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Part 1: Common Financial Issues During a Divorce

Mon, 16 Jan 2023 14:45:06 GMT

Part 1: Common Financial Issues During a Divorce

Divorce has many financial issues to consider. Major issues addressed by the court include support (child support and spousal support) and “Equitable Distribution”. To settle the issues involved in the Equitable Distribution, you will need to address your assets and debts..

New York is an “Equitable Distribution” state. Equitable Distribution addresses the allocation of marital property between spouses.

Either through agreement, or after trial, marital property is divided during the divorce process.

The first issue to be addressed is a determination of “Separate Property” versus “Marital Property”. Before property is divided in a divorce, the class of asset or debt must be determined.

Understanding Marital Property

Marital property refers to property that a couple acquires during their marriage.

Marital property includes:

Real property, such as a house or condominium you and your spouse purchased during the marriage. (Note: If premarital or other separate money is used, that money will be considered separate).
Personal property, like cars and furniture that you and your spouse purchased during the marriage.
Cash, securities, bank accounts, retirement accounts and pensions acquired during the marriage, or the increase in these accounts during the marriage. (Note: the law addresses passive and active increases in these types of assets. For example, if an increase is due to contributions or efforts of your spouse or self during the marriage. This will be addressed in more detail below).

How is Property Distributed?

Once the marital assets and debts are determined, the parties will begin the process of valuing and then dividing their assets and debts. If the parties cannot agree during this process, the court will divide the marital assets and debts “equitably” after a trial.

Dividing the property equitably means, in essence, making a determination after considering the circumstances of the case. Dividing assets and debts equitably does not necessarily mean equally.

There is no statutory requirement of a 50/50 split of marital property.

In New York, property is not automatically divided in half and distributed equally to each spouse. Instead, the court takes into account 13 specific factors in determining the equitable distribution of property:

The income and property of each spouse at the time of the marriage, and at the time of the divorce;
The length of the marriage and the age and health of both spouses;
If there are minor children involved, the need of the spouse who has custody of the children to live in the marital residence and to use or own its household contents;
The loss of inheritance and pension rights of each spouse because of the divorce;
The loss of health insurance benefits of each spouse because of the divorce;
Any award of support or maintenance the court will be making;
Whether one spouse made contributions to marital property that the spouse does not have title to; for example, where one spouse helps the other spouse increase their ability to earn more money by getting a degree or certification;
The liquid or non-liquid character of all marital property (“liquid” means that the property can easily be converted to cash);
The probable future financial circumstances of each party;
The impossibility or difficulty of determining the value of certain assets, like interests in a business, and whether one spouse should be awarded the business so it can be run without interference by the other spouse;
The tax consequences to each party;
Whether either spouse has wasted or used up any of the marital property while the divorce was ongoing;
Whether either spouse transferred or disposed of marital property at less than market value, knowing that the divorce would be happening.

Unless you have mixed or commingled your separate property with marital property or separate property is transmuted into marital property, your separate property remains yours after the divorce, and so does your spouse’s separate property.  The court will confirm that your separate property belongs to you and your spouse’s separate property belongs to your spouse.

Even after considering these factors, the court may take into account “any other factor” it finds to be fair in arriving at an equitable distribution of the marital property. 

Determining Marital Property and Separate Property

Marital property defined as “all property acquired by spouses during their marriage, no matter whose name is on the title of the property. Generally, once the spouses are separated permanently, property acquired is no longer marital property.

Separate property is the property spouses acquired before the marriage. It is the individual property that courts have no authority to distribute during the dissolution of a marriage.

Under the Consolidated laws of New York § 236, separate property not only includes property acquired before marriage but also property acquired by bequest, devi se , descent, or gift during the marriage. Property that spouses agree to exclude from marital property by signing a prenuptial or a postnuptial agreement will be separate property.

The issue of separate and marital property and not black and white. For example, there are times in which separate property can become marital property. One situation is if you mix or commingle your separate property with marital property, the court may consider part or all of your separate property to be marital property, and divide it up with your spouse. 

Examples:

When you inherit stock and deposit it into a jointly-owned investment account, the courts may consider the money to be marital property, which will then be divided between you and your spouse.
You owned a home before marriage, and its condition was extremely poor. After marriage, you and your spouse resided in the home and used marital funds to restore it. Perhaps, your spouse was involved in the restoration process. In this situation, a court would consider the marital funds that were used to improve the home, as well as your spouse’s direct contribution to increasing its value in determining equitable distribution.
Prior to your marriage you had a bank account solely in your name. Once married, you added your spouse’s name to the account and you both then used it as a shared account, (both adding and withdrawing funds from the account). By adding your spouse's name, and commingling money, there becomes a presumption that one-half the original value of the account was a gift, making the account in its entirety marital property.

