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What Does It Cost to Get a Divorce in New York?

Thu, 14 Nov 2019 11:25:07 GMT

What Does It Cost to Get a Divorce in New York?

If you are contemplating ending your marriage, one of the things that might concern you is the cost to get a divorce in New York. You may have heard that it costs much more to obtain a divorce than it does to get married. For some couples, this statement could be true. However, for some couples, it could cost much less to get a divorce than it did to plan a wedding. It all depends on the circumstances. Before deciding that you cannot afford to get a divorce, try talking to a New York family law lawyer . You may be surprised to realize that divorces in New York can be affordable.

What Causes a Divorce to Cost More?

Three main factors contribute to the cost of a divorce:

Whether you and your spouse can agree to an uncontested divorce action;
The complexity of the issues related to your divorce; and,
The attorney you hire to represent you in the divorce action.

A simple, DIY uncontested divorce action will cost a minimum of $335 in court fees. You may also incur other costs, including copy fees, certified mail fees, and travel costs. While some individuals may be able to complete the process for an uncontested divorce themselves, it does require the ability to complete the paperwork and understand the court rules regarding service of process and court hearings. Some individuals are not comfortable handling these matters because they fear they could make a mistake that would result in their case being dismissed.

Unfortunately, a simple uncontested divorce can quickly turn into a costly and time-consuming disaster if your other spouse decides that he or she does not want to work with you to resolve divorce matters fairly and reasonably. Before you fully understand what is happening, your spouse may have a skilled, experienced New York divorce lawyer handling the matter. Therefore, before you begin the process of a DIY uncontested divorce, it may be in your best interest to discuss matters related to your divorce with an attorney.

How Much Do Lawyers Charge for Divorces in New York?

One of the largest costs of a divorce is the fee for your attorney. Each divorce lawyer charges fees based on his or her experience. Attorneys also base their fees on the complexity of the case. Some attorney offers flat-rate divorce fees while others may charge by the hour. In some cases, a law firm may offer both types of fees depending on whether the case is an uncontested divorce action or a contested divorce action.

Choosing the least expensive attorney for your divorce may not be your best option. The matters settled in your divorce can have long-term consequences. Matters related to custody, child support, property division, and alimony can impact your life for decades. Having an experienced lawyer protecting your best interests can help you move on with your life with the financial support you need for your children and yourself.

Contact a New York Divorce Lawyer to Discuss Your Options

When you are ending your marriage, it helps to have someone to guide you through the process who understands the system and is a strong advocate. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today. Our New York family law lawyers provide support and guidance, in addition to legal advice.

Making Sense of Divorce Paperwork: What Documents Are Needed?

Mon, 11 Nov 2019 02:57:15 GMT

Making Sense of Divorce Paperwork: What Documents Are Needed?

It is often said it is easier and less costly to get married than to obtain a divorce. In some cases, this might be true. However, New York is one of the rare states that try to help individuals who want to get an uncontested divorce do so without the necessity of hiring an attorney. The state tells you what documents are needed and where to file your divorce forms. However, it does not offer legal advice. The court’s websites related to uncontested divorces state numerous times that divorce cases can be complex and it is wise to seek the advice of a New York family law lawyer.

Documents Needed to File a DIY Uncontested Divorce in New York

Again, we strongly encourage everyone to seek legal advice before proceeding with a divorce. However, if you decide to proceed with a divorce without a lawyer, you can do so by accessing divorce forms through the New York Courts website. The New York State Unified Court System has free instruction booklets and forms available online for individuals beginning a divorce action.

The court also provides detailed information about a DIY uncontested divorce for individuals with and without minor children under 21 years of age. The court advises users of the DIY uncontested divorce system to file several forms with their County Clerk’s Office, including but not limited to a summons and complaint. However, the court also notes that County Clerks may require additional forms and documents. You must also pay the required filing fee and serve the filed forms on your spouse.

Should I File a DIY Divorce in New York?

As experienced divorce lawyers, we would advise anyone to speak with an attorney before deciding upon a course of action. A quick review of the instructions for the DIY forms might convince you that you need an attorney to file a divorce action. The above forms are the forms required to open a divorce action. There will be many other forms related to custody, support, and property division that might be required in your case.

Completing divorce forms can be stressful, especially when you are unfamiliar with legal terms and divorce laws. Filing divorce forms without an attorney can also result in an outcome that you did not intend or do not want. While New York uncontested divorce laws might be less complicated compared to the divorce laws in other states, the laws can still be difficult to understand. A simple mistake in interpreting a law or rule could result in the loss of alimony, property, or custody.

Contact a New York Divorce Attorney for Guidance and Support

Before you consider filing divorce documents without an attorney, consider speaking to a New York divorce attorney about your case. Get the facts about your legal rights and your options regarding divorce, domestic support, custody, child visitation, and property division from an experienced lawyer. Do not risk that important decisions and steps could be overlooked because you were unaware of rules or divorce laws that might significantly impact your finances, family, future, and well-being.

Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.

Ten Things You Should Know About Fathers' Rights in Divorce

Mon, 14 Oct 2019 09:44:06 GMT

Ten Things You Should Know About Fathers' Rights in Divorce

Both mothers and fathers play important roles in their children’s lives. In most cases, an ongoing, close relationship with both parents is beneficial for the child. Fathers have the same rights as mothers, even if they are divorced or never married the mother. However, some fathers are required to hire a New York child custody lawyer to help them protect their parental rights.

Ten Facts About Father’s Rights in New York

1. Fathers can petition for custody of their child with a divorce proceeding or as a stand-alone action. Neither parent receives preferential treatment during a custody case. The court does not automatically favor one parent over the other.

2. Without a court order determining custody, both parents have an equal right to keep the child with him or her. However, if the parents do not agree on where the child should live, the court will decide custody based on the child’s best interest.

3. New York cannot decide custody matters unless the court has jurisdiction over the matter. For the court to have jurisdiction, the child may have lived in New York for the six months before the custody action is filed or must have been born in New York, if the child is under six months old. There are a few very limited exceptions for extenuating circumstances.

4. A child’s preference for which parent he or she desires to live with can be considered by the court. However, the court is not required to give the child’s preference weight based on a certain age. The court continues to make custody decisions based on the child’s best interest,

5. A father can petition to the court to change custody if a significant change of circumstances occurs that can impact the child’s best interest. For example, a mother moves in with another person who has been arrested for and convicted of domestic violence. The court might consider this factor as a substantial change to revisit custody.

6. Fathers do not have automatic custody or visitation rights. If the parents were not married at the time the child was born, or they signed an Acknowledgment of Paternity, the father would need to file a petition requesting that the court order paternity tests to determine if the father has legal standing to file a custody and visitation case.

7. Frequent visitation is encouraged so that parents have a meaningful and ongoing relationship with their child, including fathers.

8. Mothers cannot refuse to allow court-ordered visitation with the child, even though a father may be behind on his child support payments.

9. If the father has a court order granting him custody of the child, the mother cannot take the child or refuse to return the child after visitation. A mother who does this can be charged with kidnapping and other charges.

