Brian D. Perskin & Associates

Is a Lump Sum Alimony Payment Right for You?

What is Lump Sum Alimony?

Alimony is one of the most fought over parts of divorce in New York.  Whether you’re receiving support, or you have to pay your ex, you likely have some strong views on the subject. A hot topic of contention is lump sum alimony payments vs. monthly payments.

What are Lump Sum Alimony Payments?

Lump sum alimony is a form of spousal support that is paid in one single payment, instead of period payments over a certain amount of time. The person receiving the lump sum payment, known as the dependent spouse, can receive this in two ways: via money transfer, or through the division of marital property.

There are pros and cons to lump sum alimony, both for the giver, and the receiver. What are they, and is this method right for your divorce case?

Benefits of Lump Sum Alimony

Let’s assume that you are being awarded a lump sum alimony payment. By receiving your alimony payment in one lump sum, you can rest assured knowing that your ex won’t miss any future payments. Since you’ll have immediate access to your full alimony payment, you can use the money to purchase a home, or pay off divorce related debts. A number of people use their spousal support to further their education, as well.

There are numerous benefits for the paying party, as well. Agreeing to pay alimony in one lump sum payment means that your ex-spouse will be free of any continued financial support. This will be useful if they ever become unemployed, or face other financial hardships. Your ex can immediately begin rebuilding their financial cushion when they don’t have to worry about monthly payments.

Lump Sum Pitfalls

As great as lump sum support payments may be, there are major financial pitfalls associated with this practice. Receiving a large sum of money can be risky if you do not know how to handle it. Properly investing and managing a big alimony payment is tricky, so you need to consider speaking to a financial advisor. You also need to keep in mind that you might experience some tax complications if you receive a lump sum support payment.

Acquiring the funds to pay you a lump sum is the biggest challenge your ex faces. They may have to sell assets, tap into their retirement plan, or take out a loan. They will also be unable to request an alimony deduction the future, since they won’t be making multiple payments. In some cases, your ex will also have tax complications.

Is This Right for You?

Whether or not lump sum alimony is right for you depends on a number of factors. What makes sense for one case, doesn’t necessarily make sense for another. You need to make sure that you hire an attorney who has experience handling divorces with sensitive financial issues.

The family law firm of Brian D. Perskin & Associates P.C. specializes is complex divorce cases, with a focus on contested and high net worth actions. Our team of attorneys have represented thousands of New Yorkers in all five boroughs, as well as Westchester and Nassau Counties. Get the help and guidance you need- contact us at 718-875-7584 to schedule your free consultation today!

Common Divorce Myths in New York

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


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


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!

Statements of Net Worth in New York Divorce

SNW NY Divorce

Some of the most common points of contention in New York divorce cases involve money. Spouses often disagree on child support, alimony, and equitable distribution. How can a Statement of Net Worth help to alleviate these issues?

What is a Statement of Net Worth?

A Statement of Net Worth is a court document, and is part of every contested divorce action. This document outlines your finances and expenses. It also aides in dividing assets, and determining support obligations. You, and your spouse, will need to prepare a Statement of Net Worth prior to your court appearance.

Preparing and Filing a Statement of Net Worth

Preparing a Statement of Net Worth is a relatively easy process. Your attorney will work with you to draft the document, but it will be up to you to provide the following information:

  • Tax returns from the last three years
  • Financial statements, investment portfolios, and loan documents
  • Household expenses (utilities, mortgage, insurance)
  • Lifestyle and recreational expenses
  • Costs related to children (tuition, child care, extracurricular activities)
  • Index of tangible assets (jewelry, artwork, collectibles)

Your attorney will file your Statement with the court and serve a copy on the opposing counsel. You will also receive a copy of your spouse’s Statement of Net Worth. It is important that you review the document thoroughly, to make sure your ex isn’t trying to hide or liquidate marital assets.

Using Your Statement for Budgeting

A major benefit of completing your Statement of Net Worth is that it outlines your monthly expenses, and allows you to budget accordingly. Divorce can have a big impact on your finances, especially if you have to pay child support or alimony. Scaling back on lifestyle expenses, such as dining out, recreation, or shopping, can help you secure your post-divorce financial future.

