Archive for the ‘Divorce’ Category

What You Should Know About Your Divorce Decree Before Signing It

Saturday, May 25th, 2019

A divorce decree is a document that a judge signs and enters into court that represents the final judgment of the divorce. Within this judgment, you will find the layout for alimony, child support, debt, property division, and parenting issues such as parenting schedule or legal vs. physical custody (please see our blog about the difference between legal vs. physical custody).

This document officially ends your marriage, and it outlines the necessary steps and responsibilities that you and your former spouse must take on as the divorce ends. It also lists the division of assets, which means that you should be extremely diligent and careful with what is included in the decree. Do not casually take on financial responsibilities that you are not completely sure you can handle simply because you want to wrap up your divorce, only to be unable to handle the responsibilities later and have no way out from under them.

On the flip side, don’t assume that what you are offered from your spouse is all that you deserve and have a right to, even if their offer seems “overly generous”. You should have your attorney rigorously go through their financials, as they may be able to spot something that you didn’t notice or something that was withheld. Not only is it possible that they have something you are entitled to a part of, but there might also be something they acquire years later that you could have a claim to.

One of the most common misconceptions is that lawyers are just ancillary to getting their fair cut of the divorce. But what many people who do their own divorces don’t realize until it is far too late, is that if there is something that is left out of “the final divorce judgment”, it is very likely that there will not be any recourse to amend that mistake.

Thoroughness and accuracy are vital when reviewing the final draft of an agreement, as well as a detailed understanding of the law as it applies to your specific divorce. Your attorney is able to represent your best interests, both in the immediate future and down the road.

Can My Social Media Activity Be Used Against Me During Divorce?

Wednesday, May 22nd, 2019

Internet privacy is an ever-growing issue in 2019. Far too often, someone’s “private social media account”, specifically what they post on it, ends up costing them everything in court. For example, a photo of a spouse partying with a drink in their hand after they told the judge that they would stop drinking, in the hands of the opposing party’s attorney, can be devastating to your case. It makes you seem less credible with the court, and can even be an influential factor in a custody battle.

The wisest decision would be to remove oneself from social media altogether, or at the very least use it infrequently. What you post on the internet is admissible as evidence, and with that in mind, why put any evidence online at all?

Attorneys are often scouring the web to monitor online activity, and social media sites like Facebook and Twitter, which both utilize photos and captions, and are prime sources for potentially damaging content. Wild behavior, whether in writing or photographs, can be used to support an accusation that this spouse is an unfit parent, or that their “work trips” were more like “vacations”, and that they used marital funds to pay for it. These are all real-world examples that happen far more often than you may think.

However, this means that in a backward way, social media can be useful to you in your divorce – if your spouse is the one who posts something that damages their chances in court.

When it comes to using and posting on social media common sense and good judgment should be exercised, but even more so during the divorce process, when you will already be scrutinized while trying to show your best side in front of a judge. Alternatively, you can simply disable the account until after the divorce is over since you can’t post if you don’t have an account.

Who Pays for Health Insurance in the Event of a Divorce?

Wednesday, April 17th, 2019

If you and your spouse are on the same health insurance plan it is possible you may lose this insurance, since a person’s ability to get health insurance through your spouse is often predicated on the fact that you are married. In the event that this is the case, it doesn’t always mean that your spouse will no longer have to include you in their health care coverage. In the state of New York, under the Domestic Relations Law, section 236(B), the court has the ability to intervene. In certain instances, a court will issue an order that a party must not only purchase their former spouse a policy of insurance but also maintain that policy. This can be the case in regards to providing benefits for health, hospital care, and the like.

While the court does have this power and exercises it regularly, the “maintaining” of the insurance is not for an indefinite period of time. There is a limitation for how long a court can require an individual to cover the health insurance of their former spouse. This duration is set forth by the court during the divorce, and by law, this duration of time cannot exceed the length of time that spousal support (maintenance), or child support payments have been ordered.

