What Is A Qualified Domestic Relations Order?

February 17th, 2017

Retirement and pension funds/plans are one of the many assets that can be split between spouses as part of a property division in a divorce. A qualified domestic relations order (QDRO), is entered during the divorce, which recognizes that there is joint marital ownership interests in the plan, specifically the spouse that isn’t the primary benefactor.

This recognition awards a part of the plan’s benefits to another recipient, who must either be a spouse, current or former, a child or another named dependent of the plan. Moreover, a QDRO can also be entered for spousal or child support.

The only employee benefit or pension plans that are subject to the Employee Retirement Income Security Act (ERISA) can be applied for via a QDRO. This allows QDRO’s to be acceptable as marital or community property division between the plan recipient and the chosen alternate recipient (listed above), as well as payment of alimony or child support.

Before it becomes qualified, a domestic relations order is simply any judgment, decree or order that relates to any provision of child support or alimony, OR marital property that a spouse, current or past, as well as children or other dependents, have a right to. It is made in accordance with a State domestic relations law, such as community property law.

The actual purpose of the QDRO is to recognize someone else’s right to receive any portion of a benefit plan and to ensure that if necessary, they receive part of that pension.

In order for the domestic relations order to become qualified by a plan administrator, the plan administrator must first determine that the order meets the rules for segregation specified by the plan.

What Happens If A Separate Property Was Given As A Gift?

February 13th, 2017

Spouses often target gifts and inheritance during the divorce proceedings. Most of these are assets that they have a vested interested in. Gifts can be categorized differently, for instance, there are gifts given between spouses, and these are often treated as part of the couple’s marital estate.

In addition, when a spouse uses their own separate “property” to invest in the spouse’s marital property, that separate property now becomes another part of the spouse’s marital estate. To put that into more relatable terms, if a spouse were to use their inheritance (which is the separate property) to make an initial deposit on the marital home, that is considered as a “gift,” could be considered as marital property. This type of gift will make it perfectly reasonable for the non-inheritor to claim some entitlement.

Sometimes, the spouses, as a couple, can receive a gift, as in the more common way of using the word “gift.” In fact, without proper proof that a payment or gift was meant to be a separate gift to you, and is not for the couple, the court might decide that it is subject to division. Even so, separate property can still become marital property depending on how it is used, and what you refer to the property as during the marriage.

If you combine separate and marital assets together, it can become a joint asset, voiding the premise of separate property. Sometimes, if these assets become so muddled that it becomes difficult to distinguish what is separate and what is joint, a court might be so inclined as to call it all joint. There is a burden of proof on the party that is claiming separate property, and because of the pre-mentioned tendency of the court, it is important to keep separate property just that – separate.

2 Types Of Alimony Or Spousal Maintenance In New York

February 10th, 2017

Although many of us understand the basic idea of alimony, one spouse paying the other after a divorce, many of us don’t truly grasp the process that goes into calculating the alimony. If there should be any alimony that should be awarded, it is important to obtain a real understanding of the process of obtaining alimony. In the state of New York, we refer to alimony as maintenance.

The real purpose of awarding alimony is to ensure that spouses who are not the primary ‘”breadwinners”, the spouse who is not supporting the family financially, can continue to live the way they did prior to the divorce, or at least a similar enough lifestyle. This also allows the spouse to start preparing to provide for him or herself, which often requires going back to school to obtain a degree, or go through some training, all in an attempt to be “self-sufficient” from then on.

Maintenance isn’t always after the divorce. Pendente Lite is a temporary alimony that is paid during the divorce case and helps to cover any financial needs that the supported spouse may have. This is often awarded after an examination of the pre-divorce standard of living. When the divorce is finalized, pendente lite is over.

Furthermore, post-divorce maintenance can be awarded after the divorce action and can be finite. The death of either spouse or the remarriage of the spouse receiving support, or even if the supported spouse is living with someone, can terminate this maintenance.

Alimony would be based on both spouses’ incomes. Pre-divorce lifestyle will also be taken into consideration.

Is Child Support Taxable Or Non-Taxable?

February 6th, 2017

A common question in divorces that involve children is whether or not child support is considered taxable income by the spouse receiving the support. The answer to this question is no, and moreover, it is not deductible for the spouse who is paying the support.

An important topic to discuss, however, is that of family support, and whether or not it is taxable. Family support is the combination of child support and alimony and is a single payment of an agreed upon amount by the parents. This type of support is tax deductible by the payer and is considered taxable by the spouse receiving the support. With this in mind, someone seeking support would not benefit as much from family support as they would if the spousal and child support were in separate payments, as they are non-taxable. However, this isn’t so much up to the spouse as it is to the court, and they will often combine the two payments because the entire family does get tax benefits from a logical point of view. When the higher wage earner can deduct support payments, there is more money left in the care of the family overall, something that is lost in the bitterness and anger that clouds judgment in divorces.

One should definitely be familiar with tax codes and laws before strategizing a financial plan within the divorce proceedings. In general, it’s just wise to know tax laws!

How Retirement Assets Are Divided In Divorce?

January 31st, 2017

Financial decisions are an essential component of the divorce process on both sides. These include how any assets, estates, bank accounts/funds that may have been attained during the marriage, or any other financial possessions that one or both parties have a legal interest in will be divided.

Retirement savings tend to be one of the larger and more valuable assets that people own. Because of this, it also happens to be one of the most important matters in divorce proceedings. Not only is it an important issue, but it also has the tendency to become very complicated, as there are tax implications involved and has to be handled in the right manner by the attorneys and the court.

Some retirement plans, such as the common 401(k), otherwise known as a pension plan, are sponsored by one’s employer. If your spouse has this type of retirement plan, you are legally entitled to a part of that balance, unless there is a pre-existing prenuptial agreement that explicitly states that this would not be the case in the event of a separation. This stands true regardless of who the primary earner is.

How to Protect Your Retirement Fund from Divorce?

To protect the non-breadwinner’s share of the retirement fund, there is a Qualified Domestic Relations Order or QDRO in place. A QDRO is used to protect the non-breadwinner spouse’s interests. It is a court order or decree that encompasses many other issues that come up in divorces, like child support, alimony and property rights. This is one court judgment the spouse would have to follow, and it includes a plan for how the couple will split the plan benefits.

Moreover, a QDRO differs from most marital settlement agreements because it allows the funds in the retirement plan to be divided and withdrawn without the penalties, and can be transferred into the non-breadwinners retirement account, which is generally an IRA.

Please note that QDRO’s only apply to retirement plans that are IRS tax-qualified and covered by the Employee Retirement Income Security Act (ERISA).  QDRO’s are also not necessary to divide IRA or SEP assets.

How A Divorce Attorney Can Help You

January 25th, 2017

Planning and going through a divorce is extremely difficult, on both emotional and financial level; and with all the legal components of getting a divorce, a qualified attorney is retained 99.9% of the time.

Not only is it important to have an attorney to represent you in court, it is also important to find an attorney that can help you understand the different rules and nuances that can go on during the divorce process – things like property and asset division, state rules that apply to divorce, and other facets involved in a divorce settlement.

A divorce attorney can also help you construct reasonable and achievable requests and agreements. For example, an attorney can help you comprise a custody agreement that would be much better as opposed to if you had done it on your own, as they will know what makes the most sense for the family. In addition, your attorney can demand for discovery, leading to the collection of supporting documents that can help your case.

Filing divorce papers are tedious, and if you don’t really know what you are doing, can end up being a detriment to your case. Lawyers know just how to prepare these documents and where they should be filed, which needs to be done in an exact, particular order. All of this stress can be avoided through the retainment of an experienced divorce lawyer.

Finally, if the divorce process will proceed in family court, and it is evident that the spouses cannot agree to split custody or assets, it is then up to the opinion of a judge to divide the assets and rule over the proceedings. At this point, it is absolutely necessary to get a lawyer, so that they may make your case to judge, fighting for what is in your best interests, and making sure that your needs are not only heard in the appropriate court manner, but in a way that persuades the judge in your favor.

The Pros And Cons Of Joint Child Custody

January 19th, 2017

Are you weighing the pros and cons of joint child custody? Dealing with your ex-spouse about child custody is not easy as a parent. Here is an introduction to some of the positives and negatives that parents need to consider.

A big part of a couple getting divorced is the splitting of assets and their possessions, and it is rare that this is settled easily, even with lawyers being brought in to help both sides come to an agreement – or so a judge can rule in their favor if reaching an agreement proves to be impossible. What seems to be the hardest thing for parents getting divorced is to come to an agreement regarding the custody of the children.

It is hard enough to decide who gets what assets, but determining who the child lives with is a long process, and often a very emotional one. Most judges will hold off on granting one parent the sole custody of their child, as there is a consensus among judges and lawyers that it is usually in the best interest of the children to grow up with both parents present to whatever capacity. This article will examine the pros and cons of joint child custody.

Pros of Joint Custody

The biggest benefit of joint custody is that the child can grow up with two parents to influence their growth and upbringing. Joint legal and physical custody mean that both parents can make legal decisions for the child, and both have the legal right to live with the child. Also, with both children involved in decision making, it requires the parents to co-exist and work together, which, if the parents can find a good middle ground, only has a better impact on the children’s life. It is also less stressful for either parent since none of them have to deal with everything on their own.

Cons of Joint Custody

But joint child custody isn’t without its problems and can be stressful for both parents. For example, joint physical custody requires the child to regularly go back and forth from parents, sometimes on a weekly basis. With no real sense of home, children can have a hard time getting used to this constant back and forth, with limited time with either parent. Also, not every couple can manage joint custody, depending on how they get along, or if they don’t at all. Devising a parenting schedule, for example, can be complicated and require a lot of negotiation.

When this is the case, the child’s needs can fall to the wayside as fighting trumps their responsibilities as parents. A skilled lawyer can help you understand all of the options at your disposal and find a creative solution for your family that also benefits your children.

So, although it is often best for the child to have two parental figures in their life, it is recognized that joint custody isn’t always best and that sometimes it can be best for everyone if sole custody is awarded.

What Takes Place During An Initial Consultation With A Divorce Attorney

January 12th, 2017

Stepping into the office of your divorce lawyer for the first time can be overwhelming since you are taking the first step in filing for a divorce. Depending on where you currently stand in the divorce process, you might need to have your attorney file the divorce papers with the court to start the process.

In general, the initial consultation involves the client asking a few general questions about the upcoming divorce. After answering, the attorney will ask a lot of questions regarding income, life at home, if there are kids involved, and yours and your spouse relationship and past. The goal here is for the attorney to get an understanding of the psychological and financial state the client is in and in order to make any referrals to a therapist, divorce coach, or accountant/financial planner if necessary.

Then, the relevant divorce-related issues will be discussed, as your attorney will want to take a pre-emptive approach to the major issues that may come up. Some examples of issues to consider are who wants the custody of children, if child support will be necessary, as well as an outline of the division of property and debts. The information will be reviewed by your attorney, and assist them in calculating what the proper amount of alimony would be (if needed), and how long it should be paid.

By the time the meeting is over, the client will be tasked with learning as much as they can about the couple’s finances, e.g. assets and ongoing expenses, regardless if one spouse was the designated person to look over the finances. The consultation is completely confidential, and your soon-to-be-ex-spouse will not find out through the attorney that you met with them.

Your lawyer is your ally, and you should completely and totally confide in them with everything regarding your divorce. They are the professionals that understand what is needed to be done to achieve a favorable settlement, and moreover, are not emotionally engaged in the divorce, giving them the ability to really think more clearly, instead of reacting via the emotional response.

What Is The Difference Between Joint Custody And Sole Custody Of The Child?

January 5th, 2017

In a previous blog, I discussed the difference between physical and legal custody, which differentiated between having the child live with you and having the right to make decisions for the child. In this article, we will be discussing the difference between sole custody and joint custody, both of which encompass the physical and legal custody of the child, or children, as well.

Sole Custody: One parent can have either sole physical custody, or can have sole legal custody of the children. This is not a popular outcome in most divorce cases, as it often alienates one parent from the child and prevents them from playing any role in the child’s life. Unfortunately, there are some cases where a parent will be awarded sole custody if the court deems the other parent unfit to take care of the child to any extent. Be it a drug or alcohol problem, or a history or tendency of being abusive or neglectful toward the child, there are some situations when a child needs to be kept away from one of their parents. But, as I said earlier, it isn’t as common for courts to award sole custody anymore. In fact, even if one parent is given sole physical custody, meaning the child mainly lives with them, both parents will often share joint legal custody, and moreover, the parent who isn’t given custody is allowed liberal visitation time.

