Bear Stock Market- Bullish on Divorce?

Posted by Daniel Clement on August 29, 2007
The New York Times and New York Magazine each report that the uncertain financial markets could lead to a “bull market” for divorce. The periodicals report that wealthy clients in the financial-services industry are being counseled to consider ending their unhappy marriages now, “as a way to cut losses on future payouts.”

This mercenary theory works best for the spouse expecting to receive maintenance or child support and who expects the other spouse’s income to substantially decrease in the immediate future. It would certainly be advantageous to have support payments (which are income dependent) fixed before there is a loss in income.

It is notable that both articles mis-state a basic premise of divorce law. Assets are distributed equitably in New York. This does not necessarily mean that the assets will be divided 50-50 as stated in the articles.

Loss of Medical Insurance Required to Be Disclosed In All Divorces

Posted by Daniel Clement on August 21, 2007
A new law  (Assembly bill A08273A) was recently enacted that requires parties in an action for divorce to be made aware of the potential loss of their health care coverage obtained through their spouse's health insurance.

The law requires that any agreement between parties in a divorce action contain the following language:
 I fully understand that upon the entrance of this divorce agreement, I may no longer be allowed to receive health coverage under my former spouse's health insurance plan. I may be entitled to purchase health insurance on my own through a COBRA option, if available, other-wise I may be required to secure my own health insurance.
The judgment of divorce will reiterate that the parties understand and have acknowledged the potential loss of medical coverage.

According to the legislative memo the justification for the bill is as follows:
Divorce settlements can be a long, arduous process for all parties involved, therefore it is important to ensure that throughout the course of the negotiations, parties are aware of all issues relating to an individual's well-being once a settlement is reached. Whether or not a party to a divorce action has health insurance coverage once a settlement is reached is of crucial importance, and explicit provisions addressing these facts should be included in any rendered judgment. This legislation ensures that parties who receive health coverage under their spouse's plan are made aware of their loss of health insurance coverage upon the issuance of a divorce.

Although I am unaware of any cases in which a party to a divorce, represented by counsel, entered into an agreement under the false impression that he/she would remain covered by their spouse’s medical insurance, it is certainly wiser to err on the side of requiring full and complete disclosure of all relevant facts.


Overlapping Jurisdiction of the Family Court, Supreme Court and Criminal Court

Posted by Daniel Clement on August 14, 2007
Lindsay Loans’ parents divorce highlights one of the problems with the family law system in New York. As highlighted in Newsday, while the parties’ divorce is heard in the Supreme Court, other issues are being heard in the Family Court.

The fact that two courts have jurisdiction to hear and decide some of the issues could lead not only to inconsistent rulings, but also to added confusion, delays and strategic "shopping" for judges, not to mention, increase litigation costs.
 
Newsday provided gave this short synopsis of the Lohan divorce and custody case:

In December of 2005, Michael and Dina Lohan signed a separation agreement. The fight had been heated and [Justice Robert] Ross had shown little sympathy for Michael. In August of that year, Ross wrote in a decision that "for all the defendant's professed interest in his children, his criminal ping-pongs back and forth between cases reflect extraordinary selfishness and gimmicky schemes."

For Dina, he had only praise, saying the care she gave to Lindsay was "a parent's dedication and love for a child."

So perhaps it was no surprise that when Michael wanted to spend more time with his two youngest children, he decided to try his luck before another judge. When he was released from prison in March after serving nearly two years on assault and other charges, Michael filed a petition in Family Court for expanded visitation.

In June, Dina filed a new action for divorce in Supreme Court.
I have personally represented litigants who have related matters pending in three courts: a divorce action in the Supreme Court; an order of protection issued out of the Family Court, and a violation of the order of protection in Criminal Court. This multiple forum scenario gives three different judges opportunity to render a decision inconsistent with other findings in the case.   In an extreme case, a party could have been found guilty of violating an order of protection that should not have been granted.  The acts could even be found to be insufficient to establish a cause of action for cruel and inhuman treatment for divorce.

Some counties have introduced a specialized court where the judge is equipped to handle cases when there is a pending divorce, criminal and family court matter pending. This good idea. There would be one judge who would be wholly aware of all facets of the case. The potential of inconsistent findings and forum shopping is eliminated.

