New York Divorce Lawyer & Attorney : Law Office of David A. Gabay : Serving New York City, Long Island, Suffolk County, Nassau County

 In 2008, the IRS amended Code Section 152(e), which addresses child dependency exemptions.  The changes affect the procedures and means for claiming the exemption. The new rules should be carefully followed to ensure that the exemption is taken by the parent entitled to it, and that the appropriate language is contained in divorce or separation agreements to reflect the current state of the law.

1. A divorce agreement or court order can no longer be used as a substitute for Form 8332.  The parties must actually complete the form.
2. Beginning in 2009, the custodial parent is the one with whom the child resides the greater number of nights during the year, regardless of the terms of the divorce decree. 
3. Beginning in 2009, the custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 and beyond regardless of when the release was made.

In light of these developments, all non-custodial parents who plan to claim the exemption must obtain a signed Form 8332. In addition, divorce or separation agreements should address the potential for a release being improperly revoked after it is given. 

The parent claiming a dependency exemption is also entitled to benefit from a Child Tax Credit and any allowable Hope or LIfetime Learning Educational Tax Credits.  Keep in mind that the exemptions and credits are phased out as the income of the parent increases.  This should be factored into decisions as to when and how to claim the exemption.

For 2009, the Chidl Tax Credit phases out from $75,000.00 to $95,000.00 (of Adjusted Gross Income) and Hope or Lifetime Learning Educational Tax Credits phase out from $48,000.00 to $58,000.00 for single and head of household filers. These credits are generally more valuable to lower and middle income filers than the dependency exemption itself.

As with all tax issues in a divorce or separation agreement, you should consult an experienced tax attorney or accountant in order to full understand all of the ramifications of your agreement.

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An item on the front page of today’s New York Law Journal reports that the New York State Court of Appeals has agreed to hear appeals in two cases involving the recognition of same sex marriages validly performed outside of New York. The Court is expected to hear argument in the cases in the fall of 2009.

The two cases are:

Godfrey v. Spano: Motion No. 2009-220: The Second Department upheld the Westchester County Executive’s 2006 order directing that all county departments to honor same sex marriages from other jurisdictions.

Lewis v. New York State Department of Civil Service: Motion No. 2009-219: The Third Department affirmed the grant of health benefits to same sex partners if the marriage was legal when and where it was performed.

Theses appeals will be the first time the Court has considered these issues since its decision in Hernandex v. Robles in 2006.

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In an historic decision, a New York State Supreme Court Justice in Broome County has granted a lesbian couple a divorce. In her decision, Justice Molly Fitzgerald granted the request of Lauren Wells-Weiss to divorce her partner, Shari Weiss. The women were married in Canada in 2004. Shari Weiss was represented by Joseph Meagher. Lauren Wills-Weiss was represented by Judith Osburn.

This decision appears to be the first time a trial judge in New York has approved a same sex divorce.

I spoke with Judith Osburn today, and according to her here is what happened in the case:  Shari Weiss filed a partition action against Lauren Wells-Weiss regarding a home they shared together but which Shari bought about 3 months before the marriage.  Lauren counter-claimed for divorce.  The Court eventually determined that it would try the partition action before the divorce case and would not allow Lauren to make equitable distribution claims concerning the home.  That decision paved the way for a settlement of the divorce action.

The stipulation in the case was placed on the record orally on March 12 or 13.  The Court accepted the stipulation, and the parties are now submitting the final judgment of divorce to the Court.

I wonder what effect this decision will have on the pending actions for divorce among same sex couples, including one case I am now handling in Suffolk County. Perhaps it will be the end of the debate on the question of whether same sex divorce in New York is permissible. Or, it might be the beginning of a process which will ultimately be settled by the Court of Appeals. 

I also know that there are many other attorneys working on similar cases throughout the state.

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One of the more difficult issues faced by couples who are divorcing in the current economic environment is how to divide retirement or deferred compensation benefits, especially defined benefit plans such as a 401(k), SEP, or IRA.

New York law specifies that the ‘cut off’ date for classifying retirement assets as either martial property or separate property is the date on which a divorce action is commenced. The law also provides for a range of dates for valuing the marital portion of the account, ranging from the commencement date through the trial date.

Courts have developed certain standards for determining which valuation date should be applied to a particular asset class such as retirement and deferred compensation accounts. Under certain circumstances, the Courts may value the asset as of the date of commencement and under others it may use the trial date as the valuation point.

A problem arises in today’s economy where after the commencement of a divorce action the marital portion of the retirement assets declines in value. Disagreements arise over which party should bear the cost of that decline. Some common discussion points are:

1.                  Is the account actively managed (traded) by either or both spouses?

2.                  Which spouse is responsible for selecting the assets held in the account?

3.                  Which spouse should bear the risk of the asset declining during the time the divorce case proceeds in Court.

4.                  How are the post-commencement contributions into the account valued?

Unfortunately, there seems to be very little guidance from the Courts at this time as to how they are dealing with these issues in this new economic environment. In the absence of any definitive authority, it is extremely important for people going through a divorce to have as much factual information about their retirement assets as they can obtain and to carefully think through and negotiate this complex issue.