In this scenario, the parents have an equal say in the decisions regarding the child, or children’s, life, but again, one parent is deemed to be the primary parental guardian that the child lives with.

There is no doubt that children do better with two parental figures in their life than one, so unless there is a real need to keep your ex-spouse away from the child, it’s best not to seek sole custody.

Joint Custody: When spouses who live together but share both the physical and executive custody of the child, it is known as joint custody. Joint custody doesn’t have to come after the parents get divorced; you can file for joint custody if you and your spouse are getting separated, or simply aren’t living together anymore. This is a much more common option that courts will exercise when deciding the living situation of the child. There is usually a schedule that is set up, along with housing accommodations that suit the child’s needs. Common arrangements are alternating months, six-month stays, sometimes even a year with one parent, it depends on what the parents decide.

And if the parents can’t come to an agreement, the court will decide for them. However, like everything in life, there are cons to joint custody. The child is moving around constantly, and there is a lack of a sense of a true “home,” and it can be expensive to have for both parents to maintain and own a home. The role of the parent here is to make the most of an unfortunate situation that the child never asked for in the first place.

What’s The Difference Between Legal And Physical Custody In New York?

December 27th, 2016

In divorces that include children, there seems to be a misunderstanding, if not a total unawareness, of the difference between physical and legal custody. Moreover, when the term “joint custody” is added to the equation, many get lost in the wording. This article will hopefully help you understand the difference between legal custody and physical custody.

When legal custody is awarded to a parent, it refers to their ability or power to make decisions on behalf of the child. These decisions could regard the child’s religious upbringing (obviously you cannot force your child to believe in something, but can persuade them towards one), medical requirements, and their education (private school, public school, homeschool, etc.). In essence, legal custody gives the parent the authority to make decisions for the child that impact the child’s life directly. Obviously, this is a very important role, and the parent awarded this custody should be of very sound mind, and one who is a good decision maker.

Physical custody is much different and is much easier to understand. Put bluntly; physical custody is simply a determination of which parent the child will spend the most time with. This, in turn, decides which parents the child will most likely be living with for the majority of the time.

And because it is very uncommon that one parent will be satisfied with having little to no time at all with the child, we have what is known as custody battles. Sometimes, the court decides on joint custody, which attempts to balance the time spent with the child or children. However, regardless of how equal the time awarded to each parent may appear to be, one parent will always have more parenting time than the other, and by law, this parent will have physical custody of the child. And the parent that is awarded physical custody is also entitled to receive child support, regardless if the decision-making responsibilities are shared between the two parents.

How Can I Change My Divorce Lawyer During The Process?

December 20th, 2016

Changing your representation mid-divorce isn’t as uncommon as some think, especially in a divorce case. There is a multitude of reasons for why you feel the need to change attorneys and an even greater number of factors that have lead you to this breaking point.

Some of the more common reasons for switching are that a spouse rushed into choosing a lawyer, and have come to realize that this partnership will no longer work and that it is time to change your divorce lawyer. Or, maybe you just don’t like how your attorney is handling your case; whatever it might be, know that you have the right to have whomever you want to represent you. While it is your right, don’t exercise it at the expense of your case.

First, you must find and retain a new lawyer. Note that this is prior to terminating your relationship with your current attorney. This is because you shouldn’t be without legal representation at any time while in the divorce process. So, sign a new contract with your new attorney, and bring them up to speed with the case so far, and any upcoming court dates they need to know about.

Then, you must end your contract with your current divorce lawyer. This can be done either in writing or in person, but a good rule of thumb is that even if done in person, you should still have a letter of termination. This letter should clearly indicate the date on which you want to terminate, and should also include the name and contact information of your newly retained attorney. Most importantly, don’t forget to include that you want all relevant information the attorney has pertaining to your case sent to your new attorney and include a specific due date.

From there, it’s a matter of paying off any remaining outstanding bills, having the rest of your client file moved to your current attorney, and have your new attorney file with the court that they are now your new legal representation.

How To Change A Divorce Settlement Agreement?

December 15th, 2016

After the divorce process is over, yours and your children’s life will change. Your life has to go on. Your kids will grow older, jobs (and their salary) change and divorce agreements that worked in the past are now obsolete. This is the reason why the law makes it possible to modify settlement agreements, as well as court orders made by a judge.

As time passes, you or your former spouse could at some point decide that the current terms of your divorce no longer fit with the existing living situation of your children. Your income probably decreased due to a salary cut, and so you need more spousal support or maybe now that your children are older, they have grown to the point that you need to cover more expenses.

If you and your former partner can agree that changes need to be made, as well as what changes, in particular, the process of modifying the agreement should not be that much of a hassle, especially if the court agrees with your request.

Just like when you and your former spouse got divorced, to modify the agreement you need to consult your lawyers, as they can ensure that your needs and best interests will be protected in the revisions.

A revised agreement must be created and filed with the court so that the new agreement can be court ordered. This is all under the premise that both parties agree with all the changes, because without this, you and your former spouse will end up in court again, with a new set of familiar battles.

The changes in your life and your children’s lives are the main ways you should go about proving that a change is needed as well as pointing out how the life of the other spouse might have changed for the better, and that a revision is needed to keep things fair.

Who Is Entitled To Spousal Support?

December 10th, 2016

When a married couple decided to get divorced, the judge will consider, and most often award spousal support otherwise known as “alimony,” to one of them. This will be decided either before the trial, where the two parties can make an agreement, or after a trial is conducted before a judge.

The purpose of awarding alimony is to mitigate any unfair, economic advantage that one spouse might have as a result of a divorce. The “disadvantaged” party will receive a continuing income from the other.

An example where one party may receive alimony is when a spouse who puts his or her career on hold in order to start a family, which include sacrificing time that could have been used to develop career/job skills. Now, not only are they looking for work with no relevant experience, they don’t have the financial stability to withstand the interim, jobless period.

The court also tends to recognize the notion of “maintaining and continuing a standard of living.” In other words, if the spouse has been living a certain type of life for a significant amount of time on their spouse’s work, it can be a compelling enough argument for the court to award alimony.

When deciding on the amount of alimony, the court will look to The Uniform Marriage and Divorce Act in order to reach a fair decision for both parties. The length of the marriage and the age/emotional state of the spouses, along with financial conditions, are the main factors in amount, but also in determining the length of time.

In addition, the amount of time necessary for the receiving spouse to receive the necessary education or experience to restart their career is taken into consideration.  Last, but certainly not forgotten, is the ability of the paying spouse to actually make these payments and still have the ability to support themselves.

 

What You Need To Know About Uncontested Divorce

December 5th, 2016

Contrary to what many of us see in movies, or read about in papers and books, not all divorces are long, drawn out battles that go on in front of a judge, with the spouses dueling it out via lawyers and litigation. The term used for this type of separation is called an uncontested divorce, and it is pretty self-explanatory.

An uncontested divorce is when the two parties have no disagreements over any of the financial issues that are worked out during an average divorce process. In addition, there should be no disputes over other divorce-related issues as well. These include things like child custody, child support, the division of any marital property that may exist, and spousal support. There is another way that an uncontested divorce can happen, and that is if one of the spouses, or parties, fails to show up in the initial trial, known as the divorce action.

Although an uncontested divorce is ideal, and the way most divorces actually go, don’t assume that your spouse will be so willing. Although it is the least expensive way to get divorced, most spouses are very stubborn in terms of what they think they are entitled to, and what they want from the divorce. In this case, quite obviously, they will be contesting the divorce, at which point it will go to trial and proceed to the divorce process.

The benefit of an uncontested divorce is that it saves everyone a lot of money, and is usually quick and painless. This is especially true if there are kids involved, as a lengthy and angry divorce process can have lasting and damaging effects on the children, not to mention the emotional and mental toll it will take on you and your former partner. Of course, if you are presented with the divorce papers, it would be best to consult with an uncontested divorce attorney before agreeing, as they can help you understand what you might be giving up that you are actually entitled to.

Why A Good Divorce Is Better Than A Bad Marriage?

November 29th, 2016

It is a common belief that even if a marriage is falling apart, or is already in shambles, it is better to just deal with the situation and keep the family intact instead of separating and getting divorced. Now, besides the fact that it can be more financially sound to stay married, there is no reason to stay miserable with someone who you no longer want to be with. Divorce can be expensive, but the toll you pay, emotionally and mentally, far outweighs the bill.

If there are kids involved, some may think it’s in their best interest to stay married and keep the household intact. After all, many studies suggest that children do much better with two parents under the same roof. But that study has to do with single parents being left by the other, not two spouses that have been together and raised the child and who are now yelling and screaming at each other before their eyes. Sometimes, it is a better option for a married couple to separate and be individually happy because from there, each of them can become a better parent.

For instance, although the child will have two homes after the divorce, at least they aren’t coming home to witness the fighting, screaming and yelling. The children can just be kids, and can engage with you in a more carefree environment as opposed to trying to traverse the emotional minefield that is the result of a bad marriage.

Happier and more engaged parents, even if they are separated, will have a much more positive effect than a wrecked nuclear family. The children can learn a lot from a productive divorce as well. It shows that personal happiness and sometimes compromising has supreme benefits and that it is very important.

Is There Any Difference Between Legal Separation And Divorce?

November 14th, 2016

Many married couples decide they no longer want to be together, but that doesn’t always mean they are going to get divorced. In fact, some couples choose to be legally separated instead of going through the divorce process.

A legal separation is similar to divorce, as there will be child custody negotiations as well as visitation rules and child/spousal support. Division of properties is another conversation that will take place when the couple is preparing to be separated.

What makes legal separation unique from divorce is that although you will not be living together, in the eyes of the state you are still married. For some, legal separation is a better route to take than divorce, be it for financial or family reasons.

If you do decide to get separated, it is important to know that if you choose to get divorced later on, you will still have to go through the divorce process in its entirety, regardless of what might have been decided in the separation negotiations.

These are the main reasons that spouses might choose legal separation over a divorce.

  • Religious beliefs might prevent the possibility of divorce;
  • If you remain married, your healthcare/insurance plan won’t change, and neither will the listed beneficiary;
  • By staying married, you can take advantage of the tax benefits that come along with it;
  • The divorce process can be long, expensive and emotionally draining, and some spouses find that it just isn’t worth it to go through the entire process. In this sense, cutting your losses and just getting separated is a sensible way to go, as you essentially accomplish the goal of terminating the romantic and intimate part of the relationship.

One point I wanted to make separate from the others is that unlike in divorce, legal separation allows you the possibility of reconciling and working on your relationship, to the point where you might even move back in together.

Legal separation allows this door to stay open while getting divorced and then getting back together requires more time and a lot more money.

Is There Any Advantage To Filing Divorce And Child Custody First?

November 8th, 2016

Because a divorce case cannot begin without one of the spouses initiating it (by petitioning or filing for divorce), there are many advantages to being the one who does start the divorce process. Being the Petitioner, as the phrase has been coined, comes with having more control over the timing of certain events, such as some scheduling matters that mostly take place at the beginning of the case. It is a significant advantage in filing a divorce.

For instance, being able to control when the case starts allows them to pick a start time that is most convenient for them. If you are the Petitioner, you can wait until your divorce attorney has all of the documents in order and ready, and the ones that must be served upon, the Respondent, can be served at the least convenient time for it.

With regard to child custody, the Petitioner can also have their attorney file for what is known as an emergency injunction at the time the case is filed. This step is usually taken when there is a legitimate fear that one of the parents will kidnap or abuse the child. This injunction is a safeguard against a parent responding emotionally to discovering that the other spouse has filed for divorce.

By having the control of scheduling different court dates, a parent can set up hearings where issues of child custody, child visitation, and child support will be handled. This doesn’t necessarily expedite the process nor does it ensure custody by any stretch of the word, but most would agree that having some type of control over these matters is preferable compared to the opposite.

As always, you should discuss this with your divorce attorney who can give you the best advice on how to proceed, and what is in your best interest.

How To Respond To A Divorce Summons

November 3rd, 2016

If you receive a Summons/Complaint because of a divorce action, you have twenty (20) days to respond. The response to the divorce Summons is known as the Answer. Usually, your attorney will prepare and file your Answer for you, which will initiate the divorce process.

You should contact your family court to receive copies of the response forms. Some of the forms are available on the Internet for you to print out; alternatively, you can visit the court to pick up the forms.

You must answer the claims made in the Plaintiff’s Complaint, and for each claim, you must either admit or deny the claim.

If you have minor children, you will need to include information about the current and possible future custody and child support payments. If you want to acquire full custody of your children or child, you will have to provide a breakdown of how much time with the child should be divided. It should be a detailed layout of how you want the parent without sole custody to have visitation with the children, along with if you think you should get child support.

