Brian D. Perskin & Associates

Common Divorce Myths in New York

Common Divorce Myths

The internet is a wonderful tool, but it can be harmful to your divorce or child custody case. There are countless divorce horror stories online, and it’s hard to not believe them. Luckily, the team at Brian D. Perskin & Associates P.C. have shed a light on the most common New York divorce myths out there.

Myth #1: You must file for divorce in the city/state you got

married.

This is not true. Where you file for divorce depends on where you, or your spouse, legally reside. So, just because you got married in Las Vegas, doesn’t mean you must file for divorce in Nevada. Check out New York’s residency requirements for more information.

Myth #2: You cannot get a divorce if your spouse doesn’t

consent to one.

This is one of the biggest divorce myths. New York has two types divorce: contested, and uncontested. Contested divorces occur when one party does not consent to the divorce, or they don’t agree with the terms listed in the Complaint.

A Judge will never force you to stay married if your spouse doesn’t want a divorce. Contested divorce cases take more time than their uncontested counterparts, but a divorce will be granted. Just remain patient and let your attorney handle the matter for you.

Myth #3: Mothers will always be granted child custody

because of court bias.

In New York, child custody is determined in the best interest of the child. This can mean either the mother or the father.

A Judge will issue a child custody order ff you and your ex are unable to reach an agreement on your own. The Judge will take many factors into consideration, including which parent was the primary caregiver prior to divorce, while making their final decision.

Myth #4: You will “lose” your divorce case if you commit

adultery.

New York is a “no-fault” divorce state, so Judges typically pay little attention to accusations of adultery. You are not entitled to a greater share of marital assets just because your spouse had an affair.

With that being said, alimony payments may be impacted if a Judge decides that a cheating spouse wastefully dissipated marital assets by spending a lot of money on his or her fling. It is recommended you hire an attorney to help you determine if this is true in your case.

Myth #5: All marital assets will be split 50/50.

New York divides marital assets equitably, not equally. This means that marital property cannot be split in equal halves between you and your ex.

Instead, the Court must take many factors into consideration while determining the equitable distribution of assets. Factors can include the length of your union, your income, and each spouse’s financial contribution to the marriage. The Court must also determine if an asset is sole property, joint property, or has been co-mingled during the marriage.

Myth 6: You don’t need a divorce lawyer.

One of the most concerning and harmful divorce myths is that you don’t need a lawyer. Divorce cases are complex matters. It is easy to get caught up in your emotions, and for your judgement to become clouded. This is why it is always recommended that you retain an experienced divorce attorney to advocate on your behalf.

The team of attorneys at Brian D. Perskin & Associates P.C. are experts in matrimonial and family law, having represented countless New Yorkers throughout some of the most difficult periods in their lives.

Find out how we can help you. Call us at 718-875-7582 to schedule a free, no obligation consultation today!

Does Cheating Affect Alimony in New York City?

cheating alimony

As of this writing, about 50 percent of all first marriages in the United States end in divorce. The rate of divorce for second and subsequent marriages is even higher. As New York City divorce attorneys, we can safely say that a large percentage of divorces are triggered by adultery.

For some clients, one of the spouses reconnected with on old flame on Facebook. Others had a “one-time fling” with someone they met at a bar or while travelling for business. Sometimes it’s a full-blown affair with a co-worker or even a close friend of the couple.

If you or your spouse had an emotional affair with someone via social media, an online dating site, or through texts and emails you may wonder, “Does it count as cheating?” Generally, for it to be cheating or adultery, there must have been voluntary sexual intercourse.

So, if it the whole relationship took place in the digital world, it wouldn’t exactly meet the definition of adultery, though the innocent spouse certainly feels like their husband or wife cheated on them (emotional infidelity).

How Adultery Affects Alimony in New York

If you’re the higher-earning spouse and your husband or wife cheated on you, you may be wondering, “Can my cheating spouse still receive spousal support or maintenance?” This is a very good question and it’s one that comes up a lot.

Marital misconduct, which includes infidelity, is not something the court is usually interested in learning about, and adultery won’t normally affect alimony or property division. While some states frown heavily upon adultery, New York courts aren’t as concerned about it.

There is an exception however, particularly when an adulterous spouse wasted the marital assets on their girlfriend or boyfriend. For example, if a cheating husband financially supported his girlfriend at the tune of $70,000 a year for a couple of years, that could definitely affect the wife’s alimony award.

Looking for a top-rated New York divorce lawyer? Contact our office today to set up a confidential consultation!