Brian D. Perskin & Associates P.C.

Our law firm, Brian D. Perskin & Associates P.C., specializes in complex divorce and family law matters, with an emphasis being placed on high net worth cases.

Securing your finances, both during and after divorce, is important. You need to hire an attorney to ensure that your assets are addressed correctly. For more information on how our team can help you, call us at 718-875-7584 today!

Say “I Do” to a Prenuptial Agreement

Prenuptial Agreements were once a taboo subject, but they are now gaining mainstream popularity. A growing number of engaged couples are signing prenuptial agreements prior to their wedding day. If you’re engaged, you need to make sure discussing a prenuptial agreement with your partner is an essential part of your wedding planning.

To help aide in your discussion, the staff at Brian D. Perskin & Associates P.C. have put together a list of the most common prenuptial agreement questions and concerns. Check them out!

Q: How soon before my wedding should I get a prenup?

A:     Your prenuptial agreement must be signed and notarized at least 30 days before your wedding day. Anything later and you run the risk of your agreement being invalid.

Q: Do my fiancé and I need different attorneys?

A:     Yes. You and your fiancé must have separate lawyers. Lets assume you hire a lawyer to draft your prenup. Your fiancé will need to hire an attorney to review the document. The purpose of the second lawyer is to make sure the agreement is not biased in your favor.

New York law requires that two attorneys sign your prenuptial agreement, or else it will not be valid. An invalid prenup will not hold up in court.

Q: How much does a prenuptial agreement cost?

A:     The cost of a prenuptial agreement varies per firm, but they are relatively inexpensive. You can call different law firms in your area and ask for a quote, but keep in mind that you get what you pay for.

Be cautious of do-it-yourself programs or legal centers offering low-cost prenups. They can be riddled with errors, and the cost to correct them can set you back a few thousand dollars.

Q: What can be included in a prenup?

A:     The purpose of a prenuptial agreement is to differentiate between separate and marital property, and outline how property will be divided during a divorce. Your agreement can include:

  • Stipulations regarding individual debt and finances
  • The division of marital property if a divorce should occur
  • Guarantees that your family’s property, small business, or a future inheritance, will remain your separate property
  • Rules for who will manage future joint financial accounts, household bills, etc.

New York State law forbids that prenups include:

  • Decisions regarding future child custody or support
  • Stipulations that cause one party to waive their right to alimony
  • Personal matters or preferences (division of household chores, instructions on child rearing, etc.)

Q: What happens if we divorce?

A:     A major benefit to a prenup is that the document settles many divorce issues, before the case even begins! The discovery and equitable distribution phases of divorce are long, tedious, and expensive. Prenuptial agreements can help to alleviate the cost of your potential divorce.

Issues will arise if the agreement is contested during divorce. When this happens, a judge will need to evaluate all of the circumstances surrounding the drafting and signing of the prenup. This process can complicate, and prolong, a divorce case.

Call the Prenuptial Agreement Experts!

Are you interested in a prenup? If so, you need to make sure the agreement completed correctly, and that it is legally binding. You need the Perskin Guarantee! Call the law firm of Brian D. Perskin & Associates P.C. at 718-875-7584 to get started 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!

Cost Effective Divorce Strategies

“Marriage is grand. Divorce is about Twenty Grand.”

- Jay Leno

Let’s face it: divorce can be expensive. Contested cases, as well as grey divorces, often lend themselves to higher legal fees that can result in financial hardships for both parties. While some pricey divorces are inevitable, there are ways to keep costs low and your bank account padded. Below, the staff at Brian D. Perskin & Associates P.C. have compiled the top 5 money saving divorce strategies.

1. Hire an Attorney

You may think that hiring an attorney is counterintuitive to the act of saving money on your divorce. While this may be true in rare circumstances, such as in very simple uncontested cases, it is generally false.

