New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

As part of a divorce, the marital home is generally sold. But, in view of the slow down in the home sales market, it is possible that the proceeds from the sale of a home may be insufficient to fully pay off the mortgages on the property.

In a prior post, I explored the option of retaining possession of the martial home to avoid selling at a loss. For some, this is simply not an option and the home must be sold. Most couples cannot or simply do not want to continue living together after a divorce. Many cannot afford to maintain the marital home on their own.

The New Jersey Law Blog offers great insight in dealing with the situation  when the sales price martial home is insufficient to satisfy the mortgage.

If the homeowner is unable to obtain a sales price which enables him to pay off all loans and closing costs, and he does not have the funds to make up the difference, then he may want to try to obtain approval from his current lender(s) to accept an amount less than the full amount due on its mortgage. For a lender, this may be acceptable to obtain repayment of a substantial amount of its loan and to avoid the costs and delay of foreclosing on the loan. This will generally mean that the Seller will not receive any funds from the sale of his home.

In order to obtain such approval from a lender - which may or may not be granted - the homeowner needs to contact his lender(s) to determine what information they will need to make their decision. This usually includes a financial statement of the homeowner, copy of a contract of sale, appraisal, and other pertinent documents. Generally, a lender will not consider approving a short sale without a clear economic hardship on the part of the homeowner and an existing default or pending foreclosure.

Until recently, forgiveness of a debt under these circumstances, could trigger a taxable event according to the IRS. This means that if a lender forgave a part of the mortgage debt by accepting a reduced amount in full satisfaction of the loan, then the amount forgiven could be deemed taxable income to the homeowner. This was so even though the homeowner received nothing from the sale. However, in December 2007 Congress passed the Mortgage Forgiveness Debt Relief Act of 2007. This Act amends the Internal Revenue Code to exclude from gross income amounts attributed to a discharge of indebtedness incurred to acquire a homeowner’s principle residence. The amount of the debt forgiveness can be up to $2.0 million. Thus, a homeowner is now able to sell his home for less than what is owed on it without incurring an additional tax liability. This exemption for forgiven debt, however, is only temporary and expires within three years.

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Following up on yesterday’s post about disgruntled spouses airing their dirty laundry on the internet, the front page of the New York Times featured the article When the Ex Blogs, the Dirtiest Laundry Is Aired.

According to the article, it is now fairly common to write a blog about your divorce.

It is impossible to say just how many people are blogging about divorce, but the percentage of Internet users with personal blogs has quadrupled in five years, according to Pew. Mary Madden, a senior researcher with the Pew Project who specializes in online relationships, said that in emotionally charged times, some people go to the Web.

Since one person’s truth may be shaded by hurt, anger, betrayal or just a desire to seek revenge, it is no shock that some aggrieved spouses have gone to court to stop the publication of the blogs.
Absent a confidentiality clause or other provision limiting the right to discuss the divorce or marriage, the blogger may enjoy a first amendment freedom of speech.

But, as one court recently pointed out, While Laurie’s statements may be covered by the First Amendment, they were “ill-advised and do not promote co-parenting.”

I suspect there would be little dispute, particularly when there are children, that parties should not post information about their spouses’ personal failings and short-comings on the internet where the writings can easily be found.   While writing all the your thoughts and feeling may be therapeutic, maybe all the thoughts should be contained in, to quote the Moody Blues, “letters are written, never meaning to send.”

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Discretion, being the better part of valor, it is seldom a good idea for a party to a divorce, to publicize the gory details of their case. But one ill-advised wife went even further;   she made  a You Tube video so she could air her dirty laundry.

In her video, Tricia Walsh Smith discuss her sex life (or absence of) with her husband, her husband’s stash of porn, condoms and Viagra, her relationship with her step-children and the terms of her pre-nuptial agreement.

As pointed out in the Legal Blog Watch:

A number of divorce lawyers interviewed for an Associated Press story criticized Walsh-Smith's tactics.  Attorney Bonnie Rabin commented that You Tube videos "bring the concept of humiliation to a whole new level."   Moreover, videos can ultimately hurt litigants -- a judge might question a party's judgment in posting a video and hold it against him in ruling on the case.  And there's always the possibility of a defamation action if the video rants include intentionally false information.

Walsh-Smith is now represented by famed divorce attorney Raoul Felder -- though she wasn't his client when she made the video.  Felder told AP that he thought his client "comes off well."  However, the majority of commenters on the video disagree; many labeled Walsh-Smith a "gold digger," with one even comparing her to another Brit involved in a contentious divorce: Heather Mills.