What Makes Military Divorce Different

For the most part, the divorce process for members of the military is no different than it is for civilians. There are still the questions of child custody, alimony, and asset division to sort through, and you will still file the same way. There are, however, certain factors unique to military divorce that can make the already complicated process a little more difficult. At Brian D. Perskin & Associates P.C., our New York Divorce attorneys are committed to helping military members walk through this process with as little frustration as possible.

Child Custody & Visitation

Because military service requires regular deployment, custody is often awarded to the spouse who is not actively serving. Custody is not usually a point of contention in military divorces, but the visitation rights are. If you are serving in the military, you will want to ensure that you can visit your children when you are not deployed & that you can have regular contact with them when you are deployed.

Spousal & Child Support

The military requires their service members to support their families after a divorce. This support, be it spousal or child support, is determined the same way as it is in non-military divorces. Factors such as the spouse’s earning potential will be considered in determining the amount of support required.

Military Benefits & Property Distribution

As a member of the military, you are entitled to a number of unique benefits. One of the most common concerns of military divorce is what will happen to these benefits. There are laws in place to protect military spouses in the event of a divorce, but they only come into effect if certain conditions are met. For the most part, benefits will not be divided equally unless the marriage lasted at least ten years, and if you were on active duty for at least ten of those years.

If you are considering a military divorce, the experienced New York divorce lawyers at Brian D. Perskin & Associates P.C. can guide you through the unique problems that your case may involve. Call {F:P:Site:Phone} today to speak with an experienced divorce attorney!

What Makes “Gray Divorce” Different

There are has been a recent spike in couples pursuing divorces later in life, leading to the coinage of the term “Gray Divorce” to describe this occurrence. Couples in their 50s, 60s, and even beyond are deciding to end their marriages in larger numbers than we have previously seen. While many people have tried to explain the cause of this trend, we think it may be valuable to focus instead on what the implications are for divorce proceedings.

What Makes Gray Divorce Different?

For the most part, gray divorce is no different than any other divorce. Older couples will still go through the same proceedings, and the law is indifferent to age. There are, however, a number of considerations that make gray divorce stand out, including:

  • The health and employability of each spouse: If a spouse is in poor health or has been out of the workforce for a considerable amount of time, it will be difficult – if not impossible – for that person to provide for him or herself, which will affect spousal support.
  • The retirement funds, pensions, and Social Security benefits accumulated: Older couples will have made significant contributions to these type of post-retirement plans and will depend on them once they reach retirement age. The division of these assets for older couples can be much more heated and complicated than for younger couples.
  • The estate plans and trusts in place: If a couple has established an estate plan or trust, the divorce will impact these prior agreements.

If you are considering a gray divorce, you will need the guidance of an intelligent and aggressive attorney. The New York divorce lawyers at Brian D. Perskin & Associates, P.C. have over 40 years of experience dealing with countless divorce proceedings. We understand what it takes to end a marriage, even when complicated considerations make the division of assets less straightforward. Call 855.965.1771 today for a free case evaluation.

Divorce and Family Law Misunderstandings

Initiating a divorce or family court matter can be intimidating and confusing, especially when there are many misconceptions surrounding the process. At Brian D. Perskin & Associates P.C., we strive to make legal actions easier and less stressful for all New York City residents.

Below, please find five of the most common divorce and family law misconceptions. For more information, click here to schedule your complimentary consultation today!

Annulments are for Short Term Marriages

Many New Yorkers are under the impression that they can get an annulment if they have been married for under a year. This is simply not true. There are very specific grounds for annulments, and a short term union is not one of them.

As long as a couple has been married for a period of 6 months, they are eligible to file for an uncontested divorce. Because New York is a no-fault divorce state, uncontested actions are much simpler and less time consuming than annulments.

Venue for Divorce

In order to file for divorce in New York State, one party must meet certain residency requirements. If neither spouse is a resident of New York, then New York is not the appropriate venue for the divorce action. If this is the case, the action must be filed in whichever State or County the plaintiff resides in. Alternatively, the plaintiff may wait until they have established residency in New York.

The requirements for filing a child custody and support action in New York State are different from those for divorce. Family court cases must be filed in the county in which a child has resided in for a period of at least 6 months. For instance, if a child lives in Kings County, and custody or support proceeding would be filed in Brooklyn.

Cheating Spouse Pays

A common misconception about divorce has to do with infidelity. Adulterous behavior, both physical and emotional, can leave the cheated on spouse confused, hurt, and vengeful.

