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April 26, 2013

Understanding the Fundamentals of a Divorce Action

Category: General — admin @ 10:12 am

1. Introduction

Divorce may be one of the more painful experiences people undergo in life. I have not had a client yet who was not confused, upset, and often emotionally traumatized. So the attorney’s goal is first and foremost to be your advocate to assist you in getting through a difficult time in your life and help set up the appropriate platform by which to start life anew. This will include addressing your financial and family needs so you can move forward.

2. Grounds for Divorce

By the time a spouse comes to see an attorney, it is usually pretty clear that the marriage is shattered and it is now about picking up the pieces. New York finally joined the other states of the Union allowing couples to divorce without having to prove grounds such as abandonment, adultery or cruel and inhuman treatment. Rather in New York, you need only demonstrate, via an affidavit, that the marriage has broken down, irretrievably, for a period of at least six months prior to the commencement of an action for divorce. For the most part, then, inappropriate behavioral issues – infidelity for example – do not change the equities as between the parties. Fault is not an issue on the table.

3. Property Distribution

Rather, what is on the table is how to address what is contained within the marriage, whether it be the children or property or money. Let’s start with a couple of basic thoughts about finances. Once you file for divorce or your spouse files for divorce, there is an automatic order that none of the marital properties or assets is to be conveyed or dispensed in any way. This is because marriage is like a partnership and all of the assets of the partners, the husband and the wife, are joint assets and one party cannot dispose of them unilaterally. So a husband cannot drain a bank account and transfer it to his new girlfriend or a wife cannot make out of the ordinary purchases. The marital property is supposed to be intact until there is a determination of how it will be distributed. From the marital property, during the divorce, you can pay for your ordinary living expenses and can take out monies for attorney’s fees.

Anything acquired during the marriage is most typically marital property unless it was a specific bequest or gift solely to you and kept that way. If you had a retirement account that was yours before you became married, in your name only, and it has remained in your name but during the course of the marriage those monies increased, that increased value is marital property. If one of the spouses secures a higher educational degree during the course of the marriage, the increased earning potential based on that degree is marital property. An interest acquired during the course of the marriage in a business or a partnership is typically marital property. So, it is not as simple as splitting the bank accounts or getting the house evaluated and splitting up the equity.

Rather, all those marital assets need to be explored, sometimes your attorney finding value to you which you may not even have felt existed, because it was not a specific tangible asset like a bank account.

The best approach is to sit down with an attorney at an initial consultation and review all the potential marital assets and what the respective positions of both sides would be as to the same. Realistic understandings of marital property is fundamental if the parties hope to mediate or negotiate a resolution rather than to litigate one. Often times negotiation can be much more artful in addressing the respective needs of each party rather than a judicial determination, which most likely would not be as skilled, although sometimes quite necessary, where one of the parties is particularly out of line with a realistic claim on what is marital property.

4. The Children

Next, with regard to children, New York law really views children of a marriage as the most significant asset which needs to be protected. This includes a dedication of very significant financial resources by both sides towards children. New York has statutory formulas which are most always applied. For example, if you have two children, the basic support obligation of the parents is 25 percent of the gross combined income. That is income from any sources and before any kind of tax deduction. So for example, if each parent earns $50,000, the combined gross income is $100,000 from which $25,000 is applied to child support. Since each parent contributes one half of the gross income, $50,000 each, each parent has an attribution of contributing one half of the child support obligation. The child support obligation under this model is $25,000, each parent has an attribution of $12,500. I use the term attribution because the parent that does not retain primary physical custody, that parent typically in New York being the father, pays to the other spouse, typically the mother, his share. So dad pays $12,500 out of his $50,000 gross income. If dad only takes home $40,000, dad still pays $12,500 as basic child support. Basic child support means that there are other expenses that can go on top of that, extra-curricular activities, school expenses, medical expenses and medical insurance among many others.

