December 13, 2011

END-OF-THE-YEAR DIVORCE CHECKLIST PUBLISHED BY FORBES.COM
PART 1: GATHER AND COPY FINANCIAL RECORDS BEFORE YOU START A DIVORCE CASE

            Today, the financial website, Forbes.com, published a year-end "End-of-the-Year Divorce Checklist for Women."   The bulk of the items on the divorce checklist are matters of basic commonsense, and are equally applicable to both men and women who are facing the prospect of divorce.   During the next week, I will be addressing each item contained on the Forbes list, with insights based on my experience as a divorce lawyer who has been in the trenches of New York courts for 18 years. This article is the first installment of my New York divorce checklist series.  The information and advice contained in these articles involves an overriding mandate: you must begin the process of basing your actions on strategy, rather than uncontrolled emotion, before you start your divorce case. 

             As a divorce lawyer for 18 years, I have helped several thousand clients make the difficult transition from being emotional overwhelmed to proactive, strategic action.  Divorce involves essential legal and financial rights that will affect you for the rest of your life. You cannot afford to wallow in anger, shame, resentment or despair.  You must act proactively and strategically.  An important role of any divorce lawyer involves helping his or her client make this difficult - yet essential - transition.   Acting and thinking in a proactive and strategic manner will lead to unexpected benefits.  Beyond helping you with your case, this new paradigm of thought will actually help you in dealing with the emotional effects of your failed relationship, and the psychological challenge of re-defining yourself. 

             Item No. 1 on the "To-List" of Anyone Contemplating Divorce: Gather Financial Records, and be Prepared.

             The first item on the Forbes "divorce checklist" is to begin the process of gathering and reviewing financial records.  Compiling and preserving financial records is a matter of utmost importance.  If divorce is even a remote possibility, it is essential for you to thoroughly familiarize yourself with all financial records, including bank records, credit card accounts, retirement accounts, and investment accounts.  It is equally essential for you to photocopy all of the records relating to such matters. Regrettably, after a divorce case is commenced, it may be too late.  Your spouse may selectively withhold certain items (such as information about his or her retirement benefits).  Although nearly all jurisdictions require full disclosure by both parties of their respective (and joint) financial records and information in connection with divorce, many spouses attempt to evade their disclosure obligations, or only selectively disclosure partial information so as to distort the actual value of assets in their name. 

             In New York, all contested divorce actions begin with full financial disclosure by each side, in the form of a Statement of Net Worth.  According to New York's Domestic Relations Law, a Statement of Net Worth is supposed to be an exhaustive and comprehensive statement of all assets, liabilities, income, and other financial data, of both parties.  In practice, many spouses try to withhold information.  New York's matrimonial judges are overburdened, and do not always demand full compliance with financial disclosure mandates of NY's Domestic Relations Law.  The result is that divorce proceedings in New York sometimes feel like the "Wild West".  Accordingly, you must protect yourself, and not assume that a judge will compel your spouse to comply with his or her obligations under the law.  Beyond preserving financial records, you must retain a New York divorce lawyer who is experienced and will fight hard for you in the trenches of the courtroom. 

             I recently concluded a case in which my client had virtually no information about her husband's retirement assets (401k) and income.  Despite the fact that this case involved a long-term marriage, my client spent years in the dark.  Unfortunately, despite multiple court orders requiring him to provide financial disclosure, the husband remained noncompliant and secretive.

             As a result, my client and I had to undertake time-consuming discovery and legal proceedings to uncover the truth about the husband's financial conditions.  Among other things, we issued subpoenas to the husband's employer and banking institutions in which the husband maintained accounts.  We arranged for asset searches, and undertook an exhaustive deposition (oral questioning under oath) of the husband.  As a result, we were able to uncover certain assets that the husband had tried to conceal.  Did we get the whole truth?  We will never really know. 

             Divorce seems to bring out the worst in human nature.   Not surprisingly, many marriages fall apart because one or both parties has unresolved psychological issues.  These same issues are sometimes manifested - during the divorce proceedings - by vindictiveness, bitterness, and rage.  In the worst case scenario, a spouse resorts to physical violence.  If you are concerned that your spouse (or former spouse) presents a physical danger to yourself or your children, a Family Court Order of Protection may be required.  An experienced New York divorce lawyer should be fully familiar with the legal standards and procedural mechanisms for obtaining an order of protection under New York's Family Court Act.  Sadly, dealing with the threat of domestic violence is part of a divorce attorney's job. 

             Regardless of how well you think you know your spouse, do not assume that he or she will be cooperative or forthcoming.  Prepare for the worst.  Gather all documents relating to the assets, debts, income, retirement assets, and any other aspect of the financial affairs, from the beginning of your marital relationship to the present.  Copy those documents, and place them in a secure place (for example, the office of your divorce attorney, or some other place to which your spouse does not have access).  If you are facing divorce, you should consult with an experienced New York divorce lawyer at the earliest possible stage.  New York divorce lawyer Marc Rapaport has 18 years of experience, and handles all NY family law and matrimonial matters.  Call us today for an appointment: (212) 382-1600.