10. Fathers who have shared legal custody of their child are entitled to participate in legal decisions regarding their child. Examples of areas that a father has a voice regarding his child include education, medical care, religious upbringing, and extracurricular activities. If a mother attempts to make unilateral decisions for the child that the father opposes, the father may have legal standing to petition the court for assistance.

Contact a New York Child Custody Attorney for More Information

If you are concerned about your child’s well being, talk to a New York divorce attorney about your legal options. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York child custody lawyer today. You may have legal standing to petition the court for relief such as granting you full legal custody or shared legal custody of your child.

Divorce Announcements: How, When and Why

Wed, 09 Oct 2019 09:50:50 GMT

Divorce Announcements: How, When and Why

Can someone find out you filed for divorce even if you have not told anyone, including your family? Yes, there is a chance that someone could discover you are divorced because New York divorce records are public. Unless the court has good reason to seal the records, the public can read your divorce decree. Therefore, someone could discover you are divorced even if you have not decided to share that news with someone.

In many cases, the news that you are getting a divorce is known long before the divorce is final. Even before you are ready to talk to a New York divorce lawyer , your spouse might spread the news that you are separated. Rumors of separation often lead to conclusions that a couple is getting divorced.

Maintaining Control of the Announcement

If your spouse has not posted your pending divorce on his or her social media page yet, you are still in control of how, when, and why you share the news of your divorce. It would be helpful if you and your spouse could agree when and how to tell everyone you are seeking a divorce.

If your spouse is not cooperating, being the first to tell family and friends about the divorce allows you to be in control of the how and when. You might want to inform them in writing, so you don’t have to face questions in person or by telephone. However, if you break the news of your divorce online or through text, you are likely to receive calls regardless. At the very least, people will return your message and ask questions.

Answering Unwanted Questions About Your Divorce

Unfortunately, when you tell everyone about your divorce, people will ask questions. They will want to hear all the details. Even well-meaning friends may not understand that you just do not want to discuss the divorce or your soon-to-be ex-spouse. How do you deal with questions about a topic you do not wish to discuss?

You cannot stop the questions no matter what you do. Therefore, give some thought to how you want to respond to questions before you tell everyone about the divorce. Plan what you want to say and how you want to say it. People want details, but those details are private. Developing a general response to questions that you can rehearse in advance can help you deal with unwanted questions.

You may want to express your appreciation for the person’s concern and support for you and your family during this time. Follow your expression of gratitude with a polite but firm statement that you hope the person can respect the need for privacy while you and your family deal with this matter. Most people understand that statement and leave the matter alone. For those who continue to ask questions, you might need to develop a strong response that states outright you do not want to talk about the divorce.

Contact a New York Divorce Attorney for Help

Going through a divorce can be challenging in many ways. You do not need to go through the divorce process alone. A New York divorce attorney provides the legal advice you need to protect yourself and your child, but your attorney also provides the support and guidance you need throughout the divorce process. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.

5 Things You Can Do to Prepare Yourself for Divorce

Mon, 16 Sep 2019 10:11:08 GMT

5 Things You Can Do to Prepare Yourself for Divorce

It may be impossible to be completely prepared for a divorce. However, there are certain things that you can do to prepare yourself for the divorce process. Working with a New York family law lawyer who has experience handling divorce cases is one of the best ways to prepare for divorce. Below are five other things that you can do now in anticipation of beginning divorce proceedings.

1. Learn about your legal rights and your options

It is not dishonest to meet with a family law attorney as soon as you contemplate a divorce action. Preparing for divorce protects you, your children, and your future. An attorney can give you valuable insight into New York divorce laws, your legal rights, and options you have available to you for obtaining a divorce.

2. Make copies and get organized

It is best to have as much information and documentation in your possession as possible before you announce your intention to seek a divorce. You never know how your spouse may respond to the news that you want to end your marriage. Some spouses react by destroying documents, especially if they believe those documents could be used against them or if destroying the document may make the divorce more difficult for you. Therefore, it can be very beneficial to make copies of important documents and records that you and your attorney will need to prepare for the divorce. Examples of documents that you want to have in your possession include:

Your original birth certificate, Social Security card, passport, and other personal identification
Copies of income tax returns, single returns, joint returns, and business returns (even if your name does not appear on the returns)
Copies of income documents for you and your spouse, including W2s, paycheck stubs, retirement accounts, etc.
Copies of bank statements, mortgage statements, stock accounts, credit card statements, and all other financial accounts
Copies of real estate appraisals, financial statements, and other evidence of the value of your separate and joint property
Copies of any emails, text messages, and other evidence of wrongdoing
Copies of life insurance policies and other insurance policies

3. Make a financial plan for yourself

If you did not handle the finances during your marriage, you need to get up-to-date on your financial situation quickly. You can't divide your assets and debts unless you know what there is to divide.

You also need to make a financial plan for yourself to minimize any financial hardship or struggle after separation and divorce. It can be helpful to have two financial plans — a financial plan during the divorce and a post-divorce plan. Create a household budget based on your income alone so that you know what you can afford and how much support you might need to pay for basic living expenses for you and your children. A budget also helps you find an affordable place to stay if you are not remaining in the marital home.

4. Put a team together to protect you and your children

A divorce team can help you deal with the emotional, financial, and legal aspects of separation and divorce. Some individuals may need several professionals to assist them with various aspects of the divorce, but that is not the case in every situation. An experienced divorce attorney should be high on the list of professionals you want to consult regarding your divorce. Other professionals that might be helpful to have on your divorce team, depending on your circumstances and needs, including a financial planner, child psychologist, therapist, divorce coach, appraiser, and realtor.

Additionally, you also want to surround yourself with a personal support system of friends and family who can help you when necessary and lift you up emotionally throughout the divorce process.

5. Minimize the impact of the divorce on your children

Divorce affects children emotionally and financially. The children’s lifestyle, physical residence, school, and social activities may change during and after the divorce. Whenever possible, the details of the divorce should not be discussed when children can overhear. While you want to be honest with your children, some details of the divorce do not need to be discussed. If possible, work with your spouse to formulate a parenting plan that minimizes the impact of the divorce on the children. In some cases, it can be helpful to have a mediator to help facilitate productive discussions regarding matters related to your children.

Contact a New York Family Law Attorney for More Information

There may be additional steps you should take to prepare for a divorce. A New York family law attorney can discuss the specific details of your situation with you to formulate a plan that gives you the best chance of obtaining the outcome that you desire. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.

Changing Your Name After a Divorce - Should You Do it?

Wed, 11 Sep 2019 10:24:45 GMT

Changing Your Name After a Divorce - Should You Do it?

Are you going through a divorce or considering a divorce? If so, changing your name after a divorce may or may not be important to you. A New York family law lawyer can discuss the issues related to changing your name after a divorce in more detail. Below is a summary of some things you may want to consider and discuss with your attorney.

How to Change Your Name After a Divorce in New York?

If you decide to change your name after a divorce in New York, there are several things you need to know before you begin the process of a legal name change. First, you cannot change your name to a name that you have never used. You can only change your name to a name that you used before the marriage. Any other name change requires a separate legal action.

You need to gather several documents before you begin the process to change your name. In most cases, an individual needs a certified copy of the New York divorce decree; proof of identification, such as a valid passport, driver’s license, or state identification card; and, proof of age, such as a birth certificate or adoption decree.

