Divorce 101

Heart Breaks, Head Aches and the Art of Equitable Distribution

Posts Tagged maintenance

Top 5 Reasons to NOT consult with a Matrimonial/Family Law Attorney

Jan 3

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

Yes, the Holidays are gone… and so is your most recent excuse for not consulting with an attorney!!!

Everyone wants to wait until after the holidays before seriously considering seeing an attorney about a divorce, or to get that increase in child support, or to go after that past due alimony.  Well, the Holidays are gone.  There’s no more excuse to hold off.  The truth of the matter is that there is NEVER a good time to deal with these major life issues.  It will be difficult if you do it in December, or after the first of the year, or the middle of June.  Feelings WILL be hurt.  Your spouse or ex-spouse or baby-daddy WILL be unhappy.  That doesn’t mean you should just live a miserable life, or let him or her off the hook for hundreds or thousands of dollars for the benefit of you or your children.

So what are my top 5 reasons to NOT consult an attorney and why are they bogus?

  1. I’ll wait until after the Holidays:   see above.
  2. I have to wait for the tax refund:  many attorneys offer free or low cost consultations; and if you’re getting divorced, you might run into problems if you grab the tax refund and use it to pay your future divorce attorney… try a credit card instead.
  3. I have to stay with him/her for the sake of the kids:  kids are resilient and remaining in a dead marriage that consists of constant unrest and unhappiness is probably grating on the kids as much as it is on you.  If it’s bad enough to consider a divorce, your kids are probably already aware there are problems.
  4. My parents/friends/neighbors/total strangers would look down on me if I got a divorce:  You are not living your life for your family or friends… you are living it for you!  Take charge of your life and throw other’s opinions in the trash where they belong.  Either get into some serious marriage counseling and address the problems IMMEDIATELY, or take the first step and call for a consult with a qualified attorney.
  5. But my spouse threatened me that he/she would take the kids/hide all the money/tell my family I’m a bad person/eat all the Cheezits in the cupboard if I got a divorce:  You should first calm down and think rationally.  It is the RARE case where one spouse gets the kids to the exclusion of the other.  It is the rare case where there is money and a reasonable good attorney cannot follow the trail to it (with the help of a forensic accountant).  It’s par for the course for your soon to be ex-spouse to bad-mouth you to anyone who will listen.  Is that repulsive?  Yes.  But you’re divorcing him or her, for the love of Pete!  Expect it.  If he or she is eating all the Cheezits to spite you, go to the store, buy yourself a new box, hide it and grin every time you munch one down (I love Cheezits!).

 

The next excuse date is tax refund time.  But I think it would be folly to wait until April or May.  Call a qualified attorney and set up a consultation TODAY!

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New York’s “No Fault” Divorce Bill

Jul 26

Posted by Charles Messina in equitable distribution, Grounds, Maintenance, Uncategorized | 10 Comments

It seems that every year, the New York Legislature tries, and fails, to pass a “No-Fault” divorce bill.

This year is no different.  There have been different versions running around the Assembly and the Senate, both known as the Divorce Reform Act of 2010 (Assembly Version versus Senate Version).

The long and short of it is this:

  1. There will be a new ground for divorce in New York (to be set forth in Domestic Relations Law (DRL) § 170 (7)) as being :”The relationship between Husband and Wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.”  This amounts to “no-fault” inasmuch as it does not require one party to prove fault on the part of the other, as has traditionally been required in New York.
  2. There is a new provision providing for the formulaic calculation of Temporary Maintenance awards amending DRL § 236-B.
  3. In order to opt-out of the statutory formula, a specific statutory waiver must be included in the order or agreement similar to that used to opt-out of the Child Support Standards Act (CSSA).
  4. There are additional considerations enumerated for the Court to look at, including one that may bring enhanced earnings claims (O’Brien claims) within the terms of the statute.
  5. There would be a rebuttable presumption that counsel fees are to be awarded to the less-monied spouse, on a timely basis, pendente lite.

So what does all that mean in English?  It means that New York State is trying to move into the 20th Century (NOTE:  the rest of the world currently lives in the 21st Century) in terms of divorce law.

The most interesting part of the proposed legislation is perhaps the formula propounded by the legislature to determine temporary maintenance (that’s alimony to the rest of the world).  The calculation goes something like this:

  1. Take 30% of the monied spouse’s adjusted gross income and subtract from it 20% of the non-monied spouse’s adjusted gross income (adjusted gross income is defined in the bill similar to the definition set forth in the CSSA).
  2. Multiply the adjusted gross income of the monied spouse by 40% and subtract from this sum the non-monied spouse’s adjusted gross income.
  3. Choose the lesser of the two sums from numbers 1&2 and that is your presumptively correct amount of temporary maintenance.
  4. The above applies up to an income cap of $500,000 (as if anyone in Western new York will need to worry about that).
  5. The duration of the temporary maintenance is to be determined by the Court “…by consideration of the length of the marriage.”  (please don’t ask, because I don’t know what that means).
  6. If the Court finds the presumptively correct amount of maintenance to be unjust or inappropriate, the Court can deviate from the presumptively correct amount by considering any or all of 17 enumerated factors and setting forth in a written Order the presumptively correct amount, the factors it considered in adjusting that amount, and the reasons why it adjusted that amount.  (The written findings cannot be waived by the Court, the parties, or the attorneys).
  7. The parties can opt-out of the presumptively correct amount in a written agreement or oral stipulation so long as it includes certain waiver language set forth in the statute.

And the question everyone is going to want the answer to:  Will this new legislation give me a change in circumstances sufficient to go back and get my maintenance changed?  NO!  The text of the bill specifically states that it will not.

One of the more interesting provisions of the bill, (in my humble opinion) is the fact that it directs the Court to consider “The contributions and services or the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker and to the career or career potential of the other party.”

This seemingly brings the enhanced earnings claims (which have been a creature of case-law under O’Brien and its progeny) into the realm of statute and with one stroke of the pen changes the nature of an enhanced earnings claim from equitable distribution to maintenance.  The biog deal here is that distributive awards are not taxable, but maintenance is includable as income to the person receiving it and deductable to the person paying it.  I’m interested to see what will become of this if the bill is ever signed into law; which brings us back to my original comments…

The State of New York still has no “No-Fault” divorce law and the Governor has not, as of this date, signed the Divorce Reform Act of 2010 into law.

Knock Knock… Whose there?

No-fault divorce… No-fault divorce who?

No-No-fault divorce in New York, that’s who!

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