Retaining a legitimate matrimonial law attorney, even for an uncontested matter, is a smart financial move. There are many instances where people will attempt to represent themselves, or turn to low-cost divorce centers, in an attempt to save money. This usually backfires because of the person’s lack of experience with matrimonial law and the court system. Your lawyer will be able to ensure that documents are drafted, filed, and served properly, all within the court’s required time frame. Paying one retainer before your case begins can save you thousands of dollars down the road.

Contested and more complicated actions always require the help of a divorce or family law attorney. Discovery, depositions, motion practice, and litigation, are all impossible for a layperson to tackle on their own. Don’t assume you can handle this on your own. Play it smart and hire a lawyer before you get in over your head.

2. Pitch In

Most family law attorneys bill their clients per hour, meaning you will be charged a set amount of money for each hour your lawyer spends working on your case. This includes locating financial records and tax returns, indexing account statements, insurance policies, and other assets. To help lessen the amount of time your attorney spends doing this kind of work, as well as to keep your bill to a minimum, try pitching in and helping with some of the legwork your case requires.

By using our free Financial Checklist, you can easily keep track of your assets, liabilities, properties, and various insurance accounts. Write down what statements and documents you have in your possession, then contact financial institutions to request others. When providing documents to your attorney, send them on a disc or flash drive, so the law firm’s staff can easily and quickly transfer the documents to your e-file.

Having a complete and organized index of all relevant financial information will not only make the discovery and equitable distribution phases of divorce easier, but lend a hand in accelerating the drafting of your Statement of Net Worth.

3. Be Rational

Divorce can be an emotional hard hitter, but it is important to think with your head and not your heart if you are trying to have a more cost effective case. Fighting fire with fire will have a huge negative impact on your financial future post-divorce.

At Brian D. Perskin & Associates P.C., we have seen countless litigants fight over the little things, such as a work of art, a collectible, or a vehicle. These tangible assets can easily be replaced, and often for far less than it costs to duke it out in court and have a judge determine which party will retain ownership of the property. Sometimes the smart move involves cutting your losses and walking away from a battle.

More serious situations, such as being falsely accused of child abuse, also require rational thinking. You may want to be quick to defend yourself, but this tactic can often result in prolonged litigation, and heated arguments with your ex-spouse. Instead, contact your attorney immediately, and listen to their advice. Let them handle the matter, as they are experts and will be able to sort out the allegations. Thinking, and acting, irrationally, can cause more problems, and even hurt your relationship with your children.

4. Consider Alternatives to Litigation

Some New Yorkers are able to save big on their divorce by avoiding the court room. Litigation is expensive and time consuming, with especially complex cases taking years to be finalized. Speak to your attorney to determine which kind of divorce is right for you.

If you have an amicable relationship with your ex, then you may want to consider letting your attorney negotiate a settlement on your behalf. This can save you tens of thousands of dollars, as well as your time (which is priceless!).

Contested and high net worth actions will require quite a bit more work than their uncontested counterparts, however, they don’t always have to result in extensive litigation. Our dedicated attorneys routinely settle complicated matters before they are due to proceed to trial, thanks to their tenacity and experience with complex motion practice. We understand that litigating a divorce or family court case can be expensive, and we tirelessly fight for our client’s best interests and work towards keeping them out of the court room.

5. Be Open, Honest, and Trusting

The best tactic you can use to save money during your divorce is to be open and honest with your attorney. During your initial consultation, discuss your desired outcome regarding equitable distribution, child custody and support, alimony, etc. It is important that you and your prospective attorney are on the same page prior to your action being filed.

It is normal to change your mind regarding certain aspects of your divorce in the middle of your case, but you need to keep your lawyer informed. It is not uncommon for an attorney to spend days advocating for a certain position regarding custody or assets, which can become quite costly. Save your money and let your lawyer know if you have changed your mind.

Trusting your lawyer is imperative to the success of your case, as well as a proven method to keep your legal fees low. Your attorney has spent years learning and interpreting matrimonial and family law, and he or she is an expert in their field. Trust them to fight for your rights, and listen to them when they tell you the likely outcomes of a particular motion you want argued, or tactic you would like to try. Your attorney is ethically bound to represent your best interests, and they cannot do this if you are unwilling to place your case (and trust) in their hands.

