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

I was in Court a few days ago representing a woman whose teenaged son left her home to go live with his father. Several months after the son moved in with his father, the father filed petitions in Court to change the legal custodial arrangement and end his child support payments.

My client was very upset that her son moved out, and to this day does not understand what happened to lead her son to leave. She apparently loves her son very much and wants to understand what went wrong and repair her relationship with him. She did not want to litigate the case in Court and go through the acrimony of a trial with her ex-husband.

Now, it turns out that she had a way to force the dismissal of her ex-husband’s case and move the matter out of Court and into the hands of a professional mediator. It was a strategy that I identified and developed for her and for which there was no possible defense her ex-husband could use to keep his case in Court.

When we arrived in Court and I presented my argument to the Court, the Court was incredulous. So was my adversary. The legal argument was a winner and I fairly easily won my motion to dismiss the case. But the Court and my adversary were apparently both dumbfounded by my client’s decision to win her case on legal grounds and get out of the Courthouse.  Why? Because, in their eyes and from their vantage point, it was not ‘practical.’ Why not? Well, in their eyes, even though my client won the battle, she would lose the war because the father would come back and refile at a later date. When he did so, he would surely prevail. So, according to the very ‘practical’ judge and my adversary, this successful plan of mine only delayed the inevitable, which made no sense at all to them.

To my client, however, that was exactly the point of dismissing the case. It was to get the case out of Court and to a mediator. She wanted the delay, and wanted it very much. Not for its own sake, but to get a chance to deal with her son and her ex-husband in a non-confrontational and helpful setting. From her perspective, this was the practical thing to do.

What is the moral of this story? Divorce law cases are all about perspective and point of view. What seems rational and reasonable to one side appears to be obstinate and confrontational to the other. If you know and accept this, you can use this information to help get through a complicated divorce easier and with less cost in terms of time, money, and energy.

For more information about divorce in New York, please visit my website at www.GabayLawFirm.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 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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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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