Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged custody

Who Gets the Dog After the Divorce?

May 7

Posted by Charles Messina in equitable distribution, pets | 5 Comments

Who Gets the dog when couples split?

In New York State, as in most others, pets are generally considered to be property, and are treated as such.  This means that in the course of a divorce, the pet is valued and split between the parties in Equitable Distribution.

But what does that mean?  In plain English, there won’t be any doggy visitation schedule set down.

The dog will go to one of the parties, or it will be sold and the proceeds of the sale split between the parties.  If the dog was an adorable mutt rescued by the ASPCA and adopted by the formerly happy couple, there probably will not be much value to be split.  If the little doggie is a purebreed, or maybe a Spudz McKenzie, the dog could be worth a considerable sum! In these cases, the dog must be valued, and if one party is going to keep the dog, that party must buy out the other party’s interest in the dog. So if Spot is worth $20,000.00, and Molly is going to keep Spot, Molly is going to have to cough up $10,000.00 to Fred in the course of the divorce (assuming there is no reason to unequally split the value of Spot).

The same holds true for the award winning Gila Monster, the Siamese Cat, and even Joe the Gerbil. But the reality of the situation is that the Courts don’t put much of a value on pets, with the exception of extraordinary circumstances. And if a party wants to value a pet, and the other party does not agree with that value, an expert will have to be retained to testify as to the value of the animal. Now, if the pet means so much that the issue of who gets to keep the pet goes to a trial, I can tell you from experience that judges HATE these types of issues and will do just about ANYTHING to get out of sitting through a Hearing about how much you love Fluffy and your soon-to-be-ex refused to do the kitty litter.

As usually holds true in a divorce situation, attempting to settle the matter between the parties is the best course of action for all involved.  Though Judges are bound to hear all the testimony, and review all the evidence about who should get Fido (and I am sure Judges do their level best to make the decision the he or she feels is right), the Judge could be going back into chambers and flipping a coin for all I know!  Why risk it?  Make and agreement and settle the issue yourselves.

 

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Some Good Advice

Nov 16

Posted by Charles Messina in Uncategorized | 1 Comment

I was just over at Pieter Weinrieb’s blog and he give some good advice!
Divorce in the Digital Age

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Amy Winehouse got her will right- MSN Money

Jul 28

Posted by Charles Messina in Uncategorized | 5 Comments

Amy Winehouse got her will right- MSN Money.

 

Amy Winehouse Photo

 

As unlikely as it may seem, Amy Winehouse was pretty savvy about her estate planning!  She had recently had her will updated, and her bounty will be disposed of according to her wishes, thanks to good legal advice and her own willingness to address an issue that we all face, and all hate to think about.

 

Divorce can have a huge impact on your existing will.  There are several different possible outcomes depending on whether one was to die during the divorce, right after the divorce without an updated will, right after the divorce with an updated will etc.

 

A question I often run across is whether a divorced parent can put in his or her will, that the ex-spouse is not to have custody of their children for one reason or another.  What do you think the answer is?

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5 Myths About Divorce in New York

Oct 17

Posted by Charles Messina in The 5's, Uncategorized | 1 Comment

There are a lot of misconceptions about Divorce in New York State.  People hear things from their brother in Pennsylvania, and their old friend from high school who got divorced 10 years ago, and are willing to take their word for it on how things will work out.  Here are a few common myths and the lowdown on how things really work:

  1. The Mother always gets the kids:  Not quite.  In New York, there is no preference for the Mother to have custody of the children over the Father.
  2. The Father has to pay child support no matter what:  Actually, the non-custodial parent generally pays child support to the custodial parent.  If the Father is the custodial parent, barring certain additional considerations, the Mother will often be required to pay child support to the Father.
  3. If we get divorced, my spouse gets half of everything:  Actually, New York is an “Equitable Distribution” state, not a “Community Property” state.  This means that assets and debts are distributed according to what is “equitable” not just a quick division of half.
  4. I can get a divorce for irreconcilable differences:  No you can’t.  There are only certain grounds for divorce in New York and irreconcilable differences is not one of them.
  5. At least  my pension is safe, my spouse can’t get to that:  Wrong.  A pension accrued during the course of a marriage is considered marital property to the extent it was accrued during the marriage.  Pensions are often distributed in a divorce by way of a QDRO (Qualified Domestic Relations Order).

In New York, the courts generally want to do what is fair, or equitable between the parties in a divorce.  Sometimes old myths prove true, though usually not for the reasons that one might think.  New York is still stuck in the age of the dinosaurs in some respects (like no “no-fault” divorce statute) but is rather progressive in others.  I personally think that equitable distribution is a more equitable way (pun intended) to distribute property and debt than everyone taking half, regardless of whether they ran up a $50,000 credit card bill 2 months prior to filing for divorce.

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Intro to New York Courts

Oct 9

Posted by Charles Messina in Intro to, Uncategorized | No Comments

This is my first foray into the world of blogging!  Go me!

I’m going to try to address this blog toward developments, issues, and oddities of matrimonial and family law in the State of New York.  It’s an ever changing field, sometimes on a daily basis.  Now you may be asking, “who the heck are you and why are you blogging about New York matrimonial and family law… and what exactly is matrimonial and family law?”  Those are good questions!

I am Chuck Messina, father of 2, husband of 1, mediocre hockey player, and attorney extraordinaire (licensed in New York).  I live in Buffalo New York, and I have had the privilege of working for some of the finest matrimonial and family law practitioners around.  I enjoy my chosen field, though it is not for those with a weak stomach, and I genuinely enjoy talking about it.

Matrimonial law is, generally speaking, the law of divorce, and all that goes with it.  This field encompasses grounds for divorce, equitable distribution of property (and debts, to the chagrin of many), custody of children, visitation issues, child support, spousal maintenance and all ancillary matters.

Family law kind of goes hand in hand with matrimonial law.  Family law runs the gamut from paternity, custody and visitation, to family offenses, PINS (Persons In Need of Supervision) Petitions right through adoption, child support and guardianship.

In New York, only the Supreme Court (our trial level court) has jurisdiction to hear a divorce proceeding.  The Supreme Court is a court of nearly unlimited jurisdiction and can hear controversies in regard to any matrimonial or family law issue.

On the other hand, the Family Court is a court of limited jurisdiction.  It may only hear matters that are specifically set forth in the New York State Constitution, or a relevant statute, such as the Family Court Act.  Family Court may not, for instance, hear an action for divorce.

With regard to certain matters, the Supreme Court and the Family court have concurrent jurisdiction.  This means that both courts are able to hear matters, such as custody of a child, or child support matters.

I think this is a good first step in my blogging career, and I hope it provides a little insight into the court system in New York State for those lacking familiarity with it.

Next up, the New York Domestic Relations Law (DRL) and the Family Court Act (FCA), recent changes and new requirements.

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