Before you take steps to change your name on various legal documents and accounts, you need to review your divorce decree. If the divorce decree does not include a provision that grants your name change, you may need to petition the court to modify the divorce decree.

If the court does not agree to modify the divorce decree, you will need to petition the court for a change of name. A change of name petition is a separate legal action to your divorce. Therefore, it is helpful to give thought to the question of whether you want to change your name after a divorce before divorce is final. It is much easier, quicker, and less costly to change your name after a divorce in New York if you and your divorce attorney ensure that the divorce decree contains the specific provision permitting a name change.

Do You Want to Change Your Name After the Divorce is Final?

Some women prefer to return to the use of their maiden name or another legal name they used in the past after their divorce is finalized. There are many different reasons why a woman would want to resume her maiden name or another name after the divorce.

If the marriage and divorce were emotionally painful or volatile, a woman might wish to remove all reminders, including the use of her married name. In some cases, a marriage is short and a woman prefers to resume the use of her maiden name because she does not identify with her married name. Because each person is different and each situation is unique, choosing whether to change your name after a divorce is a personal decision only you can make.

However, it is important to note that in some cases, changing your name after a divorce can be time-consuming, frustrating, and costly. If you have been married for many years, it is likely that most, if not all, important records are in your married name. Changing your name could cause confusion and problems in the future.

Just a few of the important agencies, institutions, and other parties that you need to notify of a name change include:

Social Security Administration
Internal Revenue Service
United States Postal Service
Department of Veteran’s Affairs (if you were a member of the armed services)
Department of Motor Vehicles
Healthcare providers
Insurance companies
Holders and managers of retirement accounts
Financial institutions, banks, and creditors
Schools, including your children’s schools
Employers

You also need to obtain new documents to reflect your name change, including a driver’s license, Social Security Card, and a passport. Many of the above companies and entities require these documents as proof of your name change.

For some individuals, changing their name after a divorce is not worth the time and effort involved in making the change. For other individuals, the change of name is well worth any effort necessary to effect the change.

Contact a New York Divorce Attorney for More Information

If you are contemplating a divorce, a New York divorce attorney can help you choose the best option for your situation. An attorney can also ensure that elements such as a change of name clause in the divorce decree are not overlooked. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.

Can I Have a Divorce Decree Modified?

Thu, 15 Aug 2019 10:41:42 GMT

Can I Have a Divorce Decree Modified?

Most individuals who go through a divorce never want to step back into a family court hearing room again. However, circumstances may arise that require you to request a modification of your divorce decree. A New York divorce lawyer can advise you whether the court is likely to grant a modification of the divorce decree and the steps involved in filing a motion and requesting a hearing.

Reasons for Requesting a Divorce Decree Modification in New York

Modifications of divorce decrees are not common, but they do occur. Various life events or changes in circumstances may necessitate changing the terms of the original divorce decree. To change the terms of a divorce decree, you must prove to the court that a substantial change in circumstances has occurred that would warrant the court modifying its original ruling in your divorce case.

Most modifications of divorce decrees deal with child custody and domestic support. Some instances that might give rise to a modified divorce decree include:

A significant increase or decrease in a party’s income that can impact child support or spousal support payments
A parent is being transferred or desires to move
A change in a child’s needs that warrant changes in visitation or custody.
A party becomes ill and is unable to work
One of the parties loses his or her job
Allegations of abuse or neglect
The party receiving alimony payments gets remarried or is living with someone

There are a variety of situations that might give rise to a motion for modification of the divorce decree. If you believe you have a valid reason to modify your divorce decree, you should speak with an attorney. Verbal agreements between parties to modify the terms of the order are not enforceable under the law. One party may agree to the terms for a period and then suddenly change his of her mind. It is best to go through the proper procedure to request a court-ordered modification of the divorce decree if you have sufficient grounds for the modification.

Proving a Modification of the Divorce Decree Is Justified

The party filing the motion for modification has the burden of proving that a change in the divorce decree is warranted. Judges are not likely to grant a motion to modify without extensive documentation and other evidence that proves a substantial change of circumstances. The standard to determine what constitutes a “substantial” change in circumstances can be different based on the facts relevant to the case.

For instance, losing your job because your employer is downsizing may not be considered a “substantial” change in circumstances to justify decreasing support payments because you can likely find another job within a reasonable period. However, losing your job because you developed a condition that will result in permanent disability should qualify as a “substantial” change in circumstances.

Contact a New York Divorce Lawyer if You Have Questions

It can be difficult to know whether your specific situation justifies a modification of your divorce decree. For most individuals, any change in circumstances seems substantial. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today. Our New York family law attorneys can review the facts in your case and advise you of your legal rights and options regarding the modification of a divorce decree.

How Do I Start the Divorce Process?

Mon, 12 Aug 2019 10:57:00 GMT

How Do I Start the Divorce Process?

If you are ready to begin the divorce process, there are two important things that you need to know. Before beginning the divorce process, you need to meet the state residency requirements for divorce in New York and have at least one ground for divorce. If you do not meet the residency requirement or have a ground for divorce, you may need the assistance of a New York divorce attorney to determine if you can file for divorce in New York.

What Are the Residency Requirements and Grounds for a Divorce in New York?

There are several ways to establish residency for a divorce. If a couple lived in New York continuously for two years, they meet the residency requirement. The residency requirement is met if either of the spouses lived in New York for at least one year and resided in the state as a married couple, were married in the state, or the grounds for divorce occurred within the state. There are seven legally acceptable grounds for divorce in New York:

Adultery
Divorce After a Legal Separation
Divorce After a Judgment of Separation
Abandonment
Inhuman and Cruel Treatment
Imprisonment
No-fault Divorce (the irretrievable breakdown of the marital relationship for at least six months)

Filing for an Uncontested Divorce in New York

If you meet the above requirements, you should be able to file for an uncontested divorce without any issues. Both spouses must agree to all issues regarding the divorce to file for an uncontested divorce. The basic steps in the divorce process for an uncontested divorce are:

Filing a Summons and Complaint with the court with the payment of the filing fee.
Serve the defendant (the spouse who did not file the petition with the court) with a copy of the Summons and Complaint.
The defendant may respond to the complaint by filing a copy of the response with the court and serving a copy on the plaintiff (the spouse who filed the complaint), but a response is not required by law.
The matter is scheduled on the court’s calendar for a hearing.
The matter is heard by a judge who decides whether granting a divorce is appropriate.

Individuals may file for an uncontested divorce without an attorney. However, the above steps are general steps and do not include everything you may need to do to obtain a divorce.

If you have minor children or the grounds for the divorce are anything other than a no-fault divorce, you may want to consult a New York divorce attorney before proceeding. Even a “simple no-fault” divorce case can quickly become complicated, resulting in an outcome you did not desire.

Contested Divorces in New York Require an Attorney

If you and your spouse do not agree to all the terms of the divorce, your divorce is a contested matter. Contested matters are scheduled for a trial so that both parties may present evidence that supports the position they take regarding various issues related to the divorce. Parties may disagree regarding custody, visitation, alimony, and property division.

