Posts Tagged ‘divorce law’

Are Assets Always Split 50/50?

Monday, July 15th, 2019

Since New York is not a “Community Property” state, most of a couple’s assets are considered to be marital property. Although they are divisible, there is hardly ever an even distribution of the assets in divorce cases. A judge will decide how all property should be distributed, based on what they believe to be fair. For instance, the judge will try to keep separate any assets that were acquired by the parties as individuals, both before and during the marriage. However, in the interest of being fair to both parties, the judge may award what ordinarily would be separate property of one spouse, to the other, in the final settlement. 

The divisibility of an asset is not defined merely in terms of physical ownership, as a division of an asset can come in the form of percentages, specifically awarding a share of the property’s total value to the spouse. However, the judge is not the only one who has a say in this process. The judge only has to make the decision if the spouses cannot come to one on their own. 

When spouses try to make a claim for the other party’s separate property is when attorneys and judges are needed in the deliberation process.  Depending on the circumstances presented, separate property can be seen as a marital property, which would, therefore, make it eligible for division in the divorce. 

A common example is a vacation home owned by one of the spouses prior to the marriage. If the other spouse contributes any amount of money, for renovations, home improvements, etc, it would substantially increase their interest in the vacation home, which may still be solely in one spouse’s name. It is circumstances, such as these, that intertwine the originally non-interested spouse and the separate property, ultimately making it marital property, and the percentage, although not 50/50, will reflect a fair amount that serves as reciprocation for the loss of the investment.

How Do You Prove A Parent Is Unfit?

Wednesday, July 3rd, 2019

The term “unfit parent” is thrown around a lot, and is interpreted to mean different things depending on the context of its use, and the arena in which it is said. In the realm of family court, many misunderstand this to imply that the parent is abusive, and while that is one common aspect seen in parents who are unsuited to be raising kids, it is not the only way a parent can be considered unfit. 

A parent could go their entire life without physically striking or emotionally harming their child, but if they begin to start abusing alcohol, then it becomes clear why the term “unfit parent” was coined. Being a parent comes with a plethora of responsibilities, and not being able to fulfill them due to troubles in one’s own personal life has historically been an impactful factor in custody arrangements, such as a change in visitation or the primary custody. Sometimes, the parent’s struggles and issues can reach such a level that the court does not feel it is safe to have the child be in contact with that parent at all, and all parental rights are removed.

         The court, when determining custody, has a hierarchy of considerations, and at the top of that list is the consideration of “what is in the best interest of the child?”, and sometimes it requires them to step in and intervene on the relationship between parent and child. If the parent is a danger to themselves due to careless behavior, abuse of drugs or alcohol, or expose the child to people or activities that endanger their well-being, it may truly be in the best interest of that child if they are separated from this person. Revoking visitation rights is not an easy choice for the court to make, as the best case would be for the child to develop and foster a healthy relationship with both parents. 

If you truly believe that your child’s other parent is unfit, your best chance is to start collecting evidence to present to the court. This could be video’s of the parent engaging with the child in an inappropriate way, presenting a criminal file of the other parent, written correspondences, the point is to paint the picture for the court of what this parent is like outside the courtroom, and prove that the way they engage with the child and how they choose to live makes them unfit to serve as a parental guardian for your shared child. 

Can One Parent Deny The Other Parent Visitation?

Thursday, June 27th, 2019

If a parent is awarded sole custody, this, in turn, gives them absolute autonomy in the decision-making process (and the execution of those decisions). This is because a parent with sole custody has both legal custody and physical custody of the child/children. The legal custody aspect is what gives the parent the ability to make all of the impactful choices regarding your child, while they are still a minor, without needing to consult the other parent for their input. There is a multitude of reasons why only a single parent is given the ability to make these life decisions for the child, and some of them do revolve around the non-custodial parent’s decision-making abilities and history.

These same reasons could be utilized and highlighted by the custodial parent in their effort to deny visitation. For example, if the other parent has a history of alcohol abuse, and upon arriving to pick up the child for their visitation day, they appear intoxicated; the custodial parent would have a good reason not to let the child go with this parent. In such a scenario, it would be wise to document this, most efficiently through video, as the other parent may mention it in court in order to make a case that you are violating the visitation agreement.        

It is a wide-held belief by the courts that a child develops best when in regular contact with both parents, and so even with sole custody, it is rare that a parent and child never see each other. So, if you are planning on requesting to deny your the other parent visitation entirely, it will require very thorough documentation (as credible evidence), and a significant pattern. An isolated incident will probably not suffice, but repeated instances could. 

How Will the New Tax Law Affect Me After My Divorce?

Tuesday, May 28th, 2019

Unlike in divorces that were entered prior to December 31, 2018, alimony payments will no longer be tax deductible for the payers moving forward, and the recipients cannot declare the amount they received as taxable income. The law also explicitly authorizes ex-spouses to regroup and modify an earlier divorce agreement, in order to append their agreement with the new law involved. If a pre-2019 divorce is not modified, the previous tax laws that were in place during the divorce are applied.

The new tax law has some positive benefits, such as bringing in nearly $7 billion to the IRS.  Unfortunately, there are serious speculations and concerns that it will inadvertently put the support-receiving party at a disadvantage. Women, who are statistically more likely to be the support-receiving spouse, and at a financial disadvantage during the divorce, are going to see a decrease in the amount of alimony paid.

Because of the new tax rules, there could be less money to go around, resulting in smaller alimony payments. For instance, the monetary amount you receive from alimony might not be taxable to you, but at the same time, the amount that’s going to be paid out may not reflect that at all.

As mentioned earlier, if you were divorced prior to the start of enforcement of the law, you can keep your alimony agreement and utilize the deduction allowed under the old tax rules. However, the option is still available, if desired, to restructure it with the new tax law applied.

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.