If you or someone you know would like more information on this topic, please feel free to contact my office.

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Finding right attorney for your family law matter requires asking specific questions to determine which attorney may be best for you. Choosing the wrong attorney may ultimately you a great deal of time, stress, and money in the end.

Divorce can be an intimidating process.  There is no area of the law which cases requires more paperwork or forms, and which involves as much raw human emotion. As a result, a divorce proceeding can be confusing, time consuming, and often, very costly financially and emotionally. As a result, choosing a lawyer may be the most important decision you make in your entire case.

Not every lawyer is a good fit for every person. You must be sure that your philosophy of how to approach and handle your case matches the temperament and practice philosophy of your lawyer. As a result, you must ask questions that reflect your specific concerns.

A good lawyer will:

-help you to understand and focus on the issues of your divorce without losing sight of the emotional nature of the proceedings;

-help you to prepare for court proceedings in advance;

-provide prompt and courteous responses to your questions;

-provide information and methods to help you reduce your legal fees.

To choose an attorney you should find more than one candidate to interview. The best way to find a good lawyer is to ask for a recommendation from someone you know and trust. However, don't just get names form your friends.  Instead, ask them detailed questions regarding the specific strengths and weaknesses of the attorneys they recommend. If you still need more prospects, you may locate a lawyer through your local bar association's attorney referral service or through an internet listing service.

Remember that finding lawyers is only the first step. A referral service simply compiles a listing of attorneys in your geographic without screening the attorneys listed for reputation or experience. You must still interview your attorney to determine whether he or she is qualified and whether his or her philosophy fits with your own.

Interviewing candidates

It is important to remember that not every lawyer is appropriate for every client. It is important that your philosophy matches that of your attorney. Nothing is worse than feeling like your interests are not being represented or that you are being bullied into a settlement. The lawyer is there to provide you with advice on the legal issues and to plan strategies regarding the presentation of the case. However, the ultimate decisions regarding the legal issues are yours alone.

Remember, it is your case!

Most lawyers will offer a free initial consultation. You should speak with the lawyers that you intend to interview in advance regarding any costs associated with your first meeting. Meeting with a lawyer may seem intimidating. To ensure that you are prepared, you may wish to make out a list of questions or points that you would like to raise in the interview. Additionally, if you have already been served legal papers, bring them to the interview along with any correspondence or other relevant documents. This will allow the lawyer to assess the potential issues in your case.

Some questions you may wish to ask include the following:

-How long have you been a lawyer?
-What is your primary area of practice?
-Do you have any other practice areas?
-What percentage of your caseload is dedicated to divorce?
-Have you handled cases with issues similar to mine?
-Do you have a heavy caseload and do you have time for my case?
-Have you handled many divorce cases in my county?
-What is the divorce process in my county?
-What are the likely obstacles and issues in my case?
-What are my alternatives in resolving the issues?
-Is there any process you would recommend and why?
-Approximately how long will the process take?
-What are your rates and how often will you bill me?
-What are the costs I can expect in this case?
-What are the legal fees I can expect in this case?
-Will the lawyer accept payments on any outstanding balance?
-How will you keep me informed of the progress in my case?
-What kind of approach do think is appropriate and why -aggressive and unyielding, or cooperative?
-Who else in the office will be working on my case and what is their rate?
-Is there anything I can do to keep my legal fees down?

Selecting your lawyer

When interviewing lawyers, you should listen carefully to the answers provided. However, equally important to assess the lawyer's personality. How does he or she make you feel? Confident? Frightened? Is the lawyer willing to spend time with you and provide answers at the initial meeting in a friendly manner? How you feel about your lawyer may affect your ability to communicate effectively with that person over emotional and highly personal matters. After each interview, assess the strengths and weaknesses of the candidate. Did the lawyer listen to you? Did the lawyer provide enough information to make you feel comfortable that he or she knew the law and procedure in your state and county? Did you feel confident?

To discuss your divorce or family law matter or schedule a free initial consultation, please call my office at 631-467-4177 or e-mail me at DavidAGabay@aol.com

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A trial judge in New York City recently ruled in Moore v. Moore that a wife seeking a divorce can use evidence of her husband’s internet activities with another woman which she found on a computer she took from her husband’s car.

The Moore’s were married in 1963, and are now retired. He was an information technology consultant and she was a school teacher.

 In Moore,  the wife took a laptop computer out of her husband’s car just before she commenced her divorce case. According to the wife’s attorney, she was searching the computer for financial information when she came upon a large number of salacious instant messages which the husband exchanged with a woman in Texas.   The wife’s attorney told the husband’s attorney she had the computer, and the parties agreed to make copies of the computer’s hard drive. The materials found on the hard drive were repeatedly referred to by the wife in affidavits submitted to the Court without objection by the husband. Eventually, the case was transferred to another judge, and the defendant moved to suppress the contents of the hard drive.