All these papers must be submitted to the court clerk for filing. It is recommended that you bring three copies of your answer with you. The clerk will stamp the copies as filed, and will keep one copy for the court. Keep one copy for your records.

If your spouse has hired a divorce attorney, send a copy to their lawyer, as required by the court. If your spouse does not happen to have an attorney, send a copy to your spouse with a return receipt. Alternatively, if they do not have an attorney, you can have a sheriff or process server who can legally serve the answer to your spouse.

How Family Courts Determine The Amount Of Child Support?

October 27th, 2016

Each state has its own “formula” for calculating child support, and court judges will use this formula when determining how much child support will be paid. However, parents can still estimate fairly well what the child support amount might be even before the decision is made. Parents can have an idea by using websites that provide free calculators, however, calculations may vary from state to state. One example is alllaw(dot)com.

One component of deciding the child support amount is the income of both parents. Not all states consider both parents, as they only look at the income for the parent who was not granted custody. Also added to this equation is how much time the parents spend with the child, or children, as it is indicative of the type of relationship they have.

In general, these are the common factors most states will consider:

  • If either parent was in a previous marriage, how much child support/alimony are they already receiving?
  • Is either parent currently paying child support or alimony from a previous marriage?
  • Does either parent have primary custody of a child from a previous marriage?
  • Does either parent primarily pay for things like day care or the children’s health insurance? How much are they paying?
  • How old is the child, or children, involved?
  • Does either spouse now reside with a new partner with whom they share the living expenses?

During the process of divorce, most courts believe that figuring out the child support payments are more important than the alimony payments, and will usually decide on child support before moving on to spousal support.

Once again, a huge deciding factor will be income, and not all states consider income the same way. For instance, not all states consider bonuses and overtime as part of income, while others most certainly do. Ask your child attorney about how your state defines income.

How Long Do You Have To Pay Spousal Support?

October 22nd, 2016

Spousal support is common in many divorce cases and usually involves one spouse paying the other on a routine basis. For instance, there are many situations where one spouse is not working, and because he or she has been out of work for a period of time, the working spouse has to provide support.

Every state has different rules regarding the duration of spousal support, but in truth, there is no clear-cut way to go about determining how long spousal support lasts.

Spousal support, also called as alimony, is ordered by the court and is meant to be rehabilitative, in the sense that is will be in place as long as necessary for the receiving party until he or she becomes self-sufficient and self-supportive. It is not uncommon for the court to also set an exact time for when the spousal support expires or when payments are no longer necessary. If this does not happen, then payment must be continuously made until the court makes an order otherwise, or the paying spouse makes a motion to stop the payments.

Another possible element that could change the duration of spousal support is the personal life of either spouse. If the receiving spouse re-marry or has a live-in partner, the payments will most likely end. This could be true even if the amount paid up to that point is not enough to qualify as “rehabilitated.”

It is only on rare occasions that spousal support would be permanent, and that is only under a small umbrella of circumstances. The most common one is if the spouse that receives the support has health problems that would require them to have most, if not all of their costs covered.

When Is Divorce Mediation Considered An Option?

October 13th, 2016

An alternative to taking your divorce to trial is divorce mediation, which is where you and your soon-to-be-ex-spouse will decide how the marital assets are divided and other aspects of dissolving the marriage that a judge would usually preside over. In doing so, you save a ton of money, you can control the outcome, and if there are kids involved, you have more say in their fate.

When you litigate your divorce, you are going to spend a lot of money, no question about it. The combined attorney’s fees alone will be upwards of $25,000 because you’re paying for things like discovery, delays, trials and numerous over-the-phone conversations between lawyers. However, if you mediate, the total fees, which include the review by the consulting attorney, as well as paperwork perpetration could be $5,000 max.

One thing I like about mediation is that it allows the parents to remain in a desired amount of control when it comes to the outcome. Because it is you and your spouse that are presiding over everything, there isn’t a feeling of helplessness that can come with having a judge making every final decision.

Which leads into a subject that strikes a chord with every caring parent, and that is that with mediation, you and your spouse can determine, together, what is in the best interests of your kids. If the case goes to court, and custody is contested, the court will probably appoint a lawyer for your children, who almost never listen to either parent and like to propose invasive psychological evaluations of everyone in the family. Not only is it a scarring and troubling experience, but it also polarizes the family at the worst possible time.

Mediation is only a possibility if the spouses can communicate in an efficient way, and aren’t out to get the other one.

What Are The Grounds for Fault Divorce?

October 7th, 2016

Fault divorces are not that common, and in fact, most states don’t even recognize them. In the states that do recognize them, it is when one of the spouses requests that a divorce be granted on the grounds of some fault on the other spouse. The most common grounds for granting a fault divorce are adultery; one spouse abandoning the other for a particular length of time; a spouse is physically unable to have sexual intercourse; one spouse serves a prison sentence; or Inflicting emotional or physical pain, which is referred to as cruelty.

The reason that these are the grounds for a fault divorce is that in each scenario, it should be very easy to show who is at fault. With the ability to more acutely display causation of one of the grounds (for instance, stating which spouse was in prison or was cruel), the courts can address the divorce in a particular manner necessary for that specific divorce.

With a fault divorce, the dynamic of the litigation process shifts based on what must be discovered, and how each spouse will be represented. It also can shorten the duration of a divorce, because with each of the grounds comes an understanding of why the spouses are separating, and what needs to happen from here on. If you want to get a divorce under one of these grounds and do fit one of the listed grounds, then it can be a very good step to take.

No state requires the spouses seeking a fault divorce to live apart for a specific period, unlike in a no-fault divorce. Proving fault also provides the spouse without fault with a larger portion of the marital property or support. These two characteristics make a fault divorce more attractive to some people, but again, with the number of states that do recognize them being so small, fault divorces are rare.

Spousal Support When One Spouse Makes More Than The Other

September 27th, 2016

Historically, when men were the predominant “breadwinners” in a typical family, it was often the case that, in a divorce, the husband would pay what is known as spousal support to the wife. Spousal support is a financial help that recognizes a spouse’s contribution to the marriage and helps the recipient achieve financial independence. However, times have certainly changed, and women are just as likely to be bringing home the majority of money as their male counterparts.

What is great about spousal support, amongst many things, is the fact that it is designed to be gender neutral, as to not set a standard of one gender paying the other, but instead to make it about the total income. So, it is more than likely that the husband can receive spousal support from his soon-to-be ex-wife, depending on other factors, such as the duration of the marriage.

Other reasons a court might grant spousal support is if the spouse receiving the support is disabled or is unable to work. The courts are very aware that some spouses may claim they are not able to get a job, or purposely leave a high-paying job for a lesser one in the hopes of not only avoiding paying support but instead being granted with alimony. Likewise, you cannot choose to be unemployed and expect just to receive support; it exists solely for the spouse who not only need it but are separating from someone who can, quite literally, afford to pay the support.

It should be noted, however, that spousal support does not extend to every expense. For example, just because a spouse has been awarded spousal support, it doesn’t mean that the “paying spouse” must also take on their legal expenses. Having to pay for your spouse’s legal fees is usually a punishment leveled by the court, not something that is usually earned. The courts tend to think that each party is responsible for choosing an attorney who is within their means.

My Spouse Is Filing for Divorce. Can I File for Spousal Support To Help Pay Debts I Incurred In His Behalf?

September 20th, 2016

The purpose of alimony or spousal support is to limit the economic effects of a divorce proceeding. It is granted to the unemployed or lower-wage-earning spouse as a source of continuing income.

The court is aware that there are countless, justifiable reasons for one of the spouses to be unemployed or earning lower wages. For instance, it is very common for one spouse to end or halt their career to support the family, be it at home or anywhere else outside of work. The court sees a significant importance in continuing the standard of living that a spouse may have grown accustomed to during the marriage.

Unlike child support, where there are very specific monetary guidelines, there is more leeway concerning the awarding, the duration, and the amount of alimony. Under the Uniform Marriage and Divorce Act, where most states’ spousal support statutes are based on, are a few recommendations for the court to consider when making decisions related to alimony. Things like age, physical and emotional condition, as well as financial conditions are the big factors that courts look at first. Then they decide how long the recipient would need spousal support until they became self-sufficient enough to get back into the workplace.

Next, they examine what the standard of living was during the marriage, as well as how long the marriage lasted. And finally, the ability of the PAYING spouse to support the recipient, while still being able to support themselves (imperative to note).

Unlike with child-support, where the court “has ways” of punishing you for not paying, there are not too many things a court can do if one spouse isn’t paying alimony. However, the spouse who should be receiving the payments can go to the court in a contempt proceeding to force the payment. Once there is a court order for alimony, the court can leverage punishment to a spouse who is supposed to be paying the entitled person.

Who Pays For The Divorce Costs?

September 13th, 2016

Divorce isn’t only an ugly process; it’s an expensive one, too. And not only have that, 21st-century divorces tended to last upwards of seven months to a year. And as one would imagine, many spouses cannot afford to pay their legal expenses, and when this occurs there are a few different ways of having those legal costs covered. At an average hourly rate of $250 an hour, the accumulative fees can mount up.

One recourse in deciding who pays for attorney fees and litigation costs is looking at total income by each spouse. In most states, if one spouse earns considerably more than the other, the court may order that they cover all the expenses throughout the divorce, in the sake of fairness.

Another method is tapping into properties, such as retirement funds and assets, but this is only a viable option if your spouse has no claims to the property. If the court decides that it is a marital asset and that your spouse has a legal right to share, you can’t liquidate that asset to cover legal fees.

Whatever the court decides, it is important to keep a few things in mind. No one benefits from a long, drawn out divorce, and more times than not, the spouse who makes more money and decides to use that to their advantage, is forced by the court to cover divorce attorney fees and legal expenses. For example, if the “money-maker” files motion after motion in an attempt to drain the other spouse’s funds to compel them just to give in to their demands and settle the case. The court takes caution in not allowing this to happen and has this rule in place to protect the spouse that has not yet been granted their motion to have their legal expenses covered.

Can You Secretly Record A Conversation With Your Spouse, And Use It In A Court Proceeding

September 4th, 2016

A controversial, yet sometimes useful tactic used by parties of a divorce case is to record a phone conversation between the spouses, usually one spouse doing so in secret from the other. The idea is that the unknowing spouse will slip up and say something so profound that, if brought before a judge, it could very well impact their decision on things like child custody and child support.

A common question of whether this recording of the phone call, and using it as the “smoking gun” in your case is answered by N.Y. Penal Law §§ 250.00, 250.05. This law is what is known as a “one-party consent” law. New York makes it a crime to record or eavesdrop on an in-person or telephone conversation, unless one party to the conversation (either spouse) consents. And here, the consent is the act of the spouse that initiates the recording of the conversation. In short, if you are going through a divorce and you record a conversation between you and your spouse, and they are not aware of it, you are, by law, allowed to do so. Furthermore, these conversations are admissible in court, and the content of these conversations vary from state to state.

Other states have a “two-party consent” law, which means that both spouses would need to consent to the conversation being recorded, which makes it a lot less likely to get something out of them that can hurt them in court.

How Will Breaking Child Custody Court Orders Affect My Ex-Spouse?

August 28th, 2016

My Ex-Spouse Has Broken Court Orders Twice. How Will Breaching Child Custody Agreement Affect Him?

One of the most difficult parts of divorce settlements is certainly agreeing on custody and visitation arrangements when there are children involved. And even when an agreement is already made, time and time again, parents fail to uphold their end of the bargain. Whether it may be one parent preventing the other from visiting and seeing the kids or another parent failing to show up on time or spend time with their children, a breach of any contract can and should be dealt with by the court.

Depending on the particular case, as well as the nature of the breach, a court has the power to order community service, issue a fine, or in more severe and repeated cases, sentence one of the spouses to time in prison. However, if the parent who is found to have breached the contract also happens to be the child’s primary guardian, jail sentencing is very rare.

If you believe your former spouse is repeatedly and intentionally breaching agreements, orders and contracts, don’t hesitate to bring it to the court’s attention. These orders were not meant to be broken and are in place for a reason. To ensure both your well-being and of your children, talk to a child custody attorney about having mandated rules issued by the court.

How Can You Make The Best Financial Decisions During Divorce

August 18th, 2016

For most people who are going through a divorce, getting through it as quickly as possible is the main goal. After all, divorces can be very painful and the only way you can start moving on is by getting past all of this.

However, if you don’t give your divorce the proper attention and due diligence, you can really come out on the wrong side at the end of it all, and pass up on a lot of important, and sometimes vital opportunities that arise during the divorce process.  This is especially true in the financial realm of divorce, where emotions can compromise your ability to think clearly, and take the most prudent course of action.

