Same Sex Divorce- Granted!

Posted by Daniel Clement on March 31, 2009

As I predicted in this blog, same sex divorce has come to New York. A Supreme Court judge in Broome County has granted a same-sex Binghamton couple a divorce.

As pointed out at Pressconnect.com, this divorce is a bit ironic.

New York doesn't allow same-sex marriages, but state Justice Molly R. Fitzgerald allowed Lauren Wells-Weiss to divorce her partner, Shari Weiss. The two married Aug. 13, 2004, in Toronto, after a private religious ceremony before family and friends in Ithaca in 2001.

The case is paradoxical, said both women's attorneys, because in their opinion the judge recognized the lesbian couple was married, although New York state law doesn't allow same-sex marriages.

New York will recognize as valid, marriages which were legal where they were solemnized, even if they would not valid if the marriage took place in New York.

Although New York will not allow same sex couples to wed, in the past year, there has been a line of cases which have recognized, as valid, same sex marriages lawfully performed in Canada and Massachusetts. In these cases, courts have extended to same sex couples legal rights previously only available to lawfully wed couples.

My only disappointment is that I had hoped that one of the same sex divorce cases I am presently working on would be New York’s first. Perhaps I will have to take consolation in representing litigants in the first New York City same-sex divorce.


 

Who is Responsible for Debts?

Posted by Daniel Clement on March 25, 2009

One of the most recurring question I am asked  from people considering divorce is:" Am I responsible for my spouse's debts and liabilitie?"     Most recently, i  answered that very question, on Linked In.


Question- I'm about to break up with my wife. While we are separated I do not want to be responsible for debts she may incur. Will I be responsible for her debts?

Answer - You are really asking two distinct questions about debts. The first questions how debts will apportioned between you and your spouse as part of a divorce; the second question asks what is your responsibility for debts to your creditors.

All property acquired during the marriage may be equitably distributed. That means, both the assets and liabilities will be equitably divided between you and you wife. If your wife ran up credit card debt in anticipation of the divorce or wasted marital assets, that will addressed in the distribution of the remaining marital property.

Whatever agreement you and your wife reach about the responsibility for the marital debts, it is not binding on your creditors. Regardless of how you and your wife apportion the debts, your creditors can enforce their contracts against whoever is principally liable. If the obligation is in joint names, the creditor can attempt to collect from either or both of you.

So, for instance, if you have a joint credit card or your wife runs up debt on your charge card, even if your wife agrees to pay the debt for you, the credit card issuer could look to you to make payments.
 

The Rights of Unwed Fathers

Posted by Daniel Clement on March 23, 2009

The rights of unmarried fathers of children were in the news with the recent reports about Sarah Palin’s daughter’s break up with her boyfriend. I was, in fact, quoted in one such article that appeared in the New York Daily News.

Like their married counterparts, unwed fathers have the right to custody and visitation of the children. That the parties did not wed does not in any way limit the father’s parental rights As in all cases, the standard of visitation/custody is “best interests of the children.”

The flip side of parenting is the financial responsibilities. The unwed non-custodial parent, whether it be the mother or the father, has the responsibility of paying child support for child. In New York, child support is calculated by applying statutory percentages (17% for one child, 25% for two children, 29% for three children) to the parent’s gross income, with limited deductions.
Click to see the a child support worksheet.
 

When Couples Cannot Afford to Split

Posted by Daniel Clement on March 11, 2009

There has been much ado about the effects of the economy on divorce.

Those who need to sell the marital home to fund their fresh start may now feel imprisoned in their marriage. With greater frequency, those unable to sell their home are forced to continue to cohabit with their spouse.

The Daily News featured a story about when a couple cannot afford to separate for which I was interviewed. Follow the link to read the article.
 

Post Divorce Estate Planning Tips

Posted by Daniel Clement on March 10, 2009

After the bitter fight to acquire valuable assets in your divorce, you may not want to face your own mortality, but should you die and your ex is still designated as the beneficiary of your life insurance or will, all the litigating and negotiating will have been in vain.

Alan Nye in the Maine Divorce Blog offers some sage advice on post divorce estate planning:

  1.  Change all the beneficiary designations on your life insurance policies, 401(k) plans, IRAs, and any other accounts that may have had your former spouse designated as a beneficiary.
  2.  Revise your will. Make sure that your children, other family members, not your ex, take under your will.
  3.  Close any joint bank accounts and credit cards. Make sure that your ex does not have access to credit lines that you will be liable to pay.
  4.  Revise your living will and revoke any powers of attorney that you gave to your ex.

Obviously, you should consult with your attorney, tax adviser and financial planner to ensure that your plans are made in an efficient manner.