Answers from Experienced Long Island Divorce Attorneys
Q:What can I do to protect myself from my spouse's malicious financial maneuvers?
A:At the initial consultation, your attorney should review with you your assets and liabilities. If you have joint credit cards and your spouse is mean-spirited, you may be advised to terminate the credit card or lower the credit limit. If there are joint investment accounts, you may be advised to request the financial institution to either freeze the account or request that both parties sign for any transactions in order to avoid a spouse's unilateral looting of the account. Once the divorce action commences, an automatic temporary restraining order (TRO) is in effect to prevent a spouse from removing the other spouse from any health and life insurance policies. In addition, the TRO protects against either party from transferring, disposing or encumbering any assets, except in the usual course of business or for customary or usual household expenses, or for reasonable counsel fees in connection with the divorce. In addition, you can protect yourself by gathering as much financial information as possible prior to your consultation, including bank accounts, brokerage accounts, stocks and bonds, stock options, trusts, retirement type accounts, deferred compensation, or life insurance policies. Although your attorney has the ability to discover your spouse's assets during the litigation, it is always easier and more cost-effective to assemble existing documents.
Q:Will marital fault be considered in my divorce?
A:New York recently enacted a new law effective as of October 12, 2010 that permits a "no fault" divorce, by simply stating that the relationship between the parties has broken down irretrievably for a period of at least six months. (The parties, may, however, live separate and apart pursuant to a separation agreement for a year, and then obtain a "no fault" divorce called a "conversion divorce," but this waiting period is no longer necessary.) The fault grounds were not repealed by the new statute, which include among other things, adultery and cruel and inhuman treatment; however, it is no longer necessary to use these grounds to obtain a divorce, nor would a client necessarily want to go through the time and expense of proving these grounds. The courts do not usually consider marital fault in the economic aspect of the case, unless such fault rises to the level of "egregious conduct," including situations of extreme physical abuse.
Q:What property is not subject to equitable distribution?
A:Marital property is defined by the law as all assets acquired during the marriage and prior to the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held. Separate property is defined as property acquired prior to the marriage, after the commencement of the divorce action, received as gifts (from a party other than the spouse), received as an inheritance, a personal injury award, or property acquired in exchange for or the increase in value of separate property (except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse), or property designated as such by agreement (i.e. a prenuptial agreement). Only marital property is subject to equitable distribution. If an active asset, such as a business, was acquired prior to the marriage, and the value of the business increased as a result of the active efforts of the spouse during the marriage, then the increase in value of the asset is marital property subject to equitable distribution. A court will consider the non-titled spouse's contributions to the appreciation of the separate property (whether by way of direct contributions or indirect contributions as homemaker and parent). By contrast, a passive asset, such as a bank account, acquired prior to the marriage, is not marital property, and if it appreciates it will remain a separate asset. The caveat being that the account must be maintained in that spouse's sole name and not transmuted into marital property by placing the other spouse's name on the account. When a separate asset is used towards the purchase of a marital asset, (i.e., a spouse uses his separate funds acquired prior to the marriage to purchase mutual funds in the parties' joint names), such property may be considered to be transmuted into marital property. The issue of separate versus marital property is often complex, and your attorney will review with you all relevant facts and discuss the proper classification with you.
Q:Now that I have commenced a divorce proceeding, it is awkward living under the same roof with my spouse. Can I get a court order to compel my spouse to leave the marital residence while the action
A:If the spouse has not already established a separate residence, the legal standard is proof of physical abuse or extreme mental abuse. Otherwise, a court will not eject either party from leaving the residence during the pendency of the divorce action. If the husband, for example, has already established a separate residence and it would cause marital strife for the husband to return, the wife is entitled to temporary exclusive occupancy of the marital residence until the matter is concluded. It should be noted that in this situation, the husband, who voluntarily leaves the marital home and permits the wife to care for the children, is placing himself in a poor legal position to obtain custody of the children. If the husband desires to leave the marital home, he should discuss this with his attorney at the initial consultation, and depending on the circumstances, the attorney may draft an agreement to be signed by both parties that such a move is not a waiver of his rights and to establish a visitation schedule or joint custody agreement.
Q:What is the likelihood that a father will obtain custody of the children?
A:"Custody" refers to which parent will be making decisions regarding the children's health, education and welfare, and should not be confused with a visitation schedule. If parents get along well enough to make critical decisions regarding their children, the parties can agree to joint custody. Where this is not the case, courts do not discriminate based on sex. The court will assess the "best interests of the child" by weighing the recommendations of the forensic psychologist, the fitness of each of the parties and, in some cases, when the child is old enough and mature enough to express his or her preference, the court will consider the child's preference. If the father is the working parent and the mother is a full-time stay-at-home parent, typically the children will stay in the custody of the mother who is available to continue to raise the children in a nurturing environment.
Q:What can be done to prevent a custodial spouse from moving away with the children, thereby significantly decreasing the other parent's interaction with them?
A:If you settle your case by an agreement, your attorney may negotiate a non-relocation clause in the agreement to prevent the other parent from moving away with the children. Without such an agreement, the standard for relocating with the child is "the best interests of the child." The court will weigh the impact of the child's move, including decreased visitation time with the other parent and the effect on his/her education and social relationships, against the reason for the relocation. A parent who wants to relocate because of remarriage or employment opportunity must show that such a move will be in the child's best interest and not simply to fulfill the parent's desires.
Q:How is child support and maintenance calculated?
