Is an Uncontested Divorce Right for You?

If you and your spouse have already agreed on:

• How to split up your home and other real estate
• How to divide your retirement assets and business interests
• How to divide your debts
• How you will make decisions for your children, and how you will resolve disagreements in making these decisions
• With whom will the children maintain primary residence
• The parenting schedule during the school year, summers, school breaks and holidays
• The amount and duration of child support and spousal support
• Who will claim the Children on his/her tax return
• What type of additional expenses you will share for the Children and how responsibility for these expenses will be divided
• Who will maintain health insurance for the children, will there be health insurance for each of you?
• you may be able to obtain an Uncontested Divorce.

The Process

To begin an Uncontested Divorce, one spouse is designated the Plaintiff and the other the Defendant.  Usually the Plaintiff completes and files most of the paperwork. Click here to read more.

Determining Where to File for Divorce in the 21st Century World of Mobile Families

                   
                   “Not all those who wander are lost.” – J.R.R. Tolkien, The Fellowship of the Ring

In the world of mobile families, complex international marriages and overburdened courts, would a New York court accept a divorce case, filed by the husband, an Irish resident, British passport holder and citizen of the European Union against the wife, a U.S. citizen who prefers to reside in Ireland? Apparently, the answer is yes.

In a recent Putnam County Supreme court case, Mr. S. filed for divorce in New York and his wife opposed it, claiming that New York State had no jurisdiction to end the parties’ marriage. Under New York State law, when you commence an action for divorce, the first thing that needs to happen is that the court needs to verify that there is jurisdiction.

Click here to read more.

Housing Issues for Families – Part 3

The House

When people own a house, their proof of ownership is a deed, and very often in a marriage, the deed states that the house is owned by both husband and the wife together. In New York State, this ownership is called “tenants by the entirety” and it means that if something happens to one of the spouses the house ownership automatically passes to the surviving spouse.

Sometimes, if parties divorce and still want to retain the house jointly in the future, they would switch their ownership from being “tenants by the entirety” to becoming “tenants in common.” A tenancy in common is a basic type of ownership by partners, where if one of the partners passes away, his or her interest gets transferred to his/her individual heirs rather than to the remaining owner. If owners are not married to each other but want the ownership of the house to pass to surviving owners, they would ordinarily state on the deed that their ownership is as “joint tenants with right of survivorship.”

In a separation or divorce, spouses have to explore various options. Click here to read more.

Housing Issues For Families – Part 2

Condominiums

A man builds a fine house; and now he has a master, and a task for life; he is to furnish, watch, show it, and keep it in repair, the rest of his days.”

Ralph Waldo Emerson (1803 – 1882)

A condominium is another type of apartment; however, owning a condominium is very different from “owning” a co-op. In a condominium, owners actually own their space as real estate, as opposed to owning shares in the co-op building. They have a deed, the same way you have a deed on a house. When a person owns a condominium apartment, he/she owns whatever is inside the walls/unit and also a proportionate share of the common elements of the building. For example, if there are 4 apartments in the building, the owner would have a deed for their apartment and a 25% interest in the common elements in the building as well.

Just like with the co-op, the building has an offering plan. It has a budget and, depending on its size, they may have a management company and it can borrow money, if needed. Monthly maintenance payments in condominiums are usually called “common charges” and they relate to the unit owner’s proportionate share of the costs needed to run the building. Click here to read more.

Housing Issues For Families – Part 1

The Co-op

April 10, 2013

“A cooperative apartment is an apartment in a building owned and managed by a corporation in which shares are sold, entitling the shareholders to occupy individual units in the building.” – A Definition from Merriam-Webster Dictionary

Very often, one of the most critical disputes a family may have revolves around housing. Where will the children reside? Who stays in the marital home? Do they own or rent? If the parties own their home, it may be a condominium, a cooperative apartment (co-op) or a house. How should one structure a delayed sale, exclusive occupancy or a buyout if a family unit is restructured?

While in other states a co-op is not such a common phenomenon, in New York State, and especially in New York City, a co-op presents a frequent form of ownership for many people. Most pre-war buildings in Manhattan are co-ops and so are many in Queens, Brooklyn and other boroughs. When you own a co-op, you don’t actually own real property. There is no deed, like in a house or a condominium. Instead, your form of ownership consists of a stock certificate that represents the number of shares allocated to your unit by the cooperative corporation, i.e. the building. The co-op has a Board of officers and members. These people make a lot of decisions. If you want to sell your co-op, your purchaser will have to complete an application for Board approval. The Board can approve or deny this application if it believes that the buyer is not financially secure, or, for any other reason at all under the “business judgment rule”.  Click here to read more. 

Thoughts on the Hague Convention

In my last blog, we talked about the U.S. Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and its application on an international level. The Hague Act can further complicate an already complex situation. To read the actual text of the Hague Convention of October 25, 1980 on the Civil Aspects of International Child Abduction, click here.

In the 21st century, family members often reside in different parts of the world. What happens if the parties live in one country and one of the parents just leaves and disappears with the children? Or, the parties’ relationship is amicable and they are simply trying to understand which country’s laws should govern their separation and divorce?  Click here to read more. 

 

 

Which Court Do You Go To With a Family Dispute in New York? Part 2

Part 2: The Limited Resources Divorce

As I explained in my last blog,  a  family where one party is just seeking custody, can go to Family Court.  If a person just seeks child support or spousal support, he or she can go to Family Court. If,  however, a party is asking for a divorce, that party must file an action for divorce in a Supreme Court. If  he or she needs a judge to help divide pensions, assets or liabilities, he or she must file in the Supreme Court as well.

