Brian D. Perskin & Associates

Is Spousal Support Guaranteed in a New York Divorce?

Spousal Support

In a New York divorce, there is spousal support or "temporary maintenance" and then there is maintenance. Spousal support is money that a higher-earning spouse pays to the lower-earning spouse while they are still married and their divorce action is pending in the courts.

On the other hand, once a couple is officially divorced, that financial support is no longer referred to as spousal support, instead it’s called “maintenance,” which is the money paid after a divorce is finalized.

In other words, “maintenance” is the money that an ex-spouse pays their ex-husband or wife after the divorce is official. Sometimes this is called alimony, sometimes it’s called spousal maintenance. Is it safe to assume that spousal support and alimony are always awarded in a New York divorce? No, spousal support and maintenance are not guaranteed in a New York divorce.

Marital Settlement Agreements

If the couple is of high-net worth, the spouses can agree on a spousal support and/or maintenance arrangement, which would be incorporated into their marital settlement agreement. Of course, you don’t have to be a high-net worth couple to have a divorce that involves spousal support and maintenance, but it is more likely when a wealthy couple divorces.

What if a spouse refuses to pay spousal support and/or maintenance? If the higher-earning spouse will not voluntarily agree to pay spousal support and/or maintenance, but the lower-earning spouse wants it, then the spouse who is asking for support can petition the court for spousal support while the divorce is pending and maintenance once the divorce is finalized.

Is spousal support always awarded in a New York divorce?

Even if a spouse asks the court for spousal support and maintenance, that does not mean that he or she will receive it. Spousal support and maintenance are awarded on a case-by-case, as-needed basis.

When deciding whether or not to award spousal support and/or maintenance, the court will carefully review the couple’s financial situation, among other relevant factors, such as:

  • The age and health of each spouse
  • Each spouse’s income and assets
  • The lower-earning spouse’s need for support
  • The higher-earning spouse’s ability to pay support
  • Which spouse will have the children most of the time
  • The lower-earning spouse’s contributions as a homemaker or stay-at-home parent
  • The employability of the lower-earning spouse
  • If the lower-earning spouse needs to go back to school to reinforce their job skills
  • Anything else the court deems relevant

When people are legally married to each other in New York, they are expected to financially support each other. This means that either an ex-husband or an ex-wife can ask for financial support from their ex-spouse.

A soon-to-be ex-spouse has every right to ask for support and/or maintenance, even if they are working full-time, as long as they really need it and their spouse can afford to pay it. If a judge orders support and maintenance, usually he or she will set an end date, but not always.

Even if a judge does not set an end date for maintenance, that does not mean that it cannot end. If there is a significant change in circumstances, the maintenance may be lowered or terminated at a future date.

If you are interested in learning more about spousal support and maintenance in New York, contact Brian D. Perskin & Associates P.C. 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.

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!

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!

Post-Nuptial Agreements for Stay-at-Home Parents

Choosing to become a stay-at-home parent is an admirable decision, but it is one that requires special consideration. Leaving a lucrative or promising career to care for your children fulltime impacts your family financially, and can spell disaster if your marriage were to end in a divorce.

Becoming a Stay-at-Home Parent

People become stay-at-home parents for a variety of reasons, and the role is no longer gender specific. Common examples of why a person will choose to leave their career to make child rearing their primary focus include:

  • Sudden unemployment
  • Rising daycare or nanny costs
  • Expectation to be a stay-at-home parent
  • Unable to manage work and family demands
  • Financial stability as a result of their spouse’s income

Regardless of why you choose to become a stay-at-home mom or dad, it is important to realize that you and your spouse are no longer on a level playing field. Your partner will bear the burden of having to support your family financially, while you care for the home and children. A postnuptial agreement can help protect you in case you ever find yourself in the midst of a divorce or child custody battle.

The Downside to Stay-at-Home Parenting

Being a stay-at-home parent can be an incredibly rewarding experience. You get the opportunity to nurture your children, watch them reach milestones, and create lasting memories. It can be exhausting and frustrating, but many parents say they would do it again in a heartbeat.

That being said, parents who quit their jobs often face a very hard time trying to reenter the workforce once their children no longer require constant care. Professional contacts and connections are lost, networking opportunities are forfeited, and resumes will have large gaps with no work experience. Career related skills may even decline, unless you spend the time to keep up with technology, social media, and other specific field related news and trends.

It is important to mention that just because you were making $60,000 per year when you quit your job to raise children, it doesn’t mean you will be able to make the same (or more) when you decide to return to work. You may not even be able to be rehired in the same level or position. It is likely you will earn less, and have to accept a lower level position, after an extended period of unemployment.