Dividing Marital Property

After a determination or agreement is made as to what property is separate and what property is marital, an “equitable” division of such property will have to be made and the marital assets and debts will be divided. The separate property will be allocated to the spouse to whom it belongs.

Conclusion

A divorce proceeding can be a very emotional time for the parties. Addressing ownership of assets and the responsibility for debts can become the focus of disagreements or hurt feelings. It may benefit you to find an attorney that you trust to guide you through this process.

Call the Law Office of Dana Stricker, PLLC, for a free consultation.

Becoming Familiar with the Process of Divorce in New York

Tue, 08 Nov 2022 02:15:00 GMT

Becoming Familiar with the Process of Divorce in New York

Familiarizing yourself with the steps involved in getting divorced in New York can take the mystery out of what can be a trying process.

Let’s start with understanding the difference between a contested and uncontested divorce.

What Is a Contested Divorce? A divorce will be contested if you and your spouse are unable to negotiate settlement terms on your own or with the help of an attorney or mediator. As a result a judge will have to resolve the issues through divorce litigation.

An uncontested divorce occurs when you and your spouse agree on the issues which must be resolved to obtain a divorce in New York. These issues are:

equitable distribution
spousal support
child support
custody and parenting time

Also, if your spouse fails to appear in the divorce action, You may proceed with an uncontested divorce.

The Law of Dana Stricker, PLLC, will guide you through the process of an uncontested or contested divorce and support you during this trying time.

The First Step in the Divorce Process

To obtain a divorce in New New York, you need a judge to order it. Therefore, you will need to file a lawsuit.

The first step in this process is filing a Summons and Complaint with the court. These documents are typically filed in the county where one or both parties reside. The filing of the Summons and Complaint commences the lawsuit. One party is designated the “Plaintiff” and the other party is designated the “Defendant”.

After filing the Summons and Complaint, your spouse must be “served”. Typically, a process server will hand your spouse the Summons and Complaint as well as other documents including, the automatic orders, notice concerning continuation of health care coverage and the spousal maintenance guidelines (notice of guideline maintenance).

What Happens Once My Spouse is Served?

At this point, the couple can agree to proceed with an uncontested divorce by having an attorney assist them, or by obtaining the legal forms themselves and filing the divorce documents with the court. It is important to note that some of the documents will need to be notarized.

If the couple cannot agree on essential issues including equitable distribution, spousal support, child support, child custody and parenting time, the case will proceed as a contested divorce.

If the divorce proceeds as a contested divorce, your spouse will have 20 days from the date of service to “Answer”. An answer is a legal response to the summons and complaint.

It is important to remember that at any time during this process, if you and your spouse come to an agreement, the matter can be settled between the parties without court intervention. The agreement must be put in writing. This written agreement is called a “stipulation of settlement”. The stipulation of settlement can then be filed with the court, along with the remainder of the documents required for a couple to be divorced in New York.

However, if your spouse is not communicating with you, or an agreement cannot be made, you can file a “Request for Judicial Intervention” (“RJI”), to obtain the assistance of the court.

Once an RJI is filed, the court will give you a date to come in (or appear virtually) to have a conference with the judge or the judge’s assistant. The court will schedule several conferences in an attempt to assist you in settling the matter. If the case cannot be settled, the case will go to trial.

Do I need a lawyer to get divorced?

The short answer: it is always good to meet with a lawyer, even if you believe the divorce will be uncontested.

Attorney Dana Stricker will be by your side during this process. Call for a free consultation.

What to Consider When You are Thinking of Getting Divorced

Thu, 03 Nov 2022 19:35:44 GMT

What to Consider When You are Thinking of Getting Divorced

Divorce is not as simple as any other break-up. Not only do you have to make the emotional decision to leave the person you married, but you also have to consider all of the logistics that come along with it.

Choosing a lawyer, organizing your finances and understanding all that goes into filing for divorce in New York can be overwhelming. If you're not sure where to begin, keep reading to find out things to do before filing for divorce in New York.

Things to Consider

Try to remain calm and act civil to your spouse

Remember, if you share children with your spouse, you will be attending graduations, parties, weddings, and funerals together in the future. It is crucial for your children to see you act civilly to each other. Take a beat before you yell at or email your spouse when you are angry or upset.