This video is simply an awful idea. It should not be emulated.   Despite Ms. Walsh’s attempt to portray herself has a naïve spouse, rejected by her husband, she comes across as shrew, mean and vindictive. 

The video is intended only to embarrass and humiliate her husband. It can also be viewed as a not so veiled threat as to what may follow if her husband does not capitulate to her demands.   Either way this type of conduct is reprehensible.

If this type of public broadcast of martial differences ever caught on, I would expect it to be negatively considered in decisions awarding equitable distribution, maintenance and, most certainly, child custody.

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They started to the fight
When the money got tight . . .
                Billy Joel, Scenes from an Italian Restaurant

With all the talk about recession and the fall-out from the sub-prime mortgage crisis, it is no surprise the telephones in most divorce lawyers’ offices are ringing off the hook. I have even noticed that the numbers of readers of this blog has dramatically increased in the last several months.

Jeffrey Lalloway in the California Divorce and Family Law blog notes:

The sharp downturn in the market is taking a similarly painful toll on couples who are breaking up. But now it's not that they can't afford their next home, but that they can't get rid of the old one. . .

"The housing market is having a major impact on divorce cases," said Stephen Ruben, a certified family law specialist in San Francisco. "If a house doesn't sell, it has a major impact on cash flow for child support, on where people live, on future taxes.

In the midst of the housing boom, when a couple divorced, the marital home was sold and the parties could simply cash out. The dispute was oft motivated by greed; each of the parties would argue to maximize his/her interest in the marital home and the size of his/her profit.

In the present economic environment, the marital home may still be sold, but if there is insufficient equity, the parties may be fighting how the loss will be split. As a result, instead of taking a profit at closing, the parties may argue about who will pay to cover the mortgage short-fall.

Mr. Lalloway notes that some couples, rather than taking the loss on the sale of the home, are forced to continue to live together until they can afford to sell the property. In other cases, one party gets the right to remain in the home.

Both scenarios trigger other considerations.   Parties forced to continue to live together, simply are denied the ability to get on with their post divorce lives. How possibly could you move on if your spouse is sleeping in the adjoining room?

Even if only spouse remains in the home, post divorce- the parties have to address:

• What will trigger the sale of the home?
• Who pays the mortgage?
• Does paying the mortgage increase the payer's equity?
• Who gets the mortgage interest deduction?
• Who is responsible for the maintenance and repair of the marital home?

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There is a story on CNN about  "Divorce Celebrations"

It makes perfect sense to mark the occasion of a divorce with an “event.”  Unquestionably, divorce, like marriage or death, is a life changing event. It is the legal recognition of the end of a marriage.  This major event  unceremoniously occurs with the stroke of a judge’s pen and your lawyer’s handshake as he bids you goodbye and wishes you good luck in the future.

It is natural to be depressed or even angry when marriage is terminated by divorce. Notwithstanding the fact that half of all marriages end in divorce, society still views divorce as some type of failure; litigants may cast themselves as winners or losers.

When a marriage ends because of the death of one of the parties, there is an accepted grieving process; there is a funeral, a wake, or a shiva. Why should there not be some type of social acknowledgment or ritual to mark the end of a marriage by divorce?

If just discussing divorce in public seemed taboo a few years ago, the growing trend of divorce celebrations is helping lessen the stigma surrounding the end of marriage.

"Yes, it's sad and it's painful, but it's not failure," says Christine Gallagher, the owner of Los Angeles event company The Divorce Party Planner and the author of a book by the same name. "It's part of life, and yet it's the only major event for which we have no ritual.

"A celebration communicates that divorce is OK -- life-affirming, even." . . .

 "It's like an Irish wake. Just because there's been a death doesn't mean you can't have food and drink, acknowledge the past and hope good things for the future. It's about closure."

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Phil Bernstein, in his New York Probate Litigation Blog, highlights several issues about the impact on divorce on an estate plan. In his post, Phil reminds us of the importance of finalizing the divorce settlement as soon as practicable.

Most settlement agreements contain provisions wherein each spouse waives their respective rights of election and any interest in the other’s estate. If you should die before an agreement containing these waivers is signed or before the court enters a judgment of divorce, your estranged spouse can (and probably will) exercise the right of election and inherit from you.

