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

A New York judge recently ruled that using MySpace to contact a person covered by a Family Court order of protection is a violation of the order. In People v. Fernino, Judge Matthew A. Sclarrino, Jr., of the Richmond Criminal Court denied a defense motion to dismiss an accusatory instrument, finding that:

In this case, the defendant used MySpace as a conduit for communication prohibited by the temporary order of protection issued  by the Family Court.

The interesting aspect of the decision is that the Court noted that the contact was by means of a ‘friend request’ which the defendant sent to the victim.   The Court observed that even though the victim had the option to refuse the ‘friend request’ and not have any contact with the defendant , the mere fact that the request was sent at all constitutes a violation of the ‘no contact’ provisions of the order of protection. Unfortunately, the Court’s opinion did not reveal whether the victim accepted or rejected the ‘friend request.’

This decision is yet another example of the way in which family law practice is being affected and shaped by the internet.

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A recent article in Newsday contained some interesting information regarding marriage and divorce on Long Island. The piece notes that:

1.    In 2005, there were 7,104 divorces recorded in Nassau and Suffolk counties, and 15,444 marriage licenses issued.

2.    Between 1997 and 2005, the number of marriage licenses fell from 22, 113 to 15,444.

3.    Between 1997 and 2005, the divorce rate fell approximately 5 per cent.

4.    There are approximately 500,000.00 married couples on Long Island, according to 2006 US Census Bureau figures.

5.    Nationally, the median age for marriage is  27.5 years for men and 25.5 year for women, according to 2006 US Census Bureau data.

What can we learn from this information? I suppose we can take from these figures that couples are marrying less frequently and later in life, and that there are fewer divorces as a percentage of marriages. Whether these trends are related to each other is a subject for another day.

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I recently came across an interesting decision in a case which highlights the problems and liabilities which arise from inept or ill-advised divorce planning by business owners and their families.

The case comes from the Nassau County Supreme Court and was reported in the New York Law Journal on January 8, 2008.

The parties were married in 1996. In 2001, the wife’s father sold her all of his stock in an automobile dealership he owned  for $1.4 million. The wife made a down payment of $150,000.00, using funds provided to her by her husband, and executed promissory notes for the balance.   The husband claimed he paid a total of $785,000.00 to the wife’s father on account of the notes, and that he and his wife agreed that the shares in the dealership and certain other assets would be jointly owned by them.

Six months before filing for divorce, the wife defaulted on the notes and then transferred the shares in the dealership to her father. In the divorce action, the wife claimed she had no interest in the dealership.

The husband brought multiple claims against the wife, her father, and various corporations owned by the father and the wife. The claim which survived the defendants’ motion to dismiss was for a fraudulent conveyance in violation of Debtor and Creditor Law 276-a transfer made with actual intent to defraud a creditor.

The Court found that the plaintiff’s claims regarding the wife’s intentional default on the notes six months before commencing a divorce action, the surrender of the shares to her father were sufficient to defeat a motion to dismiss the complaint.

I wonder what advice the wife received, if any, and from whom. It appears from the decision that the planning for the divorce was clumsy at best. This case is an excellent example of the need for sound and professional divorce planning by business owners and their families.

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A recent New York Law Journal article I read reported that the average caseload for a matrimonial judge in Suffolk County was 500 cases. Since most of my current matrimonial caseload is in Suffolk County, I found that statistic interesting but not surprising. I have been counseling my clients for years on the operating assumption that a matrimonial judge has a caseload of over 350 cases. The heavy caseload of a matrimonial judge has very real and meaningful implications for litigants in the Suffolk County Supreme Court. Here are the four (4) most important tactical and strategic points which are affected by the fact that a matrimonial judge has approximately 500 cases at any given time:

1. FIRST IMPRESSSIONS ARE CRITICAL The Court will form a first impressionof you and your case. It will do so extremely quickly because it has to given the sheer number of cases it has to deal with. Once that impression is made, it will most likely remain fixed in the Court’s mind for a very long period of time. Therefore, you and your attorney must very carefully plan and consider how and under what circumstances you will initially present yourself to the Court.

2. PRIORITIZE ISSUES The Court’s caseload limits its ability to focus intently on every facet of every case. It simply does not have the time to engage in an extensive analysis of every issue, and therefore it will spend the most time on what to the Court is most important. In my experience, serious issues regarding minor children receive the Court’s undivided attention. At the other end of the Court’s attention span are cases in which there are no minor children and the only issues concern finances. In order to successfully move your case through the Court system, you must prioritize the issues in your case and focus on the most important ones.