The divorce process can be lengthy- and difficult both emotionally and financially. It is best to arm yourself with a support system and plan ahead.

Your Children:

It is crucial that you make a plan as to how to reduce the impact of the divorce on your children’s lives. When a divorce moves forward, something we get caught up in the “fight” and lose focus on the children. Combative divorces are damaging to children, and making a concerted effort to think about what is in their best interests will go a long way.

You will also want to consider how you will divide the parenting time with the other parent. Do not involve the children in any fighting over this issue, and NEVER ask them to take sides. You need to remember, for better or worse, the other parent is the only “mother” or “father” they have. You do not want to damage that relationship as it will cause problems for your children later.

If the children have always lived with you, keep them in your care. It is much smarter to remain with your children until you work out a temporary parenting plan. Also- be sure that you know the children’s teachers, counselors, doctors and other providers. If a custody dispute ensues, it is not good to have the school teacher, or a medical provider tell an evaluator that they have never met you.

Learn more about Child Custody in New York.

After filing the divorce your attorney will ask you to start organizing the following documents:

Three years of W2s and tax returns,
Three years of bank statements for every account in your name or an account in which you have an interest,
Any and all investment statements,
Any and all retirement account statements,
Three years of credit card statements for all credit cards in your name or for which you have an interest
Life insurance policies (be sure not to remove your spouse from the life insurance policy any time immediately before the divorce or after filing. This will be done when the divorce is final),
Statements for any and all stock accounts.

**** If your spouse is self-employed, and/or works “off the books'' it is essential to gather as much information as possible about the finances of their business. If you can, make copies of any useful financial information stored on your home computer or lying around the house.

Note that your attorney will have you complete a “ Statement of Net Worth” . This is a document that will require you to list, among other things ,

Your income,
Your assets,
Your debt,
Items you own or or have an ownership interest in,
Real estate that you own or have an ownership interest in, and
Your regular monthly expenses.

Your attorney can assist you in completing this document.

Money may get tight….

If possible, try to have money saved to pay for your expenses for at least three months if you are the spouse with limited access to financial resources. Sometimes, spouses become angry when the divorce starts and it is not uncommon for the “monied” spouse to cut off the less monied spouse financially.

Your attorney can make an application to the court to get you financial support, but it costs money and it usually takes time for the court to issue an order of support. Additionally, courts usually order the monied spouse to pay attorney’s fees. But this varies by jurisdiction, by the judge assigned to your case, and your personal situation.

A court will most likely award support and attorneys fees in a variety of situations, such as:

If the income differential between the parties is great,
If one spouse has not worked for many years,
If a spouse is caring for young children,
If one spouse is disabled
If one spouse has supported the other throughout the marriage.

The above are only some of the considerations the court will take into account.

Have a Safety Plan if There is any History or Risk of Domestic Violence

If your spouse reacts in a violent manner in stressful situations, be prepared that when your spouse finds out that you want a divorce, they may become violent.

Additionally, some of the issues involved in the divorce process- for example, finances and decisions regarding the children- are typically highly emotional issues and may lead an individual who uses power and control and violence in emotionally charged situations to react in a dangerous manner.

However, there are many resources and organizations available for victims of abuse. Also, you may want to consider therapy, or domestic violence counseling.

How to Choose an Attorney in New York

You will want an attorney familiar with the jurisdiction in which the divorce is venued. You should research the attorney’s years of practice, skills and reputation.

You also want an attorney that you feel comfortable with. Divorce is a long, and often trying process, you want an attorney that responds when you contact them, listens to you, considers your ideas and feelings, and speaks to you in a way that makes you feel at ease, and not on the defensive.

It is critical to have the best representation during this very tough time in your life. Check the attorney's ratings on websites such as Google my Business and AVVO.com .

**** You should be immediately suspicious if your spouse advises you not to seek legal counsel, or asks you to “just sign off” on the divorce.

Surround Yourself with Supportive Family and Friends

You will need all the help and support you can get.

Attorney Dana Stricker will be by your side during this process. Call for a free consultation.

Custody in New York

Tue, 11 Oct 2022 13:45:35 GMT

Custody in New York

In New York, child custody is viewed by the courts in terms of “Legal Custody” and “Physical Custody” or “Residential Custody”.

The other aspect of custody addresses if one parent has “Sole Custody,” or if the parents share “Joint Custody”.

There are also several variations of sole and joint custody, including “Spheres of influence” and joint custody with “final decision making” to one parent.