For example, many individuals who have just gotten out of a marriage fail to realize how different their expenses are going to be now that they are no longer living with their spouse. It is extremely important to develop a strict(er) budget, at least until you understand just how much more difficult paying expenses on your own will become. This is certainly true if you were in a marriage where expenses were split up, such as you covering the utility bill while your spouse covered groceries.

You have to learn how to manage these expenses all over again, and to disregard the importance of budgeting can lead to serious financial problems in the near future.

A good idea is to create a list of your new financial responsibilities and smartly estimate how much more you are going to have to pay. If there are kids involved, alimony and child support are key in keeping up your finances while still caring for and providing for your children. Of course, it does depend on the financial situation of both you and your former spouse, but receiving these types of financial support can be the difference between having a sense of normality at home and stressing over every nickel and dime.

You don’t have to take on the world all-alone after divorce, the law was created to help you. Don’t let pride stop you from requesting child support and alimony from your former partner, and understand that you both started a family together, and it is up to both of you to provide for your children.

How to Find Hidden Assets of Your Spouse in Divorce

August 8th, 2016

Here’s how they’re typically found during a divorce case.

Because of the fact that assets, which may have at one point belonged to one spouse, often become shared between the two during or after a divorce, some spouses try to hide them in order to protect what they feel is rightfully theirs. However, thanks to what is known as discovery, hidden assets and incomes are brought to light during divorce proceedings. When the division of assets begins, the assets in the marriage are separated into three different groupings: Marital, Separate and Comingled.

Marital assets are property that is acquired during the marriage, and separate assets are acquired before the marriage, after the spouses become separated, or if the asset is a gift or was inherited. Comingled assets are when the marital and separate assets are combined in something like a bank account or retirement fund.

In most marriages, only one of the spouses handles the “bookkeeping” and managing and tracking of the finances. If you are not this spouse, it is important to ask your spouse for copies of all financial records from the marriage. However, depending on how long the marriage lasted, it can be rather difficult to supply all the information, so you should be willing to work with your spouse to gather all the information. Most account records are available online, and you and your spouse can send joint requests for records from places like mortgage companies, banks, retirement plan administrators, and other third parties.

However, this all falls under a “best case scenario” type of situation. Usually, the spouse will produce information because they are hiding assets. If you aren’t an attorney, the process of tracking down these assets can be very difficult, so if you think that your spouse is hiding some assets, you will want to contact an attorney with experience in asset search & investigation.

The discovery process, as mentioned above, includes document demands, interrogatories/requests for admission, inspection demands and testimony given under oath. The combination of all these will make it very hard for your spouse to keep these assets hidden.

Document demands are when your attorney will ask your spouse, and their attorney, to produce specific documents like tax returns, loan applications, account records and financial statements.

Interrogatories/Requests for Admission: These are written questions that your spouse must answer in writing, or admit specific statements that you believe are true, before you ask them. This way, instead of it being assumed, it is on record.

Inspection demands: You can request that property such as a safe deposit box or even something like a wine collection be inspected, not only to see if there is something that wasn’t included before, or to valuate the property.

Testimony under oath: Also known as an oral deposition, both you and your spouse, and the lawyers involved, would appear before a court reporter. During this time, your spouse would be sworn to tell the truth, and must answer questions from your attorney. Keep in mind; you will be under oath as well if asked to give testimony. Lying under oath can lead you to be charged with perjury, but this would be a good way to pressure your potentially lying spouse to tell the truth about hidden assets. Depositions usually occur after you and your attorney have obtained some financial records, from which you can formulate your questions. If your spouse fails to produce a document that the court orders them to, they can suffer what is known as a sanction, which can be a monetary fine or a judgment against your spouse in a particular part of the case.

After Divorce, What Legal Documents of Mine Should I Update and Why?

July 28th, 2016

When the divorce proceedings are finished, it is important to update and change documents that are not included in the divorce judgment. If one fails to do something such as updating who their beneficiary is to your IRA, which most times is the spouse, then the said spouse could inherit their IRA.

Because of this, here are some of the important documents you will want to update upon the finalization of the divorce.

Retirement Plans (401K, IRA, pension plan, and the like) – Although this money is set aside for the account holders retirement, in the event of death, the beneficiary, so often the spouse, would receive the funds in the account.

Life Insurance Policy – A life insurance policy sets aside funds that will help provide for the family after the holder’s death, as well as funeral costs.

Will and Trust – It declares the name of the person who will receive your property and assets upon death, as well as selecting a guardian if there are minors in the family. In addition, the selection of who will manage your estates, nullify previous wills, and new parties to the documents all need to be updated to fit your new marital status.

W-4 – This is a work-related document that helps your employer file their federal income tax, and going from married to not married, requires a change in your personal taxing by the federal government.

Medical Power of Attorney – This is a very important document that must be updated. This is a designation of a person who will be trusted with making healthcare decisions on your behalf if the times comes when you are no longer able to do so.

Ex-Spouse Inherited a House from Her Parents But I’m On Deed. What Am I Entitled To?

July 18th, 2016

Inheritance can be tricky and often a sensitive subject. People often feel entitled to what has been left behind to them by their parents, but the law in New York often causes a different outcome. Because married couples sometimes find it easier to have a lot of their assets shared, otherwise known as a marital assets, deciding who is entitled to these assets when a divorce takes place becomes much more complex than just looking at who inherited the asset.

With regard to assets such as estates, a home left to a spouse in the will of their parent, for instance an inheritance, is typically considered separate property which by definition is not subject to distribution in a divorce. However, the key here is that this property must be kept separate, as once this property becomes shared, i.e. if the non-inheriting spouse’s name is added to the will and becomes marital property, it is now subject to distribution.

If the non-inheriting spouse’s name is not on the deed, nor are they mentioned in the deceased parent’s will, it becomes much harder for that spouse to prove that they have a vested interest in the property, therefore making it unlikely that the court will find that they have some, if any, entitlement to the house.

However, one thing the court does take into effect is the duration of the marriage. If the marriage lasted 20 years, most of which the non-inheriting spouse was aware that they would inherit said property in the future, they may be able to stake a claim that they do in fact have an interest in the house.

What Should I Know About Divorce and Refinancing?

July 8th, 2016

In many divorce cases, one of the spouse will want to keep the family home following the divorce. Refinancing is sometimes a necessary action to take in order to buy-out the other spouse’s interest, or ownership of the property. This is a common step taken because unless the spouse that wants the house has a significant amount of money that can be used in the buy-out, or there are some assets that can be exchanged for the share of the home.

Refinancing is a form of taking out a loan, and the new loan must be in the buying spouse’s name only. Out of that loan, the spouse intending to buy-out must subtract the amount of money from the home equity in order to pay the non-buying spouse.

To begin this procedure, you have to value the house, subtract the unpaid mortgage balance, and calculate your share in the remaining equity. To have the house valued, a certified real estate agent should be hired, one that is agreed upon by both spouses. Or, if an agent cannot be agreed upon, each party can get an appraiser, and submitting opposing appraisal reports to the court, where a judge would decide which value seems to be the most reasonable and applicable.

I Do Not Have a Child Custody Agreement Yet. Can My Ex-Spouse Relocate to A Different State with My Kids?

June 30th, 2016

In most typical relocations involving children, the moving party must abide by the child custody agreement as well as the limitations that it places. Some order prevents the custodial parent from moving certain miles away. Travel restrictions themselves are usually worked out during the divorce proceedings.

However, all of this becomes infinitely more complex when there isn’t a custody order/agreement in place. When there is no court order in place, the relocating parent can actually run into legal risks by doing so. Prior to moving, or “relocating” within the state of New York, you and your children should have resided there for at least six months so that the courts will consider New York as the home state of the children.

If you leave the state without a prior court order in place, there is a possibility that your spouse can file a court action and request that your child or children be brought back. On top of that, by trying to move the kids out of the state without consulting your ex-spouse could work against you in a future custody case.

With or without an order in place, you should still file a child custody action in which you state that you intend to move. By filing this new action, you can also request an expedited hearing that will determine whether or not you can relocate to begin with.

Using the notion that you are moving in the best interest of the child, this will put yourself in a better position by asking the court prior to relocating. However, if you take it upon yourself to make this decision without including the court, you put yourself in a position where the court will most likely demand you to come back for a hearing on this matter.

How Will a Judge Decide Child Custody If I Need to Relocate to A Different State

June 22nd, 2016

When one parent decides that they are going to move or relocate with a significant distance away from the marital home, or where the child is being raised, during post-divorce, the opposing party (the other parent) can make a case for why the moving parent should not be allowed to take the child with them. This case is usually settled through a trial.

The non-relocating parent has the right to be notified at least 60-90 days before relocation. This gives them the chance to object. A formal objection should be filed and basically states that either the parent seeking relocation does not have the right to relocate the child because of the divorce decree that was already passed, and/or that this relocation will not be in the best interest of the child.

The parent who files the relocation notice should be aware of the necessary “tests” that they need to pass in order to persuade a judge to allow relocation to a different state.

The first part of this test revolves around proving that there is a legitimate reason to move. Two common claims made are that the relocating parent found a better job with more income that could not or was not available in the current location, or that the relocating parent has a new life setup, with a new spouse, and that they need to move in order to start a “new life”.

The second part, which is much more complicated is centered on the best interests of the child in question. Ultimately, the judge has three factors to consider: each of the parent’s motives for asking or refusing permission for the relocation, how the move can affect the child’s life, and finally how the move and the subsequent new visitation schedule will impact the relationship between the child and the “left-behind” parent.

Take note that the quality of life test is much more complicated and complex than determining motives. You should speak to a child custody attorney to draw up a way to show that you either pass both these tests or that your ex-spouse should not be granted this right.

How Will Breaking Court Orders Affect One of the Parties in the Divorce

June 12th, 2016

When a court issues an order during the divorce proceedings or after the divorce is finalized, it is legally binding. What this means is that whomever the order is focused on, they must abide by all conditions that are included in said order. If this person intentionally disobeys the order, they can be penalized and punished by the court, otherwise known as being “held in contempt”.

Contempt, in the simplest terms, is the result of a violation of a court order, and depending on the order and the violation, the violator may face either/both civil and criminal penalties. The purpose of a court issuing a penalty such as contempt is to persuade the violating party to comply with the issued order, not as a punishment.

Although the legal definition for being held in contempt is the result of actions committed within the courtroom, such as being disrespectful to the judge or causing a disturbance during the trial. However, this is not always the case, and you can be held in contempt for actions committed outside of the courtroom, such as not paying child support or alimony that the court ordered you to pay, or not abiding by a court-approved visitation agreement (when kids are involved), or not following a court-ordered asset distribution (settlements).

In order for a court to find someone in contempt, three tests must be passed in order to prove intent of disobeying a court order. The accuser is burdened with proving that the violating party was aware that the order existed, had the ability to follow the said order but decided not to follow the conditions of the order, and finally that the accused party does not have a valid cause or excuse for violating the order.

If you are found in contempt, you may face both civil and criminal penalties. These include but are not limited to fines, paying for the opposing party’s attorney fees, compensatory custody time, or even a jail sentence.

The consequences range in severity based on the order that was violated, and the extent that it was disregarded or not followed. The court will often give the offending party a chance to make up for their actions before issuing a punishment.

Should I Update My Estate Plan If I Am Getting Divorced

June 2nd, 2016

It is very important to update and edit your estate plans if you are preparing to get divorced, because without proper revisions, your former spouse may end up inheriting your assets. Moreover, if your ex-spouse gets married again, then their new partner, and any kids they might have can end up inheriting what should have, and could have, been yours.

After the divorce is over, the most recommended way to revise your will is to execute a new one, and cancel or revoke the old one. You can physically destroy the will, or, when you are drafting your new will, all prior wills will be voided. If the will was created prior to the divorce, then any gifts made to your spouse are revoked by the divorce.

You should also create a new living trust once the divorce has been finalized. If kids are involved in the marriage, then you can arrange to make them as your main beneficiaries, in this way your ex-spouse cannot interfere or control the assets.

How Your Spouse Can Spy On You

May 23rd, 2016

It’s very common for an angry, scorned spouse to begin spying on their soon-to-be ex. In fact, plenty of couples that haven’t even begun speaking to attorneys about a separation already spy on each other. And if you find out that your spouse is in fact spying on you, you should be alarmed, and be open to the idea of talking to an attorney about the situation.

There are a few ways your spouse might be spying on you, and a few reasons why. For instance, your spouse may follow you around and spy on you, to see if you go to a bar to go drinking, or if you are buying and taking drugs (in any manner), and even stalk if your spouse thinks you are seeing someone whom they particularly don’t like or trust, like a friend or an ex.