5. Maintenance

The court system no longer uses the term alimony, a term which may be more familiar to you than “maintenance” which is the modern day version. Maintenance, in theory, is a concept that because marriage was a partnership, the spouse earning less money or, perhaps no money, throughout the course of the marriage is entitled to continued incoming monies, more traditionally under the concept of maintaining his or her standard of living but more frequently nowadays under the thought process of giving that spouse an opportunity to secure education or employment and then be self-sufficient. As such, maintenance is more typically of a shorter duration, as a rule of thumb maybe a spouse paying maintenance for one-third of the total number of years of the marriage. An eighteen year marriage thus may have six years of maintenance, although each case is highly variable. As the spouses mature, heading more towards retirement age, the possibility of being awarded lifetime maintenance, if there are substantial income disparities particularly, is more clearly expected.

6. Litigation Process

As to the litigation process, once a summons and complaint is filed and the action commenced, an application can be made to the court for some temporary orders as far as child support and/or maintenance. During the early course of the litigation, the parties file respective statements of net worth where they outline and list all of the assets and their values. This can be a painstaking process but it is also a very necessary process as it forms a platform by which discussions will follow as far as distribution of the assets. It is possible that the parties may be deposed, or asked questions by the opposing counsel as far as issues pertaining to child support, distribution of assets and property interests. That could be several months down the road from the time the action is commenced. Courts will help keep things moving along as far as giving the attorneys scheduling orders by which certain events must occur and the party bringing the action filing a document to the court saying they are ready for trial. Thereafter, a court conference will be held and trial date secured which can then be a few months down the road. Looming deadlines often encourage the recalcitrant spouse to step up to the plate and deal with the issues through negotiation or mediation. Nonetheless, a contested process can certainly take a year or more from the time the action is commenced until final resolution. Resolution can be via an agreement between the parties which would become part of a divorce decree or may require an actual trial where the court determines the respective rights and obligations of the parties.

7. Conclusion

I hope that this gives you some insights, albeit rudimentary, into the matrimonial process and types of issues that you will be addressing in your divorce. The best advice I could give you would be to sit down with an attorney, feel comfortable that the attorney is attuned to your interests and concerns, and is a person with whom you feel a good rapport. At Maynard, O’Connor we are headed towards our 100th anniversary as a law firm because of a tradition of caring for our clients and being strong advocates. It is that tradition which allows us to stand out from the crowd and it is that tradition which we would be happy to put to work for you.

 

December 27, 2012

What is “Mine” vs. What is “Ours”

Category: General — admin @ 11:25 am

When a marriage breaks up, the husband and wife, by nature, each become possessive, the mentality of circling the wagons around what each feels belongs to them.  Such mindsets result in behaviors often compelling the need to litigate a matrimonial action rather than negotiate or mediate a resolution.

As such, an understanding of property rights by each of the spouses is fundamental to moving forward through resolution.  Marriage is viewed in law as a partnership.  Everything that comes to the partners during the course of the partnership is partnership property.  When the partnership ends, it must be divided as such.  Bank accounts in your name only are not yours; they are property of the “partnership.”  So is the car that you bought in your name and made payments for through your account only and so it goes with anything else that was acquired during the marriage.  Narrow exceptions fall in the categories of assets that you owned prior to the marriage that maintained a separate identity throughout the course of the marriage or perhaps gifts or inheritance that came to you individually during the course of the marriage that, again, were maintained as separate property.  The burden of proof is on the spouse who wants to claim particular properties or monies as that spouse’s alone, the presumption being that they are joint property.  The comingling of any assets into the joint property fortifies the presumption that the properties have become joint.

Adding of value during the time of the marriage can make the added value marital property.  A good example could be an increase in your retirement account that was yours alone before the marriage and has now doubled or tripled during the course of the marriage.  Monies earned toward retirement during the marriage are marital property.  Increases in value via the time, effort or resources put into separate property also makes such increased values, occurring during the marriage, marital property.  Court rulings in this regard can be mixed and scattered.  This is why attorneys advocate prenuptial agreements: so that everyone’s intent and understanding is clarified before the marriage.

If a spouse secures a higher educational degree during the marriage, the value of the increased earning capacity is now joint property.  When a spouse leaves the marriage the other spouse has a claim on that increased earning ability.  Claims can be made with regard to contributions made during the marriage enabling the other spouse’s successful business endeavors.  Disagreements over such evaluations are stuff from which matrimonial trials are made and the reason why valuation experts are brought into the picture.

A good attorney should be able to sit down with you in an initial client meeting and give you a solid orientation of the respective claims and equities of each spouse with regard to marital property.