Dogs and Divorce: Pet Custody

Posted by Daniel Clement on August 08, 2007
When a childless couple divorces there is generally no issue of custody, except when there is a dispute about who will get custody of the four legged family members.

The ABA Journal E Report features a case in which a lawyer was appointed as guardian ad litem for a dog in a contested custody dispute. This report lead a columnist for the Times and Democrat to imagine the negotiation for custody of a dog in a divorce:

There would be many issues to discuss: Who will get primary custody and who will get visitation rights? Is joint custody a possibility? With whom does the dog spend holidays? Then there is the issue of doggie support: Who will be responsible for the dog’s veterinary care and the associated expenses? Who will pay for his grooming? Well, at least the couple wouldn’t have to argue about who pays for his education.

In my experience, when a divorcing couple disputes custody of a dog or cat, courts have treated the matter not as a custody dispute but as a personal property issue.

Tell me about your experiences.

A Romantic Divorce Diversion on the Symbolic Loss of a Wedding Ring

Posted by Daniel Clement on August 02, 2007
This is primarily a blog about New York divorce. In it, I have repeatedly written about people fighting over engagement rings or engaged in their epic divorce struggles.  

For a change, on a hot summer day, I though I would acknowledge a touching and romantic piece from  The New York Times  on the loss of a wedding ring. 

I have worn my wedding ring every single day since my wedding more than seven years ago. I had never misplaced it before. But there I was staring at my bare finger. I noticed the indentation left by the ring, like a phantom band, and the skin tone of this narrow groove, a shade paler than the rest. I felt guilty, as though I had committed an act of infidelity. I imagined my wife’s quiet disappointment; there is nothing in the world quite like it. My hand grew heavy.
I offer this  op-ed piece as momentary diversion from the divorce battles and to re-affirm why it is we marry.


Domestic Partnerships and the Continuation of Maintenance

Posted by Daniel Clement on August 01, 2007
Postings in two divorce and family law blogs highlight a growing conflict between the states on how to deal with a parties continuing obligation to pay alimony or maintenance, as it called in New York, if the former spouse enters into a domestic partnership.

To frame the issue, what happens if you are obligated to pay maintenance to your ex, but your ex rather than  re-marrying, enters into a domestic partnership? A number of states have enacted civil union or domestic partnership statutes which grant same sex couples some, but not all, of the rights and privileges of marriage. Maintenance or alimony typically terminates when the receiving spouse remarries.

The New Jersey Law Blog provides an excellent survey of the issue, contrasting a case from Virginia, which held as a result of the domestic partnership alimony should terminate, and one from Oregon, which held that the support obligation should continue.

The Florida Divorce Blog reports on a California decision in which the court ruled that a domestic partnership “is mere cohabitation and not a marriage.” Therefore, the alimony payments were ordered to continue.

To avoid uncertainty and litigation, this issue must be addressed in a settlement agreement at the time of divorce. If it is the parties’ intention that maintenance should terminate in the event of a cohabitation (same sex or opposite sex), the entry into marriage or a domestic partnership or civil union, the settlement agreement should make special provision. The failure to address t his issue exposes the parties to an unknown and presently unpredictable future determination.

How to Prevent Divorce from Destroying Your Credit

Posted by Daniel Clement on August 01, 2007
Divorce, illness and a long term disability are the most common life events that have a catastrophic effect on a person’s financial well being.  All too frequently a person going through divorce watches as his/her credit rating is destroyed by the former spouse.

The  Ask the Advisor Blog has some great tips for protecting your credit after divorce.  Chief among his tips are:

1.Check Your Credit Score — By checking your credit score you can see if your credit has been adversely affected by your divorce. It will also show if there are any debts that you used to share with your spouse that are now being neglected. This will point you in the right direction when it comes time to cancel any joint accounts.

2.Separate/Cancel All Joint Accounts — Any and all accounts, debts and property that you still share should be separated, canceled or sold.

3.Notify Creditors of Your Divorce — Once you have separated/canceled all of your joint accounts/debts, you are no longer legally bound to your former spouse's current debts..

It is important to note that any agreement for the payment of debts between you and your spouse is not binding on your creditors. That means, until and unless the debt is transferred to the spouse that assumed the particular liability, the other spouse remains personally liable for the debt. So, if the debt is not transferred into your spouse’s name, it remains a joint obligation. If it is not paid, your remain liable to pay the debt.