The Court denied the motion, finding that the wife die not commit a crime or otherwise violate the husband’s rights in taking the computer and copying its contents. The Court noted that the attorneys for the parties specifically agreed to copy the hard drive, and the defendant did not move to suppress the contents of the computer when the wife first bean referring to items found on the computer in at least two (2) affidavits she submitted to the Court at least six (6) months prior to his suppression motion.

The Court determined that the computer was a family computer as claimed by the wife and not a work computer as alleged by the husband. The Court also found that the taking of the computer was appropriate since it was done before the commencement of the case and the machine was taken from the family car. Finally, the Court also noted that the parties agreed in writing and through their attorneys that the computer’s hard drive should be copied and made available to both sides.

This case is another interesting example of the way in which computers and technology affect divorce and family law cases. It is also a reminder that some people will do a lot of preparation and planning prior to beginning a divorce-remember, the wife was searching for financial information on the computer when she stumbled upon the explicit instant  messages.

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In my practice, I often represent men who whose wives or girlfriends have orders of protection against them or are seeking to obtain one in Court. One of the more interesting aspects of this area of practice is explaining to my clients how orders or protection are used or abused, and how they are enforced.

I typically tell my clients that when it comes to orders of protection the police have a mandatory arrest policy: if the person who has an order of protection call the police and tells them you violated the order, the police will arrest you first and ask questions later. It’s that simple. There is no discussion, no debate, and no appeal. This policy was created and authorized by elected officials and whether you, the defendant, are guilty or innocent is at the very bottom of their list of concerns. When you get back to Court, you will be charged with either a class A misdemeanor or a class E felony, depending on how the prosecutor decides to charge the case.

Now, I have a new way of making my point to my clients. I came across this story today. A man and his ex-wife decided to remarry, but it turns out she had an order of protection against him from a prior dispute and it was never vacated. At the wedding, the groom got into an argument with a guest, and the police were called. When the police arrived, they discovered that the bride had an order of protection against the groom, and he was arrested and charged with criminal contempt for violating the order. He was charged with felony contempt has held without bail.

This unfortunate incident just goes to show how strictly police enforce orders of protection and how careful clients need to be when faced with a petition for an order of protection or an actual order.

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A recent case from the New York State Appellate Division, First Department, highlights the conflict between trying to use creative alternative billing arrangements in divorce cases and the harsh reality of the current rules governing matrimonial fee agreements.

In Sheresky Aronson & Mayefsky v. Whitmore, decided on July 8, 2008, the Appellate Division ruled that Ms. Whitmore’s attorneys could not enforce a clause in her retainer agreement relating to a ‘premium fee.’   That clause stated:

We reserve the right to discuss with you at the conclusion of your matter your payment of a reasonable additional fee to us, in excess of the actual time and disbursements, for exceptional results achieved, time expended, responsiveness accorded, or complexity involved in your case. However, no such fee will be charged to you without your consent.

The complaint filed by Sheresky against its client was dismissed as a matter of law by the trial court, and the Appellate Division affirmed the decision. The Appellate Division held that the clause violated the plain language and specificity provisions of the New York rules governing fee agreements in matrimonial cases. The Court also found that Ms. Whitmore’s oral agreement to pay Sheresky a premium fee of $150,000.00 was not enforceable because of those same rules.

By the way, Sheresky was the firm who represented Peter Cook in his highly publicized divorce case against Christie Brinkley. 

I think the Court’s decision was correct under the rules, and I also think the rules are incredibly inhospitable to success or premium fees in matrimonial matters. In order for a premium or success fee to pass muster under the rules, the manner in which the fee is to be calculated must be spelled out in clear and plain language. That is nearly impossible in matrimonial practice, because of the inherently unpredictable and volatile nature of the work. 

So, while premium fees might be welcome and appropriate in business or corporate law transactional matters or even certain types of civil litigation, they appear to be unwelcome in New York matrimonial practice.

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Tricia Walsh-Smith has lost her divorce case after the Court found that her husband, Philip Smith, established that Ms. Walsh-Smith engaged in conduct which constitutes cruel and inhuman treatment under New York Law.   A good portion of the Court’s opinion focused on the video Ms. Walsh-Smith posted on You Tube in April of 2008. The video and its effect on Ms. Walsh-Smith’s divorce case was the subject of two posts by Daniel C. Clement in his New York Divorce Report.

Despite the publicity and curiosity surrounding the video and Ms. Walsh-Smith’s unusual conduct in the case, the Court’s decision may in my opinion be ripe for a legal challenge on appeal.

My reading of the opinion suggests that the Court granted Mr. Smith his divorce in part, perhaps a large part, based on the You Tube video. However, the video was posted in April of 2008, which is well after the divorce action was commenced in October of 2007. 

The Court cannot rely on post-commencement actions by either party in determining whether grounds for divorce existed as of the commencement of the action. Either the plaintiff did or did not have grounds for divorce on the day she filed her action or she did not. She cannot ‘acquire’ grounds after the commencement of the case.

So, what will happen if Ms. Walsh-Smith appeals the Court’s ruling? Stay tuned, and we will see.

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