Postnuptial Agreements

A postnuptial agreement works in the same capacity as a prenuptial agreement, but it is drafted and signed after a couple is already married. These agreements can specify how money, property, and parenting time will be divided in the event of a divorce, as well as stipulations regarding alimony. In addition to these general items, postnupts for stay-at-home parents can also include:

  • Timeline for when the stay-at-home parent shall return to work
  • The amount of monies to be paid in divorce, to make up for loss of income
  • The guarantee that the stay-at-home parent’s financial needs are met

Jeff Landers, Forbes contributor and financial divorce expert, is a strong proponent of postnuptial agreements for stay-at-home parents. Landers encourages couples to treat the postnup as a business contract, and not to let their emotions influence the process. Leaving your career behind to become a fulltime stay-at-home mom or dad is like starting a new job. You wouldn’t choose to embark on a new professional path without ensuring you had financial security, so you should do the same before you take on the role of full time parent.

Work with Your Spouse

Discuss the idea of a postnuptial agreement with your partner. You two need to work as a team in order to develop a fair agreement. It is best to address financial matters while parties are still in each other’s good graces, since the working parent is more likely to make sure his partner is protected financially.

While preparing the postnup, it is recommended you take into consideration the amount of income you will lose, as well as how much time you intend to stay home. Will you reenter the workforce once your child or children reach middle school? Discussing the financial aspects of your marriage needs to be a top priority before you take the plunge and become a stay-at-home parent.

The Power of a Lawyer

In order for a postnuptial agreement to be considered valid during a divorce case, each spouse must retain separate attorneys to either draft or review the document. Choosing to become a stay-at-home parent is admirable, but you need to be smart about it and make sure you are protected. For more information on the benefit of having a solid postnuptial agreement, contact the law firm of Brian D. Perskin & Associates P.C. to schedule a free consultation.

Annulments, Divorce, and Legal Separation

New Yorkers looking to part ways with their spouse have three options: an annulment, divorce, or legal separation. Before filing a court action, you need to determine which path is right for you. To make it easier, we have outlined the three below.

Annulments in New York

An annulment is different than a divorce, because an annulment makes the marriage null or void. This means that the marriage never happened. Contrary to popular belief, a couple cannot receive an annulment based on the short duration of their marriage. Instead, they must meet one of the following criteria before bringing forth an action for an annulment:

  • One, or both, spouses were under the age of 18 at the time of marriage;
  • Either spouse was unable to consent to the marriage due to a mental incapacity or impairment;
  • Either spouse has been deemed to be incurably mentally ill for a minimum of 5 years;
  • Either spouse is unable to have sexual intercourse or relations with their spouse; or
  • The marriage was entered into by either spouse under duress, fraud, or coercion.

The party who files for an annulment, known as the Plaintiff, bears the burden of proving one of the qualifying grounds to be true and valid. This is often more complicated and time consuming than uncontested divorce actions. Amicable couples are encouraged to file for an uncontested divorce rather than an annulment if they are looking for a faster and less costly way to end their marriage.

It is important to note that New York is a “no-fault” state, meaning a specific reason for divorce doesn’t necessarily have to be listed in a filing. Couples interested in a “no-fault” divorce instead of an annulment need to be married for a minimum of 6 months before bringing an action, so they can swear to the court that their relationship has been in a state of “irreconcilable breakdown” for the legally allowed period of 6 months.

Legal Separation

Legal Separation is a great alternative to divorce when a couple doesn’t want to be together, but also do not want to terminate their marriage. These couples will negotiate a Separation Agreement, which is a detailed contract that outlines the responsibilities each party has in regards to child or spousal support, custody, the division of property, and other financial obligations. If parties ultimately decide to proceed with divorce, their Separation Agreement will be used as a point of reference for a Stipulation of Settlement.

Since parties are still considered to be married during a legal separation, they maintain all of the benefits they shared with their spouse. The major benefits to legal separation are:

  • The continuation of health insurance coverage that would otherwise terminate with divorce;
  • Being able to file joint tax returns;
  • Maintaining a married status allows spouses to qualify for Social Services or retirement benefits; and
  • Using legal separation as a “trial run” for divorce to see if it is the right course of action.

A legal separation is handled in the same manner as divorce, with the Plaintiff filing a Summons and having their spouse, the Defendant, personally served with documents. Personal service informs the Defendant that an action has commenced. Each party should retain their own matrimonial or family law attorney to counsel them throughout the process. It is common for the same lawyer who handled a legal separation to represent their client during divorce (if it should come to that).