If they notice that money is mysteriously missing or running low, they might think that you are spending the money irresponsibly, and perhaps not even on the family. Spouses will often check bank statements and credit reports of their spouse, if they aren’t already in a joint account with you.

It is important to note that a lot of people are just naturally suspicious, maybe even a little paranoid, especially if they have dealt with trust issues in past relationships. Some people are insecure, and their spying may be indicative of seeking reassurance. Others still are controlling but just because they may have been spying, it doesn’t mean the relationship is over. However, it is certainly something that should be dealt with immediately, before it turns into something worse.

How to Choose the Right Divorce Attorney

May 13th, 2016

Choosing the right divorce attorney for your particular case is a key step in achieving the ultimate goal – to end your divorce and walk away in the best shape possible.

Some attorneys are better suited for your case than others, whether it be because your divorce, in particular, requires more attention, more research, or it might be something more personal. For instance, being comfortable with your attorney and feeling like you are heard is very important as well. Some clients prefer to be very involved in every step of the divorce process while others are content with giving their attorneys all the information requested and letting them do their job themselves.

Similarly, some lawyers request that their clients be very engaged during the divorce while others just want to know a lot of details, and then they will take care of the rest. Regardless, there is a perfect lawyer for your specific needs out there, and you shouldn’t settle for whichever attorney is most convenient for you to see, or was recommended because they helped a friend of yours get a quick divorce.

Each divorce is unique. It involves different types of people, with different issues, and ultimately, as cliché as it may sound, no two divorces are ever the same. While there may be a lot of similarities if your attorney treats your case the same way he does with every other case they have had, he is doing something wrong. So when you are seeking an divorce attorney, know ahead of time what you want out of the divorce, and have at least three prospective lawyers before making a final decision.

How to Divide Your Assets during Divorce If Your Spouse is A Co-Owner of Your Business

May 3rd, 2016

Many small business owners often co-run the company with their spouse, and while this is a smart tactic when it comes to filing taxes and other financial duties but if the marriage does not last, the demise of the partnership is not far behind. Unless there is an existing prenuptial agreement that discusses what will happen in the event of a divorce, the process of dividing shares and valuing the business overall can be dragged on for years in legal battles.

Frequently, this legal issue can lead to the destruction of the company, as all of the attention, emotions and energy go into the divorce and the splitting of assets. Along with a prenup, spouses that are co-owners of a business should look into buy-sell agreements, which are contracts that detail how co-owners in a business, the spouses, would buy or sell their interests if it need be.

To reiterate, it will be necessary to have the business valuated at some point in the divorce, and as tempting, as it may be for both partners to get their own valuators, the reality is that valuation companies and experts are extremely expensive, and there is nothing more to gain by having two valuators.

And the most important thing to remember, no matter how attractive the idea may be, do not split the company in half. That absolutely never turns out well for either spouse or the company.

Top Three Reasons Why People Get Divorced

April 23rd, 2016
  1. The “fire” in the relationship goes out. For whatever reason, it is common that the intimacy in the relationship becomes strained, and over time it seems to disappear. Although a healthy sex life with your spouse doesn’t guarantee a successful marriage, it still significant since it provides security for both partners, and without it, stress and resentment can build. When the intimacy in a marriage expires, spouses grow apart and things like infidelity and separation are almost a certainty. It doesn’t mean that you are a bad person; it is just simple human nature. Men need a good sex life with their partners to feel romantic, and at the same time, women also need a certain amount of romance in order to want sex and feel, well, sexy.
  1. Financial problems and differences. Although financial problems can put serious stress on the relationship, it isn’t the only issue that can be a catalyst for divorce. If you and your spouse are very different with regard to spending and saving, it can easily start a fight, and with enough time and fuel added to the fire, one starts filing for a divorce. Because of how important financial stability is in this world, it makes a lot of sense that when spouses don’t see eye-to-eye, it can tear relationships apart, regardless of how shallow it may seem.
  1. Inability to resolve conflicts. It is an unrealistic expectation to think that you and your spouse will never fight or have disagreements. They are a part of any relationship, but what is vital to the success of a relationship is the ability to deal with any issues in a positive, constructive manner. What makes a married couple different from a regular, friendly relationship, is that there are feelings involved, and that causes the resentments to become emotionally charged, complicating the entire situation. Being able to successfully resolve conflicts in the marriage is a big step in guaranteeing a long, happy marriage.

What Information Is Public If I File For Divorce

April 13th, 2016

Going through a divorce is not something we want to broadcast. Sometimes it’s not something we want people to know about, and frankly, it’s no one else’s business to a certain extent. And although there are significant confidentiality rules in place, the fact of the matter is, divorce files are public records and therefore, are available to anyone, at any time.

Due to the Freedom of Information laws that have been passed, these files can be accessed by anyone without the need for a real reason for viewing them, and furthermore, can be searched on the internet. Ultimately, the only true way to keep your most personal information private is to simply not have them on record in the first place. Yes, divorce often delves into very private and sensitive information and topics, but that doesn’t mean it has to be completely exposed.

In the end, some of the information that goes public includes but not limited to financial information, property settlement agreements, and psych evaluations if there is a custody battle. However, it is often what is not true, yet still remains on the record, that can be the most damaging. Deliberately false, and wild accusations still make their way to the record and can be just as easily manipulated and used against one of the parties as any other piece of information.

How to Protect Yourself During Divorce

April 3rd, 2016

Although the divorce process can be mentally and emotionally draining, it is important to remember that you are in a rather vulnerable position and that you should immediately protect yourself, your children and your personal finances as the divorce carries on. It is incredibly important to take precaution and begin taking steps to guard your personal information and well-being.

Here are a few reasonable steps you should take to protect yourself and the important things around you:

If there are kids involved, make sure your spouse does not just take them if they are choosing to leave the family home. But if you are the one leaving, which in some cases is important to recognize that it may be best for everyone if you do so, you have to have a pre-planned agreement in regards to how much time each parent will have with the child. Although this agreement may not be the same as the one that will be in place after the custody battles are finished, it protects your relationship with your kids.

As soon as you know that you and your spouse are getting divorced, retain an attorney. Once it is clear that you and your soon-to-be-ex cannot settle outside of court, you will need a lawyer to represent you in court. Do not try to represent yourself in a divorce.

If you and your spouse have any joint credit card accounts, cancel them at once. Ideally, you should do this with both parties aware of the credit card cancellation, but you would rather cancel the card before they can charge substantial amounts of credit and leave you with the debt.

Cut down on spending. You may have now gone from a 2-person income family to now being completely dependent on yourself. Less money coming in means that less should be going out, especially since you don’t know how your finances will look when everything has been settled.

Last, but certainly not the least, if anything physical happens between you and your spouse in the realm of domestic violence, call the police immediately. You should definitely file a report, and perhaps even seek a restraining order because it may not be only you who is in harm’s way, but your children as well.

Ways to Help Your Children Get Through Divorce

March 24th, 2016

When kids are involved in a divorce, the process becomes more stressful and emotional for everyone. How you handle your divorce can have a tremendous impact on their lives, and any relationship you will have with them in the future. How you and your spouse behave and interact with each other, especially in front of the children, can have severe consequences or benefits. But again, it all depends on how you deal with it.

Here is some advice to help you get through this difficult situation when kids are involved:

Make sure you and your spouse, regardless of how you may feel about each other, need to at least present yourselves as on the same page and a team – a team that is there to support and care for the children and their wellbeing. This has a few benefits, one of which is that it will give them the impression that this divorce may not be the end of the family. Soothing and calming their fears and worries about their parents splitting up is an important step in “surviving” the divorce. If they at least have the impression that despite the divorce their parents still love them and cherish them, and that you are still going to be there for them, they can keep a positive outlook on the situation, which is ideally what you would want. The divorce already hurts everyone enough, it is best to limit the damage as much as possible.

Second, you should expect a lot of questions from your kids, as the idea of only having one parent around will be a bit of a shock to them, considering they’ve never been in that situation before. In reality, a divorce is often very traumatic for younger children, so it is crucial that you stay open (as much as appropriate), patient and calm when discussing the topic. If they don’t understand, which in all likelihood they won’t, don’t get exasperated or upset; just remind them that they are loved and that they still have a mom and a dad.

Children often see themselves as the cause of the divorce. Make sure to let them know that this is most certainly not the case.

Three Ways to Help You Move On With Your Life after Divorce

March 14th, 2016

Going through a divorce is never easy for anyone involved no matter what the underlying circumstances may have been. There will be lasting, emotional scars during and after, and some people simply cannot cope with the situation. However, moving on from this painful experience is not impossible. You can continue to grow as an individual and move on with your life.

The following are three helpful ways to help you move on with your life after divorce:

1. You may be “single”, but you are certainly not alone. Look around, there are so many people that love you and want to be there for you. You shouldn’t be scared to accept them in your life. Moreover, it doesn’t mean you can’t start seeing a new “someone”, it’s just important though to not instantaneously get coupled up or immediately seek a “replacement”. Surround yourself with those who you care about, and whom you know will always be there for you. Don’t be afraid to make new friends and establish new connections. That’s what life is all about.

2. An important part of moving on from something is learning to let go. The feelings that cling to you after a divorce – bitterness, anger, and betrayal, will only hold you back. They fester in your mind, blinding you from seeing the reality of your situation, and you believe that these feelings are true as they continue to gnaw at you. It’s a vicious cycle, which is why it is important to nip it in the bud as soon as possible. Forget the “what if’s” and the like, as they only keep you from changing your outlook on life.

3. Make sure you don’t develop bad habits during your dark hours. Many will turn to drugs or alcohol to numb the extreme pain and emotions they are feeling. Binging and removing yourself from reality is an awful way to cope, and don’t expect to feel better. Focus on your mental and physical health, because a healthy mind and body leads to clearer and better living.

Top 3 Questions to Ask a Prospective Divorce Lawyer

March 4th, 2016

Here are a few good examples of questions you should think about asking when meeting your potential divorce lawyer:

  1. What is your rule regarding communication via phone calls, emails, texts, etc.? How can I reach you if there is an emergency? By having a clear and direct line of communication with your attorney is important, not only because it will make you feel at ease, but because any event could happen during divorce that could significantly impact the whole separation process. Having an attorney who is always ready and there for you is essential in getting the best possible outcome in your divorce.
  2. What is your strategy for my case? How long will it take to resolve my case? These questions should be asked after 1 or 2 meetings with your lawyer. Your attorney should be able to give you a more solid and bona fide answer to these questions. This will make sure you and your lawyer are on the same page and ensures that your interests are well-represented.
  3. Based on what you know about my case, how would you predict a judge would rule on it? Again, this isn’t a fair question to ask until your lawyer has enough information, from both you and your soon-to-be ex-spouse. Your lawyer has to first gather necessary information to make a reliable and reasonable assumption about the possible outcome of your case. And that is all it is; an assumption. But it is important to ask, to see what your lawyer thinks about your chances, and how your lawyer is representing your case to achieve a favorable outcome.

What’s New in New York’s Spousal Maintenance Law?

February 24th, 2016

The rules regarding maintenance, otherwise known as alimony in divorce law, has gone through a tremendous change in 2015. On September 25th, Governor Andrew Cuomo signed a huge divorce law overhaul that has since gone into effect October 25th.

The new law keeps the transitory maintenance guidelines, that is, what is to be paid during the ongoing trial, but also lengthens these guidelines to post-divorce alimony awards, or maintenance for some time after the divorce judgment has been entered.

In addition, the previous law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation, whereas the new law lowers this cap to $175,000.00. The limit, however, will change over time, with respect to Consumer Price Index and its fluctuations.

At a court’s discretion, a judge may allow income over the cap, or deviate from the guidelines altogether by using a certain criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

What Communication From Your Spouse Should You Collect For Your Attorney?

February 14th, 2016

You may hate them, you may despise them on a cellular level, but it’s not realistic to think that you will never speak to your soon-to-be ex-spouse, especially if there are kids involved. The best thing you can do, both for your kids (if there are any), as well as for yourself, is either be civil when communicating with your spouse, or just don’t communicate with them at all. You can leave the communication aspect to your attorney and your spouse’s attorney, as they are much more likely to not write something or say something that will sabotage your chances of a favorable divorce agreement.

Since it’s been clarified that you will likely have to communicate with your soon-to-be-ex-spouse to some extent, what do you think is worth handing over to your lawyer, and what can just be deleted? One would be if your spouse sends you threatening or harassing messages, that is certainly something you would want to print out and give to your attorney, and you should probably keep a copy for yourself as well. Remember that aforementioned bit about ruining your chances for a favorable outcome in your divorce? Well, that goes both ways; if your spouse writes the wrong thing to you, be it in a drunken stupor or a frenzied moment, you should absolutely forward that to your lawyer (talk about being placed in a bad light).