TO READ MORE PLEASE CLICK HERE

Sometimes "It Takes a Careful Village"

 
 

“You rush a miracle man, you get rotten miracles.” - from The Princess Bride (1987 Movie)

 
A recent New York Law Journal article discussed a case that is appearing before the New York State highest court, the Court of Appeals and involves the issue of how Madoff investments impact the divorce and separation process. The task of the Court of Appeals is to decide whether to revisit equitable distribution, where the 50/50 split of assets was predicated on the husband’s retention of funds in a Madoff account. Since the account has turned out to be empty, the husband claims that the division of assets is no longer 50/50 and that it would be equitable for the wife to return part of her share to the husband.

This case provides a prime example of the potential complexity of family disputes. These disputes may be around a separation or a divorce, a will probate and inheritance rights or a family business. They involve many areas of the law, finance, psychology and tax and are often difficult to untangle in view of decades of interpersonal relationships and loose record keeping between the parties. It is critical for all participants, lawyers or not, to understand and utilize other professionals. Divorce, trust and estates and business law attorneys are usually not capable of analyzing a financial problem completely without the help of a financial or tax expert. They can flag the issues, but it is imperative to get the advice of appropriately trained professionals to ensure the results of a settlement end up being fair and equitable in the long run.

For example:

• If one of the spouses has filed a bankruptcy at some point, it may affect the other spouse and the way the property should be divided. Bankruptcy counsel is often brought in on cases like this.
• If the parties own a home and that home is threatened by a foreclosure, they may be considering negotiating a downward modification of a mortgage, or a short sale. If this is the case, they may need to involve an attorney who is experienced in doing short sales to assess their realistic chances of selling it, walking away from the debt and dealing with any tax consequences that may result.

Often, division of property and transfers of property between spouses surrounding separation or divorce, or between family members in general, is replete with possible tax consequences. For example:

• If a husband buys out his wife’s interest in a home, simply calculating the 50% share of net equity in the home may not be an accurate calculation because a certain number of years later, the person who retains the home may then sell it and incur a capital gains’ tax that would, in hindsight, seriously skew, what was expected to have been a 50/50 split in one direction. This is why it is extremely important to go through a “tax impact” analysis before an agreement is finalized and to bring it to a judge’s attention if there is a trial on equitable distribution.

In addition to tax issues, there are issues concerning life insurance and disability insurance, children’s college plans, health insurance and retirement, which may require the input of other professionals. Dividing assets fairly and equitably is a complex matter with possible unintended consequences. It’s really important to reach out to trained professionals to ensure that the intended result is actually being achieved.
 
 
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New York Becomes a "No Fault" Divorce State

“Common sense is the knack of seeing things as they are,
and doing things as they ought to be done.” – C.E. Stowe

Finally, after decades of resistance, New York decided to join the other 49 states and offer a “no-fault” divorce option to those couples who want to simply part ways without having to accuse each other of some type of wrongdoing. It took many, many years to get to this point. Every time there would be a proposed bill to add the “no fault” provision to the law it would be defeated because of the resistance from different types of concerned groups and lobbying efforts. Finally this year, it did pass.

What does “no fault” mean? Before, in order to divorce in New York State you needed to come up with a “fault” ground, which means that one spouse had to accuse the other of something. If you had a couple where both sides were in agreement that they wanted to divorce right away, there was no option such as “irreconcilable differences”, which has existed for decades in other states. The only way couples in New York could divorce without being forced to accuse one another was to execute a separation agreement and then wait a year. They could then assert “living pursuant to the terms of the separation agreement for a year” as a ground for divorce. The new “No Fault” ground allows parties to submit divorce documents to court right away without having to wait a year or having one side accept the blame for wrongdoing.

Why the resistance to “no fault”? Historically, some religious groups resisted it because of their concern that if getting divorced became “too easy” people would not try to make an effort to stay together.

The other groups that were against it were those having to do with domestic violence. These groups advocated for victims of domestic violence, both men and women, though statistically women were more often the victims. The primary concern was that if the husbands had the opportunity to get out of a wrongdoing reason for divorce, they would be able to file very quickly, and then use the spouse’s fear to cheat them out of a claim of financial support or equitable distribution of marital assets. For decades there was resistance based on that, but in recent years, some of the members of the organizations that fight domestic violence, came to realize that the abusers tended to be pretty successful in manipulating the court systems even with the wrongdoing grounds, so that wasn’t really helping the victims.

Thus, finally, as of October 12, 2010 you can get a “No Fault” divorce in New York if, according to either party, the marriage has broken down irretrievably and has been broken down irretrievably for at least six months. This doesn’t mean that the couple has to be actually separated for the six months; they just have to state that the marriage was completely broken down for the past 6 months. Now one side can unilaterally allege that the marriage is irretrievably broken and submit a claim for divorce on the basis of this new ground.

This legislative breakthrough did not come without strings attached, however, and there are many strings. The new law only really helps remove the grounds as an issue in a contested divorce, but couples still have to resolve all of the other issues having to do with the children, with child support, with spousal maintenance, and with division of property. Unless all of these are resolved, they cannot get the divorce. If they cannot reach an agreement on all matters, the issues of custody, child support, spousal support and division of property will still go through the court process, but at least the issue of grounds will not.