Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged divorce

Paging Dr. O’Brien… Enhanced Earnings Claims

Nov 20

Posted by Charles Messina in Uncategorized, equitable distribution | No Comments

New York State is a funny place to get a divorce…  it is so generous!  In 1985, Dr. O’Brien divorced his wife.  Mrs. O’Brien, being the smarty pants that she was (or maybe that her attorney was the smarty pants)decided that she would seek a distribution of her husband’s newly acquired medical license in equitable distribution.  In English, she thought she should be paid for all the money the good doctor would make over the course of his working life by virtue of the fact that he got a medical license during the marriage.  Mrs. O’Brien’s theory was that she had contributed to him getting that license by cooking, cleaning, raising the kids, and generally enabling his studies and supporting him through medical school.  The New York Court of Appeals (our highest Court) bought it and agreed that a medical license is distributable in a divorce.  See O’Brien v. O’Brien.

Thee O’Brien case opened the door in new York State for enhanced earnings claims.  Basically, if one spouse earns a degree or professional license during the course of the marriage, the other spouse has a claim to some portion of the enhanced earnings capacity that flows from that degree or license.  Doctors, lawyers, nurses, licensed massage therapists BEWARE!

So what is an enhanced earnings capacity and how does this O’Brien claim work?  Well, the degree or license must first be valued by an expert.  That expert will project out from the U.S. Government mortality tables what the owner’s lifetime working expectancy is, what the projected earnings are over that lifetime, and what the projected earnings would be for a person who had a similar education prior to the marriage, but not the advanced license or degree.  The difference in the figures is the projected enhanced earnings, which is then reduced to present dollar value  (there’s a lot more to it, and it really does take an expert to value, but this simplified version will suffice for now).

OK, so the degree has been reduced to present value… now what?  The spouse is not entitled to 100% of that degree (in most cases) but probably something less than %50 of the present value.  Either the parties to the divorce settle on a percentage, or the Court will hold a trial on the matter, and determine the appropriate percentage after hearing about all the contributions of the spouses toward the degree and considering all relevant circumstances.  In the Fourth Department (Western New York, where I practice), the percentage is usually somewhere between 10-20%.  Downstate, in the New York City area (generally the Second Department) there have been some recent cases where 0-15% have been awarded.  The trend seems to be moving to awarding smaller percentages lately.

So we have a present dollar value, and we know what percentage of that the spouse is entitled to, how do we go about distributing it?  Generally, the parties will try to work out a settlement of some sort; perhaps credits against other assets, or a payment plan.  If the parties cannot work out a settlement, the full, lump sum of the enhanced earnings is due and payable immediately upon rendering of the divorce decree.  Harsh, I know.  Or a windfall, if you’re on the receiving side.  But the Courts recognize that people generally don’t have tens of thousands of dollars to just hand over, from earnings they will not realize for perhaps another 30 years!  The Court will often make the enhanced earnings award payable over a number of years (with interest).

I understand, conceptually, the logic in making enhanced earnings distributable in divorce.  I am not, however, a proponent of the concept.  Granted, some spouses do make major contributions to the education of the other, and they should realize the fruits of their labors.  But all too often, it seems that both parties are working people, one is often holding down one or even two jobs and going to school at the same time, and the majority of the effort put into that enhanced earning is due to the efforts of the degree owner.  Perhaps that is why the current trend is a decrease in the awards?  Only time will tell, but enhanced earnings is definitely an interesting and much debated topic in New York matrimonial law.

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What About the House???

Nov 19

Posted by Charles Messina in Uncategorized, equitable distribution | No Comments

In the course of a Divorce, the one asset that often causes much consternation is the house.  Who gets it?  Does it have to be sold?  Can he buy me out?  The questions are many… but so are the solutions!

The biggest asset in any marriage is usually the house.  If the parties don’t own a house, but lease or rent, there is nothing for a Court to consider in equitable distribution and there is one less thing to fight over.  But houses come in all shapes and sizes; some are acquired before the marriage by one spouse or another; some are inherited; some are purchased during the marriage.   The issues to be determined, or settled, in a divorce are:

  1. Is the house a marital asset?  Meaning was it purchased during the marriage, or perhaps improved to some extent or transferred during the marriage.
  2. What portion of the house is a marital asset?  Houses often have mortgages attached to them.  The portion of the house that is a marital asset is really the equity in the house (the value of the house less the outstanding mortgage/home equity line of credit/ etc.) which was accrued during the marriage.
  3. Is there a separate property claim to the house?  Did one spouse buy the house before the marriage?  If so, there may be a separate property claim to funds expended in the purchase of the house before the parties were married.
  4. What are we going to do with the house?  Are the parties going to sell it and somehow split the proceeds (or shortfall, under the worst of circumstances)?  Will one party buy out the equity of the other and keep the house?  Maybe an arrangement can be reached where one party remains in the house until the children reach a certain age and then the house is sold and the proceeds distributed.

These are just a few of the questions that need to be answered before any decision can be reached, by a Court or by the parties themselves, as to what is going to happen to the house.  If the house is sold and the proceeds split, the parties, or the Court, must decide whether there will be an even split, or maybe more of the proceeds will go to one spouse than the other.  Will there be credits from one party to the other for things like mortgage payments that were made after the divorce was filed that the other spouse failed to contribute to, or tax bills or utility bills and carrying costs during the divorce?

