New York Divorce Law Blog

HOW TO FIND AND HIRE A DIVORCE LAWYER

davidagabay@aol.com (David A. Gabay) — Thu, 11 Sep 2008 15:19:29 -0500

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

WIFE MAY USE INSTANT MESSAGE EVIDENCE FOUND ON COMPUTER IN DIVORCE CASE

davidagabay@aol.com (David A. Gabay) — Fri, 15 Aug 2008 13:17:07 -0500

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.

MAN ARRESTED FOR VIOLATING ORDER OF PROTECTION BY MARRYING EX-WIFE

davidagabay@aol.com (David A. Gabay) — Tue, 12 Aug 2008 16:07:03 -0500

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.

NEW YORK COURT FINDS 'PREMIUM FEE' CLAUSE IN RETAINER AGREEMENT UNENFORCEABLE

davidagabay@aol.com (David A. Gabay) — Thu, 31 Jul 2008 13:42:18 -0500

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.

YOU TUBE DIVORCE WIFE LOSES DIVORCE CASE: WAS COURT'S OPINION CORRECT?

davidagabay@aol.com (David A. Gabay) — Fri, 25 Jul 2008 14:41:40 -0500

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.

NEW YORK STATE LAW PERMITS FAMILY COURT ORDERS OF PROTECTION FOR PERSONS IN INTIMATE RELATIONSHIPS

davidagabay@aol.com (David A. Gabay) — Wed, 23 Jul 2008 14:58:33 -0500

On July 22, 2008, New York State Governor David A. Patterson signed into law a bill permitting the Family Court to issue orders of protection to persons in ‘intimate relationships.’

Prior to the new legislation, the Family Court had jurisdiction to grant orders of protection only to victims of domestic violence and other family offenses who were:

1. Married to or divorced from the alleged perpetrator.

2. Related to the alleged perpetrator by blood or marriage.

3. Had a child in common with the alleged perpetrator.

Under the new law, the Family Court may now issue an order of protection in favor of a person who is in an ‘intimate relationship.’ The law defines an ‘intimate relationship’ as:

Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time. Factors the Court may consider in determining whether a relationship is an “intimate relationship” include but are not limited to: the nature or type of relationship, regardless of whether the relationship is sexual in nature; the frequency of interaction between the persons; and the duration of the relationship. Neither a casual acquaintance nor ordinary fraternization between two individuals in business or social contexts shall be deemed to constitute an “intimate relationship”

The new law is intended to encompass dating relationships and couples who live together. Both heterosexual and homosexual relationships are included in the law.

This increased access to the Family Court for victims of domestic violence brings New York law into line with that of the other 49 states, all of which currently have similar provisions for orders of protection.

LESBIAN COUPLE MARRIED IN CANADA CAN DIVORCE IN NEW YORK

davidagabay@aol.com (David A. Gabay) — Tue, 26 Feb 2008 15:21:21 -0500

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.

CONTACTING VICTIM THROUGH MYSPACE VIOLATES FAMILY COURT ORDER OF PROTECTION

davidagabay@aol.com (David A. Gabay) — Sun, 24 Feb 2008 21:30:12 -0500

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.

NEW MARRIAGE AND DIVORCE STATISTICS FOR LONG ISLAND

davidagabay@aol.com (David A. Gabay) — Mon, 11 Feb 2008 21:34:27 -0500

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.

BAD DIVORCE PLANNING? FRAUDULENT CONVEYANCE ACTION BY HUSBAND AGAINST WIFE SURVIVES MOTION TO DISMISS

davidagabay@aol.com (David A. Gabay) — Thu, 24 Jan 2008 22:17:35 -0500

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.

HEAVY CASELOAD AFFECTS DIVORCE CASE STRATEGY IN SUFFOLK COUNTY

davidagabay@aol.com (David A. Gabay) — Wed, 23 Jan 2008 16:34:03 -0500

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.

HOLIDAY CHILD VISITATION ISSUES: 5 STEPS TO EFFECTIVELY MANAGE CONFLICT

davidagabay@aol.com (David A. Gabay) — Fri, 14 Dec 2007 18:50:59 -0500

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.

SIX STEPS FOR EFFECTIVE DIVORCE PLANNING

davidagabay@aol.com (David A. Gabay) — Sat, 15 Sep 2007 12:50:45 -0500

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

APPOINTMENT OF RECEIVERS TO SELL MARITAL RESIDENCE FOLLOWING DIVORCE

davidagabay@aol.com (David A. Gabay) — Thu, 13 Sep 2007 15:34:47 -0500

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.

Questions to Ask Your Divorce Attorney During Your Initial Consultation

davidagabay@aol.com (David A. Gabay) — Fri, 07 Sep 2007 18:58:16 -0500

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.

Health Insurance Disclosure Required for New Divorce Agreements

davidagabay@aol.com (David A. Gabay) — Fri, 24 Aug 2007 16:52:41 -0500

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.

New York Matrimonial Judge Garson is Alcoholic

davidagabay@aol.com (David A. Gabay) — Fri, 08 Jun 2007 12:18:05 -0500

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?

New York Divorce Judge Garson Sentenced to Prison

davidagabay@aol.com (David A. Gabay) — Wed, 06 Jun 2007 14:31:58 -0500

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.

Personal Professional Goodwill of a Single Owner Service Business or Practice

davidagabay@aol.com (David A. Gabay) — Tue, 05 Jun 2007 20:56:02 -0500

The valuation and distribution of the personal professional goodwill of a single owner service business or practice is a highly contentious issue. Personal professional goodwill is the portion of a business’ professional goodwill attributable to the presence or reputation of the owner or other key person. For example, suppose a medical practice has a goodwill value of $5 million, but that the doctor who owns the practice is a nationally recognized expert in his field. If the doctor left the practice, half of the patients of the practice would follow him to his new practice. In such a case, the personal professional goodwill attributable to the doctor is $2.5 million.

Although New York certainly allows for the valuation and distribution of this asset, the Courts have not adopted or required any particular valuation method. Therefore, the quality, credibility, and effectiveness of the appraiser, and the expertise and preparation of the attorney will be among the most critical determining factors in successfully presenting or defending a valuation of personal professional goodwill.

Valuation of a Professional Practice

davidagabay@aol.com (David A. Gabay) — Thu, 31 May 2007 22:10:15 -0500

The valuation of a professional practice in a divorce action in New York is a complex process. There are numerous legal, financial, practical, and evidentiary factors and considerations which must be identified, analyzed, and reconciled before a judge can determine the true value of a practice.

Lee Rosen, of the Rosen Law Firm in North Carolina, recently published a concise overview of the valuation process. I thought the article did a very good job of identifying all of the steps in the valuation process and identifying the different issues which need to be addressed in a appraisal of a professional practice. The process and procedure for a valuation described by Rosen is generally the same in New York.

The key to understanding how valuation is done in New York divorce actions is this: (1) there is no single required valuation method or technique, (2) the role of the expert appraiser is absolutely critical, and (3) the Court has enormous discretion in deciding what method to adopt, how to apply the method to the facts of the case, and in deciding the precise value of the practice. This ambiguity leaves a good deal of room for a competent, well-prepared, attorney or appraiser to effectively advance the client’s case.