Another thing that you should keep a record of is anything that may have to do with your spouse’s finances and their job. They may be telling the court that they didn’t get a promotion, or that they were recently laid off; basically, anything that can show that your spouse is not being entirely honest to the court can be a huge gain. Don’t try to instigate these kinds of things however, as you are not the only one who can keep a record of conversations.

How Social Media Can Affect Your Divorce – 5 Do’s and Don’ts

February 4th, 2016

Social media has forever changed every single aspect of our lives, and that extends well into divorce proceedings. Posts on social media platforms like Facebook and Twitter, have been used as evidence and deciding factors in trials, which in some situations have ruined many spouses’ chance of achieving positive settlements during divorce.

With that being said, here are 5 do’s and don’ts with regard to social media, and your divorce.

Do’s:

  1. Censor yourself! Pictures, videos, posts and such are routinely brought into court proceedings. Don’t trust yourself, have a friend serve as your “guardian” with regard to your posts, sometimes your decision making skills aren’t as good as you think.
  2. Have your friends and family help out as your “eyes and ears”. Your spouse may block you or “unfriend” you on social media, at which point you can’t really see what they are doing or posting. Asking (not demanding) your friends to keep an eye on your soon-to-be ex-spouse is a good way to have a way of monitoring them without having the actual ability to. Of course, not everyone will be comfortable doing this, especially mutual friends between you and your spouse. In fact, you might be better off not asking them at all, because they might tell your spouse you asked, and that just won’t look good at
  3. Depending on the circumstances, you might just be better off removing your spouse on your social media account. If you can’t control yourself from contacting them, or you’re worried that you cannot control what you post, deleting your spouse and any common friends who will likely favor on your spouse would be a wise move.
  4. Change your relationship status as soon as you are sure about the separation. It will help you begin the long process and for people around you to be aware of that you are not only going through a rough time but also to be not mistakenly thought of being still together.
  5. If you feel like its right, you should temporarily disable your social media. Deactivating your account will prevent you from posting anything that will negatively affect your standing during divorce trials.

Don’ts:

  1. Don’t post a picture or write a status about you making a big expenditure. This will kill any motion to reduce payments such as child support and alimony before you even file for either. You can’t state that you can’t afford to pay them when you are caught buying expensive things like cars or spending on friends, both old and new.
  2. Don’t write about trips or dates or anything you wouldn’t want your kids to know, because your spouse will most certainly make sure they see it. Don’t sell yourself as sleazy on social media, and certainly don’t if you had family-related obligation that you were supposed to attend to. It simply isn’t worth it – a few measly “likes” in exchange for looking terrible in the eyes of the court.
  3. No pictures of you drinking! How can you prove to the court that you are a responsible adult if you are seen partying like a teenager? Yes, adults drink, but it’s usually low-key and not broadcasted. Again, it just isn’t worth it. If you are fighting for child custody, one picture demonstrating you as a “drunk parent” may ruin your chance.
  4. Generally, just watch what you write on social media. What you may find to be a funny joke, the court might deem as a reflection of your character. Moreover, don’t post negative things about your spouse. It shows lack of self-control, and no one likes a troll.
  5. Don’t start messaging mutual friends and spreading rumors about your spouse, and especially don’t share private things with your spouse’s friends. They will most likely just tell your soon-to-be ex what you did, and if they get a hold of that conversation, you are automatically the preverbal “bad guy” in the eyes of the court. As much as you may want to vent, social media certainly isn’t the place, not where everything is permanent. Seek a close friend or a therapist for that.

Is There A Difference Between Alimony and Child Support?

January 25th, 2016

When a divorce trial has come to an end, and everything is settled and planned out, it is extremely common that one spouse will make payments to the other as per the agreements made in court. Two of the most common sorts of payments are alimony and child support. It is important to note that these are two very different types of payments, not only in terms of where that money is supposed to go, but also how it might affect your taxes.

Alimony is the term used to describe spousal support. The spousal part of it really is what differentiates it from child support. Alimony is paid from one spouse to the other so that the receiver can maintain the same standard of living they had grown accompanied to during the marriage. Most divorce agreements include alimony when one of the parties makes more than the other, and so logically the higher earning spouse will be the alimony payer. The person who is paying alimony is usually able to claim the payment as a tax deduction, while the person receiving alimony must report the payments as income.

Child support is considered in its own, unique terms in divorce agreements, and not paired with any ruling about alimony. The idea of child support is self-explanatory; it is payment to help raise children, therefore not more money for a spouse to spend. The supervisory parent whom the court has determined, who will spend more time with the kids commonly receives child support because they will be spending more money on childcare than the parent who is not looking after the children as much. These payments usually stop when the children reach 18 or 21, depending on if they go to college and any monetary necessities stemming from that. As opposed to alimony, there is no tax deduction for child support, and the parent receiving child support also does not need to pay income tax for receiving this support.

How Divorce Can Impact Your Credit Score

January 18th, 2016

Although we view divorce as something that not only affects us as people but also our finances, getting a divorce in and of itself will not affect your credit score or report. At least, not directly; the financial issues that stem from the divorce process, however, could very well impact your credit. This can be especially true if the divorce process includes joint credit accounts between the spouses, as that will significantly affect your future credit.

If you do have a joint credit account, you should certainly meet with your accountant and either close the account entirely or ensure that one of the names, either yours or your spouses, are completely removed from the account.

In a divorce decree, a court will often specify which of the parties is responsible for any accounts that had been opened during the marriage. Even in this case, if both names are on the account, they are both still under contract with the credit lenders, not just who was named responsible for the account.

What you should look out for is just prior to the actual divorce trial. Often, an angry spouse will try to financially harm their soon-to-be ex by making huge credit expenditures, with the intention of creating huge financial debts for the spouse, and ultimately destroying their credit history, which comes with its own set of awful consequences.

Are Pets Considered Property Or Family During Divorce In New York

January 11th, 2016

Pets are a big part of many couples’ lives; they serve as companions and cherished family members to both spouses. As such, many married couples find themselves fighting over the custody of the pet, much like how passionate parents will fight for custody of their children. However, there is a big difference between pets and children in the eyes of the court.

As of now, to the dismay of many, pets are considered property in divorce cases. As per any other battle over property, the court will decide based upon which spouse can provide evidence of sole ownership prior to the marriage, as well as which spouse provided care to said pet during the marriage and has the ability to provide the necessary care a pet requires once the divorce is finalized. Because many couples consider pets a “family member”, therefore adding much greater value to the pet.

Because of this, courts are meticulous in determining sole custody of the pet, and a lot of negotiation goes into a custody plan.

Information You Should Gather When Starting Your Divorce

January 5th, 2016

Filing for divorce requires a lot of work on your end, as a client. Just because you retained an attorney doesn’t mean that he is completely equipped with all the necessary information to represent your case in court. To make it easier on both yourself and your attorney, you should try to collect and compile large amount of documents that you can gather prior to any court proceedings.

A few examples of the types of divorce documents you would want to prepare are personal records, financial documents and property records, business documents and records, and miscellaneous things like photos, letters, cards, videos and the like. All of which should be strictly correlated to you, your family, and anything in particular between you and a family member, be it your spouse or child.

Personal records should pertain to the marriage, relevant citizenship status, and also the children in the marriage, if there are any. What is also important is that you have papers confirming that the court you are filing for divorce has the jurisdiction, which is the legal authority to hear your case based on factors such as subject matter and location. Some examples include birth certificates, immigration and nationalization papers, social security numbers/cards, and any marital documents like a prenuptial agreement that you have with your current spouse.

Financial documents contain the information concerning your and your ex’s income, savings, assets, current and past debts and expenditures that may be an integral part in later court proceedings like child/spousal support, alimony, and division of property agreements which you will inevitably get to. The documents you want to collect and look out for are income tax returns within the last five years, and income earned at work, including bonuses and payroll statements. In addition, retirement plans like 401(k)’s are vital to have ready when you begin your divorce process, as well as real estate deeds, mortgages, leases, loans, credit card statements, bank account information and any everyday expenditures (food, gas, clothes, utilities, etc.).

If you run your own business or run one with your spouse, you should make sure that you have all the tax returns, profit and loss records, financial statements, insurance policies, and agreements that the business is engaged. Also, business credit card statements and bank accounts should not be left out.

10 Things To Never Do During Divorce

December 29th, 2015

As a general rule, you should really try to refrain from the following 10 detrimental, and unfortunately common, things that spouses will do during the divorce process.

  1. Do not try to use the court and your meetings with the judge as a battleground for you to try to “expose” your ex, or put them in a bad light in front of everyone. It will only make you look bad and put you in a worse position with the judge than your ex is.
  2. Do not take an all-or-nothing stance when it comes to negotiating and finalizing divorce agreements. Being “branded” as someone who isn’t willing to cooperate unless they “get their way” is another way to hurt your image in front of attorneys and judges. Don’t think emotionally; be reasonably flexible so that you can move forward to the more important aspects of the divorce process.
  3. If there are children involved, make sure you put their interests and needs before your own, as they are just as effected, if not more so, by this divorce as you are, and its important not to let them fall to the wayside.
  4. Do not excommunicate your ex, as much as you may hate them or dislike speaking to them. It undermines the settlement process significantly, as well as prolongs it, which just costs you more money. And, if there are kids, it is imperative that you and your ex are on speaking terms- for their sake.
  5. Making wild accusations will also not help your cause, especially if they are fabricated, which is common. This severely cripples your reputation in the eyes of the judge, and your ex’s attorneys may seek to manipulate this to their advantage.
  6. Contrary to number 5, if you have legitimate accusations to make, don’t keep them to yourself. Don’t keep what you know to be as true to yourself.
  7. Remember, there is no point in trying to portray yourself as completely innocent with regard to why the marriage has come apart. It takes two individuals to get married, and both you and your ex played a role in its undoing. The court knows that no one is perfect; in fact, they detest those who try to convince them of otherwise.
  8. Emotions can often wreak havoc with the more mindful and rational parts of our brain. Often, a result of this is paranoia, especially with regard to your ex. For instance, just because you are getting divorced, there isn’t necessarily any ill-will toward you, and they aren’t out to ruin the rest of your life. Let your lawyers do their job, which is to collect the facts and present them as such. They have the advantage of not being emotionally-invested like you and your ex, so they should be trusted with the important decision-making responsibilities.
  9. Although this is the end of the marriage, it doesn’t necessarily have to be the end of the relationship. In fact, regardless of whether or not there are kids involved, you should be very open to ending on good terms with your ex. And if there are children in the marriage, it really helps their future growth and development to have two loving parents in their life who get along and can communicate well with each other.
  10. If you are not the Plaintiff (the one who initially filed for divorce), retain council right away, or at the very least meet with a few divorce attorneys and prepare yourself. Don’t expect that your ex will change their mind, or that if you beg, cry, and offer more, that you can swoon them into coming home. Collect yourself, and take action by getting a a good attorney.

What Is “Alienation of Affection?”

December 29th, 2015

An Alienation of Affection lawsuit is a civil tort claims against someone who is not your spouse, but through his or her own actions, caused a spouse to leave the other. Being a third party to the marriage, they may be sued by the deserted spouse for the loss of affection that was provided during the marriage, or to word it another way, they are sued for the affection that the deserted spouse did not get.

A lot of people quickly assume that these third parties are only a spouses secret lover, often known as a “home wrecker”, however this can extend to parents, in-laws, friends, and sometimes the spouses’ therapist that had suggested they file for divorce. You cannot file this lawsuit in 43 of the 50 states, including New York.

In order to prove Alienation of Affection, you must show that you and your spouse had, at one time, been in a “happy” marriage, with legitimate affection involved. Then, as a result of the third parties’ actions, the love and affection that was present in the marriage was destroyed (you must prove both that the “love is gone” as well as showing that it is the third-party to blame for this). Finally, you must show that you yourself were damaged to some extent.

In courts that do hear Alienation of Affection cases, the remedy is monetary, and both spouses may seek money damages against this person.

Can Filing For Bankruptcy Impact The Divorce Process?

December 21st, 2015

If you have an ongoing divorce case, filing for bankruptcy will not directly affect the settlement talks to establish custody or child support. However, it will halt the ongoing divorce proceedings related to division of property for the time being, until that matter is settled.