Brian D. Perskin & Associates P.C. is a New York City based matrimonial and family law firm, specializing in complex divorce actions. For more information, or to schedule a free consultation, contact 718-875-7584, or visit us online.

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!

The Benefits of Hiring a Divorce Lawyer

It is possible to get a divorce without hiring an attorney, but it isn’t necessarily advised. The field of matrimonial and family law are both highly complex, and your case may be at risk if you don’t entrust it to an experienced professional. Look at it this way: would you take on the task of performing a routine surgery without a skilled doctor?

The key to having a successful divorce is creating a winning divorce strategy, and the only way to accomplish that is to retain a law firm to work on your behalf. Whether contested or uncontested, hiring a team of attorneys will only benefit your case.

Priceless Advice

Consulting with an attorney prior to initiating your action in invaluable. They can provide sound advice, and thoroughly explain the divorce process to you. Websites and divorce blogs can provide a wealth of information, but nothing compares to having an attorney discuss your specific case with you.

No two divorce or child custody cases are the same. Just as each marriage or family has their differences, so do the legal actions that stem from them. Your best friend may have gotten a divorce last year, and while it’s okay to turn to them for emotional support, you should leave the legal knowledge to the experts.

Even if you ultimately decide to proceed with a custody or divorce matter without proper representation, despite my warnings, I strongly urge you to seek the sage knowledge of an experienced attorney. Their insight is priceless.

Uncontested Divorce Benefits

Couples often decide to proceed with an uncontested divorce as pro-se parties, meaning they are choosing to represent themselves during the action. This may not seem like a big risk, but it can pose a serious threat to the case.

The New York Unified Court System has very specific rules and procedures for legal actions, including divorce and family law matters. Documents must be executed correctly, and filed in a certain manner. There are fees to be paid upon filing of some documents, and all final paperwork must organized and submitted to the Matrimonial Office before they are reviewed by a judge. Failing to follow court procedures can result in rejected paperwork, and a delay in your divorce being granted.

It is common for uncontested cases end up becoming contested when parties are unable to reach an agreement regarding equitable distribution, alimony, or issues surrounding child custody and visitation. Attempting to negotiate or litigate a contested action on your own is an uphill battle that you are better off not fighting.

Abusive Victims Need Help

Victims of domestic abuse, whether it be physical, emotional, mental, or financial abuse, should never partake in a divorce action without proper representation from an attorney. Escaping an abusive relationship is stressful and scary, and these types of cases often require an Order of Protection.

An Order of Protection will be granted during a divorce or family court proceeding if there has been a history of violence in a relationship (towards the other spouse or children), or if there is a threat to the petitioning party’s safety. The Order’s main purpose to help prevent abuse, harassment, stalking, or other forms of violence.

Obtaining an Order of Protection can be complex, and a hearing is required before a judge can issue one. This is why having a lawyer represent you during a divorce from an abusive spouse is incredibly important. If you have suffered any form of domestic violence during your marriage, it is imperative you contact us to discuss your best options. You do not need to face this alone!

High Net Worth Couples

A high net worth divorce is far more difficult than a regular divorce, and are best served by a law firm that specializes in these complex kinds of actions. The best way to protect your assets, and secure your financial stability after your divorce is finalized, is to retain a team of attorneys who are dedicated to the discovery process and have experience handing such sensitive matters.

The discovery process goes hand in hand with equitable distribution in New York divorce actions, and can be quite extensive in high net worth cases. The volume of financial documents that must be subpoenaed or produced can be overwhelming if you are trying to juggle a work life, family life, and a divorce case on your own. An attorney will be able to request and analyze your former spouse’s records on your behalf, as well as help to compile your discovery response to be sent to opposing counsel. A lawyer with a keen eye for detail can also spot discrepancies in reported income or net worth, which may be a sign your spouse is trying to hide assets.

Business owners often fall into the high net worth category. Businesses are subject to equitable distribution, meaning your spouse may have a claim to part of your company’s worth. Valuing a business, and determining whether or not your spouse contributed to the company’s growth during the marriage, is crucial to the process. This is why it is imperative entrepreneurs retain an attorney to handle their divorce case.