Given the emotional turmoil of adultery and divorce, spouses may be unable to think clearly and logically. They often believe that their soon-to-be ex should have to suffer for their behavior, and pay more money in alimony. However, this is just not true.

New York has very specific guidelines for matrimonial law, including formulas for determining spousal support, as well statutes for equitable distribution. While a judge may be sympathetic towards a particular party because of infidelity, they are not allowed to grant higher support awards. Divorcing couples may work out their own agreement regarding maintenance and equitable distribution, even if it differs from what a judge would order.

Claims to Spouse’s Inheritance

If one spouse receives an inheritance, whether it be a sum of money or a tangible asset (like a piece of property), is the other party entitled to a share of it during a divorce? The answer depends on whether or not the inheritance is subject to equitable distribution.

There are two main reasons why an inheritance will remain separate property during a divorce proceeding: 1) the will only listed one spouse as a recipient, and 2) the asset was never comingled. Once an inheritance is comingled, then it becomes marital property and is subject to equitable distribution.

How an inheritance becomes comingled depends on what kind of assets the inheritance consisted of. A cash inheritance will be no longer be considered separate property if it is deposited into a joint bank account, or an account that is used to pay for household or living expenses. Physical property, like a home, can become comingled if the other spouse’s name is added to the deed, or if they make any contributions to the home that results in an increase in value.

Divorces are Easy

Divorce can be an emotionally trying time for all parties involved. When going through a divorce, couples are forced to begin anew as single individuals, and develop a new way of life, while trying to cope with the end of their marriage. This alone can be an incredibly traumatic or stressful experience, and attempting to proceed with a trial without proper representation can make matters worse.

Hiring an experienced matrimonial and family law attorney should be a top priority. Brian D. Perskin & Associates P.C., a New York City based divorce law, firm has helped thousands of New Yorkers navigate their divorce or child custody cases, providing thorough guidance and representation. To learn how Brian and his team can best assist you, call 718-875-7584 to schedule a complimentary consultation today!

Modifying Court Orders in NYC

Divorce and family law disputes don’t always end once a judgement or order has been issued from the court. Post-judgment divorce issues are common amongst recent litigants, as well as requests for modifications of final orders of custody, visitation, and support.

Modifying Child Custody

If you are interested in petitioning the court for a modification of your child custody or support order, one or more of the specific criteria must be met:

  • A significant change in circumstances, such as relocation or a lifestyle change
  • An unsafe environment for the child
  • Abuse or neglect
  • A change in income (for child support purposes)

Since child custody is determined in the best interest of the child, you cannot request a modification simply because you are unhappy with the court’s decision. It is not a valid reason to ask for a modification. However, if the child is in danger, their living conditions are unsafe, or one of the parents is relocating far away, you have grounds to ask for the change. Until a judge rules otherwise, you must abide by the terms set forth in your current order.

Changing Child Support Obligations

There are two forms of child support modifications: upwards modification and downwards modification. A child support modification can be requested by both the custodial and non-custodial parent, depending on which kind of petition is being made.

A non-custodial parent who has lost their job will typically ask the court to lower their child support obligation, especially if they are suffering from a loss of at least 15% of their income. Non-custodial parents can also petition the court for a downwards modification if their current obligation is putting a substantial strain on their finances.

On the other hand, a custodial parent will often be the party to request that the other parent pay a higher amount of support. This can happen when the non-custodial parent’s income increases, or if the child becomes ill or gets injured, resulting in unexpected expenses.

Some parties in an attempt to avoid post-judgment modification petitions, will include stipulations in their final support agreements that address increases in the support obligation. These stipulations usually include whether or not there will be an increase every 2 years, or how the parents will split unexpected medical expenses.

Modifying Divorce Judgments

Reaching an agreement and receiving a court ordered Judgement of Divorce doesn’t always mean your divorce is behind you. Former couples, both with and without children, will often need to return to court to settle disputes that arise after their case settles.

Changes to divorce agreements, much like those for custody, visitation, or child support, occur when one party suffers a substantial change in circumstances. This, too, can include a loss of employment or income, or serious and unexpected health issues. In some instances, a modification of a divorce decree will be sought when a piece of marital property cannot be refinanced or sold, or when one party is unable to meet previously agreed upon alimony payments.

Major health concerns, such as going on disability, and retirement play a big role in post-judgment modification petitions, especially for those went through a grey divorce. Since most baby boomers separate from long term spouses, they will usually be ordered to pay a higher amount of alimony (also known as spousal support). Retiring, or having to go on permanent disability, will impact the support payments being paid (or received) since there will be a sizable change in the income of one of the parties.