Because declaring for bankruptcy means your property becomes property of bankruptcy estate, so there is an indefinite stay, or hold, with the proceedings that relate in any way to the division of property proceedings. There are two different types of bankruptcy that will come into play with the courts; Chapter 7 and Chapter 13 bankruptcy. In 7, the trustee has the power to sell your nonexempt property to pay your debt. This means that if you file during divorce, you may lose control of your assets, as they can be declared property of the state or be payment to your creditors. If your ex-spouse owns joint property, the trustee could be able to sell the whole asset if you cannot exempt the value of your interest in said property. In addition, if the trustee finds that your ex’s interest in the property is not part of your bankruptcy estate, the trustee would then pay your ex the exact value of their personal interest from the sale profits. Meanwhile, 13 does not give power to the trustee. But, depending on the amount of nonexempt property you own, it may affect how much you must pay unsafe creditors through your set repayment plan. This gives the power of determining the value of your property interests to the trustee, so both have advantages and disadvantages.

However, filing for bankruptcy does not affect, stall or impact proceedings that have to do with establishing custody or child support. So if you are attempting to stall those types of proceedings, filing for bankruptcy will not help you.

Are My Social Media Posts Admissible During The Divorce Proceedings?

December 17th, 2015

Social media has efficiently integrated itself permanently into our everyday lives. Utilizing it is inevitable for some of us, as our whole lives and careers revolve around social media, and all the connections we have through it. However, it can often serve as a severe hindrance in divorce cases, and have a serious impact on multiple settlement proceedings.

One example is any connections you may have that are “mutual” friends with your spouse. Often, parties will delete each other on social media, in an attempt to protect themselves from having anything they post used against them in court. However, you can utilize these mutual friends to your advantage, or disadvantage depending on who you are, to act, for lack of a better word, spy. For instance, your spouse may claim they aren’t able to pay for any type of support, yet they post pictures of themselves, spending lavishly on expensive vacations. This is a good way to also show that your spouse is hiding assets from you and the court.

In addition to social media, texts, emails and other basic communication methods that are particularly in writing are other good sources of harmful information that can easily be subpoenaed and meticulously inspected for anything that can help during your divorce trial. For instance, there might be inclinations of a raise from their job, or, again, an expensive leisure trip. All of this can be very useful, or injurious, sources of “evidence” that your spouse is not being completely honest.

Remember, social media posts can affect the outcome of your divorce. Therefore, it is best, in the long run, to stay off social media, such as twitter, Facebook, LinkedIn, or at the very least limit yourself and exercise serious mindfulness when you are posting anything. At the same time, be very vigilant with regard to what your spouse posts or writes, as it can serve you well in court.

What Are The Statutory Requirements For Getting Divorced In New York?

December 7th, 2015

In order to file for a divorce in the state of New York, there are some residency requirements that have been put in place by the courts that must be met for the court to be able to hear your case. This is to determine whether or not the court has the “jurisdiction” to hear the case. Here are the requirements that must be met. Note that you only need to satisfy one, not all, but for any requirement, one of the spouses must have had to live in the state for at least a year.

  • The initial marriage must have been done in the state in which you are filing for divorce
  • The two parties have lived as a married couple in this state
  • The reason that the couple is divorcing must have occurred in the state, although in this scenario, if both parties live in the state when applying for divorce, the one year requirement for just one party does not have to be met
  • Lastly, either party has lived in the state for at least two years before applying divorce

Next, you must decide under what grounds you are seeking a divorce. In the state of New York, there is a specific list from which you have to declare your grounds for divorce.

Irretrievable Breakdown: The relationship between you and your spouse has deteriorated irretrievably for at least six months. The court will only give you a divorce on this ground when custody, spousal support, visitation, property and child support have been settled and/or decided.

Cruel and inhuman treatment: Cruel and inhuman treatment by your spouse; this means that your physical and/or mental health is at risk if you and your spouse continue together. However, if this abusive treatment did not take place within the past five (5) years, you cannot use this as a ground for divorce.

AbandonmentThis is when your spouse “leaves” you for at least a year. This means that your spouse has abandoned you, or kicked you out, and does not intend to return.

Imprisonment: This is when your spouse is sentenced to jail for three or more years. However, if your spouse was released more than five (5) years ago, you cannot file for divorce under this ground.

Adultery: If your spouse commits adultery, you may use this as a reason for divorce. But, this is not a reason for divorce if you do any of the following: incite your spouse to commit infidelity, absolve your spouse of any wrongdoing by having intimate relations with them post discovery of the affair, or if you sleep with someone else. In addition, adultery cannot be a ground for divorce if it has been more than five (5) years since you discovered that your spouse has committed infidelity. You cannot testify on your own that your former partner was unfaithful, so you must be able to produce a reliable witness who can testify that there was adultery committed by your former spouse.

Judgment of Separation: You and your partner have not lived together in the same household due to a Decree of Separation or Judgment of Separation, given by a Court, for at least one (1) year. You must follow all of the stipulations of the decree or judgment. It is uncommon to have a Judgment of Separation because of the fact that it needs similar proof needed in a divorce. Most clients don’t go through the Judgment of Separation and go directly to divorce.

Separation Agreement: In this situation, you and your partner have not resided together because of an approved Agreement of Separation for at least one (1) year. Both you and your spouse have to sign this agreement before a certified notary and you also have to follow all of the conditions of said agreement.

From this point on, you must file the appropriate forms at the courthouse, and serve your spouse divorce papers. But these are the general requirements to start your divorce process.

Are Any Job Perks Considered Marital Assets In A Divorce?

December 3rd, 2015

Part of the divorce process includes the distribution of property, often the marital assets. Some marital assets can include perks from you job. Retirement benefits, for example, can be affected, because they are considered marital property by the court, and can therefore be divided between you and your former partner. Because of the marriage, the ex spouse now has entitlement to a portion of your pension, and he/she can become the beneficiary of any pre-retirement death benefit. In addition, your former partner may also be entitled to a percentage of any Cost-of-Living Adjustment you may receive. Whatever the courts decide, it will be stated in legal document known as a Domestic Relations Order, DRO, and will have specific orders on how certain benefits should be divided.

What Exactly Is A No Fault Divorce?

November 30th, 2015

No Fault Divorce refers to a specific type of separation, in which the spouse that is filing for the divorce, A.K.A. the plaintiff, does not have to prove any fault on the part of the other spouse. The only thing that the plaintiff does have to do is give any rationale reason that the state will accept as grounds for a divorce. In almost all “no fault” divorces, plaintiffs will claim irreconcilable differences, irreparable breakdown of the relationship, or incompatibility. All of these three equate to the same thing, which is that the two parties do not get along any more, so much so that the relationship is beyond repair. This type of divorce is non-objectionable by the defendant, or spouse receiving the divorce, as this will only further prove an irreconcilable difference between the two parties.

What Are 5 Ways Divorce Will Affect My Finances?

November 10th, 2015
  1. Legal Expenses: Getting a divorce is not only a long and difficult process, but it also can be financially impactful as well. Because divorce cases are generally so long in duration, it’s not as if you make one payment to your attorney (and your spouse’s attorney if the court finds you must cover their expenses), but rather there are multiple payments throughout that you will have to make, and when it’s all said and done, the cumulative total from legal expenses alone can be really debilitating. This is why couples often seek to settle quickly, if they can, and outside of a courtroom. However, some cases are too complicated, and consist of too many variables, to be settled quickly and before a judge is involved.
  2. Post-Divorce Childcare Expenses: Now that you are on your own (presumably), and are using your own personal income to cover expenses for your child, you would be surprised how much it will take from your bank account. It is easy to forget how expensive children can be when the costs are shared between you and the child’s other parent, because you are simply only paying for part of the expenses. This is a completely separate issue from child support, which is paid to the parent rather than to the child’s insurance company or the like. Child support, if you are the parent that will be paying, can also be a huge expense, and is something you should be aware of, especially because if the court decides you are to pay child support, it’s not optional.
  3. New Taxes: Now that you and your former spouse are no longer together, you will have to file independent (single) tax returns and other forms, as opposed to a joint tax return that you and your spouse may have had during the marriage. This change in itself can considerably raise the yearly taxes you have to pay. In addition, just by filing your taxes with a single status, your taxes will be higher than joint tax filings.
  4. Retirement Plan: Because you will now be the only one putting in money into your own retirement account, the costs that come with plans like Pension’s, an IRA or a 401(k) will seem exponentially higher. Much like with childcare, because you are now making certain payments on your own, you are no longer only paying part of the total, but the entire bill.
  5. Personal Insurance Policies: When you’re married, prior to even considering divorce, you envision your partner and yourself together for life (till death do you part, right?). Because of this, you may not have a health care insurance policy for yourself for when you get older, and health complications begin to arise. Now that you aren’t with your former partner, make sure you are covered for the long-term with regard to your health. While these are very important to have, bear in mind that healthcare coverage for yourself can be very expensive, especially since you are paying the entirety of the policy. When all of these variables in play, the divorce process, as well as the results that will follow, end up accumulating into a huge and overwhelming hit to your financial well being.

3 Common Ways Spouses Conceal Wealth From Each Other

November 4th, 2015

People are naturally stingy with money, and when you have someone who is overly protective of their private wealth, you would be surprised at some of the tactics I have seen that some go through in a desperate attempt to keep what is theirs. This is especially true when it comes time for couples to begin the divorce process, which includes the separation and distribution of money and property. I have seen every stunt pulled by wildly greedy spouses, desperate to keep every last dime in their procession, and hidden far and away from the court, their spouse’s attorneys, and sometimes even their own attorney. With that being said, I have narrowed this long list down to the three most common and, to be frank, the most successful tactics used to hide personal assets in anticipation of the divorce proceedings.

One popular move is transfer their assets to a separate account:  Generally speaking, the transfer is from the joint bank accounts, and any brokerage account, where both spouses have been depositing money, and into a solely owned bank account, under only one of the parties’ names, and often these transfers happen very quickly, because if one of the spouses are engaged in this, why wouldn’t the other be? This fraudulent act has had scattered success, especially when that separate account could possibly be an off-shore account.

Another popular method is to create fake expenses, and use them as excuses as to why they “don’t have the funds” to cover legal fees, or pay some type of support. It isn’t terribly hard either, especially if they have accomplices to help sell the story of where there money went, and more importantly, why you can’t have any or see it.

Lastly, and this one is really conniving, is if they take out cash withdrawals from a debit card. At almost any store you shop, after swiping the debit card, and then entering the pin and so forth, you will often be asked if you want cash back. Most of us answer no, because we want that money to stay in the debit account. However, your spouse can just get groceries, but also withdraw amounts up to $80. Overtime, this could build up very quickly, and it would never be noticed because on the billing statement it will just say the store and items purchased, leaving no trace of the cash withdrawal. It is all just shown as part of the groceries. Pretty clever, huh

When Is It Too Late For A Postnup?

November 4th, 2015

Many of my clients come to me asking if there is any point when it is too late to get a postnuptial agreement, and the answer to this question is no, it’s never too late. A common misunderstanding by many couples and individual spouses that I meet with is that nuptial agreements can only be made before the wedding, hence the “pre-“ in “pre-nuptial”. And while a prenuptial agreement is most commonly suggested, couples who have already married can still draft an acceptable marital agreement, known as a postnuptial agreements.

Just like with a prenuptial agreement, a postnuptial agreement can guarantee that the interests of both parties are protected if there ever is a divorce. Prenuptials and postnuptials both permit the spouses to make the big decisions regarding distribution of marital property and asset protection, as opposed to a judge. Postnuptial agreements may also help settlement with respect to who is accountable for certain liabilities, for example credit cards or student loans after a divorce are financial liabilities.

Postnuptial agreements can be drafted and legitimized at any time during the marriage, even if the spouses are newly weds or if they’ve been married for over 15 years. Postnuptial agreements are perfect for couples that have faced a lot of changes in their relationship, a change in financial status, or perhaps both. Postnuptials are very useful for couples that have children from a previous marriage, because they’ll be able to guarantee that the interests of said children will be protected along with their own.

Postnuptial agreements detail the rights as well as the responsibilities for the spouses during the marriage, and after the marriage in the case of divorce. This agreement varies by situation.

Many think that these agreements are only for wealthy couples, and this is not the case at all. Most couples can benefit from a postnuptial agreement regardless of their financial status. Accumulating these draft agreements early gives couples the opportunity to work out some issues that often cause turmoil in the marriage, leading to a divorce.

For a marriage that eventually ends, a postnuptial can soften the proceedings. The agreement has taken care of the majority of important issues, which allows you and your attorney to be able to deal with any other problems that could arise. This can make the divorce proceedings get finished quickly, instead of dragging out the proceedings, saving money and energy, both mentally and emotionally.