 

All Rights are Reserved.
Rapaport Law Firm, 2011.

November 17, 2011

A BRIEF HISTORY OF THE GROUNDS FOR DIVORCE IN NEW YORK AND RECENT COURT DECISIONS REGARDING NO FAULT DIVORCE

            Until October, 2010, the causes of action for divorce in New York were limited to grounds based on “fault”, which included:

• Cruel and inhuman treatment (DRL §170.1)
• Abandonment for a continuous period of one year or more (DRL §170.2)
• Imprisonment for more than three years subsequent to the date of marriage (DRL §170.3)
• Adultery (DRL §170.4)
• Conversion of a separation judgment (DRL §170.5)
• Conversion of a written and acknowledged separation agreement after living separate and apart for more than one year (DRL §170.6)

            Until the advent of no-fault divorce in 2010, the most common basis for divorce was abandonment (DRL § 170.2).  The ground of abandonment included either “actual abandonment” (defendant left the marital residence) or “constructive abandonment” (defendant refused to have sexual relations with the plaintiff. 

            The ground of cruel treatment (DRL § 170.1) was (and it continues to be) used primarily in contested cases.  Typically, a plaintiff seeking a divorce on the ground of cruel and inhuman treatment must prove at least three instances of cruelty, which can include both verbal and physical abuse.  The “amount” of cruelty that a plaintiff must establish to obtain a divorce on the ground of cruel and inhuman treatment depends, in part, on the length of the marriage.  Simply stated, a plaintiff seeking to end a long-term marriage on the ground of cruel treatment will need to show more severe and pervasive cruelty than would be required for a brief marriage.  To a certain extent, with the advent of no fault divorce in New York in October, 2010, the issues relating to cruelty (as well as those relating to other fault-based divorce grounds) have been rendered moot. 

            Since 2010, a new ground has been added, effectively permitting no-fault divorce in New York state.  The new, no-fault ground for NY divorce is set forth in the NY Domestic Relations Law as follows:

• The relationship between husband and wife has broken down irretrievably for a period of at least six months (DRL §170.7)

            The fact that a divorce is filed under the no fault statute does not necessarily signify that the proceeding is uncontested.  The parties may still be contesting (oftentimes quite bitterly) financial issues (equitable distribution of property; maintenance; etc.), as well as issues pertaining to children (custody, visitation and child support).   The no fault statute states that no divorce judgment may be entered unless all financial and custodial issues have been resolved.  

             The advent of no fault divorce in New York does not alter the fact that New York has the most complex divorce laws and procedures in the United States.  The definition of “marital property” is defined more broadly by New York courts than anywhere else.  Certainly, the advent of no fault in New York was widely welcomed by divorce lawyers and most litigants, because it eliminated the possibility of a spouse using “grounds” as inappropriate leverage to extract unjustified financial advantage against the other party.  Grounds trials were not common.  With no fault, they will be less common. 

             However, there are still instances in which one of the spouses tries to stop the divorce by arguing that the statutory requirements (minimal as they are) have not been met.   A recent decision by Justice Wood of the Supreme Court, Dutchess County, in the case Schiffer v. Schiffer, 930 N.Y.S.2d 827 (Supr. Crt., Suffolk Cty. 2011), suggest that even with the new statute, there are still instances in which grounds trials are necessary.  In Schiffer, the defendant-wife opposed the divorce, arguing that contrary to the plaintiff-husband’s allegations, the marriage was not irretrievably broken.   The court ruled that a trial on the issue of grounds would be necessary, stating:

 An assertion by a party that the marital relationship has been irretrievably broken for six months is subject to the same scrutiny and burden of proof as assertions made under other sections of the statute. Domestic Relations Law § 170(7) is clear, and it is consistent with the overall framework of the entire statute. There is no reason to treat it any differently than the rest of Domestic Relations Law § 170 for purposes of this summary judgment motion. The legislature has granted matrimonial litigants the option of asserting the no-fault ground—it has not removed a defendant's basic right to contest grounds, which exists for all other similarly worded sections.

             Because of the complexity of New York divorce law, and the important legal and financial issues at stake in any divorce, it is essential for you to retain an experienced New York divorce lawyer if you are facing the prospect of divorce or legal separation.  Rapaport Law Firm has represented New York residents in divorce and family law matters since 1995. Rapaport Law Firm has offices in New York City’s Empire State Building, and provides legal representation in all counties of New York and New Jersey.              

 

 

November 01, 2011

GETTING DIVORCED WITHOUT RUINING YOUR RELATIONSHIP WITH YOUR CHILDREN: SOME PRACTICAL ADVICE BY A NEW YORK DIVORCE ATTORNEY

As a New York divorce lawyer for nearly the past two decades, I have observed that even in the most bitter of divorces, each of the divorcing parents continues to love and want the best for their children.  However, the dissolution of the parties' marriage creates a tense and oftentimes confusing dichotomy - both for the parties and their children.