Petitioning the Court

Petitioning the court for a post-judgment modification is a complicated process. If you were to request a modification, the burden of proof falls on your shoulders. This means that you are responsible for presenting evidence to support your request. Depending on the reason for why you are requesting a post-judgment modification, you will need to make sure you attach at least one of the following exhibits to your motion:

  • Letter of employment termination
  • Official documents confirming disability benefits
  • Medical records and billing statements for care
  • Mortgage statements regarding refinancing

It is important to treat a modification motion in the same manner as you did your original divorce. Remember that it can be a stressful and drawn out process, especially if your ex-spouse does not agree with your request. It is likely that both parties will need to appear in front of a judge to argue their case, so be patient, and trust that your attorney has your best interest in mind.

Don’t Proceed Alone

Filing for a modification of a final court order is not an easy task, so do not attempt to bring forth a motion on your own. While it is best to have your previous divorce attorney handle your modification petition, it is possible to retain new counsel to represent you throughout the process. At Brian D. Perskin & Associates P.C., we help to provide peace of mind to our clients by advocating on their behalf throughout their request for modification. For more information, or to schedule a free consultation, contact us today!

New Spousal Maintenance Laws Coming into Effect This Month

After years of effort from lawmakers and advocates, the state of New York has finally passed comprehensive maintenance (or alimony) reform. On September 25, 2015, Governor Cuomo signed Bill A-7645-2015 into law, bringing what many believe is much-needed change to our family law policies regarding temporary and post-divorce maintenance.

Perhaps the most dramatic of these changes is that formulas will now be used to determine temporary and post-divorce maintenance. In the past, these key determinations were largely up to the court's discretion and outdated precedent. The following language is from the bill's sponsor memo and details how the two new formulas will work:

  • With child support where the maintenance payor is also the non‐custodial parent for child support purposes: (i) subtract 25% of the maintenance payee's income from 20% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.
  • Without child support, or with child support but where the maintenance payor is the custodial parent for child support purposes: (i) subtract 20% of the maintenance payee's income from 30% of the maintenance payor's income; (ii) multiply the sum of the maintenance payor's income and the maintenance payee's income by 40% and subtract the maintenance payee's income from the result; (iii) the lower of the two amounts will be the guideline amount of maintenance.

Additionally, numerous other key changes are provided by Bill A-7645-2015:

  • A $175,000 income cap will be set on all temporary and post-divorce maintenance calculations. This is down from the current $543,000 cap.
  • Maintenance calculations will now be made before child support calculations, thus allowing child support decisions to consider burdens from the maintenance determinations.
  • The duration of post-divorce maintenance will now be decided using a new advisory schedule:
    • Zero to 15 years of marriage: maintenance should last between 15 and 30 percent of the marriage's duration.
    • 16 to 20 years of marriage: maintenance should last between 30 and 40 percent of the marriage's duration.
    • 20 years of marriage or more: maintenance should last between 35 and 40 percent of the marriage's duration.
  • Considerations of "enhanced earning capacity" will end. For years, counsel was permitted to work with experts to determine the lifelong value of a professional degree that was earned over the course of a marriage. These calculations will no longer be used in helping to determine spousal maintenance.

These are just the key changes Bill A-7645-2015 will bring to New York divorce proceedings—a complete list is available in the sponsor's memo. All temporary maintenance provisions will go into effect October 25, 2015. The post-divorce maintenance provisions will go into effect January 23, 2016.

For more information on this alimony reform and how it can affect your current or upcoming divorce, please contact us at Brian D. Perskin & Associates P.C. today. Our dedicated New York divorce lawyers are vigilant of legislative changes such as these and always ensure that we provide informed, incisive, and effective counsel to those clients who need their interests protected during this difficult time.

Contact us at 855.544.6175 or use our initial consultation form today.

Ignoring the Peanut Gallery during Divorce

Divorce can be a tumultuous and life-altering experience. Well-meaning friends and family members will offer up their opinions and advice, which can be extremely beneficial, but it is important to know when to ignore comments from the peanut gallery. Doing so will benefit your emotional and mental welfare, as well as your legal action as a whole.