Efficient and Time Saving Divorce

You probably want your case to be completed and finalized as soon as possible, so you can move on with your life post-divorce. Hiring a matrimonial and family law attorney to represent you during divorce is the most effective way to ensure a speedy case.

While it is impossible to predict an exact timeline for divorce, a lawyer can help keep your action on track, and make sure deadlines are being met. Don’t risk the road bumps by representing yourself during a legal matter- trust your attorney to handle the hurdles on your behalf!

Expertise You Can Trust

Placing your life, you family’s life, in the hands of a stranger is scary. You need to feel comfortable with the attorney you hire, and trust that they have your best interest in mind. At Brian D. Perskin & Associates P.C., we have represented thousands of New York City families navigate the waters of divorce, and will draw on our experience to help you achieve a fair and equitable settlement.

For more information, or to schedule a free and confidential consultation, call 718-875-7584 or visit us online today!

Subpoenas in NY Divorce

Contested divorce actions can be complex. Many litigants consider the discovery phase of divorce to be the most time consuming, as their attorneys are required to thoroughly review years’ worth of financial statements and property or business documents. The opposing party is usually responsible for producing requested documents, but when they fail to comply, a subpoena must be issued.

What is a Subpoena?

Subpoenas are common in contested divorce cases. There are two types of subpoenas used in New York divorce actions: a regular subpoena, and a subpoena duces tecum. A standard subpoena simply summons a person to testify in a court proceeding. The summoned party must appear and testify during a court appearance or a pre-trial deposition.

A subpoena duces tecum, on the other hand, requires a person or organization to produce certain documents pertaining to the case. These documents can include bank statements, tax returns, mortgages, cell phone records, and even social media posts. At Brian D. Perskin & Associates P.C., we primarily subpoena records from financial institutions when the opposing party is unable to comply with our discovery demands. If the need arises, we can also serve a subpoena on an individual, both during the discovery period of divorce, and in preparation for trial.

When are Subpoenas Needed?

Subpoenas are required when one person fails to comply with the other party’s discovery demands. Either they refuse to produce the requested documents, or they are unable to obtain statements because they do not have access to them. It is quite common for individuals to receive a subpoena during a divorce action.

In many cases, subpoenas will be issued upon a business, corporation, or other institution, in an attempt to obtain a large quantity of documents. Bank, investment, mortgage, and other financial statements are needed to accurately determine each party’s net worth, and to ensure a fair and equitable settlement. Couples who have a high net worth tend to face a prolonged discovery process, and thus, more subpoenas that will be served upon banks.

Banks and other companies must respond to each subpoena duces tecum they receive, regardless of whether or not they have the requested documents or records. If documents for a specific time period do not exist, the organization must alert the requesting law firm in writing. If the subpoenaed documents are able to be produced, the institution will forward all requested items to the law firm.

Large corporations have special units within their legal departments that only handle subpoena related inquiries. Because of this, it is often easier to subpoena large amount of records from a company directly, as compared to each party compiling years’ worth of statements on their own. Letting experienced professionals handle complex discovery matters can make divorce less stressful.

Being Served with a Subpoena

Being served with a subpoena should not incite panic. Litigants who are represented by counsel can elect to have their attorney accept service on their behalf. Pro-se litigants, or those who are representing themselves during a divorce action, should consider hiring a lawyer to handle their case. The discovery phase of divorce, as well as settlement negotiations, can be tricky, and will benefit from the attention of an experienced attorney.

When a party is served, it is important they work diligently and quickly to obtain the subpoenaed documents within a reasonable amount of time. Most companies make a record of documents available online, which can easily be downloaded and printed or saved to a disc. Litigants can also contact the institution directly, and request the documents or statements be provided to them.

While most documents or records are free to be subpoenaed by either party, some items are confidential and off limits in a divorce action. These items will vary on a case by case basis, which is why it is important to hire an attorney to handle the action. Such items can include confidential medical records, or financial statements that are irrelevant to the divorce action.