A:The Child Support Standards Act (CSSA) provides that children under the age of 21 are entitled to be supported by that formula. Child support is determined by multiplying the combined parental income of the parents up to $141,000 by the appropriate child support percentage (17% for one child, 25% for two children, 29% for three children, 31% for four children, and 35% for 5 or more children), and then allocate the amount between the parents according to their pro rata share of the total income. Where the combined parental income exceeds $141,000, the court has discretion to make an award based on this additional income by considering factors such as the financial resources of the parents; the special needs of the children; the standard of living the children would have enjoyed had the marriage not been dissolved; the non-monetary contributions of the parents towards the child; the educational needs of the parents; and a determination that the income of one parent is substantially less than the other parent's income. As an example, suppose there are two children of the marriage, the non-custodial parent, the husband, has an income of $200,000 annually, and the custodial parent, the wife, has an income of $50,000 per year. The husband's pro rata share of the basic support obligation is 80%. Since there are two children, the first $141,000 of income must be multiplied by 25%, which equals $35,250 per year of basic support obligation. The husband's pro rata share is calculated as $35,250 x 80% or $28,200 per year. This is the mandatory obligation. The court must then consider the combined income over $141,000, to wit, $109,000. The court has discretion to award additional child support, beyond the $28,200 per year basic child support as follows: $109,000 x 25% x 80% pro rata share; is equal to $21,800 in support on the income over $141,000, for a maximum potential child support of $50,000 per year (i.e. $28,200 plus $21,800. In addition to basic child support, the court may also award to the custodial parent a pro rata share of the parents' respective incomes of childcare, health, and education expenses, depending on the circumstances of the case. Spousal maintenance in New York, which is called "alimony" in other states, requires a formula to be applied to determine the presumptive amount of temporary maintenance (i.e. while the divorce action is pending). Ask your attorney to calculate this amount for you, as the formula is a little more complex to describe here. Maintenance awarded after the divorce, i.e. permanent maintenance, does not have any such formula, and the length of time and amount is determined by various discretionary factors including the income and property of the parties; length of the marriage; the age, health and education of the parties; the parties' marital lifestyle and standard of living; whether a spouse gave up her career to be a homemaker and full-time parent (lost earning capacity); the time, expense, and education necessary to rehabilitate a spouse who has been out of the workforce; the future earning capacity of each party; the care of the children, stepchildren, disabled adult children, elderly parents which inhibits a party's earning capacity; and tax consequences to each party. An attorney experienced in the field of matrimonial law should be able to predict the amount and duration of support based on knowledge of prior cases.
Q:I do not have sufficient funds to pay my attorney's retainer and legal fees. Will an attorney decline my case?
A:Not necessarily. Depending on the circumstances of the case, if there is a disparity of income between the parties and your spouse has sufficient income and assets to pay counsel fees, your attorney may make a motion to the court to direct your spouse to pay your attorney's fees. In addition, your attorney can also request that the court direct your spouse to pay interim child support and maintenance until the court makes a final determination at trial as to a permanent award. New York law provides that counsel fees should be awarded to the "less monied spouse" to provide him or her with adequate representation. This award can be made at the commencement of a divorce action or thereafter from time to time during the case as needed. The payment of a retainer fee cannot be used by the court as a reason to deny counsel fees.
Q:What's the difference between mediation and collaborative law?
A:Simply because you commence a divorce action, does not necessarily mean that your matter will go to trial; rather, your attorney may be able to negotiate a settlement for you. A mediator is not required to be an attorney nor have any special certifications. Even if a mediator is a matrimonial attorney, the mediator does not represent either party and is not supposed to discuss legal matters or explain matrimonial law to the parties.Rather, each party should have independent legal representation, and if the parties' attorneys are unable to negotiate a settlement, the next step the parties may consider is using a mediator to help them conclude their matter. Beware of mediators that tell you not to consult with independent counsel, as there is no point negotiating a settlement when you do not fully understand your legal rights and obligations with respect to custody of your children and the division of marital assets. Your financial future and your children's future are at stake, and this is not the time to short-change yourself. If you wish to use an attorney in our firm as a mediator, please note that the initial consultation must be with both parties present. Collaborative law requires that the attorneys representing each party sign an agreement that they will only represent the client to negotiate a settlement. In the event a settlement cannot be reached, the clients are now required to obtain new legal counsel. Collaborative law has come about through the backlash of public opinion about some divorce lawyers of ill repute that do not have their clients' best interests at heart and will take the clients to trial without fully explaining the pros and cons of doing so. However, the attorneys at our firm generally attempt to discuss the issues and negotiate a settlement before making motion practice or going to trial. We don't need to sign an agreement to promote something that is expected of professionals. In addition, if your matter does not settle, or if your spouse uses this process as an excuse for delay or to exert financial pressure on you, the time and additional expense of getting a new attorney up to speed on your matter may not be in your best interests. If you are interested in collaborative law, please discuss the pros and cons with your attorney.
Q:What is the key to choosing the best divorce lawyer to represent me?
A:Apart from professional excellence, the key is to choose a person with whom you feel most comfortable and confident. You will be working and communicating with this attorney on an almost daily basis during this difficult, emotional and financially stressful time. Ask yourself the following: Will my attorney listen to what I have to say and address the issues that are important to me? Does my attorney have the necessary litigation and trial experience in this field to get me the best financial result possible? The attorney you choose should be willing to give you an overview of how the case will proceed and what you can expect. Beware of lawyers who give you one-sided views, or make guarantees that cannot be fulfilled. There are strengths and weaknesses to every case as well as judicial discretion; therefore, a good attorney will make you aware of these factors. If you did not receive a referral from a friend or colleague, review client testimonials on the firm's website. The attorneys at Samuelson Hause Samuelson Geffner & Kersch, LLP concentrate their practice in matrimonial and family law and have over 100 years of combined experience, and will be sensitive to your needs throughout the duration of your matter.
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