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

Divorce is a complicated process even under the best of circumstances. However, when your soon to be ex spouse is an attorney you can face very special challenges and problems on the way to obtaining a fair and equitable settlement or decision after trial. 

Here is a list of the top three problems faced by spouses divorcing attorneys:

1.      The Attorney is Known Throughout the Courthouse: If your spouse works regularly in Court, he or she may be well known to the Court and its staff. Even if the spouse works in a different area of the law, say criminal defense or civil litigation, judges and their staffs talk informally among themselves and Courthouse gossip is rampant. This might be the only case in a divorce setting in which the Court is familiar with one of the parties professionally but does not consider recusal. In this case, you and your attorney will have to work extra hard and be extra careful in how you handle your case.

2.        Valuation of the Law Practice: Attorneys whose spouses make a claim for a portion of the value of the law practice tend to raise the same objections time and time again: (1) that the practice has little or no value because it depends entirely on their own efforts and work, (2) that the contingent receivables can’t be accurately valued because of the uncertainties of the cases, and (3) that attorney-client privilege prevents the full disclosure of the information required to properly value the practice.  These arguments can be effectively defeated if your attorney is familiar with the specific rules and case law which govern this issue.

3.        Income “Management”: Attorneys who are planning to divorce their spouse or who know that they will be served with a divorce summons themselves use a wide variety of techniques to manage their income to their advantage. Changes to partnership agreements, decisions to reduce partnership compensation, deferral of revenue, referral and routing of work through other attorneys, and cash fees are familiar ruses designed to depress the income of the attorney and therefore lower the amount of money paid out in spousal support, child support, and equitable distribution. Like the valuation problem, this issue can be effectively countered with aggressive and thorough discovery and an understanding of how to identify and uncover income management in all of its forms.

For more information or to schedule a consultation, please visit my firm’s website at www.GabayLawFirm.com

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 Two recent changes to New York state insurance law will have a substantial impact on couples divorcing and separating. Those changes, signed into law on July 29, 2009, are:

1.    COBRA coverage will now be available in New York for 36 months.

2.    Families can now keep dependents on their insurance policies until age 29.

Of course, neither of these new laws apply to self-insured companies.

The practical effect of these extensions of insurance coverage will be to increase the value (or cost) of insurance coverage for divorcing couples, and therefore the impact and importance of insurance coverage as a issue to be considered and resolved in any divorce action.

For more information on New York state divorce law, please visit my website at www.GabayLawFirm.com

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One of the great mysteries of my divorce practice is the question of when clients decide to begin a divorce. I’ve always wondered what it is that makes any particular client decide that today, now, is the time to commence an action. I’m sure I will never understand exactly what is in my client’s mind at that unique point in time, so I suppose I’m going to be relegated to observing and commenting on what actually happens after the fact.

Here are two (2) very different experiences I’ve had with clients over the past two (2) days:

Yesterday, I met with a woman at her home for about two (2) hours for an initial consultation for a divorce. We covered a myriad of divorce topics, from the anatomy of a divorce case to equitable distribution to tax impacting settlements and post-settlement housekeeping issues. At the end of the meeting I asked how she would like to move forward with her case. She let me know she was not making any decisions right away, but that I should call her in one week.

Today, I received a call from a woman who wanted to come in to this office and discuss her options for a divorce. An hour later, we met and after a 15 minute discussion she retained me to handle her case.

The juxtaposition of these two consultations is an interesting commentary on the utter individuality of all of my clients. It also reminds me that no matter how many times I think I know which ‘box’ a case or client fits into, I’m probably wrong.

If you would like more information on New York divorce law, please visit my website at www.GabayLawFirm.com

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Gaining the required two-thirds majority by the smallest possible margin, 100-49, Vermont’s House of Representatives voted to override Gov. Jim Douglas' veto of a bill (PDF) allowing gays and lesbians to marry, the Associated Press reports. The House vote was preceded by a Senate vote of 23-5 to override Douglas’ veto.

The Atlantic’s Washington blog reports that the law will go into effect Sept. 1.

Vermont now joins Connecticut, Massachusetts and Iowa in allowing gays to marry. Iowa’s ban was lifted Friday by way of an Iowa Supreme Court ruling.

"Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago, " Dale Carpenter wrote on the Volokh Conspiracy blog.

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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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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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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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