October 18, 2012

“PAIN FREE” DIVORCE?

Category: General — admin @ 11:47 am

By some studies, two-thirds of American marriages fail.  The events leading to the failure are painful experiences.  The process of moving on does not have to be painful as well.  A marriage is a partnership and when the partnership fails, what remains is a distribution of partnership assets and liabilities.  Many couples simply want that to be done amicably, even with a sense of fair play, so that they can move on with their lives.  For those couples, mediation offers the opportunity for “pain free” divorce as well as a very substantial cost savings.

 

Mediation is a process by which both the husband and the wife engage a matrimonial attorney as a mediator and usually split the costs. The mediator reviews the marriage circumstances, the various assets and responsibilities, and gives the couple some global insights as to how to typically address those rights, responsibilities, and the distribution of marital property.  The mediator is deemed neutral.  He or she simply provides the couple with an understanding, via a balanced approach, as to how things most typically could shake out if a matrimonial action was litigated.  Often times, there are specific goals and wants of the parties, compromises and offsets.  The mediator will also help towards resolution of those.

 

If the parties come to some understandings, the next step would be to draft a separation and property settlement agreement incorporating the resolved issues.  Each party has an opportunity, should they choose, to take the proposed agreement to an attorney of their choosing.  The agreement, when to the parties’ satisfaction, is then incorporated into a divorce decree.

 

Mediation works when the parties come to the mediator earnest in their resolve to avoid the time and expense and, perhaps, the emotional pain of matrimonial litigation. They are looking to try to secure a fair and equitable resolution of their differences and move on with their lives.  Ed Tobin, the firm’s lead matrimonial attorney, is well schooled in mediation efforts, having been involved in successful mediations of multimillion dollar cases, complex litigations, for over 20 years.  A successful mediation is not always a function of compromise as much as creativity, recognizing successful pathways so the needs of both parties are met.

September 27, 2012

Privacy Evaporates in a Matrimonial Litigation

Category: General — admin @ 10:25 am

Whatever you text, whatever you say on Facebook, whatever you e-mail, whatever you tell your therapist:  about your spouse, your kids, your financial affairs, your emotional state, it can all become fair game in a matrimonial action.  What you thought was a private communication might turn out not to be.  If you are involved in a contested custody battle and the other side wants to raise issues about your psychological health, they can apply for a Court Order for the release of your therapist records.  What you e-mail and then delete is never really deleted as long as the physical computer can be secured.  I have hired experts to scrupulously go through every piece of memory on a computer, and I have found wildly inappropriate communications that a party thought were buried forever.  New York no longer requires grounds like adultery or cruel and inhuman treatment for a divorce, but such behaviors may not look too favorably for a spouse trying to convince a Court that he or she will be a good custodial parent.  Texting is a little trickier in that the ability to retrieve communications from the service provider has a limited window.  Yet the phones themselves record and store and have ever increasing memories as newer versions come out.

 

If these things alone do not make you self-conscious, I have been involved in litigations where recordings all of a sudden show up, voice recordings, even videos, so easily secured nowadays.  As a general rule, as long as one of the parties to the communications is amenable to it being recorded, there is no illegality.  Spouses bait the other with questions and record the answers, record angry tirades at home with the family.

 

Using your computer at work for your personal e-mail, there is no expectation of privacy.  Subpoenas can be issued to those to whom you have communications, communications actually secured from them or from their computers.  Politicians and celebrities are routinely making news for inappropriate communications sent out in the haphazard form as if no one will ever see or hear about it.  When you are involved in a matrimonial matter, you should act as though everything you say, other than to your attorney, can be up for grabs.

 

Witness for the Prosecution:  yourself—not if you are careful.

August 27, 2012

Digital Forensics

Category: General — admin @ 11:20 am

In an ever evolving electronic age, Ed Tobin just completed a five hour course on digital forensics. “It was really frightening to learn how every communication a person makes is retained in electronic memory, “ says Ed, referring to not only computers, but cell phones, and even one’s whereabouts through GPS navigation devices. Yet, such forensic evidence can be invaluable in matrimonial litigation, including locating assets, transfers and the like. Keeping on top of the latest forensic methods allows us to stay sharp as advocates for our clients.