It may be tempting to purposely not comply with a subpoena during a contested divorce, but it is not encouraged. Parties who do this risk being found in contempt. The key to having a successful divorce is to work diligently towards a settlement, and that means complying with subpoenas in a timely fashion. Don’t cut off your nose to spite your face!

Discovery and Subpoena Professionals

The most important component of creating a winning divorce strategy is to hire an experienced team of attorneys to handle the nuances of your divorce case for you. The family law firm of Brian D. Perskin & Associates P.C. specializes in complex matrimonial actions, with an emphasis being placed on difficult discovery periods. For more information on subpoenas, divorce, and how we can best represent you, contact 718-875-7584 or visit us online to schedule a free consultation today!

The Divorce Process in New York

“What is the divorce process in New York like?” and “What is the timeline for a divorce?” are two of the most common questions asked by potential clients. These two questions seem simple enough, but there are far too many factors that must be taken into consideration before a more accurate answer can be given. This is why the staff at Brian D. Perskin & Associates P.C. always encourage New Yorkers to schedule a free divorce consultation.

That being said, we wanted to provide an outline for the process, so those facing divorce can have a better idea of what to expect.

What Kind of Case do You Have?

Contested and uncontested divorces are vastly different beasts. Uncontested divorce cases are fairly simple and straight forward, and can be completed in a relatively short period of time. Contested matters, on the other hand, are much more complicated. These cases often involve disputes regarding child custody or visitation, the division of marital or business assets, and claims to 401(k) and other retirement plans. Generally, contested matrimonial cases require extensive motion practice, litigation, and settlement negotiations.

Given their more complicated nature, contested divorce actions require more time to complete, so the process will be much longer and complex. Knowing what kind of divorce you have will help us to determine the appropriate course of action in order to get your divorced as quickly as possible.

Filing a Summons for Divorce

In order to initiate a divorce action, you must file a Summons with Notice, or Summons and Complaint, in the Supreme Court’s County Clerk’s Office. A Summons with Notice simply informs your spouse that you have filed for, and are seeking, a divorce. A Summons and Complaint lets your spouse know that you have started an action, and also lists the grounds for divorce, and any relief you may be seeking. Examples of relief commonly sought after in a Summons and Complaint can include, but are not limited to, custody, exclusive use of a marital residence, or the desire to remain on their health insurance plan.

There is a fee of $210.00 to file for divorce in New York. When you file your Summons in the Clerk’s office, you will be given an Index Number. The Index Number will appear on all future documents, and acts as an I.D. number in the court’s system. If you cannot afford to pay the $210.00 fee, you can request that the fee be waived. A representative at the Clerk’s office can provide you with more information and an application.

Serving Your Spouse

New York State has very specific rules for serving documents upon an opposing party in a court case. In a matrimonial action, the defendant (your spouse), must be personally served with the Summons within 120 days of the Index Number being purchased. An Affidavit of Defendant is served along with the Summons with Notice or Complaint. You are not allowed to serve documents on your spouse. Only a non-party to the action, who is over 18 years of age, is allowed to serve a Summons.

Most law firms, including Brian D. Perskin & Associates P.C., work closely with process serving companies and organizations to complete service requests in a timely and accurate manner. We will include a letter of instruction addressed to your spouse, explaining the documents and what steps are required.

Once personal service of a Summons is completed, an Affidavit of Service is executed and filed with the court. If the defendant is a resident of New York, they will have 20 days to respond to the Summons, or 30 days to respond if they reside outside of New York. Your spouse can either retain an attorney who will file a Notice of Appearance and draft a Verified Answer, or file a Verified Answer independently. If your divorce is uncontested, your spouse may sign the Affidavit of Defendant and return it to our firm within 40 days of being served.

Affidavit of Defendant vs. Verified Answer

Which step your spouse takes after being served will determine what kind of divorce you now have. If your spouse signs the Affidavit of Defendant within the 40 day deadline, then your divorce will remain uncontested. When this happens, our experienced staff will complete the rest of your required forms, which can include:

  • Affidavit of Plaintiff and Defendant
  • Note of Issue
  • Child Support Worksheet
  • Child Custody Agreement
  • Judgment of Divorce with Findings of Fact; and
  • Certificate of Dissolution of Marriage

If your spouse disagrees with any stipulation listed in your Complaint, then he or she will draft and file a Verified Answer and Counterclaim. In this document, they will detail which items in your Complaint they agree with and deny. Your spouse has the right to request any relief they may want or deem appropriate, but that doesn’t necessarily mean a judge will issue a Judgment in their favor.

