Archive for May, 2008
What if I serve my spouse in a divorce and they don’t respond?
In a New York divorce, if your spouse does not answer after 30 days, you are likely to get your divorce by default, meaning the trial court will sign the judgment of divorce and that should be the end of the matter. Except, of course if you are asking for ancillary relief such as custody, child support and equitable distribution of assets. Even if [...]
Why do I have to sign the Complaint in a divorce action and have it notarized?
A client recently asked me why she had to sign the VERIFICATION page of the complaint. I explained that in New York State, a complaint if not legally sufficient unless the person seeking the divorce signs the verification page and notarizes it. And that is because the law requires litigants in a divorce to act and plead their case "honestly." In [...]
Who bears the burden of a capital gains tax in a New York Divorce?
I think the answer to that is, it depends. The court does consider the cap gains tax in making a distributive award. Let's say husband and wife own a home. They bought the home 20 years ago for $10,000. So you have a basis of $10,000.00. There is no mortgage. Now they are getting divorced. The house is worth $100,000. If the house is sold for [...]
Separation or Divorce? Which should I get?
Should I get a separation or should I get a divorce? It depends on what it is you want. There are many different reasons people may choose one over the other. Sometimes they are just not ready for the finality of a divorce. Many people have reconciled and gotten back together after a separation. So they never divorce. They use the separation as a [...]
My husband is rich and I can’t afford a divorce lawyer. What can I do?
Well, this is tough. You will obviously have to ask the court for interim counsel fees which basically means you will have to have your attorney do a motion or order to show cause for pendente lite relief. If the motion is successful, the court will order your husband to cut your attorney a check during the pendency of the divorce action. That is [...]
I am Jewish and I had a religious marriage. What do I have to do to complete my divorce
Well, you have to obtain a civil divorce from the state of New York which is separate and distinct from a "GET" that you get from a Rabbi for your religious marriage. By getting a GET, you basically remove any barriers that your spouse will have to remarriage--and this is non-negotiable in a New York Divorce. You do not have any choice but to get [...]
What are the defenses to a charge of adultery in New York?
If you are accused of adultery, you can raise the following affirmative defenses:1) The offense occurred more than five years ago2) Your spouse also committed adultery and admitted to it.3) You are innocent4) Your spouse knew about the adultery and did not mind, in fact, maybe you have an open marriage and you can prove it.5) You spouse knew about [...]
Do I have to get a separation agreement before I get a divorce in New York?
The answer to that question is no. A lot of people, probably most people, don't get a separation agreement first. They move straight to a divorce. Why get a separation first? Good question. My hunch is that most people who go that route are not sure yet if the marriage is over. So they do a trial run first. But the divorce laws of the State [...]
Can my husband get custody of our children even though they are so young?
May 27, 2008 New York New York: The New York Courts no longer follow the rule that custody of the children, even the very young ones, automatically goes to the mother. I can't tell you how many times I am asked this question by mothers who feel that just because they are "Mom" they should have custody. Gone are the days when that is necessarily [...]
I was a housewife throughout my marriage. My husband is wealthy. Will I get half of the assets?
Theoretically, New York is an equitable distribution state. That means that, as most New York Divorce Lawyers will tell you, you are entitled to your "equitable" share of the marital res. But what does equitable mean? That depends on the case and the circumstances. It is very case-specific. What is equitable for one person is not necessarily going [...]
Are stock options marital property?
As a general rule, it seems that the New York Divorce Courts view stock options as marital property. In fact, for high net worth individuals, stock options can be a very valuable piece of the pie as far as equitable distribution. It doesn't matter that only one spouse is the beneficiary of these corporate benefits. So long as these were earned [...]
My husband is in jail and I want a divorce. What can I do?
Well, first of all, if you married your spouse while he or she was in jail, kiss using imprisonment as a grounds for divorce good bye. Kiss abandonment as a grounds goodbye. You could probably mount a cruel and inhuman treatment or constructive abandonment argument depending on the circumstances--your spouse calls and curses you on the phone, [...]
I was served with divorce papers but I don’t want a divorce. What are my options?
Well, it's always tough when you are served with papers and the last thing you want is a divorce. The good thing is that in New York, your spouse can't just get a divorce because they ask for it. They have to prove that they are entitled to the divorce. They have to have what's called "grounds" for a divorce. And the court has to have [...]
In New York what is the rule about college expenses? Can I force my husband to help with college expenses?
In the First Department yes. The First Department is New York County and the rule is that provisions must be made for college expenses--particularly if both parents are college educated themselves. Usually the Court uses what's called the SUNY formula. So whatever the tuition and board is at State University, that is what the parties are obligated [...]
My spouse recently told me he’s gay. He’s living large with his lover. What are my options as far as a divorce?
This one takes a page out of the McGreevey divorce book. As you know, Jim McGreevey and his wife Dana are in the midst of a bitter divorce battle. Dana, former first lady of New Jersey wants alimony and the former governor is saying he's bankrupt and makes less than 50K per year and cannot provide her with alimony. But he is living large with his [...]
Is it true that nobody files for divorce after January?
Sure, most people start calling their divorce lawyers in January. Every New York Divorce Lawyer would agree that business is brisker at the beginning of the year because people tend not to want to file during the holidays. But May and June are also typically high volume months for filing a divorce. In fact, a lot of the people who begin calling [...]
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