While the court cannot force someone to retain an attorney, it is strongly recommended that you seek the advice of an attorney for a contested divorce. An attorney can help you build a strong case to protect your best interests and the best interests of your children. Many contested divorces typically involve complex legal issues, discovery, depositions, investigations, and experts. Having an experienced attorney on your side can prevent your spouse from taking what belongs to you.

Contact a New York Divorce Attorney Now for More Information

The divorce process in New York can be simple for an uncontested no-fault divorce. However, many people find that having the advice and guidance of a New York divorce attorney is more than worth the fee for hiring the attorney. Before you begin the divorce process, you may want to meet with an attorney to discuss your situation in detail. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today.

I Think My Ex Is Hiding Assets - How Can I Find Them?

Tue, 23 Jul 2019 11:16:33 GMT

I Think My Ex Is Hiding Assets - How Can I Find Them?

Locating assets that your spouse or ex is hiding to avoid splitting the assets or paying additional support can be challenging. Depending on the type of asset, there could be very little to go on when searching for the asset. For example, hiding digital currency is easy because there may be no records for the account other than the “key” which is maintained by the owner. However, there are ways to find assets a spouse or ex is trying to hide. An experienced New York family law lawyer can help you retain an investigator and other professionals to track down assets.

Strategies for finding hidden assets

On your own, you may want to try one of these strategies for finding hidden assets:

Checking Account Statements and Credit Card Statements — Reviewing these statements could lead you to payments for storage facilities, unusual withdrawals, purchases of assets, payments on installment accounts, payments for safe deposit boxes, and transfers of cash to other accounts.
Tax Assessor’s Office — The tax assessor can give you information on recent purchases of real estate, including investment properties and vacation homes.
Tax Returns — Tax returns are also valuable sources of information for hidden assets. You may want to look at the last five years of tax returns for interests in partnerships, investment accounts, trusts, and real estate holdings.
Loan Applications — During the discovery process of the divorce, you may be able to obtain copies of loan applications. Typically, a person lists all assets on the loan application to boost their chance of receiving the loan. Also, it is a federal crime to provide false information on mortgage and other loan applications.
Check Hiding Spots at Home — If your partner is still living with you, search closets, dresser drawers, and other hiding places for evidence of assets such as stock certificates, statements, life insurance policies, bank accounts, jewelry, and other items.
Delayed Compensation at Work — You may need to subpoena your ex’s employer to inquire whether your ex has requested that the employer delay bonuses, raises, or promotions until your family court action is concluded.
Custodial Accounts — An ex-partner may attempt to hide assets by setting up a custodial account in the name of a child.
Trust Agreements — Another way of hiding assets is by transferring assets to a trust agreement so that the trust holds title to substantial assets instead of the ex.
Transfers to Family Members — You may also want to investigate family members to determine if they have received title to assets or large sums of money from your ex.

Finding assets before the divorce is complete is the best possible scenario. However, if you discover an asset that an ex is hiding after the divorce is complete, contact your attorney immediately. Your attorney may be able to reopen the divorce proceeding to request that the court require your ex-partner to submit information regarding the asset so that the court can determine what should happen to the asset given the fact that your ex concealed the asset during the divorce proceeding.

Contact a New York Divorce Attorney for Help

Matters related to property division can be extremely contentious. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today. Our experienced New York divorce attorneys understand the various tools and resources available to locate concealed assets. Working with a lawyer can help you receive your fair share of assets during your divorce.

Divorce Checklist - What to Discuss with Your Divorce Attorney

Thu, 27 Jun 2019 11:35:45 GMT

Divorce Checklist - What to Discuss with Your Divorce Attorney

When you are contemplating ending your marriage, there are many issues that you need to address. Meeting with a New York divorce attorney as soon as possible can help you address some of these issues and create a plan to protect your best interests and your children’s best interests during the divorce process.

In some cases, you may not realize some of the issues that you need to address during your divorce. An attorney can help you develop an exhaustive divorce checklist after discussing the specifics of your situation, your needs, and your goals with you during an initial consultation.

Initial Divorce Checklist for Your Attorney Consultation

When you first meet with a divorce lawyer, there are five basic issues that you want to address during that first meeting. You and your attorney can then develop a more detailed divorce checklist based on your specific situation.

Protection of Assets and Division of Debts

It is important that you discuss property division laws in New York and your expectations regarding the division of assets during a divorce. As you begin the next phase of your life, you need to ensure you have the assets necessary to maintain a certain standard of living. In addition to assets, you want to discuss the division of marital debt. Debts owed by you and your spouse must be divided during the divorce along with your assets.

Spousal Support Payments

You may be entitled to receive alimony or spousal maintenance during and after the divorce. On the other hand, you may be required to pay spousal support. Alimony and support payments can be an extremely important issue in a divorce, especially when one spouse remained at home as a homemaker or earned substantially less than the other spouse.

Child Custody and Child Support Payments

Custody and time sharing are emotional issues in most divorces. Each parent typically believes that he or she is the best parent to have primary physical custody of the child. The court is interested in doing what is best for the child. A divorce attorney can provide guidance and practical advice regarding custody laws and child support guidelines for New York.

Documents Needed for the Divorce

It is important to gather certain documents for your divorce case. An attorney can provide an exhaustive list; however, some of the documents you may want to take with you to your divorce consultation include:

Titles to real estate and other property
Tax returns and financial statements
Bank records and other financial records
Debt statements and bills
Estate planning documents
Insurance policies
Marital agreements

Other documents you believe may be relevant to your marriage or divorce

Attorney Fees and Costs of Divorce

You also need to discuss the attorney’s fees and the typical costs of a divorce action. In some cases, you may be able to hold your spouse responsible for a divorce attorney’s fees; however, you need to be prepared to pay a retainer and any upfront fees until your case is settled through negotiations or in court.

Contact a New York Divorce Attorney for More Information

It is difficult to know what to expect if you have never been through a divorce proceeding. Our experienced New York divorce attorneys provide guidance and support in addition to legal counsel to make the process less stressful for you and your family. Schedule a consult with us today.

Dividing Pension Plans, IRAs and Investments During Your Divorce

Mon, 24 Jun 2019 11:44:28 GMT

Dividing Pension Plans, IRAs and Investments During Your Divorce

Retirement accounts, including accounts owned before a couple was married, can be subject to equitable division in a New York divorce. Division of pension plans, investments, and IRAs can be complicated and vigorously litigated. To ensure that your legal rights and best interests are protected, it is wise to consult a New York equitable distribution lawyer before you agree to a division of any retirement accounts.

Dividing Retirement Accounts and Benefits During a Divorce

Spouses divide retirement, savings, and investments earned during the marriage during a divorce. Assets subject to property division include, but are not limited to:

Pension Plans
Individual Retirement Accounts (IRAs)
Investment Portfolios
401(k) Accounts
403(b) Accounts

Because retirement and investment accounts have different rules related to penalties and taxes related to early distributions, parties must consider these rules when dividing pensions, investments, and IRAs during a divorce.

What is a Qualified Domestic Relations Order (QDRO)?

A QDRO instructs the plan administrator of a pension or retirement plan to distribute a portion of the funds in the plan to the non-owner spouse. QDROs must contain very specific language to comply with ERISA and other tax laws to avoid creating penalties and taxes on the distribution. If the non-owner spouse places the funds in a qualified retirement account, the non-owner spouse avoids paying taxes on the distribution. The spouse who owns the account also avoids an early withdrawal penalty.