Divorce

Divorce is the most common way for New York couples to end their marriage. Like an annulment, a divorce will dissolve a marriage, however, you will be considered to be “divorced” for legal purposes, as opposed to “single” (like with an annulment).

As stated previously, New York is a “no-fault” divorce state, meaning couples don’t need to have a specific reason that they want to terminate their marriage. A plaintiff can simply claim their relationship has been in a state of irreconcilable breakdown while filing a Summons. That being said, New York does recognize 6 other grounds for divorce:

  • Cruel and inhumane treatment;
  • Abandonment for a continuous period of one year or more;
  • Adultery;
  • Imprisonment for more than three years after the date of marriage;
  • Conversion of a separation judgment; and
  • Conversion of a written and acknowledged separation agreement after living apart for more than one year.

Whichever party is claiming one of the above grounds, usually the Plaintiff, must present sufficient evidence to the court in support of their claim. It is not unusual for a Defendant to disagree with one of the 6 other grounds for divorce, and when this happens, the case can become contested.

Before a judge can issue a Judgment of Divorce, parties must reach an agreement addressing child support and custody/visitation, equitable distribution, and maintenance. If parties and their attorneys can not reach an agreement, the court will intervene, and a trial will be held. Many hours of preparation, motion practice, discovery production and review, and negotiations will be spent prior to the trial date. While it is possible to pursue an uncontested divorce without proper legal counsel, the same can not be said for a contested action. Doing so will be incredibly damaging to your case, and you may be unable to rectify any wrongdoings once a Judgment is issued.

Free Consultations

For more information regarding the different ways to dissolve a marriage, contact the New York City family law firm of Brian D. Perskin & Associates P.C. to schedule a free consultation. Discussing your options with an experienced and knowledgeable divorce attorney is the first step to figuring out which course of action is right for you and your family. Deciding to proceed with a divorce or legal separation isn’t always easy, but being well informed can make the process a little less stressful and nerve-wracking. Call 718-857-7584, or visit us online, today!

Divorce’s Impact on Health Insurance

Divorce can have an impact on many aspects of your life, including your health insurance coverage. This may not be the first thing on your mind as you get divorced, but it is an issue that must be addressed during the court action. Will you lose coverage? Is your spouse required to keep you on their policy, or vice versa? Will your children remain covered? Can coverage be addressed in your settlement agreement?

Automatic Orders in NY Divorce

Once a divorce case in New York State is filed, a set of rules goes into effect. These rules, called Automatic Orders, outline how each party is to treat financial accounts, property, and life or health insurance policies during the course of the matrimonial action. The Automatic Orders forbid one party from removing their spouse or children from a preexisting health insurance policy until it is agreed otherwise, and help to ensure that the status quo is maintained.

The Automatic Orders can be modified or dissolved, but only if both parties can reach an agreement addressing all issues outlined in the original order. The new agreement must be in writing, and executed by both parties in front of a notary public. Once signed, the agreement can be submitted to the court. Parties will be bound by the stipulations in their new agreement, until their divorce is concluded.

COBRA

The Consolidated Omnibus Budget Reconciliation Act, also known as COBRA, is a piece of federal legislation that allows a recently divorced person to remain on their ex’s health insurance for up to 3 years after the divorce is granted. If both spouses are covered under the health insurance policy provided by one person’s employer while married, then the qualifying party must contact the insurance provider within 60 days of a Judgment of Divorce being ordered if they want to remain on the insurance plan. If they fail to do so, they will lose their coverage. COBRA was enacted to help provide a buffer for divorcees while they seek another kind of health insurance.

While COBRA is great because it helps to ensure that a person does not lose their health care coverage, it does not come cheap. Under the Act, individuals can be charged up to 100% of the cost of the plan’s coverage, with an additional 2% administration fee. If the person fails to pay the astronomical premium fees, coverage can be terminated. The insurance coverage can also be lost if the ex-spouse’s employer goes out of business or decides to stop offering health care coverage through their company.

Given the high cost and the risk of losing coverage, it is always recommended that a divorcing person enrolls in their own health insurance plan that is separate from the coverage they had while married. This can be via their place of employment, or purchased and paid for through the NY State of Health website.

Guaranteed Coverage for Kids

Children will never lose their health insurance coverage as a result of their parent’s divorce. Minor children will remain eligible to receive coverage under either parent’s plan since they are considered to be dependents. They will not have the option to receive health insurance benefits under COBRA, even if one of their parents proceeds forward with this kind of coverage.