3. APPEAR REASONABLE: Because the Court does not have the time to cover every issue in depth, it will almost always look to avoid a conflict (which takes time to resolve) in favor of a negotiated arrangement. The more a party appears to the Court to be reasonable and willing to avoid open conflict, the more favorably the Court is disposed to look kindly upon that party when it makes its decisions on matters that must be litigated.

4. BE PREPARED: Having the right information at the right time is critical to the success of your case in a Court with a very heavy caseload. The ability to quickly and accurately respond to questions from the Court and from the other side can and does influence the Court’s decision making process.

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Disputes between parents over where and with whom their children spend the holidays can be highly emotional, complex, and stressful to both parents and children. The visceral feelings associated with the holidays, the pressures on parents to provide the ‘perfect’ holiday for their children, and the incredible time constraints faced by all concerned parties combine to make resolving these problems more difficult than usual. Some of these issues will inevitably require Court intervention because the parents either will not or cannot come to an agreement by themselves.

If you find yourself in the position of having to go to Court to resolve an issue regarding child holiday visitation, following these five suggestions should help get you through your ordeal with the least amount of trouble and the best chance of success:

1.    Have multiple copies of the current visitation order or schedule: Courts, attorneys, and Law Guardians dealing with holiday visitation problems will instinctively ask for the schedule or order that is in effect. This is the baseline from which all decisions will be made concerning your issue.

2.    Ask for what you want in clear and concise language: Example: I want to take my son to see his grandparents in Florida for Christmas. The Court generally does not need to know the entire history of your relationship with the other parent.

3.    Tell the Court why it should rule in your favor: If your order or schedule gives you the right to the relief you are seeking, tell the Court the specific page or paragraph numbers which support your position. If it does not, you need to tell the Court why it is fair or right to alter the schedule in this one instance.

4.    Be Reasonable: If you ask the Court to alter the agreed upon schedule and therefore deprive the other parent of time which they are otherwise entitled to, offer to make some concession to them on another visitation issue or provide some additional time to them in the future.  If you are asking the Court to enforce the agreed upon order or schedule, and if doing so would cause the other parent some harm or problem, propose a realistic plan to make that problem as manageable as possible. A judge is much more likely to be sympathetic to a party who is attempting to be reasonable and accommodating than it is to someone it perceives to be overly rigid and doctrinaire. 

5.    Provide Advance Notice: One of the biggest challenges to handling holiday visitation issues is the lack of advance notice and planning by parents. Some of this is the unavoidable result of the conduct of one of the parents, such as refusing at the very last minute to send or receive a child or to honor a agreed to change in the schedule. But, if you know there is going to be a problem which needs to be resolved (your holiday time conflicts with the other parents regular time or your plans require the other parents consent to take the child out of the state), it is important to deal with the matter well in advance of the planned visitation. Asking a Court to deal with a problem on the eve of a holiday visitation not only greatly increases the stress on you, your attorneys, and the Court, but it also increases the likelihood that the Court will not have enough time to thoroughly consider your request and enter any appropriate orders or directives.

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Nobody marries with the expectation of failure. Couples never contemplate that the person they once loved could eventually become an adversary and an enemy. Yet, statistics paint an alarmingly bleak. Approximately 4 out of 10 marriages today end in divorce.

One of the greatest contributors to divorce is the issue of "control" - either financial or personal. Who controls the bank account? Who decides what to buy and when to buy it? When one partner to a marriage "controls", the other partner loses their sense of self. A divorce becomes imminent as the controlled partner tries to regain their self-esteem.

Here are six (6) steps you can take to protect yourself financially if you believe your marriage is in jeopardy:

1. Keep Non-Marital Assets Separate

Non-marital assets are not part of the assets divided in a divorce. Instead, they are considered the asset of either the husband or the wife and generally awarded to that person in a divorce proceeding. Categories of non-marital assets include:

• property you inherit;
• proceeds from personal injury awards (ie. Worker's compensation or accident proceeds);
• items owned prior to marriage; and
• gifts to one party rather than the family.

If non-marital assets are commingled with assets purchased or improved during the marriage, it may not be possible to claim the asset as yours in the event of divorce. However, some "tracing" of non-marital assets may be possible. For example, if a non-marital asset is sold during the marriage and the proceeds from the sale are used to purchase another asset, it may be possible to "trace" a non-marital interest in the new asset. For example, if a car owned before a marriage is sold during the marriage and the proceeds used to purchase a new vehicle, a party may be able to claim a non-marital interest in the new vehicle. To do so, it is very important to retain all documents demonstrating the sale of the asset and the use of the proceeds realized from the sale.