The Majauskas Formula?

Most family court judges in New York use the formula established in the case of Majauskas v. Majauskas when dividing retirement benefits and investments during a divorce. The formula is based on the number of months the party contributed to the account before and after the marriage and a multiplier chosen by the judge. Judges typically use 50 percent as the multiplier, but a judge may lower the percentage in cases involving marriages of shorter terms. Another factor that can impact the formula used to divide the asset is whether the asset is a defined benefit plan (i.e. pension plan) or a defined contribution plan (i.e. retirement account).

You May Reach a Settlement with Your Spouse

In some cases, spouses negotiate the division of retirement benefits and investment accounts based on other factors. For instance, a spouse may abandon an interest in the other spouse’s retirement account for possession of the marital home. Before agreeing to a settlement related to pensions, investments, and retirement accounts, both parties should consult separate legal counsel to ensure the settlement is fair and equitable. Once the court approves a settlement, the settlement can only be amended by a party under very limited situations, such as in the case of fraud or duress.

Contact a New York Family Law Attorney for More Information

If you are responding to a petition for divorce or you are contemplating a divorce action, a New York family law attorney can answer questions regarding divorce laws in New York, property division, spousal support, and issues related to children. Because consultations are confidential, you can speak openly about your concerns to receive experienced advice from a skilled legal advocate. Contact us today to schedule a confidential consultation.

What is a Collaborative Divorce?

Fri, 24 May 2019 12:12:05 GMT

What is a Collaborative Divorce?

Collaborative law is a process of settling disputes without court intervention through an honest, voluntary, good-faith exchange of information between the parties involved in the dispute. The focus of the collaborative divorce process is to arrive at a solution that is beneficial for both parties and their children. In a collaborative divorce, the parties commit to working out the issues related to the divorce without litigating matters in court with the assistance of a New York family law lawyer trained in handling collaborative divorce cases.

What are the Steps in a Collaborative Divorce?

While each situation is different and each couple has a unique set of circumstances that might impact the process of a collaborative divorce, the typical steps involved in a collaborative divorce are:

Each party retains a New York collaborative divorce attorney.
Before meeting with the other party, each spouse meets with his or her family law attorney to discuss the relevant issues to be addressed during the collaborative divorce process.
All parties sign an agreement pledging to settle the matter without litigation. The agreement is a good-faith “promise” to avoid litigation, but it does not prevent either party from withdrawing from the collaborative process and filing a divorce petition. However, if the matter cannot be resolved without litigation, the attorneys are barred from representing either spouse during the divorce proceeding.
The spouses and their attorneys meet to discuss options for resolving all issues related to the divorce. The focus of the meetings should be on problem-solving instead of blaming each other for the end of the marriage. The parties and their attorneys may meet individually and together several times as they negotiate a settlement that considers the best interests of both spouses and their children.
The parties continue meeting to work out a settlement agreement or until one or both parties state that they wish to proceed with a court action.

Benefits of the Collaborative Divorce Process

The collaborative divorce process has many benefits including:

Same money and time. Litigating a divorce often costs more in attorney fees and can be a lengthy process.
The information disclosed during the collaborative divorce process is confidential. Neither party can use the concessions and disclosures discussed during the meetings against the other party during a subsequent divorce proceeding.
Parties often discover that settlement agreements from a collaborative divorce are easier to maintain because the parties can tailor the agreements to their needs instead of allowing a judge to decide the terms of the divorce.
The parties can hire a collaborative team of professionals to help them throughout the process, including counselors, financial experts, and child specialists.
The collaborative divorce process can settle all issues related to a divorce, including property division, alimony, child support, parenting plans, and custody.
The parties are focused on resolving issues through cooperation instead of “winning” the divorce through any means possible.

Contact a New York Family Law Lawyer to Discuss a Collaborative Divorce

If you believe that the collaborative divorce process may work in your situation, the first step is to meet with a New York family law attorney who has experience handling collaborative divorces. A collaborative divorce is not the best choice in every situation. An attorney can help you evaluate your needs, goals, and circumstances to determine if the collaborative law process will work for you.

How to Manage Your Credit During a Divorce

Thu, 16 May 2019 12:24:10 GMT

How to Manage Your Credit During a Divorce

As you prepare for divorce and go through the divorce process, there are many things that you and your New York family law lawyer will address. An often overlooked matter that can be vital to your future financial stability is your personal credit.

While your credit score may be one of the last things on your mind during a divorce, your credit score could have a significant impact on your ability to obtain housing, transportation, utilities, education, loans, lines of credit, and insurance after your divorce is complete. A poor credit score could make the transition to single life much more difficult for you.

Obtain Copies of Your Credit Reports Now

One of the first steps to take to protect your credit during a divorce is to obtain copies of your credit reports and review them for mistakes and issues. You are entitled to free copies of your credit reports from each of the three major credit reporting agencies each you. If you discover errors on the reports, notify the creditor and the creditor reporting agency in writing to demand a correction.

Make notes of accounts that are in your name only or jointly held with your spouse. This information will help your attorney during the debt division portion of your settlement negotiations.

If you have negative information on your credit report, you may want to work to correct the matter or at least file an explanation letter for the agency to attach to the report explaining why you have a foreclosure or a repossession on your credit report (i.e. ex-spouse was court-ordered to pay the debt).

Handling Joint Debt Accounts

Joint debt accounts can be extremely difficult to deal with during a divorce action. Typically, but not always, the spouse who is granted a piece of property is responsible for the payment of the debt on the property. For example, if you owe a joint debt on your spouse’s vehicle, the court will likely order your spouse to continue payments on the loan.

Unfortunately, if your spouse defaults on the loan payments, the lender will turn to you for the payments as the joint account holder or co-signor. If the payments are not made, your credit will suffer, and you could face a repossession action or debt collection lawsuit on our credit report.

A provision that you should demand in your divorce decree includes ordering your spouse to remove your name from any joint debts that your spouse is responsible for paying after the divorce. Your spouse may need to acquire a new loan or refinance the existing loan to remove your name. Therefore, monitor the matter closely after the divorce to ensure this step is accomplished. Your credit could be significantly harmed by allowing your name to be associated with debts that are the sole responsibility of your ex-spouse.

Free Your Accounts If Necessary

If you do not have a credit card in your name only, you may want to apply for a credit card in your name as soon as possible. Once you have established a line of credit in your name and you have taken care of any issues related to your credit report, you may want to freeze your accounts during the divorce proceeding except for an individual bank account and one credit card.

This step could be important if you suspect that your spouse may attempt to drain your financial accounts or use your information to open accounts that he can use without your knowledge. Your Garden City, NY family law attorney can help you formulate a plan that protects your credit and your credit rating throughout the divorce proceeding.

Contact a New York Family Law Lawyer for More Information

A family law attorney provides guidance and support in all areas related to a divorce proceeding. Some areas, such as a client’s credit report, may not appear as important as other divorce matters. Our New York family law lawyers understand that the often-overlooked matters like protecting your credit during a divorce can have a significant impact on your ability to provide for yourself and your family after the divorce is complete. Contact us today to learn more.