Divorce occurs when one or both of the spouses has determined that the marital relationship is no longer fulfilling and cannot be saved.  Nonetheless, both spouses continue (as they should) to seek close and healthy bonds with their children.   This stressful dichotomy merits careful consideration.  Divorcing spouses can and should discuss how they will continue to cooperate so that their children may continue to enjoy  happy, healthy, and mutually-fulfilling relationships with both of them.  The parties' respective divorce lawyers can serve important and positive roles in helping couples reach practical arrangements with regard to parenting.  It is important that each party have an experienced divorce lawyer who is thoroughly familiar with New York divorce and family law.  Among other things, experienced and skilled divorce attorneys help their clients reach settlements (separation agreements) that set forth the parties' mutual understanding and goals and that promote the best interests of un-emancipated children.

The interplay between divorce and parenting is complex.  This article seeks to address some of the more common issues that arise in cases involving minor children, and to discuss recent, relevant developments in New York divorce law.

A Divorced Parent's Unresolved Feelings of Bitterness Can Lead to "Parental Alienation" or "Inappropriate Parental Influence":

At times, the uncertainty, trauma and bitterness of a divorce will lead one or both parents to engage in behavior that, unbeknownst to them, increases the stress that children experiencing in conjunction with divorce.  For example, a parent might not fully realize the extent to which his or her child (or children) feels confusion or distress when the child overhears the parent speaking in a disparaging manner about the other parent.  This is sometimes referred to as "parental alienation syndrome."  In such instances, counseling is particularly important.  If not resolved, such conduct can have extreme consequences, such as a child’s alienation from the parent who is being disparaged. 

A parent’s verbal remarks or conduct that is disruptive of a child's relationship with the other parent is a matter that has fueled bitter court proceedings, both in New York and in courts throughout the United States.  Judge Jeffrey S. Sunshine (who is a Justice of New York’s Supreme Court in Kings County, and is widely held in high esteem) has used the phrase "inappropriate parental influence" to describe such behavior.  

In the case NK v. MK, 851 N.Y.S.2d 851 (2007), Judge Sunshine issued a decision that denied the father's request that the Court punish the mother for her inappropriate comments to the children regarding the father by suspending child support and maintenance.  Judge Sunshine explained that such relief was not appropriate at that juncture because the mother she "was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis."  However, the Court ordered the mother to cease her behavior:

Pending resolution of the post trial applications, the mother is hereby enjoined and restrained from discussing this litigation at any time the child may be within 1,000 feet of her. That includes her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection, and this opinion; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships[.]

No Good Deed Goes Unpunished": Under New York law, A Child Support Obligor Does Not Receive Credit for Voluntary Payments or Purchases on Behalf of the Children

In other instances, a parent's love for the children of the marriage leads him or her to engage in conduct that is destructive of his or her financial or legal interests.   A fairly common scenario is a father who has fallen behind on his child support obligations, yet continues to make voluntarily purchases (such as paying for cell phone bills or items of clothing) for a child.  Most payers of child support (in the vast majority of cases, fathers) do not realize that voluntary purchases that they make for children are not "child support", and that most courts will not give them credit for such payments should the custodial parent file an action seeking to collect child support arrears. 

Stated succinctly, under New York law, voluntary payments made for children are not child support, and such payments do not diminish arrears.  This issue was addressed by the New York Supreme Court, 2nd Department, approximately two months ago, in the case LiGreci v. LiGreci 929 N.Y.S.2d 253 (2nd Dept. 2011).  The Court held that "[t]he plaintiff's voluntary payments for the benefit of the children, not made pursuant to a court order, may not be credited against the amounts due pursuant to the judgment of divorce."  Id. 

Clearly, it is painful for a parent to refuse to make purchases directly for his or her children. This is particularly true for divorced parents, who sometimes experience feelings of guilt at having "inflicted" divorce upon their children.  As a divorce lawyer, I encourage clients who are experiencing such emotions to seek counseling. 

Feelings of guilt are not merely counterproductive, but also (I firmly believe) unjustified.  Each person is entitled to fulfillment and happiness, and a healthy marriage is one that helps each of the spouses to enjoy life to its fullest.  Couples who indefinitely delay or avoid divorce solely for the perceived benefit of their children sometimes subject themselves, and their children, to years of avoidable, yet painful, conflict, misery and stress.  Oftentimes, couples who delay a divorce "for the kids" later discover that their children knew  – all along – that the couple was miserable.    In such cases, divorce is a relief for the entire family, including the children.

When couples who have minor children get divorce, they must address legal, financial, psychological and other issues that are sometimes painful.  As a divorce lawyer, my role is to help each client identify such issues, and then, through litigation or negotiation (or both) help my client reach a resolution that serves their interests and those of their children.

Marc A. Rapaport is a divorce attorney in New York City, with offices in the Empire State Building. Mr. Rapaport is the founder of Rapaport Law Firm, PLLC, a full-service law firm.

All rights are reserved. © 2011 www.rapaportlaw.com