Fueling the Fire can be Disastrous

While their intentions may be good, friends and family members can do a great deal of damage by providing advice during your divorce. They love you and want to look out for your best interest, but fueling the fire can have disastrous results on your case. Hearing that your ex is an idiot for having an affair and that you can do better is cathartic, but when a loved one expands on the sentiment by telling you that you deserve a piece of property or certain amount of spousal support due to infidelity, they are encouraging angry and vindictive behavior. Fighting in court just for the sake of hurting your ex isn’t smart, and can result in mounting legal fees.

Some friends or family members may advise you to restrict you ex-spouse’s contact with the children, force them to move out of the marital residence, or liquidate joint financial accounts or other assets. Doing any of these things will be incredibly detrimental to your divorce action and will negatively impact your final settlement agreements.

Who Feels the Most Entitled?

Matrimonial and family law cases can be expensive, especially if they are contested and require intensive litigation and motion practice. It is not uncommon for a friend or family member to help pay their loved one’s legal fees in order to retain a competent and experienced attorney. Unfortunately, this provides the payee with a sense of entitlement when it comes to the case. They feel that since they are taking responsibility for all fees incurred, that they have a say in their loved one’s divorce or child custody action. They will often weigh in one sensitive issues, and try to convince the party to see certain situations from their point of view.

Instead of depending on someone else to pay their legal bills, a person going through divorce should seek other options regarding retainer fees. Negotiating with an attorney is common, as is agreeing to monthly payments or a split retainer fee. Some lawyers price their services on a sliding scale according to income, or will perform work on contingency. Working on contingency means that a lawyer will only collect payment if the legal work performed results in a favorable settlement for their client. Remaining level headed and thinking clearly will help you save money during divorce.

How to Handle Unwanted Advice

Unsolicited divorce advice is given for a variety of reasons. Your friends and family love you, and they want what’s best for you. Sometimes, they are drawing from their previous experience with divorce (whether their own, or a friend’s), and truly think that their advice is helpful.

If you are on the receiving end of unwanted advice concerning your divorce or child custody matter, the best course of action is to be polite and say thank you. Acknowledging that you appreciate their advice will provide them with validation, but do not follow their suggestions if it will be damaging to your case. Remember: advice is given with good intentions, and friends and family members are happy to give it out because they love you. If being polite fails to stop unsolicited advice, then you need to have a very clear and frank discussion with the person and let them know that this is your case, and you will only be discussing it with your attorney for now on.

Ask for Positive Support

Instead of legal advice, request that loved ones give you emotional support during this difficult life change. Simply providing a shoulder to lean on during particularly hard time, such as a wedding anniversary, will help tremendously. Friends should schedule fun activities to help take your mind off of your divorce, and family members can offer to watch your children or pick them up from school if you are unable to do so because of work obligations or court appearances. Surrounding yourself with positive emotional support and dependable friends and family members can make a huge difference in your mental well being during a divorce or child custody case.

Hire a Dependable Law Firm

Hiring a dependable law firm that routinely produces results is the smartest thing a person going through a New York divorce can do. The only legal advice one should take is from their attorney, never a friend or family member. Matrimonial and family law are diverse and complicated areas that require a high level of expertise that only an attorney can provide. At Brian D. Perskin & Associates P.C., we know that divorce can be an incredibly trying time, and we make it our goal to provide intelligent and aggressive representation to all of our clients. For more information, contact us to schedule a free and confidential consultation today!

Marital Debt in New York Divorce

We have previously discussed the division of assets in New York divorce. Marital assets are divided between spouses in a process called equitable distribution. Pieces of property, jewelry, and financial accounts are the first items to come to mind during equitable distribution, but the issue of marital debt must be addressed before a divorce can be finalized.

What is Marital Debt?

Simply put, marital debt is any debt acquired throughout the course of a marriage. Common forms of marital debt include credit card debt, mortgages, medical bills, and personal or automobile loans. This kind of debt is often accrued for the benefit of the marriage, such as buying a home.

That being said, there are instances where premarital debt becomes marital. Just as with other forms of property, the separate debt must be co-mingled in order for it to be considered marital. Separate debt can become joint debt if the couple, once married, shows intent to address the debt together. For instance, a wife may come into the marriage with $10,000 in credit card debt. The debt would become marital property if the husband helps his spouse pay off her bills with money from his personal accounts, or if funds from joint bank accounts are used to pay down the debt.

Student Loans and Divorce

Student loans can be approached in a couple different ways during divorce. As with other forms of debt, student loans can be personal or marital property, depending on when they were acquired and how they are paid off. New York State typically considers most student loan debt to be marital property, and will factor in advanced degrees and the Enhanced Earnings Capacity of each spouse while distributing assets and determining alimony.