I had at least one case wherein a wife prolonged the divorce because her husband was ill and she was gambling that her husband would pass away before the divorce was granted and her right of election was extinguished.

The only way to ensure that your estate goes to your intended beneficiaries and not your estranged spouse is to make sure that the divorce settlement agreement is promptly signed.

Mr. Bernstein aptly suggests that you check all of the beneficiary designations of your insurance and retirement plans. If your former spouse is named as a beneficiary, he/she will be paid when you die

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I am back from a much needed warm weather winter vacation with the family. Now, back to blogging.

While I was away, Justice Laura Drager rendered an important decision in the case Beth R. v. Donna M. Following the decision in Martinez v. Monroe County, which I discussed here, Justice Drager ruled that a same-sex marriage, validly entered into in a jurisdiction that allows same-sex marriages, would be entitled to full legal recognition in New York. This is the first time that a New York court recognized a same sex marriage in the context of a same-sex divorce action.

The decision went further, applying the expanding theory of equitable estoppel, to address the issue as to whether Beth's motion for declaration of her parental rights can be entertained by the court since she did not legally adopt the two children but served as their mother in fact. The Court concluded that “the facts here warrant granting Plaintiff's motion to enable this court to determine whether the best interests of the children warrant granting custodial rights to Plaintiff.

As pointed out in the Leonard Link:

Although Defendant did not allow the adoption of the children, she held out Plaintiff to the world, and most important, to the children, as their parent. The children were given Plaintiff's last name. The birth announcements presented Plaintiff as the parent of each child. J.R. [the older child] was encouraged to call Plaintiff 'mom' and Plaintiff's relatives by familial titles. The extended families of each party were encouraged to treat Plaintiff as a parent. Defendant held out Plaintiff as a parent to the children's nanny, doctor and J.R.'s teachers and school administrators. Defendant accepted health insurance and financial contributions from Plaintiff for the benefit of the children.

And, of course, there is the marriage. "Although Defendant seeks to minimize the significance of the act of marriage, the law does not share her view. Marriage is 'a status founded on contract and established by law. It constitutes an institution involving the highest interests of society. It is regulated and controlled by law based upon principles of public policy affecting the welfare of the people of the State.' Fearon v. Treanor, 272 NY 268, 272 (1936). As a result of being married, Plaintiff may be constrained to provide support for the Defendant and Defendant would be a recipient of a portion of Plaintiff's estate. These factors significantly affect the children's welfare. Moreover, although people enter into marriages for many reasons, creating familial bonds is one of the most significant reasons, particularly for the benefit of their children. The parties here were clearly committed to becoming married, having traveled twice to Canada and having obtained two marriage licenses. It is noteworthy that the Defendant voluntarily entered into the marriage after her first child was born. Furthermore, as Plaintiff argues, the artificial insemination during the marriage resulting in the birth of S.R. may require a finding that she is the legitimate child of both parents."

Justice Drager also notes that by age three a child "clearly identifies with parental figures" and so J.R. could be harmed by suddenly terminating his relationship with Beth, and it is "conceiveable" that young S.R. could be harmed as well. And, of course, both children would suffer potential economic harm due to loss of support.

Now that the door is open to the judicial acceptance of same sex marriage, it will be interesting to see how the law evolves to provide for same-sex divorce.

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An adulterous relationship does not necessarily always lead to divorce. The blog, Domestic Diversions offers insight on how to save your marriage after an affair.

The adulterer must be willing to disclose all the details of his affair and agree to new degrees of openness, says Rick Reynolds, founder of the Affair Recovery Center in Austin, Texas.****

It’s not always just the spouse who committed the transgression who has to change after an affair if a marriage is to recover.
Often it’s difficult for the betrayed party to consider what he or she could have done that may have helped lead to the affair, says Meg Haycraft, a Chicago couples specialist who founded a practice called TWOgether. That’s not to say that someone can blame their partner for an affair, she added.  ****

Reynolds] counsels the spouse who cheated to answer any question his or her partner has. But he also sets a date when the questioning must end.

In the end the person who cheated must admit that he/she made a mistake. Then, the parties have to be committed to restoring trust to their relationship.   

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For some reason, Valentine’s Day brings on lots of articles about divorce. Jonathan Clements (no relation) wrote an interesting piece in the Wall Street Journal about his “fairly successful” divorce.

