Brian D. Perskin & Associates

Social Media: Friend or Foe during Divorce?

Is Social Media Bad for your Divorce?

Social media; you either love it or you hate it. But regardless of your personal opinions on the matter, social media will have a major effect on your divorce case.  How you handle your individual accounts will help to determine if  social media will be your friend, or foe, during divorce.

Social Profiles Spell Disaster for Marriages

Believe it or not, researchers have found that social media use can lead to divorce. In a study conducted by universities in Boston and Chile, researchers found that there is a direct correlation between social networking use and marriage quality.

Scientific Study Proves Social Media Can Lead to Divorce
Scientific Study Proves Social Media Can Lead to Divorce

The amount of time spent on social media isn’t the only reason why the platforms may spell disaster for your relationship. Sites like Facebook, Instagram, Twitter, and Snapchat can be a catalyst for infidelity and jealousy. The temptation to have an affair can be strong if your marriage is already strained, and these platforms make it easier to stray.

Social Media and Hidden Assets

Social media is changing the legal landscape. In addition to being cited as a reason why couples file for divorce, it can also be used as evidence during your case. This rings especially true if one spouse suspects that their ex is hiding marital assets.

Hidden assets often surface during the discovery phase of divorce. Most users won’t list their income in their profiles, but they will post photos of vacations or expensive purchases. These photos will be used as evidence of additional assets, which usually results in a higher net worth. And, of course, a higher net worth impacts every aspect of divorce, especially child support and equitable distribution.

Successfully proving that assets are being hidden or squandered away is not easy, and requires the expertise of a seasoned divorce attorney. Luckily, we have experience successfully uncovering hidden assets by auditing an opposing party’s personal and business networking accounts.

Tips for Using Social Media

It’s hard to avoid social media all together, even during heated divorce actions. How can you play it smart, while still keeping an active social media presence?

  1. Double check your privacy settings- make sure your profiles are friends only.
  2. Change your passwords, so your ex won’t be able to log into your accounts.
  3. Avoid posting pictures or updates that your ex can use to make a judge think you are a bad parent.
  4. Never cyber stalk your ex, their new partner, or family members.
  5. Remember: the internet is permanent. Use common sense. If you have to second guess whether or not you should post, don’t do it.

We know that social media plays a prominent role in your day-to-day life, but that doesn’t mean it needs to negatively impact on your divorce. Be smart about your online presence during the course of your action, and hire an attorney to handle the rest of the case for you.

Social media is a very powerful tool, which can be helpful if harnessed correctly. For more information on divorce in New York, contact Brian D. Perskin & Associates P.C. today!

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!

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 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.


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!