An argument can be made that student loan debt is not a result of the marriage if the loan money was used only for academic expenses, such as tuition, textbooks, and other supplies. Additionally, many litigants argue that this kind of debt is separate property if their marriage ends shortly after a degree is earned. Many judges will rule that student loans are marital property if a portion of the funds are used to pay living costs and household expenses. In this case, both spouses would have directly benefited from the loan, thus is classification of being a marital debt.

How is Debt Divided?

Debt is divided in the same manner as other forms of marital property. Either parties can negotiate an agreement amongst themselves, or a judge can intervene and issue an order detailing which party will assume ownership of certain marital debts. The court will consider the amount of each debt, why and how it was acquired, and which spouse benefited the most from the debt. Finally, the court will review each spouse’s finances and determine who is more financially capable of paying off a debt.

Post-Divorce Debt

Retaining sole use and occupancy of a piece of property, such as the marital home, can be alluring, but it is important to consider the financial and tax implications. A major component of debt distribution in divorce is the financial impact it has on litigants. It is not uncommon for former couples to agree to sell a marital asset in order to avoid one person accruing more debt or having to refinance mortgages and other loans. Divorce parties should remain level headed through the equitable distribution process, and make sure they fully understand the pros and cons of each asset or debt they may be awarded.

The Equitable Distribution Specialists

The division of debt (and assets in general) during divorce is a complicated and emotionally charged process. Because of this, it is not recommended that parties attempt to settle property disputes without proper representation from qualified matrimonial law attorneys. The lawyers at Brian D. Perskin & Associates, P.C. specialize in high conflict divorce cases, many of which involve intricate asset distribution components. For more information on equitable distribution, call 718-875-7584 to schedule a free consultation today!

What is an Enhanced Earnings Capacity?

Equitable distribution, or the division of assets, is a major component of most New York divorce actions. Assets are disclosed during the discovery process, and each party is required to execute a Statement of Net Worth before distribution can be finalized. Only marital assets are subject to equitable distribution during divorce. An often overlooked asset are professional or advances degrees and certifications.

Why are Advanced Degrees Valuable?

Advanced degrees and professional certificates, such as a PhD, Juris Doctorate, or graduate level diploma, are incredibly valuable. Recipients of these certifications often become specialists in their chosen fields, and are more likely earn a higher salary than their peers without advanced degrees. The potential for higher wages and standard of living is known as the Enhanced Earnings Capacity.

Is an Advanced Degree Marital Property?

Unless the entire degree or certification was earned prior to marriage, then it is usually considered to be marital property. The percentage of potential earned income that a spouse is entitled to during equitable distribution depends on the kind of support they provided the other party while the degree was pursued. Support can be given in a few different ways, and typically includes financial support and household support.

Some spouses elect to help their partner pay tuition while they work towards an advanced degree, while others choose to become the primary (or only) monied spouse. This means that the person who continuing their education depends on their husband or wife to support them financially throughout the duration of their studies. In some instances, tuition and fees will be paid from joint bank accounts.

The pursuit of an advanced degree requires a great deal of time and dedication, which may reduce the amount of time that is spent parenting children or assisting with everyday activities in the home. Because of this, the non-studying spouse will play the role of primary caregiver to any children. While this form of support may not be monetary, it is still essential and perfectly valid.

If either one of these criteria are met, then the advanced degree or certificate is considered to be marital property and is subject to equitable distribution in divorce. That being said, the burden of proving said support falls upon the spouse who did not earn the degree. They must present sufficient evidence to the court that supports their claim to any potential increased earnings their ex-spouse may receive. It is up to a judge to determine how much the claimant is to receive.

Enhanced Earnings Capacity

As stated previously, the Enhanced Earnings Capacity is the amount of money one can theoretically earn as a direct result of an advanced degree or professional certificate. Determining the amount of expected lifetime earnings can be difficult, and includes field specific projections that will vary on a case by case basis. Given the complicated nature of the Enhanced Earnings Capacity, a judge will oftentimes issue an order that requires an expert to evaluate the potential for increased earning over a lifetime.

Trust the Best

The Enhanced Earnings Capacity law is open for interpretation and is filled with grey area. Any divorce involving equitable distribution, especially the division of potential earnings due to advanced education, should not be attempted alone. Such matters require the assistance of an experienced divorce attorney. The family law firm of Brian D. Perskin & Associates, P.C. specializes in complicated divorce matters, with an emphasis on the division of marital assets. Ensure that your case is in the right hands, and schedule your free and confidential consultation today!