If you are required to pay for your former spouse’s health insurance, COBRA is a plan that has been utilized by many and is a good option for you to obtain the needed benefits. It should be noted that in the state of New York if you are to be not eligible for COBRA benefits, for any reason, this alone will not be enough to be relieved from your court-appointed obligation to your former spouse.

However, a court can just as easily rule that both parties must be responsible for their own health care coverage. In this case, neither party would be obligated to cover the other’s health insurance. Mitigating factors such as income and children can also play a role in whether or not a court will order health care coverage.

Am I Required to Disclose Everything in a Prenup?

Wednesday, April 10th, 2019

A prenuptial agreement is a good tool to use to avoid a lengthy and costly divorce later. Of course, no one plans on getting divorced before they even get married, but if you have valuable assets or plan on acquiring ones, and you don’t want to risk losing them in the event of a divorce, a prenup is something to consider. However, many are under the wrong impression that the finalization of a prenup is a simple signing of a contract. In reality, before a prenuptial agreement can be approved, both parties must complete a financial disclosure statement, identifying all of their assets and debts. The parties will be viewed to have a confidential relationship which brings with it the duty to disclose, mutually attributed to each party.

A lack of complete disclosure may result in the parties’ agreement being invalidated., especially where there is an obvious inequity between the parties’ assets. A big part of the court approving a prenup is if they consider it to be fair to both parties. In order to avoid any potential issues, later on, full disclosure must be in writing. Each party should draft a financial disclosure affidavit, which will be attached to the prenuptial agreement as an addendum. This schedule should clearly demarcate, and thereby disclose, all of the party’s assets to the other. There should be a listing of the party’s assets, along with how much it is valued; any current outstanding liabilities, the amount/sources of the party’s income, any interests in businesses, partnerships, and any expectations of inheritances or gaining of another asset.

After this, the party’s will review and sign the section of the agreement that states that both parties have read each other’s financial disclosure affidavits, understand it, acknowledge reading it, and have had the opportunity to consult with their attorney about it prior to signing. This protects both parties from the other claiming they never had the chance to review or look over the documents. However, it is important to keep in mind that in the event you are getting a divorce, if you can prove your spouse did not fully disclose their income or assets at the time you signed the prenup, you may have grounds to have the agreement thrown out.

What to Do if You File Jointly but are Getting Divorced

Wednesday, April 3rd, 2019

Until a divorce decree becomes final, you and your spouse have the option of filing as “married joint” or “married separate”, both of which have positives and negatives that will be explored in this article. One thing to remember is whatever your marital status is as of December 31, is what will be reflected in your taxes.

If you are unable to file a joint return, you can file as head of household, which has benefits in itself, but that would only be permissible if you have a dependent living with you for more than half the year, and you paid for more than half of the maintenance for your home. Your filing status influences your tax rate and determines which credits you can claim. Filing together can result in a lower tax bill as opposed to filing separately, so the IRS has recommended calculating your tax liability as single and joint filers to learn which offers you both the most savings from the options available.

Filing jointly could have risks as well, since you now share the responsibility for any taxes due, along with associated penalties and any accrued interest. That means if your estranged spouse skips out on his or her taxes, it is now you who is responsible for paying them. Additionally, the IRS may or may not relieve you from your partner’s tax debts, depending on the investigation.

Because it is known that sometimes your tax burden can be lower by filing jointly, depending on your specific incomes, deductions, and credits, filing status can be used as a negotiating tool, because, in most scenarios, both spouses must agree to file a joint return. However, a court will not order unwilling spouses to file a joint return. In rare circumstances, the IRS will accept a joint return signed by only one spouse, but you would have to consult with a tax attorney to go about this particular filing process.  

What Do I Do if I Acquire Assets I Want To Protect After We Get Married?