New York courts will usually order that the children remain on the same insurance plan that they were enrolled in prior to the divorce. However, if both parents have their own coverage, then a judge will determine which party is to provide coverage based on the cost of each plan, and what services are included. In a situation where neither parent has health care coverage, the custodial parent will often be ordered to obtain insurance plans for their children. Costs associated with the children’s health insurance will usually be split between parties, and factored into child support obligations.

Legal Separation and Health Insurance

Couples who wish to leave their marriage, but still retain some of the benefits of being married, should consider obtaining a legal separation instead of a divorce. Married, but legally separated, couples are eligible to remain on their current health insurance plan, since the provider will still consider the pair to be married.

In order to become legally separated, parties must reach a settlement agreement that addresses property, debt, child custody and support, insurance, and even spousal support. A Separation Agreement would be prepared much like a Stipulation of Settlement in divorce. There are benefits to filing for a legal separation over divorce, but it also has its disadvantages. It is best to speak with an attorney for a clearer idea of whether or not obtaining a legal separation in order to keep health insurance coverage.

We’re here for you

There are a number of life changes that come with divorce, some more important than others. Remaining covered under a health insurance policy is one of them. The law firm of Brian D. Perksin & Associates P.C. is well versed in New York divorce and family law, and provides their clients with thorough and comprehensive representation. For more information on the implications divorce may have on your health care coverage, contact Brian or a member of his team to schedule a free consultation.

What Kind of Divorce is Right for You?

You’ve weighed your options, waited till after the holiday season has passed, and are finally ready to file for divorce. Now, you probably have a general idea of the type of divorce you will have: contested or uncontested. Depending on whether or not you and your spouse agree to the divorce, you may need to consider if mediation, litigation, or a collaborative divorce is best for your case.

Uncontested Divorce

Uncontested divorces are the simplest and most straight forward kind of matrimonial cases. In an uncontested action, spouses are able to reach an agreement concerning child custody, support, and the division of assets. Uncontested divorces are usually filed, processed, and finalized faster than their contested counterparts because there is less work involved. They are also more cost effective and result in much smaller legal fees.

Even if you believe your divorce will be uncontested, it is still highly recommended that you meet with an attorney prior to beginning an action. Disagreements can arise, especially if spouses have children, or any marital assets or debt. A qualified family law attorney will be able to effectively manage your case, and prepare for any roadblocks that may arise.

Contested Divorce

A divorce case becomes contested if both parties cannot reach an agreement on either of the following:

  • Grounds for divorce;
  • Child Custody and Visitation;
  • Spousal or Child Support;
  • Equitable distribution; or
  • Pendente Lite Support.

While preexisting New York State law will ultimately determine any orders concerning the division of assets or support obligations if a settlement cannot be reached, having a divorce lawyer on your side is incredibly beneficial. Contested divorce actions require an in-depth knowledge and understanding of the law and legal system, which only an experienced family law attorney will possess. Extensive motion practice, negotiation, and court appearances are all aspects of contested cases. A divorce attorney will be well-prepared to represent their client’s wishes and best interests throughout the duration of a complicated action.

Mediation and Collaborative Divorce

A great alternative to court intervention in divorce involves mediation and collaboration between parties and their respective legal counsel. Through mediation, divorcing spouses voluntarily work together to settle divorce related issues, developing agreements regarding custody, support, and equitable distribution. Because of its collaborative nature, mediation is considered to be “non-adversarial”, which means each party has an equal voice during the divorce negotiations.

Mediation is more cost effective than litigation, less stressful than appearing in front of a Judge, and completely private. Divorce documents and filings are public record, meaning that anyone can easily access documents at their local court house. Details discussed in mediation, such as financial disclosures or personal matters, are not accessible by the general public because the court house would not have these records.

A successful divorce is a child centered one. The child’s best interest must come first. Mediation, or settlement outside of the court room, allows for this to happen. Avoiding prolonged litigation will help to alleviate any stress, insecurities, and uncertainties a child may feel during their parent’s divorce.

Litigation in Court

Unfortunately, not every divorce action is uncontested and is not able to be mediated. Contested cases typically end up in court, with the outcome coming down to whatever a judge decides is best. Litigated cases require court appearances prior to the actual trial, with a great deal of time spent during the discovery and pre-trial phases of divorce. Financial records must be subpoenaed, Statement of Net Worth’s need to be prepared, and lists of witnesses and cross-examination questions must be drafted and filed with the court.