Reasons why defendants disagree with a Summons and Complaint vary on a case by case basis, but typically include:

  • Refusal to give up primary custody of children
  • Unwillingness to relinquish rights to marital home
  • Disputes over spousal support payments; and
  • Disputes regarding equitable distribution

Preliminary Conference and Discovery

One of the first court appearances during a divorce action is the Preliminary Conference (PC). During the PC, the court will set a timeline for the case, address any issues that can be settled early, and issue preliminary or temporary orders. During the PC, a judge will also set a deadline for when the discovery process must be completed.

The discovery phase of a contested divorce begins after a Verified Answer is filed and served. The discovery process can be extensive and exhausting, but it is essential in determining the equitable distribution of marital assets. During this period, each party will serve their opponent with Discovery Demands. These demands require each party to produce relevant financial documents, tax returns, health and life insurance information or records, and a Statement of Net Worth. All requested documents must be produced in a timely manner.

It is important to make sure you hire an attorney who has an extensive background in analyzing discovery production, as it is common for estranged spouses to try to hide assets. Hidden assets can result in an unfair settlement, and a lower amount paid (or received) in maintenance or child support. At Brian D. Perskin & Associates P.C., we work tirelessly to review your spouse’s discovery production and look for any discrepancies. We strive to get you the fair and equitable settlement you deserve.

Motions and Trial

The filing and drafting of motions, as well as trial preparation and appearances, are the most time consuming aspects of the divorce process in New York. Types of motions and preparations for trial are case specific, and will vary on a case by case basis.

A motion is a request made to the court to rule on a certain issue, such as child custody, temporary spousal support, compliance with discovery demands, and requests for counsel fees. These kinds of motions are known as pre-trial motions. All motions will include supporting documents, known as exhibits. Your spouse has the right to disagree with any motion that you file, and they can do so by filing an Affidavit and Affirmation in Opposition.

All of your attorney’s previous work during the initial filing, the discovery process, and all motion practice leads up to the divorce trial. During trial, both parties and their respective lawyers will appear in front of a judge in a court room. Trials are open to the public. The plaintiff will present his or her case first by calling and questioning witnesses, forensic experts, and submitting evidence to the court. The plaintiff’s attorney will often question the defendant, and vice versa. After the plaintiff has presented their case to the court, the defendant will proceed.

There is no set time frame for a divorce trial. We have had trials conclude in a day or two, and some that have lasted multiple weeks. Motion practice and litigation are two aspects of divorce that require the keen eye of an experienced matrimonial or family law attorney. You are setting yourself up for disaster if you attempt to proceed to trial without proper representation.

Final Papers and Judgment of Divorce

After the contested divorce trial has concluded, the judge will issue a decision, either verbally on the record, or written. The decision will address all of the issues raised during trial and throughout the divorce proceeding.

We should not that you will not be divorced until final paperwork is submitted to the court and the Judgment of Divorce is signed by the judge. New York City courts are extremely backlogged, and it can take anywhere from 4 to 6 months for your Judgment to be signed and entered after the date of filing. We will take care of preparing and filing your final paperwork, and we will routinely follow up with the court to check the status of your Judgment. Once your Judgment is entered in the Clerk’s office, a representative from our firm will purchase a certified copy from the County Clerk, and forward it to you by mail.

Divorce Challenges

The divorce process is full of challenges, and no two cases will play out the same. This is why it is critical to the success of your case to hire a qualified attorney to advocate for your best interests throughout the process. The family law firm of Brian D. Perskin & Associates P.C. specializes in divorce and child custody actions, with an emphasis on complex and contested matters. Brian and his team have over 50 years of combined experience negotiating, litigating, and settling cases throughout New York City. For more information, or to schedule a free consultation, contact us today!