Wednesday, March 27th, 2019

Usually, if someone has personal assets, such as stock options or an inheritance, they have to come to an agreement with their soon-to-be spouse to sign a prenup, which details the separation of marital assets in the event of a divorce. The term “protect” is used in the sense that by signing a prenup, you can protect your assets from being considered marital, thus ensuring they are not available for distribution upon divorce.

Is it too late if we are already married?

In some cases, a person may not acquire assets that they consider are worth protecting until, for example, 8 months into the divorce. At this point, you are no longer able to draft a prenup, as that is an instrument only available before the marriage. In this instance the couple would require a postnup, which achieves the same goal as a prenup, it is just signed after the individuals have married.

Enforceability and Disclosure of a Postnup

Something important to keep in mind is that full and fair disclosure is an important part of a valid and enforceable postnup. When each party enters into the agreement, they both must completely disclose to the other party of their assets, liabilities, and income. This should also include assets you are reasonably aware you will be acquiring in the near future, such as the situation listed above. If the information that one of the spouses provided was not transparent, the agreement will not be enforceable when the time comes to get divorced.

Alternate Reasons

Postnuptial agreements are sometimes made in reaction to an event or pattern of behavior after the initiation of marriage, that gives cause to creating a plan for divorce. Excessive gambling, drug or alcohol abuse and financial hardship are common catalysts for spouses hiring attorneys to draft postnups, but as stated before, it does not always have to be in reaction to a negative event.

What Does “Contested” And “Uncontested” Mean, And How It Can Affect Your Divorce

Wednesday, January 2nd, 2019

Generally speaking, there are two different types of divorces that you can get. Deciding between the two depends a lot on the circumstances of your case and the relationship between you and your spouse.

Matters like property division, child support, child custody, visitation rights, and spousal support are often the things that spouses will disagree on, which will bring your case before a judge. This situation shows the difference between an uncontested divorce and a contested divorce.

Contested Divorce

It is important to note that an uncontested divorce is not equivalent to no issues that are disagreed upon. The real point of an uncontested divorce is that the spouses are able to work together, at least to the point where a judge does not need to be involved to decide for them. In an uncontested divorce, the spouses would meet with a divorce lawyer to go through the steps of their case, with equal and impactful input from both sides. This differs heavily from a contested divorce, wherein the spouses are often not able to come to an agreement on the main issues, and they require a judge to preside over the case and rule for them. To put it into simpler terms, the person who initially files for divorce will include the terms under which they would like to end the divorce, including things like child support amounts, distribution of assets, and the like. If the other spouse doesn’t agree with these terms, they are “contesting” the divorce under these terms. That is when it goes before a judge, who decides for them.

Uncontested  Divorce

Because of the financial and emotional toll that courtroom divorces often impose on couples, many find it to be very beneficial to end their marriage through mediation, or an uncontested divorce. Not only is it much less expensive, but an uncontested divorce means the parties can avoid the drawn-out court procedure that comes with it. It is ultimately up to the spouses involved in the divorce to decide whether or not they can work amicably enough and come to enough of a consensus to have an uncontested divorce, or if it is the case that they are so far apart on the issues that a judge is required to come in and decide for them.

My Spouse Is In The Military, Is There A Special Procedure To File For Divorce?

Monday, December 17th, 2018

Although there is some overlap between military divorces and civilian divorces, the differences between them are distinct, and fall under the scope of matters regarding compliance with support payments, methods of service/process, residency, and relating filing requirements, or the division of military pensions. Jurisdiction is decided on by different rules as well; while the state the party resides in has jurisdiction in civilian cases, jurisdiction may be the place where the person holds legal residence, even if the service member is stationed somewhere else when it comes to a military divorce. However, most states will allow service members or their spouses to file for divorce, in the state in which they are stationed, regardless of whether or not they are legal residents of that state.