As with any kind of legal action, litigated divorce cases have both pros and cons. Every document entered into the court’s system becomes public record, so they are easily accessible to non-parties. Litigation can become expensive in a short period of time, due to court and attorney fees. New York City area courts are backlogged, so it can take a long time to actually make it to trial.

However, litigation does have its advantages for feuding couples. Spouses who are unable to reach an agreement on child custody and support, alimony, or the division of assets benefit from having a judge make a final ruling on these issues. This especially rings true when once spouse is intimidated by their ex, or was the victim in an abusive marriage. Overcoming the emotional and mental turmoil that stems from an abusive relationship is challenging, but victims can rest assured knowing that their fear will not cloud their judgment during litigation (as compared to mediation or settlement).

Prepare for Anything

Thoroughly preparing for any situation in divorce is always the best course of action, regardless of whether or not your case is contested or uncontested. The staff at Brian D. Perskin & Associates P.C. has handled countless actions where a simple uncontested divorce went south and became a highly contested matter. The firm focuses their practice on matrimonial and family law, with close attention being given to contentious litigated cases. You can trust us for intelligent and aggressive representation!

Gearing Up for Divorce Month

The beginning of a new year is marked with resolutions, promises made to oneself to better themselves in one way or another, such as joining a gym or changing careers. A more extreme, and surprisingly common, personal resolution is to separate form a spouse and file for divorce.

January has been dubbed “Divorce Month” by matrimonial law professionals across the globe, citing the increase in inquiries from potential clients, as well as a rise in the number of new divorce case filings. If you’re one of the countless individuals who are considering filing for divorce come the start of 2016, here is what you need to know:

You’re Not Alone

According to research published from FindLaw.com, internet searches for terms relating to divorce jumped a whopping 50% between December 2010 and January 2011. Many of the couples looking for information regarding divorce, child custody, and family law will hire an attorney and begin the separation process. This trend grows steadily throughout the first few months of the year.

So, why do so many people file for divorce after the New Year? As always, reasons vary on a case by case basis, but the some of the most common can include:

  • Wanting to spend one last holiday season as a cohesive and nuclear family unit;
  • The desire to make family gatherings less awkward or uncomfortable;
  • Not wanting to endure the stress of a divorce during Thanksgiving, Hanukkah, Christmas and New Year’s;
  • Tax or financial reasons; and
  • A limited court calendar, which delays any preliminary appearances in front of a Judge or document filing deadlines.

Financial Benefits

In addition to not wanting to upset the usual holiday routine and traditions, couples will delay filing for divorce because of financial and tax reasons. New York State considers any money earned leading up to the day a Summons is filed to be marital property, and thus, subject to equitable distribution. Because of this, one spouse may wait to file for divorce until after their husband or wife receives a substantial year-end bonus from work.

The biggest, and by far most common, reason to wait until after the New Year to file for divorce has to do with state and federal taxes. If you are still married on December 31st, each party has the option to file their taxes as “married/filing jointly” or “married/filing separately”. Filing a joint tax return usually means a couple is entitled to a larger refund, which can be used to pay for any legal fees associated with divorce. Common expenses, such as those relating to the marital home or child care, can qualify for much larger deductions if spouses are married and file their tax returns jointly.

Filing for divorce in the beginning of the year will give the parties more time to negotiate next year’s tax filing. For instance, who will claim the children as exemptions? Will either litigant be responsible to pay taxes on spousal support that was paid or received? Having a whole year to make important tax decisions can be very beneficial.

Better Be Prepared

The best way to prepare for divorce is to do your research. Spending the time to familiarize yourself with the divorce process in New York will make filing easier because you will already have a general idea of what will happen next, as well as a ballpark estimate for how long it will take for your divorce to be finalized.

Beyond completing initial research, a surefire way to secure a desirable judgment or settlement is to retain an experienced New York City family law attorney. Trying to represent yourself during any legal action is never recommended, especially when the case is as sensitive as a divorce or child custody matter. The fate of your family and lifestyle are at stake during divorce, and an attorney will be well-equipped to advocate on your behalf. It is important that your lawyer has the best interest of you and your children in mind, so don’t be afraid to ask questions and voice your concerns openly and honestly.

Schedule a Consultation

There is no need to rush into an attorney’s office first thing in the morning on January 4th, but it is recommended that you schedule a consultation as soon as you are sure divorce is right for your relationship. The attorneys at the family law firm of Brian D. Perskin & Associates P.C. work tirelessly for their clients, advocating on their behalf in Supreme and Family courts throughout New York City and Long Island. To find out how their experience and stellar reputation can benefit your divorce or child custody case, contact Brian and his team 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!