separate. If a couple divorces or when one spouse dies, the marital property will be divided between them, either by agreement or by a court. If you want to avoid this, you can do so in a prenuptial agreement.

Protecting each other from debts. If a prenup is not in place, then creditors can sometimes turn to marital property to satisfy the debts of just one spouse. A prenup can limit your liability for a spouse's debt.

Provide for your children from a previous marriage.

Keep property in the family.

Define who gets what if you divorce. This is probably the most common use for a prenup, especially when one or both spouses is very wealthy.

Outline child support, custody and visitation issues.

Relinquish the right to alimony.

If you or a loved one has been involved in a divorce or is about to get married in New York City, Long Island—including Nassau or Suffolk Counties, please contact the experienced Divorce Attorney Law Offices at Silberstein, Awad & Miklos.

Domestic Violence Victims Find Bravery Through Judicial System

2006-09-02T15:44:00.000-07:00

Although there are still few reported cases of domestic violence in specific states, it is becoming increasingly more common nationwide for domestic abuse victims to prosecute their abusive spouses in the civil justice system. Men and women who have suffered from living with abusive spouses are often (especially in the case of men) submissive about their abuse, ashamed or afraid of the recoil society may have against them. Even though it takes a great deal of bravery to admit to have been battered by a wife or husband, many people feel as though they are exposing an awkward weakness about themselves, and so they never seek the justice they deserve. There is also a lingering fear that the spouse will continue to stalk the victim. Many cases of personal injury and domestic violence involve stalking through use of phone wires, video cameras, disrupting private property, and physical invasion of personal privacy. After the victim has been stripped of privacy, they often find it terrifying to attempt to gain help, thinking that the spouse may easily discover the move and attack before any real help is gained. Cases have also been found where a spouse will follow the victim to work or social events.

Despite all these terrifying odds, men and women are now stepping up against their oppressors in a slow mass horde. According to Jeffery R. Dion, the director of the National Crime Victim Bar Association in Washington, "Domestic violence victims are increasingly using the civil justice system to hold their perpetrators accountable.... If a batterer is arrested, the victim often loses a key source of financial support and may need medical help, counseling or to move." Hiring a divorce attorney to prevent these disasters may help a victim gain proper compensation from their abusive spouses to cover moving fees, financial support, child support, pain and suffering, and medical fees. Many men and women who face a domestic abuse case in court without a divorce attorney wind up having to survive in a much less habitable environment due to a lack of child support or medical fee compensation - they continue to feel the pain of the abuse, even after being brave enough to face their perpetrator.

If you or someone you know is suffering from domestic violence or domestic abuse, call the police immediately. Be sure to locate a reliable divorce attorney to help prevent further damages - feel free to contact divorce lawyers in your area such as Palidori, Franklin, and Monahan, L.L.C. in Denver, Colorado.

Your Needs and the Government

2005-10-25T16:30:00.000-07:00

Despite the common fear, there is no reason for anyone considering divorce to fear the legal system. Its only purpose is to help those in need of divorce. At Jacoby and Meyers in San Diego, CA, it's all about giving people greater access to the legal system. It is their job to ease you of your worry, not cause more. They are there to answer any questions you might have, help settle you issues, and represent you in court. They specialize in dissolution of marriage, custody & support, name changes, guardianship of children, and adoptions. Do not be afraid of lawyers, they will prove to be an incredibly valuable asset to your family.

Is Divorce a Caustic Trend?

2005-10-18T17:05:00.000-07:00

For struggling families, this question may become predominant in everyday life. When a ruction occurs in the natural order of families, guilt and tension rise to frightening levels. People fear divorce not only because of personal psychological affects, but because the divorce around them seems to grow at an exponential rate as time goes on. When people get married nowadays there is often the joke of "getting the first one out of the way". Whether the future of society as we know it is at stake or not cannot truly be told. If you're considering divorce, think of the people around you. If you have children, what benefits them the most?

While studies have shown that divorce almost always affects children in a negative behavior, it has also been proven that children can lead normal, happy lives after the divorce, better than they were before, if the situation is handled well. This doesn't require that a parent become neurotic about their child's mental condition; it has been shown that simple honesty, sympathy, and kindness goes a long way in helping a child through a tough divorce. A parent that shares their fears with their children often helps them get over their own as well.

Resources:
DivorceNet
BBC - Separation and Divorce