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

A New York Supreme Court Justice has ruled that a lesbian couple married in Canada can be divorced in New York. A copy of the Court’s decision will be available on Friday. 

In Beth R. v. Donna M., Acting Supreme Court Justice Laura E. Drager held that the Canadian marriage of the couple was properly recognized under New York law. Therefore, they are entitled to be divorced in New York.

Justice Drager relied upon the case of Martinez v. Monroe, a Fourth Department case which recognized the validity of a Canadian marriage. Daniel Clements’ New York Divorce Report has a good post on the Martinez case.

The most interesting aspect to this case, in my opinion, is Beth R’s claim regarding the custody of Donna M’s two children. Apparently, Donna M. did not allow Beth R. to adopt the children, although Donna did name Beth as the guardian for the children in her will. Also, the couple jointly raised the children financially and emotionally.

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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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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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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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An article by Alex Ginsberg in yesterday’s New York Post reported that disgraced former New York state matrimonial judge Gerald Garson’s stay of his sentence pending appeal was based on the fact that he is an alcoholic. His condition is reportedly so severe he will require medically supervised detoxification before going to prison.

Garson’s claim raises a number of interesting questions. Some of them are: How does a practicing matrimonial attorney deal with the cynicism which may be engendered by this new development? Can Garson’s rulings be challenged by a litigant who now claims his or her case was adversely affected by Garson’s alcoholism?   What if anything did Garson’s superiors know about his condition? How does the Office of Court Administration deal with a problem like this?  

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Disgraced former New York state matrimonial judge Gerald Garson was sentenced yesterday to 3-10 years in state prison, following his conviction for accepting favors, cash, and other goods from a lawyer practicing in his Court.  The sentence was stayed pending appeal.

The Garson case was reported upon extensively in the New York press, and he was made out to be the poster child for everything the public sees as wrong about the way matrimonial cases are handled in the Court system: callous and insensitive judges, special access for favored attorneys, decisions made without any regard for the facts of the case and the available evidence, and buying influence with a judge. 

In my practice, I spend a good deal of time explaining to my current and potential clients over and over again that the judges I appear before are for the most part decent men and women trying to do what they think is the right thing and that they are not corrupt or being inappropriately influenced by their spouse’s evil and manipulative attorney. 

I try very hard to defend the system that I work in and the people I work with because I really believe that most of the time most of the people in it are trying to do the right thing, whatever that might mean for them. Now, when a client points to the Garson case as proof positive that the Court or my adversary is corrupt or dishonest, my argument becomes a little harder to make.  

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An article in today’s New York Post reported on federal statistics showing that the divorce rate in the United States gas fallen to the lowest level since the 1970’s. While this information had first been reported over a week ago by the Post and other major media outlets, there is an interesting aspect of the article which deserves some additional attention.

The article quotes Raoul Felder as stating that he has drafted what he calls “living together agreements” for unmarried couples living together which spell out who gets what assets in the event of a break up.

This type of agreement is essentially a post-nuptial agreement for an unmarried couple. It is based on the general law of contracts and is informed (but not necessarily governed by) the Domestic Relations Law. For owners of businesses and professional practices who are living with someone to whom they are not married, these types of agreements should be considered as one way to deal with some very complex legal issues surrounding the rights of their current partner regarding the business or professional practice.

A carefully crafted ‘living together agreement’ should address the amount of money that should or could be awarded to the partner of the professional or business owner on account of the increase in value of the business or practice during term of the relationship. Also, the agreement should specify the conditions under which such a payment would be made, the method of payment, and the manner in which the payment would be calculated. In effect, this agreement would be a privately negotiated form of equitable distribution.

I am not aware of any case in New York which has interpreted such an agreement. If you know of such a case, please let me know and send me a copy of the decision if at all possible.

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