5 Simple Ways To Organize Your Finances Before Divorce

November 4th, 2015

Many individuals who are going through a divorce go through a variety of emotional and financial dilemmas. Thankfully, they can all lessen the effects of the monetary issues by being proactive in organizing their finances. When two spouses decide that they want to separate, each should retain a divorce attorney. Some lawyers don’t bill for the first consultation, which then allows clients to begin the difficult divorce procedure without the stress of having to instantly pay a hefty sum for legal advice. Some divorce attorneys bill hourly, meanwhile others may charge just a flat fee.

Clients can do their part ahead of time by gathering the necessary financial documents on their own time, rather than leaving it to their attorney, otherwise known as discovery work. In addition, people can save a lot on legal fees if they have all their documents ahead of time. However, the research and preparation can be difficult if the client does not know what documents they need, as well as where to find them.

Here are five simple ways to organize your finances before you start your divorce process.

  1. Create a new budget: With your regular income undergoing a dramatic change, you should go over your finances and be certain that you can manage your monthly and yearly finances. Also, it is now going to be important that you identify what your new parameters are in terms of spending, and it becomes vital that you have emergency funds stored for a rainy day. Costs for lawyers and other miscellaneous expenses can stack up in a hurry as well. And finally, don’t forget about any savings you have for retirement in whatever financial plans you draft.
  2. Close any joint accounts you have with your soon to be ex-spouse: Now that the relationship is over, you should make sure any shared accounts, credit cards, and overall any bank accounts are not only closed, but also paid off, or at the very least put under one of the spouses names. A helpful tool is to use your credit score, which many websites offer to obtain for free, to ensure you didn’t miss any accounts. This is important because sometimes a former spouse will take advantage of this, and make payments knowing it will negatively effect your credit score. Cover all your bases.
  3. Open new accounts under your name: Now that you have taken care of any joint accounts you may have previously had, you should create a credit account and open bank accounts that are all your own. It is also wise to NOT use the same bank where your joint accounts had been in.
  4. Calculate your net worth, complete a “Net Worth Statement”: Write down all the personal property and funds that you and your former partner accumulated during the marriage. Make an approximation of what it is worth. If you currently own a home, contact a real-estate agent so they can give you an idea of its current value on the market. As you are doing all this, it can alleviate some of the stress that you face during a divorce if you jot down some of the property that you feel you truly need to have. However, you cannot expect to get everything you once owned, so choose wisely.
  5. Make sure you have insurance: Now that you and your spouse are no longer going to be together, you need to make sure you are covered by multiple aspects of insurance. It is imperative that you and your children have enough of all types of insurance to be protected and taken care of. Your ex-spouse may not be so inclined to help you with this, so you must take it upon yourself to make sure you are covered.

 

 

 

What Happens If One Parent Fails To Pay Child Support?

November 2nd, 2015

When one parent is awarded child support in any divorce proceeding, it acts just like any other order delivered by the court, and is enforceable with an order of contempt action. Typically, if the non-custodial parent does not comply with the child support order, the custodial parent will seek an order of contempt, which is defined as a willful failure to obey an order of the court.

Usually, the party that is seeking a contempt order will include the threat of serving a jail sentence for the non-paying, non-custodial parent. In actuality, the real purpose of seeking a contempt order is to guarantee that the non-custodial parent complies with the child support order. Clearly, however, there are very real and serious consequences for not complying. Although jail time is a possibility, this is usually a last recourse of action for a judge.

A contempt order such as this is not primarily intended to punish wrongdoers, and is instead supposed to remedy the situation through civil litigation. Because of this, it is common for the custodial parent to make a demand for discovery, as doing so could very well reveal if the non-custodial parent has the resources required to not only cover their life, but their child support obligation as well. In many cases, following a discovery that reveals the offender cannot make their payments, a court may find that there is an inability to pay, and therefore will not be held in contempt.

If this is the situation, then the court may look to a third party, like parents of the non-custodial party, as a source from which to appropriate necessary funds. Bank accounts, retirement accounts and other assets may also be liquidated by order of the court in order to make payments.

If, at the end of the day, the court finds that the non-custodial parent is not making payments purely because of financial hardships, then the court will provide payment for the missing child support.

The Top 3 Things To Do To Protect Your Assets Before Divorce

October 30th, 2015

1. Contact and work with a Certified Financial Divorce Practitioner: Some people think that when drafting a settlement offer for your upcoming divorce, that it is okay to consult their accountants or financial planner. The problem here is that, more times than not, these people are not well versed in divorce settlements. Therefore, you should consult a Certified Financial Divorce Practitioner, as they are certified in the financial aspects of divorce. They will explain to you the financial effects that accompany divorce settlements.

2. Open your own bank account: If you have your own, personal bank account that has existed since before your marriage, make sure to keep that money away from any joint bank accounts you may have with your soon-to-be ex-spouse. So long as this money is kept separate from any other money you have combined with your partner in a joint account, you are, by all means, the legal owner of said money when the divorce is all said and done. However, if you don’t have a bank account other than your joint bank account, it is imperative that you open your own account, and start putting money it. Unlike with a joint account, your partner cannot take out money for himself or herself if it is in an account under your name. And finally, if you do have a joint account, it is wise that you contact whatever bank account is in, and limit any possible access to this account. If you explain to them the situation, that you are currently in a divorce process, they can limit overall access to this account, and in doing so, it will prevent your spouse from draining the account for themselves.

3. Establish a date of separation: When you establish a formal date of separation, your partner cannot claim part of your income, nor any new asset you acquire with this income, as theirs. A good indicator of separation is if you move out of the residence you live in with your spouse. Although it can be hard to leave your home, it is important to establish a date of separation as soon as possible. This will show that you and your partner are no longer in a working relationship, which may help protect any income you earn from this point on.

Three Things That Will Help Win A Child Custody Battle

October 28th, 2015

1. Spend as much time with the kids as possible: In the eyes of the court, it can be very compelling if the parent that doesn’t live with the children the majority of the time during the separation, makes a conscious effort to make time to see their children, and that this time is well spent and benefits the child greatly. It makes a big impression when you show that, even though they don’t live with you, you are going out of your way to stay present in their life (or “lives” if there are multiple children in the marriage), and that you don’t abandon them. And the best way to “show” this to the court is just that; make sure you take photos of you spending time with your child/children, ranging from taking them to different events, or something as simple as quality time at home. This is a good way to provide indisputable evidence that you care about your relationship with your child. Furthermore, be present in the child’s personal life; showing up at things like parent-teacher conferences, medical appointments, sporting events, and any other extracurricular activities shows a real commitment to the child. Be familiar with the names of their friends, teachers, and caretakers. The more aware you are, or seem to be, the better your chances are.

2. Keep a detailed recording of everything regarding your children, and your children with your ex-spouse: This is something that can really work in your favor in the long run. First off, do not tell your ex-spouse you are doing this; this “journal” can be used to record every instance where the other parent violates the current custody agreement you have in place. For example, if they are late to pick-up or drop off your child from/to you, if they are intentionally sabotaging your relationship with the child, they didn’t pay the expenses for the child that they agreed to pay, or if they don’t show up to certain events your child is in, this can really help swing the child custody battle in your favor. Add this with the aforementioned spending time with the children; you look even better in the eyes of the court. If there are any payments due from the other parent that have not been paid, make sure to make a detailed note of this.

3. Make sure you attend all court dates and hearings: Now that you have done all this work to make yourself look better in the eyes of the court, don’t undermine that all by skipping out on court dates. This is hands-down the worst thing that you can do, and I have seen multiple custody battles decided on the fact that a parent “couldn’t be bothered to show up to the court”. This really tarnishes the notion that you not only don’t care about the kids, but that you also don’t care to have custody of them. In short, go to every single court date that there is.

Do Higher Net Worth Divorces Receive Higher Tax Consequences In New York?

October 26th, 2015

Divorce in general is a long, difficult, and complex procedure in almost every case. When there is more money, more assets and additional property included, it only makes things more complicated. Because of the fact that there is substantially more money involved, key divorce topics like spousal and child support and distribution of assets are all affected.

The court will look into assets such as:

– Business trips

– Real estate and other property

– Bank account(s)

– Stocks that a spouse may have in a portfolio

– 401k and other retirement accounts

– Trust funds that one or both of the spouses may have in entitled to them

Because property is being distributed and divided, and since you may have assets in your name, it is highly likely that there will be a change in your yearly taxes. You should consult a lawyer as opposed to an accountant, because they may not be as familiar with the legality as an attorney would be.

If you and your former spouse filed a joint tax return while you were married, you will now have to change your filing status as you are no longer together. In addition, when child custody has been finalized, you and your former spouse must decide who will get the tax exemption for the minor. If you and your spouse cannot come to an agreement, factors such as who has custody and the accumulated duration of time that each parent spends with the child can be used to decide which party can claim the tax exemption.

With regard to a high net worth divorce, there is an accepted notion that it is fairly common for one of the parents to earn a considerably higher income. When this is the case, the lower-income earning spouse will often ask for alimony, otherwise known as spousal support. They may argue that they have grown accustomed to a certain lifestyle, or that they cannot live off the income they earn (if they even have a job). If alimony is awarded, tax laws apply here as well. The parent who has to pay the alimony can claim the ordered amount as a deduction on their tax return. Moreover, the receiver of the alimony must report this support as part of their income on the tax forms.

Beyond alimony, there are other sources of income that may come into play during the divorce proceeding. If you sell the marital home or property that had been jointly owned during the marriage, there are capital gains taxes that must be reported. If you withdraw from a retirement fund earlier than agreed upon with your bank, there are tax penalties for that as well. Lastly, if you have any stocks, bonds, or any other types of investments that were shared assets, and you sold them, you have to claim that as income as well on your tax returns. Although these seem like routine parts of divorce, it is imperative to remember that any and all bases of income are reported for tax purposes.

Same Sex Marriage And Child Custody

October 22nd, 2015

Because of how recently same-sex marriage has been passed in states, child custody battles in these instances are often case-by-case, as the legal system and the rules that apply here are constantly changing. Not unlike heterosexual marriages, it is best that you and your ex-spouse really try to come to an agreement on all the child-related issues. Custody battles in court are never a good thing, as the psychological harm done to the child, as well as the overwhelming stress it puts on both parties can be seriously debilitating.

What is important in same-sex marriage custody battles are if both parties are “Legal Parents”. Both spouses are legal parents if the child was:

– Born into the marriage, civil union, etc, and so the non-biological parent gains parental rights.
– There was a joint adoption of the child.

If both parents are considered legal parents, all child-related problems will be handled in the same manner as a straight marriage. Here, a judge will take into account numerous factors in order to determine what is in the best interest of the child.

If only one of the parents is defined as a “legal parent”, it is a very different situation. Whether it is because the state doesn’t recognize that being in a relationship with the legal parent gives you parental rights, or simply because the original legal parent never agreed to making you a legal parent, it really doesn’t matter. Most states don’t give second parents any rights at all, negating any attempt to seek legal or actual physical custody. In addition, you may not even be able to seek visitation. On the flip side, this parent will almost always not be obligated to pay any type of financial support for the child. Some states will, however, recognize that the second parent does have parental rights if there is a clear intention to establish a legitimate relationship with the child, and to raise it.

What Happens To The Marital Assets If One Spouse Dies And The Divorce Has Not Been Finalized?

February 20th, 2017

Divorce can take a long time to conclude. In New York, the waiting period for a divorce can take a whole year. And so, it is not outside the realm of possibility that one spouse may die before the divorce is even finalized. So what happens in this scenario? Well, that would depend on if the deceased spouse left a will behind, or died intestate, or without a will.

If your spouse dies after you’ve filed for divorce, but prior to the final judgment being made by the court, then the divorce case will be thrown out. While you can divorce someone without their consent, you cannot get a divorce from a spouse who is currently deceased. When it is time for the distribution of an estate, you will be seen as still married in the eyes of the state.

If your spouse dies without a will, or intestate, the deceased spouse’s estate will be handled by the New York intestate laws. Conversely, if the spouse died with a will, then the estate would be handled consistent with the will.

If a person dies intestate, that person’s community property will go to their surviving spouse. Community property is income that was earned during the marriage, and any assets purchased with the income that was accrued during the marriage.

Sometimes, the surviving spouse might need to file a spousal petition to claim and receive ownership of this property. Separate property is given entirely to the surviving spouse if the deceased has no living children, parents, brothers or sisters or even children of a deceased brother or sister (niece or nephew). If there are heirs that fall into any of these categories, the property will be split between the spouse and the heir.

If the deceased spouse left a Will, it must be followed, even if that Will disinherit their spouse, which is not only possible but has happened before. However, a disinherited spouse would still be entitled to at least half of the community property.