Archive for December, 2015

10 Things To Never Do During Divorce

Tuesday, 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?”

Tuesday, 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?

Monday, December 21st, 2015

If your divorce is still on process, then declaring bankruptcy may not directly influence the settlement talks to decide custody or support. However, it will halt the current divorce proceedings that are relevant to the division of property for the time being, until that matter is settled.

Because declaring for bankruptcy means your property is now subject to administering by the bankruptcy court, 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 13. In 7, the power and control is in the hands of the trustees to liquidate your nonexempt property in order to pay your debt. So if you declare bankruptcy during divorce, you may lose control of any assets you have, as they can be declared as being owned state or be payment to collectors. When your ex-spouse owns a joint property, the trustee could be allowed to clear the whole asset if you cannot release the total of your interest in said property.

In addition, if they find that your ex’s financial interest in said property is separate from your own bankruptcy estate, your ex would receive the exact value of their personal interest from the profits. Meanwhile, 13 does not give power to the trustee. But, depending on how much nonexempt property you still owe, it may affect the amount you must pay unsafe creditors via your final repayment plan. It gives the power of determining the total value of 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 support payments or custody at all. So, when attempting to stall those types of proceedings, filing for bankruptcy will not help you.

Are My Social Media Posts Admissible During The Divorce Proceedings?

Thursday, 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?

Monday, 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 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 reasons for getting a divorce.

Irretrievable Breakdown: The relationship has deteriorated to a point of no reconciliation, for at least six (6) months. Courts will only give you a divorce on this ground when custody, spousal support, visitation, property and child support payments must have been decided.

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

Abandonment: This is when your spouse “leaves” you for at the very least one (1) year. This requires that your spouse abandoned you, or threw you out, or does not intend to return to you.

Imprisonment: This is when your spouse is sentenced to go to prison for three (3) or more years. But, if they were released more than five (5) years ago, you can’t file for divorce under this ground.

Adultery: If your spouse cheats on you, you may use this as a reason for divorce. But, if you do any of the following, the court may not accept this ground for divorce: incite them to commit infidelity, forgive your spouse 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 both have not lived together in the same household due to a Decree of Separation or Judgment of Separation, ordered by a Court, for at least one (1) year. You have to follow all of the stipulations of said judgment. It’s a bit uncommon to have a Judgment of Separation, only because of the fact that it needs similar proof needed in a termination of the marriage. Many clients don’t go through the Judgment of Separation and instead move directly to divorce.

Separation Agreement: In this situation, you have not resided in the same dwelling because of an approved Agreement of Separation for at least one (1) year. Both you and your spouse have to agree to this decision before a certified notary and you also have to follow all of the stipulations 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?

Thursday, 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.