Similar to civilian retirement benefits, military pensions are subject to division, sometimes via equitable distribution, between spouses in a divorce proceeding. Under the Uniformed Services Former Spouses’ Protection Act (USFSPA):

“State courts may treat military retirement pay as either sole or community property depending on the state.“

While the USFSPA doesn’t provide a formula for dividing the amount of retired pay, the amount is generally determined and awarded under the specific state laws. In addition, payment of the former spouse’s portion of the military retirement is paid straightaway by the Defense Finance and Accounting Service (DFAS) to the former spouse, only if there were at least 10 years of marriage that overlapped with 10 years of military service (known as the 10/10 rule).

In addition to military pension benefits, spouses of former military are also eligible to obtain full medical benefits, and exchange privileges after a military divorce, under the following scenarios:

  • The couple was married for 20 years or more;
  • The service member has performed at least 20 years of creditable service to retirement pay; and
  • There was at least a 20-year overlap of marriage and military service.

With regard to spousal and child support, the military is focused on ensuring a service member’s family support obligations after the divorce. A court also may require the providing spouse to maintain life insurance that would cover child or alimony support payments for an allotted period of time.

Can A Prenuptial Agreement Protect Future Earnings?

Monday, December 10th, 2018

A prenuptial agreement, or “prenup”, is a tool utilized by both parties to protect their individual rights, as well as obligations, in the event of a divorce. Moreover, prenups cover the distribution and handling of property, real and personal, marital and separate. For example, if one party owned a house prior to marriage, they are likely to include a provision stating:

  • Which party will the property be retained by,
  • Who will be responsible for the costs of maintenance of the property,
  • How money obtained either through the selling or leasing of the property will be distributed between the parties.

Another use for prenuptial agreements is to protect future earnings. Although a party may not have any significant assets before or during the marriage, it doesn’t necessarily mean that they don’t expect to acquire significant assets in the future. With a prenup, the spouse can pre-emptively protect any earnings from their professional career in the event of a divorce. A good example could also be someone who expects to inherit or take over a “family business” prior to getting married, and so this planning in advance negates a possibility of that ownership being in jeopardy.

In order for the prenup to protect your future earnings and potentially gained assets, the prenup should be drafted by an experienced attorney, who knows how to correctly articulate what you want protected and preserved in the event of a divorce. The last thing you would want is for a vague and unclear prenup to be drafted and agreed upon, only for the judge to interpret it differently than you had planned. The prenup must be in writing and signed by both parties. The enforceability of a prenup is decided upon by the court, so long as the agreement was signed by both parties voluntarily, and the prenup is considered fair to both parties, it will be enforced.

What If My Ex Died Before A Divorce Settlement Was Fully Paid?

Monday, November 12th, 2018

If, in the event of a divorce, there is a settlement agreement drafted and signed by both parties, it stipulates and sets forth how the parties will operate post-divorce. This includes assigning custody of the child or children, child support, visitation, and spousal support. But, if the spouse paying child and spousal support dies, how can the other parent receive any support at all?

If the Court issued a financial Order, then there has essentially been a “debt” assigned, and therefore can be sued due to an unfulfilled obligation. In this scenario, the executors of the deceased spouse’s estate will be responsible for determining in what amount the estate will pay out.

If the divorce settlement and proceedings are finalized, and, for instance, the deceased spouse did not change the beneficiary from their spouse to another person in their Will, then that Will shall be enforced upon the conclusion of the divorce proceedings. In the event that there is no such Order issued, it is harder to argue that there was a “debt owed”. You can bring a claim under the Provision for Family and Dependents Act 1975, wherein the Court will determine based on these considerations:

  • the financial resources and needs of the applicant

  • the financial resources and needs of any other applicant
  • the financial resources and needs of the beneficiaries
  • any obligations and responsibilities of the deceased towards any applicant and any beneficiary

  • the size and nature of the estate of the deceased
  • any physical or mental disability of any applicant or beneficiary

  • any other matter, including conduct, which the court may consider relevant.

Beyond this, there is not much else the surviving ex-spouse can do. The Court will definitely take into account what could have been reasonably expected to have been received in the event of a divorce, without the death of the former spouse.