The value of the house is often a sticking point with divorcing spouses.  One party will usually want to minimize the value, if he or she is seeking to buy out the other party’s interest, and the other party will seek to maximize the value of the house to increase the buyout.  If the house is sold to a third party, the issue takes care of itself and the sale price is the value.  Certainly, issues are often raise that one party wants to sell the house to his brother for $10.00 which the other party generally will not agree to, and the Courts do entertain issues like that when considering wasteful dissipation of assets.  On the other hand, the parties can often agree to have an independent appraisal of the house done and agree to use whatever figure the house appraises at.

There do arise circumstances where one party seeks to remain in the house until such time as children are grown, or finish high school, or whatever the case may be.  The parties can agree to such an arrangement with the proceeds of the sale to be distributed at a later date.  I have personally found that local Courts would rather not Order, after a trial in a contentious matter that cannot be settled, that one party may remain in the house for a period of time.  While it is within the Court’s power to do so, and an achievable result under the right circumstances I just don’t see it happen that often.

Perhaps the most difficult obstacle to overcome in trying to reach a settlement with regard to a house is financing.  The parties may agree on the sale price, credit to one side or the other, the buyout price, and all the associated issues.  But when it comes time for one party to actually buy out the other, and transfer title from joint names to sole ownership, our country’s economic downturn rears its ugly head.  if there is a 30 year mortgage with both parties on the note, the party being bought out will not want to remain liable for the mortgage for the remaining 20 years.  The party buying out the other will have to refinance and somehow remove his or her spouse from the mortgage obligation.  While they may have been earning a total of $100,000 per year as a married couple, they each only make $50,000 as singles.  The difference, together with a less than stellar credit score can make it extremely difficult, if not impossible, to refinance the house by one party alone.  Sometimes this hurdle can be overcome if a co-signer can be found for the new mortgage, but not everyone has a relative or friend willing to go out on that limb.  With luck, the strangle-hold that lenders currently have on credit will subside a bit with time and make things easier.  For now, difficulties refinancing are a fact of life that cannot be overlooked.

There can be no doubt that dealing with a house is one challenging aspect of a divorce.  One should always seek advice of a competent attorney to provide guidance on all the potential consequences of selling, or even contemplating a transfer of the marital residence.  The factors to consider are simply too complex for the average John and Jane Smith on the street to really grasp the far reaching issues and ramifications.

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5 Questions For Your Prospective Divorce Attorney

Oct 22

Posted by Charles Messina in The 5's | 2 Comments

The worst thing in your life is currently taking place… you have been served with divorce papers.

What do you do next?  First thing, find an attorney.  Not just any old attorney.  Not your brother-in-law’s best friend from college who practices corporate law and will do your divorce as a favor.  Not the lawyer you went to with your spouse three years ago to have your joint wills drawn.  And for the love of all that is holy, don’t randomly open the phone book to the attorney pages and pick the first number you see!

You need someone to guide you through a very difficult and complex time that will definitely change the rest of your life.   First, ask around.  Have friends or relative who are divorced?  What attorney did they use?  How was their experience dealing with that attorney?  I’m certain, with 43% of marriages ending in divorce, you’ll find someone who can recommend an attorney.  If not, call your local bar association and they will be happy to recommend a competent attorney who has experience in divorce.

So you find a few names and decide to make a few phone calls.  But what do you ask a prospective attorney to find out if he or she is right for you?  I suggest the following:

  1. Have you ever represented someone in a divorce before? This may seem silly, but you need an attorney who has some experience to guide you through what could be the most important decisions of your life.
  2. Will you take my case to trial if necessary? It is amazing the number of attorneys who will be happy to file your divorce for you, and the minute your spouse puts up an objection to anything, they tell clients that they only do no-fault or default divorces and will not take the case to trial.  You need someone with the competence and knowledge to take your case to trial, if it becomes necessary.
  3. Will you be doing the work on my case, or will your associate who is 1 year out of law school? Some of the bigger firms like to pull the old “bait and switch” routine.  You meet with the big gun, who’s been doing matrimonial law for three or four decades, you sign the retainer, and the next thing you know, the big gun is gone and you got the water pistol instead.  A fresh young face straight out of law school, and you’re how he or she is going to get experience in matrimonial law!
  4. What about the fees and costs? So you’ve been presented with a retainer agreement to sign.  Does the retainer that you pay include costs and fees, or will you have to come up with those separately?  There is a filing fee with the court, cost of deposition transcripts, cost to have a process server serve the papers, motion filing fees, the list goes on and on.  Are any of those fees included in the retainer or will you have to come up with more money for them?  What is the estimate you can expect of the costs and fees?
  5. When was the last time you were in court on a divorce? Perhaps the most telling of all.  Does the attorney answer “this morning,” “yesterday,” “a few weeks ago,”  “a few months ago,” or “well, I’ve never actually been to court on a divorce before… but don’t worry, it’s no different than suing someone for a dog bite!”  I think this is rather self explanatory, so I won’t belabor the point.

There are a number of other questions you can ask a potential divorce attorney to get a feel for their level of competence.  For instance, are they a Fellow of the American Academy of Matrimonial Lawyers (AAML)? Are they a member of their state or local bar association matrimonial and/or family law committee?  When was the last time they attended a Continuing Legal Education (CLE) program having to do with divorce?  I’m sure you can come up with more on your own.

The moral of this story, is when shopping for a divorce lawyer, ask questions.  If the prospective attorney can’t answer them, or makes you feel uncomfortable, move on to someone else.

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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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