An agreement must be made, or the court must order how custody will be shared between parents.

Here's an overview of key child custody information for divorcing parents as well as parents desiring physical and/or legal custody of their child.

Understanding Child Custody Laws in New York

In New York, the courts will determine custody and visitation based on a determination as to what is in the best interests of the child. This is called the "best interest of the child ” standard. Child custody cases are decided on a case-by-case basis.

Custody issues are addressed in court during divorces, between unmarried parents, and often subsequent to divorce proceedings. Once a custody agreement is entered into, or the court has decided custody, a parent who desires to change the agreement or order, must first show a “substantial change in circumstances” before the court addresses if a change in custody or visitation is in the best interests of the child.

Types of Child Custody in New York

There are several different aspects to child custody in New York. These include:

Legal custody. Legal Custody involves which parent will be making major decisions regarding their child’s education, religious matters and medical issues.
Physical custody. Physical or Residential Custody entails which parent the child lives with, and addresses the non-physical custodial parent’s visitation (now called “parenting time”) rights.
Sole physical custody. This is where the child resides with one parent, subject to the other parent’s parenting time (visitation) schedule.
Joint physical (residential) custody. Joint physical or residential custody entails the parents sharing physical custody, based on a schedule involving 50% of the time with the child for each parent.
Sole legal custody. Sole legal custody is when one parent makes all major decisions involving medical issues, religion and educational issues as to the child. The court often requires this parent to have a “meaningful consultation” with the other parent before making such decisions, as well as informing the other parent of all major decisions involving the child.
Joint legal custody. Joint legal custody entails the parents having meaningful consultation as to major decisions as defined above. Court’s often order that parents be the tie breaker, or “final decision maker,” for situations wherein the parents cannot agree on the best interests of the child. Spheres of influence allows one or the other parent to be the “final decision maker” for one or more aspects of the child’s life (educational, medical or religious).

New York Custody Laws and Best Interests

Under New York law, the child's best interest is the most important factor when considering which parent receives physical and/or legal custody.

Custody laws in New York outline that there are specific factors that constitute the best interests of the child. A court will consider the following factors and how they relate to the child's best interests. Best interests can include:

Where the child has been primarily residing
Whether there are domestic violence issues in the family
Whether either parent has issues with alcohol or drugs
If there exists a strong bond between the child and a parent
The mental and physical health and stability of each parent

Pursuing Child Custody in New York

In addition to the factors above, a court also considers the "totality of the circumstances" when determining which parent is more likely to promote a child's best interests.

In most custody cases in New York, one factor is not determinative of the child’s best interests or the custodial arrangement. However, if a child has lived with one parent for many years and is happy and thriving in that environment, a court will be reluctant to disrupt the status quo.

Before deciding on a course of action, consider the factors listed above when considering the child custody laws of New York. If you feel many of them point toward your ex-spouse, then you may want to settle your case rather than litigating it in court.

New York State has several types of child custody agreements, now called parenting plans by some New York courts. If you are settling your divorce case, you can settle all issues relating to the children, including custody and visitation rights.

Does a Child have a Say in Custody Issues in New York?

In a custody proceeding, in New York, a child will be assigned an attorney, known as the Attorney For the Child (AFC).

Substituting judgment. In New York, the general rule is that if a child is 7-years old or younger (the age can vary based on the child’s ability to clearly articulate their position,) the AFC will use their judgment to decide the best interests of the child. As a practical matter, this means that the AFC will advocate in court for what they believe is in the child’s best interest.

Direct Representation. In New York, as a general rule if the child is 7-years old or older, (the age can vary based on the child’s ability to clearly articulate their position), the AFC will directly represent the desires of the child (their client) as to custody and parenting time issues. There are exceptions to this general rule, usually involving safety issues.

Let Dana Stricker Law Help You Today!

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Part 1: Common Financial Issues During a Divorce

Part 1: Common Financial Issues During a Divorce ﻿

Becoming Familiar with the Process of Divorce in New York

Becoming Familiar with the Process of Divorce in New York

What to Consider When You are Thinking of Getting Divorced

What to Consider When You are Thinking of Getting Divorced

Try to remain calm and act civil to your spouse

Your Children:

After filing the divorce your attorney will ask you to start organizing the following documents:

Have a Safety Plan if There is any History or Risk of Domestic Violence

How to Choose an Attorney in New York

Surround Yourself with Supportive Family and Friends

Custody in New York

Types of Child Custody in New York

New York Custody Laws and Best Interests

Part 1: Common Financial Issues During a Divorce