Success, he properly points out, does not mean he took his ex-wife to the cleaners or that he extracted every concession he could from her. To Clements, a successful divorce means that while he and his ex are not best friends, they each benefit from having a civil relationship in which they both get to share in the joys and pains of raising their children.

Clements, armed with the perspective of looking backwards, offers some invaluable divorce tips:
.

Avoid the legal arms race because it will hurt both of you.
As you negotiate a settlement, every dollar of legal costs incurred likely means 50 cents out of your pocket. Trust me: There are cheaper ways to work through your anger.

Having the ex-spouse around the corner might seem uncomfortably close.
But if you have children, it probably means you will see less of your former spouse. There are no awkward drop-offs and pickups. Instead, the kids just walk back and forth.

Maintain a reservoir of goodwill, because you'll need it.
It will be your week with the kids, your boss will have other plans -- and you may need your ex-spouse to bail you out.

If your ex ends up with a little more money in the divorce or goes on to do well financially, don't let it eat away at you.
In all likelihood, your children will be the ultimate beneficiaries.

Think of your relationship with your ex-spouse as a business relationship.
Forget the bad blood. Ignore stuff that isn't your business. Instead, focus on the task at hand, which is raising the children.

Divorce is a process- it is not an end result. At the end of the process, you may want and even need your ex to help nurture, support and even discipline the children.

Bottom line- burning bridges during the divorce may later preclude you from sharing in the joys and responsibilities of being a parent. .

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Incident to the divorce, the wife has the option of returning to the use of her maiden name. The decision to return to a maiden name is highly personal.

The blog,   Seven Secrets to a Successful Divorce, offers up one woman’s struggle with the dilemma over her name.

Initially decided to return to my maiden name and asked for it to be changed at my final divorce hearing. But then something strange happened. As the months passed, I continued to use my married last name, putting off changing my driver's license and credit cards. Something just did not feel right about changing my name back to the name I once used long ago. I felt like I wasn’t that person anymore, yet I also did not feel comfortable using my married last name. I certainly was not the same person who used that name either.

In the end I decided to give myself a new last name. One that I choose. I shortened my married last name and gave myself a brand new identity. I went to court and legally changed my name. It felt right and it was empowering to begin my new life after divorce with my own chosen identity, not the name I was born with and not the name I got from being married.

There are several issues to consider when deciding whether or not to keep your married name after a divorce. Here are few:

1. Your children. Do you want to avoid confusion at school by keeping the same last name as your kids?

2. Paperwork. Changing your name means changing your driver's license, bank accounts, credit cards and countless other documents. Expect to spend time and energy taking care of this.

3. Have you established yourself professionally with your married name? If so you may not want to change it.

In the end, make sure it is your own decision to change or not change your last name. Don't give into pressure from your ex, who may object to you using your married name. It is perfectly legal to continue to use your married name after a divorce. If you no longer wish to use your married name, then make sure you are comfortable going back to your maiden name. If not, you may want to do like I did and create your very own new last name.

Clearly, there is no wrong or right answer to the name game.  Your name goes to the very nature of your identity.    If, later, you feel you made the wrong choice, you can even start another action to legally change your name.

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I just wanted to announce the debut of the new and much improved Clementlaw web-site.

The Practice Areas part of the site provides some useful and practical information about divorce, separation, child custody, equitable distribution, the different types of marital agreements and other areas under the broad umbrella of family law practice.

You are invited to explore. I would love to hear your comments as to its user friendliness and readability.

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I will be interviewed on WFUV-FM (90.7) this Saturday, December 29, at 7:30 a.m. on the program “Cityscape.” The interview will cover a wide range of issues on the subject of divorce.

If you are not an early morning riser, the broadcast will be available as a podcast. When it becomes available, I will post the link.

The broadcast will also be available in the Cityscape archives next Wednesday.

This may be the final post for this calendar year- so I am wishing you and your families a very Happy, Healthy, and Prosperous 2008.

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A husband was justified in abandoning his wife after she admitted having an adulterous relationship. When the wife sought a divorce after her husband left her, her abandonment claim was dismissed.

The New York Legal Update provides the details of the case of Kaplan v. Kaplan:

In that case, during a marital counseling session, the wife admitted to a long term extramarital affair. Thereafter, the husband moved out of the marital residence. More than one year later, the plaintiff-wife commenced the action for divorce, after 17 years of marriage, on the grounds of abandonment and cruel and inhuman treatment. The defendant-husband moved for summary judgment dismissing the action. The Supreme Court granted the husband's motion, and the Second Department affirmed.