What is a non-contested divorce?

Mon, 22 Apr 2019 12:37:14 GMT

What is a non-contested divorce?

New York divorce laws permit spouses to end a marriage without alleging fault or contesting any of the issues related to the marriage. The laws also allow spouses to obtain a divorce on grounds such as adultery, abuse, or abandonment without going through costly and time-consuming litigation.

A non-contested divorce or uncontested divorce is the quickest, easiest, and least costly way to end a marriage in New York. However, that fact does not mean you do not need to consult a New York family law lawyer. Many individuals rush to a settlement in a non-contested divorce only to find out later that the settlement was not in their best interest.

Uncontested Divorces vs. Contested Divorces

For an uncontested or non-contested divorce, both spouses must agree to all terms of the divorce. If the spouses disagree on any single matter, the divorce is contested. In a contested divorce, the spouses must appear in court and present evidence supporting their allegations. After hearing the evidence, a judge issues an order settling all matters before the court.

Matters that must be settled before the divorce petition is filed in an uncontested divorce include custody, visitation, child support, alimony, and property division. In most cases, a non-contested divorce is filed as a no-fault divorce action because the petitioning spouse is not required to provide evidence of wrongdoing to obtain the divorce.

It is possible for a contested divorce to be settled before the judge issues a final ruling. Through mediation or negotiation, the parties may resolve their differences and petition the court to enter an order approving a settlement agreement. However, the advantages of settling differences and filing an uncontested divorce encourage some spouses to mediate their differences before filing a divorce petition.

Advantages of Filing a Non-Contested Divorce

Time and cost are two of the top benefits of filing for an uncontested divorce. Litigating a divorce action increases the expense for each party. It also lengthens the time it takes to obtain a divorce in New York. However, time and cost are not the only two benefits of a non-contested divorce.

An uncontested divorce can be much less stressful on the parties and less emotionally disturbing for the entire family. The parties can also use mediation or negotiate through their attorneys to work out an agreement that is best for their family. A judge does not know the parties before they enter the courtroom. Therefore, the judge only knows what is presented by the parties. Agreements outside of a courtroom can be tailored to the family’s needs. Parties have much more flexibility for an agreement in an uncontested divorce action.

Consulting a New York Family Law Attorney About Non-Contested Divorces

A divorce may begin amicably but turn into a contested matter very quickly. Schedule a consult with one of our New York family law attorneys as soon as you contemplate separation or a divorce action. Understanding your options and your legal rights ensures that your best interests and the best interests of your children are protected throughout the divorce proceeding.

When Can a Child Choose What Parent to Live With?

Mon, 15 Apr 2019 12:42:14 GMT

When Can a Child Choose What Parent to Live With?

It can be difficult for a child when parents divorce. Instead of living with both parents full-time, the child must split time between two homes. In some cases, a child may prefer to remain with one parent instead of the other parent. However, when does a court consider a child’s preference for living arrangements? If your child has a preference regarding custody, consulting a New York child custody attorney may be helpful.

Deciding a Child’s Best Interest

Judges in New York custody cases base custody decisions on the child’s best interest. Neither parent is given preference at the beginning of the case. Because there is no set definition of “best interest,” the needs of the child and the parties’ circumstances are used to decide custody cases.

10 Factors a judge uses to decide what is in the child’s best interest regarding custody include:

Whether the mother or father has been the primary caregiver and nurturer for the child;
The physical and mental health of each parent;
The childcare plans of each parent and each parent’s work schedule;
Each parent’s skills as a parent;
A parent’s ability to provide for any special needs the child might have;
Whether there is evidence of domestic violence by either parent;
A child’s relationship with siblings and other members of the family;
A parent’s ability to foster a relationship between the child and the other parent;
Whether a parent can cooperate with the other parent regarding the child’s needs; and,
Other factors the judge deems relevant.

A child’s preference may or may not be considered by a judge. The judge is under no obligation to consider a child’s preference in a custody matter. However, there are instances in which a judge will consider a child’s preference when deciding a custody case.

When Does a Judge Consider a Child’s Preference for Custody?

A child’s safety and well-being are the guiding factors in a custody case. A judge may listen to a child’s preference, but the overriding factor will be what is in the child’s best interest.

There is not a set age that a child must attain for a judge to consider the child’s preference for custody arrangement. Maturity is a large factor in whether a judge gives weight to a child’s preference in a custody action. A parent may more easily manipulate younger children; therefore, a younger child’s preference may not be his or her true preference. Younger children may also make decisions based on factors that are contradictory to their safety and well-being. Therefore, judges typically give more weight to an older child’s preference.

Contact a New York Child Custody Attorney to Discuss Your Child’s Best Interest

If your child wants to be heard during a custody matter or you believe your child’s other parent is attempting to manipulate your child, you need a strong legal advocate on your side and your child’s side as you fight for custody of your child. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York child custody lawyer today. Our New York child custody attorneys can help you protect your child’s best interest in a custody matter.

Are New York Divorce Records Public?

Mon, 18 Mar 2019 12:54:11 GMT

Are New York Divorce Records Public?

Most couples do not want the details of their divorce made public for anyone to view, even if the divorce was amicable. However, information about divorces in New York is typically a matter of public record. One reason for making the details of a divorce action public record is because the decisions in some divorce actions may be the basis for arguments attorneys use in future cases, especially for cases that are appealed to a higher court. If you are concerned about the details of your case being available for anyone to read, you can talk to a New York family law lawyer about filing a motion to seal the records.

Why Would a Court Seal the Records of a Divorce Proceeding?

No one wants the personal details of their marriage and divorce readily available for public consumption. Likewise, making divorces public record also may result in information about a person’s property and net worth becoming public record if matters related to property division are litigated. Court orders, motions, affidavits, and other court documents might be available for view by other family members, friends, employers, and others.

However, a judge will not seal a divorce case simply because you do not want to share the private details of your divorce with the public. Being embarrassed about the details of your divorce action is not sufficient cause for sealing a divorce proceeding.

You may be able to convince a judge to seal your divorce records under certain circumstances. For example, cases in which allegations of child abuse are raised, a judge may agree to seal the records to protect the child. Judges may also seal court records if domestic violence was involved or if the identification of certain financial information could result in either party being harmed if the information was released to the public or used by certain parties. A New York divorce attorney can provide guidance and advice after reviewing the facts in your case.

Obtaining Copies of Divorce Decrees or Certificates of Divorce

Parties to a divorce action and parties with a court order may obtain a divorce certificate from the New York State Department of Health. A divorce certificate contains basic information about the case, including the names of the spouses and the date and place that the divorce was granted.

For individuals seeking detailed information about a divorce action, they would need to contact the County Clerk of Court in the county in which the divorce case was filed. In most cases, the individual must appear in person at the clerk’s office to inquire about a divorce case. Depending on the circumstances, a person may be able to review the case file in the clerk’s office or only view certain information in the file.

Contact a New York Divorce Attorney for More Information

Contemplating a divorce can be emotional for some individuals. If children are involved, matters related to custody and support can make the divorce case more difficult. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today. Talking with a New York divorce attorney as quickly as possible can help you take the steps you need to take to protect yourself and your family as you go through the process of ending a marriage.

