Archive for April, 2018

Handling Marital Assets During A Divorce: Vehicles

Friday, April 20th, 2018

Similarly to homes and dwellings, vehicles, such as cars, trucks, vans, and even the occasional motorcycle, are often the subject of disputes in many, many divorce cases. Sometimes one spouse feels that they are entitled to keeping it, while the other wants to sell the vehicle and, very amicably, would be willing to split the profit, although sometimes there is a belief that they themselves are solely entitled to the money. Another scenario that is quite common is that one of the spouses will be paying a monthly lease for the car, yet it is their partner that is the one mainly driving the car, and since they will no longer be together, they don’t want to pay for their ex to have a car.

The courts use a very general set of circumstances to decide on how this problem will be resolved, with different situations resulting in a potentially different outcome. For instance, whether the vehicle was acquired during the marriage or before the marriage makes a big difference. If it was purchased prior to the couple getting married, then the purchaser would have a very substantial argument that the vehicle is not considered marital property. However, if the car was purchased during the marriage, there is a high probability that the court will deem it as marital property, and therefore it will most likely be subject to distribution in the divorce. While this does not necessarily mean you will lose complete ownership of the vehicle, it is now in the hands of the court to decide. If the car was a gift from one spouse to the other, then the courts find that gifts are considered separate property, and therefore it will not be subject to distribution.

The money used to purchase the car also makes a big difference to the court. For example, if the funds used to buy the car were separate funds of one of the spouses, then again, they would have a very compelling case that the car is not considered marital property, and not up to be divided. However, it also stands that if the funds used were deemed to be marital funds, then consequently the car is also going to be considered marital property.

Can I Get Spousal Support If My Spouse Cheated On Me?

Wednesday, April 18th, 2018

While infidelity, or adultery, as grounds for divorce in New York, it actually has little to no impact on a financial settlement handed down by the court. Of course, you can still file for alimony and be awarded what you seek, but just know that the adultery itself will not be used as a mitigating factor when determining if you are entitled to support, and how much.

In New York, the law defines adultery as “a married person having sexual intercourse with another person, who is not his or her spouse”. Because adultery is a “fault divorce” ground, you will be required to prove that there was adultery from an outside party, usually a hired private investigator.

With regard to alimony, the court uses this list in order to determine if alimony will be awarded, and how much is to be paid out.

– Length of the marriage, including any time the couple lived together before and after the marriage

– Contributions and services by the spouse seeking alimony, such as homemaker contributions

– Age and health of both spouses

– Need for one spouse to gain education or training, and how long this might take

– Income and property of both spouses

– Acts that prevent a spouse’s ability to gain employment or increase earning ability (for example, mental or physical abuse)

– Any need to pay for exceptional expenses, such as schooling and medical care for children

– Where children from the marriage live

– Present and future earning ability of each spouse, including reduced ability of one spouse due to delaying of education or career opportunities, and inability to earn due to age or absence from workforce

– What property was awarded during equitable distribution

There are a few others that belong on the list, but what is important here to understand that adultery, proven or otherwise, is not on this list, because it is not a factor in alimony decisions. Simply, adultery does not ensure alimony, and while although the court does take into consideration egregious and heinous acts when deciding over awarding alimony,  they do not consider adultery either of those things. The only time adultery comes into play with respect to financial settlements is if marital funds are spent on the spouses’ lover.

 

What Are Some Best Practices For Preparing For A Child Custody Evaluation?

Thursday, April 12th, 2018

Custody evaluations are a very common legal process in which a court-selected mental health expert assesses the family, and from their assessment, they make a recommendation to the court for a child custody plan, as well as visitation.

The expert will meet with both parents and the child, and their recommendation will reflect what they believe will be in the best interest of the child. The child evaluation process usually comes about because the parents could not come to an agreement on a custody plan.

Although there are no tricks to “passing” your evaluation, there are a few things to keep in mind when meeting with the examiner and some tips on how you should handle yourself. First, above all else, cooperate with the evaluator and make yourself available for appointments, showing up on time and staying positive. Even though you might have severe anxiety that you aren’t “impressing” the evaluator, you really won’t be doing yourself any favors by being uncooperative and unreceptive, as it will reflect very poorly on you.

In addition, although you may have had some serious issues with your spouse during the marriage, if it doesn’t really reflect their parenting competence or anything relevant to the child, it won’t do much for your case. Unless their behavior is something that directly involves their parenting ability or jeopardizes the child, it is best to not vent your feelings to the examiner.

This next tip is strongly advised, as it can seriously ruin any chance you have of getting custody of your child, even if your intentions were good. DO NOT ENCOURAGE OR DIRECT YOUR CHILD TO SPEAK NEGATIVLEY OF THEIR OTHER PARENT PRIOR TO THEM MEETING THE EVALUATOR. Expert examiners can easily tell when a child has been a coached, especially young child, and this will look really bad for you. I bring this up (in a separate paragraph) because tons of parents make this mistake, thinking that if they cover all the bases, custody is as good as theirs. But in reality, you will look like a desperate and deceitful parent who isn’t confident in their parenting abilities.

When meeting with the evaluator, either with alone or with the child, present yourself as a reasonable, communicative and adaptable parent. A few things to consider when speaking with the examiner is to keep you emotions in check as best you can, don’t interrupt or raise your voice, and don’t focus on trying to convince them that your spouse is the devil. This will make you look like someone who is not in control of their emotions, and does not portray you as a fit and ideal parent. If the evaluation is at your home, it would be wise to have your home looking as good as it can be. While you don’t have to do an entire home makeover, the basics include a clean living space, a stocked fridge and cupboards, and the bedrooms should look more than just hospitable. If other people live in the house with you, they should be present for the interview as well.

Preparation is key, but don’t be fake – be the best version of you that you can be. The more prepared you are, the more likely you are to present yourself better to the examiner.

Paul E. Rudder, Esq. has a unique advantage in negotiating custody disputes as he also is often appointed by courts as Attorney (Guardian) for children in high conflict divorces. If you need legal assistance from a child custody lawyer in NYC, call 212-826-9900 today.

Is Alimony Taxable Or Non-Taxable?

Monday, April 2nd, 2018

Many spouses who find themselves paying spousal support want to know the tax implications that are applied. In short, spousal support must be reported as taxable income by the recipient, and can be deducted by the paying spouse. Do not confuse this with child support, as it is neither taxable nor is it deductible.

If there is an increase in tax for the spouse receiving the payments, it can usually be offset by the significant tax savings by the paying spouse, and at that point, if deemed necessary, they can make an additional payment to the receiving spouse to make up the difference. So in short, yes, alimony is taxable, although you can arrange for it to be both non-taxable as well as nondeductible, but that would have to be included in the marital settlement agreement.

If you are receiving alimony and haven’t arranged for it to be nontaxable and nondeductible, then you should plan for it to be taxed and prepare you finances accordingly. One way to do this is if you have a paying job, you can increase withholding from your paycheck, to offset any impact of support payments. Because the math can be a bit complex, you can check the potential tax liability at the IRS website. Some find it helpful to speak with a tax professional, as they can help you figure out the ideal amount for both you and your former spouse that is making support payments.

If you are the one making alimony payments, you can list the payments as deductible on your income tax return. The IRS will be paying close attention to support payments for the first 3 years, as some newly divorced people try to mask property allocation or other obligations that resulted from the divorce agreement. Also, keep in mind child support payments are not tax deductible, and if your spousal support is set to end when the children go to college, the IRS could consider the payments as child support instead of spousal, so for your protection, in the agreement, try not to have the alimony termination connected to the children in any way.