2. Establish Your Own Credit

Make sure your name is listed on all household accounts and investments. Establish at least one credit card in your own name. This will help to create an individual credit history. When you are on your own, you will have a better chance qualifying for loans, mortgages and credit cards. These are all important considerations after a divorce.

3. Review Your Financial Holdings Regularly

Maintain complete and separate records of your financial holdings such as bank accounts, IRA's, 401K, land purchases, and stocks. This includes assets in your spouse's name as well. You may wish to maintain copies of these records at your place of employment or in a safety deposit box in your name. Records have a way of disappearing after a divorce has been started.

4. Time Your Divorce

The timing of your divorce may carry with it a significant financial impact. For example, in a single income family, the non-working spouse may not have earned enough money to qualify for Social Security at the age of retirement. However, if spouses are married at least 10 years and don't remarry, the non-earning spouse may qualify for Social Security benefits based on the ex-spouse's earnings when both reach the age of 62.

5. Close Joint Accounts

If a divorce is imminent, you should immediately contact joint-credit-card companies in writing to freeze or cancel your joint accounts. You do not want to be responsible for your spouses' new credit card charges, particularly when those charges may include attorney's fees. This protects your credit. It is important to remember that, although a creditor may freeze a joint account, the outstanding balance must be paid off before the account can be closed.

You may also wish to close your joint bank accounts. If any proceeds are removed, keep a carefully accounting where the money is placed or how the proceeds are spent. You will undoubtedly be asked for that accounting as part of the divorce process. You can save yourself time and money by keeping accurate records.

6. Hire an Experienced Divorce Lawyer

It may be very important to hire a good lawyer early in your divorce planning process. An experienced attorney can help you avoid mistakes that could later cost you in your divorce proceeding. There are many lawyers to choose from so it is important that you ask important questions in order to choose one that is knowledgeable and right for you. Ask about their experience in family practice and specifically divorce. Ask the attorney to explain the legal issues as well as the legal process in your particular county.

For additional information on divorce planning, visit DivorceNet.com or DivorceSupport.com

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A common provision in many divorce agreements is that the former marital residence will be sold upon certain terms and conditions and the net proceeds of the sale be divided between the former spouses. Many times, however, the parties cannot manage to cooperate in the sale of the house or one party decides not to honor the terms of the agreement and refuses to participate in the sales process.

When these disputes, one party will often ask the Court to enforce the terms of the divorce agreement. One tool available to the Court is an order appointing a receiver to sell the home. A receiver is an agent of the Court who is empowered by Court order to effectuate the sale of the home by those means authorized by the Court.

The costs of the receiver (commissions, legal fees for the receiver’s attorney, decreased sale price) are allocated between the parties by the Court. If the Court finds that one party is particularly at fault in the dispute over the sale of the home, it can require that party to pay all of the costs associated with the receiver.

In Lutz v. Goldstone, the New York State Appellate Division, Second Department, approved the appointment of a receiver. However, it found that both parties were sufficiently at fault so that they each were charged with one-half of the cost of the receiver. 

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The first meeting between you and your prospective divorce attorney is critical. As a lawyer, I want to know as much as possible about a potential new client’s life and background, as well as the circumstances which bring him or her into my office for advice or representation. One of the ways I use to get to know and understand the man or woman sitting in my office is by listening very carefully to the questions they ask me. The questions themselves tell me a great deal about the type of person sitting in my office, and what he or she knows or thinks they know about their spouse, children, and the law.

From a client’s perspective, questioning a potential divorce lawyer during the initial consultation is a wonderful way to evaluate the lawyer and help decide whether he or she is a good fit for your particular case.

Here is a link to an interesting article about choosing a divorce attorney written from the client’s point of view.

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Daniel Clement’s blog has an interesting item regarding a new medical insurance disclosure requirement for New York state divorce agreements and judgments. The law mandates that all divorce settlement agreements contain specific language advising the parties that they may lose their health insurance as a result of the entry of a judgment of divorce.  The law requires the Court to ensure that the statutory language is contained in the agreement. The law takes effect on November 1, 2007.

This new law is, in my opinion, completely unnecessary and will do nothing but cause confusion and delay in the resolution of divorce actions for several months while the Courts and matrimonial attorneys update their forms and procedures to accommodate the additional language. 

In my experience, I have never had a cause where a party was unaware that he or she would lose his or her health insurance after a divorce was finalized. In fact, for many of my clients the questions surrounding the loss and cost of health insurance after a divorce were a major point of negotiation and contention.

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