5 Things You Didn't Know About Equitable Distribution During Divorce

Mon, 11 Mar 2019 13:01:16 GMT

5 Things You Didn't Know About Equitable Distribution During Divorce

Issues related to equitable distribution in New York can be very confusing. Some individuals only realize their assumptions about property division during a divorce were incorrect after they listen to the judge issue an order dividing assets. If you are unsure about the property division laws in New York, it might be beneficial to meet with a New York equitable distributions lawyer if you are contemplating a separation or divorce.

Five Things You Need to Know About Equitable Division in New York

1. Equitable Does Not Mean Equal

One of the most common misunderstandings about equitable distribution is that the parties must divide marital property equally. New York adopts an equitable distribution standard for divorce cases. If the parties cannot negotiate a property settlement agreement, the judge uses various factors to determine what is “equitable” or “fair” for the division of property between the spouses. In some cases, the division may be 50-50, but in other cases, equitable distribution could result in one spouse receiving a larger percentage of the property.

2. Separate Property Could Be Subject to Property Division

In most cases, separate property owned by one spouse is not included in the marital assets subject to property division. Examples of separate property include property owned before the marriage, inheritances, and some types of compensation for personal injury claims. Marital property is usually defined as property the couple acquires during marriage or property that does not fall within the definition of separate property.

Only marital property is included in equitable distribution. However, some circumstances could result in separate property becoming marital property. For instance, if a spouse deposits inheritance funds into a joint checking account for both spouses to use, the judge could determine the property is now a marital asset. Spouses with separate property may benefit from consulting with a New York divorce attorney to avoid property division issues in the future.

3. Equitable Division Also Applies to Marital Debts

Debts are also subject to equitable distribution. Therefore, you could be responsible for some debts that your spouse incurred during your marriage. Again, the term equitable does not mean 50-50. A judge will review all factors in your case to determine what is equitable given your specific situation.

4. Marital Misconduct is Not a Factor for Equitable Distribution

Judges use many factors when they consider dividing property between spouses. However, they do not typically consider marital misconduct as a factor in making their decision. An exception would be if the marital misconduct directly affected the couple’s finances adversely.

5. A Judge May Consider Other Relevant Factors in an Equitable Distribution Case

A judge typically uses 13 different factors when deciding how to divide property between spouses in a divorce action. Very briefly, the 13 factors used for equitable distribution are:

Income of the spouses
Length of the marriage
Need of a custodial parent to live in the marital home with minor children
Loss of inheritance and pension rights because of the divorce
Loss of health insurance because of divorce
Award of support or maintenance
Whether a spouse contributed to property that he or she did not have title to or own
Non-liquid or liquid character of all marital property
Financial futures of each spouse
The difficulty or impossibility of determining the value of certain assets
Tax consequences for each spouse
Whether a spouse wasted or used up any assets during the separation
Whether a spouse disposed of or transferred martial property at an amount less than the fair market value in anticipation of a divorce

There is also a fourteenth factor that a judge may use, which is “any other factor which the court shall expressly find to be just and proper.” This clause gives a judge wide discretion to consider other factors that the judge rules to be relevant to an equitable division of property and debts between the parties.

Contact a New York Divorce Attorney

If you have questions about equitable distribution laws in New York, contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today about your marital property.

What are the Legal Grounds for Divorce in New York?

Tue, 26 Feb 2019 13:08:33 GMT

What are the Legal Grounds for Divorce in New York?

Some states require a spouse to claim one or more grounds for divorce to end a marriage. Grounds are “reasons” for the divorce. Other states have adopted a no-fault divorce process whereby one spouse can end the marriage for any reason. New York has chosen to combine the reasons for a divorce. Our New York family law lawyer discusses the seven grounds for divorce in New York in this article.

Seven Grounds for Divorce in New York

New York courts recognize seven acceptable reasons to end a marital union. In no particular, the grounds for divorce in New York are:

1. Adultery

At one time, adultery was the only grounds for divorce in New York. Adultery is having a sexual relationship with another person while you are married. However, adultery can be difficult to prove. You cannot simply testify that you are confident your spouse had sex with another person. You must have evidence that the sexual relationship occurred between your spouse and another person. You cannot use adultery as grounds for divorce if you forgave your spouse after discovering the adultery, encouraged your spouse to commit adultery, or remained with your spouse for more than five years after discovering adultery took place.

2. Inhumane or Cruel Treatment

In most cases, you must prove that the treatment rose to the level of mental or physical danger or harm to claim this ground for divorce. The treatment must make it unsafe for you to continue living with your spouse. Normal arguments between spouses typically do not rise to the level of cruel treatment.

3. Imprisonment

If your spouse has been imprisoned for more than three consecutive years, you may apply to the court to end the marriage. However, the marriage must have occurred before your spouse was imprisoned. You may use this ground for divorce for up to five years after your spouse is released from prison.

4. Abandonment

If your spouse leaves home with the intention of not returning and is gone for at least one year, you can claim abandonment as a ground for divorce in New York. You may also claim “constructive” abandonment if your spouse refuses to engage in a sexual relationship with you.

5. Divorce After Legal Separation

You and your spouse can enter a valid separation agreement and live apart for at least one year to obtain a divorce. A divorce may be granted to either party who petitions the court after living apart for one year. A legal separation allows parties who may not be sure they want a divorce the chance to work out their differences to reconcile.

6. Irretrievable Breakdown of the Marital Relationship

New York now has a no-fault ground for divorce. To obtain a no-fault divorce, you must testify that the marriage ended at least six months before filing the divorce petition. Also, all other issues related to the divorce, including property division, custody, child support, and spousal support must be resolved without the necessity for court intervention.

7. Divorce After A Judgment Of Separation

This ground for divorce is rarely used in New York. The New York Supreme Court drafts a judgment of separation requiring the couple to live apart for one year before the divorce is finalized.

Contact a New York Divorce Attorney for More Information

If you are contemplating a divorce, it can be very helpful to consult with a New York divorce attorney as soon as possible. You may be able to obtain a divorce under one or more of the grounds for divorce. However, depending on your situation, it may be better to use one ground for divorce instead of another ground for divorce. Contact one of our experienced divorce attorneys to help you determine which option is best in your situation.

What Happens to my Retirement Accounts When I Get Divorced?

Sat, 23 Feb 2019 13:16:46 GMT

What Happens to my Retirement Accounts When I Get Divorced?

New York is an equitable distribution state for divorces. Judges are not required to split all marital assets fifty-fifty between the spouses. The property is to be divided equitably or fairly, which may or may not be an even split. A New York equitable distributions lawyer can help protect your interest in marital property by introducing evidence that supports fair property division, including dividing retirement accounts.

Are Retirement Accounts Considered Marital Property?

Retirement benefits that you earn during the marriage are considered marital property. Any funds earned before the marriage is separate property and typically not subject to being divided with a spouse.

Retirement accounts that may be included in the division of marital property include:

Individual Retirement Accounts (IRAs)
401(k) Accounts
Pension Plans
403(b) Accounts
Profit Sharing Plans

The New York Court of Appeals established a formula for dividing retirement accounts during a divorce. The formula is named after the case in which the ruling established the formula, Majauskas v. Majauskas.

What is the Majauskas Formula?

Most judges follow the Majauskas formula when dividing retirement accounts during a divorce. The formula calculates the non-owner spouse’s portion of the account by using a fraction based on the total number of months that contributions were made to the account before and after the marriage. The fraction is then multiplied by a percentage to determine how much money is owed to the non-owner spouse. The percentage is usually 50 percent, but judges may lower the percentage for short marriages.

The formula and the calculation may vary depending on whether the retirement account is a defined contribution plan (401k plan) or a defined benefit plan (pension plan). The parties may also negotiate a settlement instead of allowing the court to calculate the division of retirement accounts.

The Need for a QDRO When Dividing Retirement Accounts in a Divorce

The division of marital property, including retirement accounts, is governed by state law. However, retirement accounts are subject to strict federal laws such as ERISA. If you withdraw funds from a retirement account before retirement age, you could incur significant penalties and tax liabilities.

A Qualified Domestic Relations Order (QDRO) directs the plan administrations to distribute the funds in the account according to the divorce decree. With a QDRO, if the non-owner spouse rolls the money into a qualified retirement account, the spouse can avoid paying taxes on the distribution. The spouse that owns the account avoids a penalty for early withdrawal of funds.

However, a QDRO must contain very specific language to ensure the distribution from the retirement account will not incur penalties or create a tax liability. A New York divorce attorney experienced in property division cases involving retirement accounts will know how to draft a QDRO that meets all the requirements under ERISA and other tax laws.

Seek Experienced Legal Counsel from a New York Divorce Attorney

Dividing retirement accounts during a divorce can be stressful, especially for couples who are nearing retirement age. The retirement funds may be a significant portion of the funds they counted on to provide income after they are no longer working. If you have questions or concerns about dividing retirement accounts during a divorce, contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today about the specific facts and circumstances in your case.

Five Things You Should Know About Prenups

Thu, 31 Jan 2019 13:28:11 GMT

Five Things You Should Know About Prenups

Marital agreements may not sound romantic, but they offer a variety of benefits. A prenup , or prenuptial agreement, is an agreement you enter before marriage. Each spouse must disclose all money and property they own during the process of deciding the financial rights and responsibilities of each spouse during the marriage. The prenup also addresses various financial matters should one of the parties die or the marriage ends. Our New York marital agreements lawyer discusses some of the important information related to prenups in this article.

Five Things About Prenups That You Might Not Know

Prenups can override property division laws in New York. When a couple divorces, New York divorce laws determine how property should be divided. However, a valid prenuptial agreement controls how property and assets are divided in a divorce instead of allowing the courts to make those decisions. As long as the prenup was entered into with full and fair disclosure and is legally enforceable, the prenup can divide the property in a divorce in whatever manner the parties agreed to when they entered the agreement.
Prenups can also establish maintenance payments. Most people are aware that prenups can establish maintenance payments (alimony or spousal support) during and after a divorce. The prenup can determine the length of maintenance payments and how the amount of maintenance payments is calculated. However, prenups can also establish maintenance payments during the marriage. This element could be important if one spouse is giving up a career to become a “stay at home” parent.
A prenup cannot determine child custody and child support issues with absolute definiteness. New York child support and custody laws require judges to make decisions related to these issues that are in the best interests of the child. Therefore, a judge must review the provisions of a prenup regarding custody and support to ensure that the provisions do not harm the child. If the provisions of the prenup regarding support and custody exceed what a judge would order based on the facts in the case, the judge may adopt the prenup terms into a final order, but the decision is ultimately left up to the courts.
Spouses should have separate attorneys to negotiate the prenup agreement. To ensure that the prenup agreement was negotiated fairly and neither party was under duress, the parties should have separate attorneys. If one party did not have an attorney or one attorney represented both parties, the court may examine the agreement more closely. Agreements that appear to be unfair and inequitable could be ruled invalid, especially if the party being treated unfairly did not have an attorney.
Prenup agreements can decide how assets are distributed after death. Most people think about prenup agreements as a way to decide how assets are divided in the event of a divorce. However, a prenup agreement can also decide how assets are distributed after your death. In most cases, it is recommended that a prenup is drafted in conjunction with the terms of a will to avoid any confusion or conflicts.

Call a New York Divorce Attorney for More Information

If you have questions about prenups, a New York family law attorney can answer those questions and provide additional information about the benefits and advantages of prenups. Contact Gassman Baiamonte Gruner, P.C . to speak with a New York family law lawyer today.

Seven Tips to Help Your Children Through a Divorce

Mon, 28 Jan 2019 13:41:08 GMT

Seven Tips to Help Your Children Through a Divorce

Going through the divorce process can be very difficult for children. Children may blame themselves for the breakup of their parents’ marriage and experience fear about the future and changes that come with a divorce. Many factors, including the child’s age, personality, and the circumstances of the separation, contribute to how a child may react to a divorce. Your New York family lawyer can offer some guidance for how to help your child through the divorce process. Below are seven suggestions from Kids Health about how you can help your child cope with your divorce.

Ways to Help Your Children Cope with Divorce

Encourage Your Children to Be Honest. Let your children known that their feelings are important to you and that you take their feeling seriously. Encourage your children to be open and honest with you about their feelings about the divorce and the changes that come with the divorce.
Help Children Verbalize Feelings. It can be difficult for children, especially young children, to put their feelings into words. Ask your children how certain things make them feel and spend a lot of time listening to them as they talk their way through those feelings.
Validate Your Children’s Feelings. Let your children know that it is okay to feel sad, anxious, or angry about the situation. You need to allow your children to express their feelings before you can offer support and suggestions about how to deal with the feelings.
Offer Support and Suggestions for Making Things Better. Children may not know what to ask for or what they need to help them feel better. A short telephone call before bedtime with the other parent may help reassure some children that they are not “losing” their mother or father because of the divorce.
Manage Your Stress So You Can Remain Healthy. Even an amicable divorce can cause some stress and anxiety. Make sure that you take time to care for yourself and find healthy ways to deal with your stress. You are in a better position to help your children through the divorce when you are physically and emotionally healthy.
Shield Children from the Details of Your Divorce . Do not discuss the details of the divorce in front of your children. Children can become very protective of a parent who is not in the home or very angry with the parent who must leave home. In either case, the feelings can be difficult to process, especially if the parent that remains in the home constantly speaks ill about the other parent. Always try to be as civil as possible when interacting with your child’s other parent when your child is present. Discourage family members and friends from discussing the divorce or speaking ill about your spouse when your child might overhear.
Seek Assistance From Trusted Sources. You and your children may benefit from professional assistance as you go through the divorce process. Counselors, therapists, and other mental health professionals can offer support and guidance for you and your children. Let your children know that it is okay to seek help when dealing with emotional issues. Instead of leaning on your children for support, you may want to turn to a trusted friend, religious advisor, counselor, or support group for help.

Seeking Help From a New York Family Lawyer

If you have questions about the divorce process in New York, talk to an experienced New York family lawyer. Contact Gassman Baiamonte Gruner, P.C. to speak with a New York divorce lawyer today. Understanding the divorce process may help reduce some of your stress and anxiety so that you are better prepared to help your children adjust to the divorce.