The Second Department noted that in order to be granted a divorce on the grounds of abandonment, a plaintiff must demonstrate that the defendant unjustifiably and without the plaintiff's consent abandoned the plaintiff for a period of one or more years (see Domestic Relations Law § 170[2]). Here, The Court found that the husband was justified in leaving the marital residence because of his wife's extramarital affair. Thus, there was no abandonment, and the wife was not entitled to the divorce on this ground.

With respect to cruel and inhuman treatment the Court noted that the marriage was one of long duration, and thus, a high degree of proof was required for termination on the ground of cruel and inhuman treatment. And here the Court found that the plaintiff-wife's allegations of embarrassment and discomfort were insufficient to establish cruel and inhuman treatment

I am going to guess that money was the real issue in this case. What else could motivate the husband to oppose the divorce? Clearly, the marriage was dead - the husband moved from the marital home and the wife was having an affair. Since the Wife failed to prove grounds, the court did not have to address the issue of equitable distribution.

Without no-fault grounds for divorce, the wife is locked in a dead marriage; only the husband has grounds. As a result, the husband can extort economic concessions from the wife in order to secure a divorce.

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I was quoted in an article on AOL highlighting the Top Five Mistakes to Avoid in a Divorce.

According to the article, the top five mistakes are:

1.Failing to be prepared with copies of all relevant financial and legal documents;
2.Failing to obtain financial advice as part of the divorce. Parties often fail to consider impact of taxes on the assets to be distributed. Other assets need to be appraised;
3.Failing to sell the marital home when you can ill afford to remain in it;
4.Failing to explore settlement or other avenues of dispute resolution and, instead, rushing into court; and
5.Failing to untangle assets and debts acquired during the marriage.

The list is far from exhaustive. In fact, the number one mistake on my list would be using the divorce to punish your spouse. Vindictive conduct or using the divorce to extract revenge only increases the acrimony, unhappiness and the emotional, psychological and economic costs of divorce.

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Everyone is aware of the emotional and economic costs of divorce, but a new study shows that divorce negatively impacts the environment as well.

The basis for this claim is that each time a marriage dissolves the result is two new households using more utilities and other natural resources.

"A married household actually uses resources more efficiently than a divorced household," said Jianguo Liu, an ecologist at Michigan State University whose analysis of the environmental impact of divorce appears in this week's online edition of Proceedings of the National Academy of Sciences.

More households means more use of land, water and energy, three critical resources, Liu explained in a telephone interview.

Households with fewer people are simply not as efficient as those with more people sharing, he explained. A household uses the same amount of heat or air conditioning whether there are two or four people living there. A refrigerator used the same power whether there is one person home or several. Two people living apart run two dishwashers, instead of just one.

While we should all be environmentally conscious, the negative effects on the environment should not be a factor in remaining in a “dead marriage.”

This was really a rather silly study. All relationships have an effect on the environment. Following the logic of this study, while the decision to marry may result in less households (two households become one) and some natural resource efficiency, children will be born of the marriage, resulting in the purchase of a bigger cars to accommodate the growing family and, in all probability, a move to a sub-urban homes further away from couples' places of employment, resulting in longer commutes . . . Eventually, the children will grow up and move away from home to establish their own separate households. The conclusion could then be drawn that marriage and children are bad for the environment.

Someone should explore the impact  of this useless study on the environment. How many trees were destroyed so that the study  could be printed?

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Divorce certainly brings out the worst in people. Some actions and behaviors are occasioned by malice or greed. Others are designed to get a perceived a tactical advantage in the divorce action. Regardless, as detailed in Cathy Meyer’s article, these Dirty Tricks of Divorce will, in all probability, end up harming your case more than they help. These dirty tricks escalate the acrimony and could even pre-dispose a judge against the wrong doer.

Here is Cathy Meyer’s list of dirty tricks, with my two cents added:

• Withdrawing marital funds from joint bank accounts and transferring the money to accounts in your sole control. This transfer will result in the aggrieved party running into court to obtain a restraining order preventing the funds from being squandered.
•  Running up credit cards charges for which the other spouse is primarily liable. This can be prevented by closing joint lines of credit when the divorce is commenced.
•  Refusing to pay any household bills or send any support until forced to do so by court order. This is one of the steps in a routine called "Starve Out The Other Spouse". The goal is to get the other spouse in a financial position where he or she will settle the case out of financial desperation.
•  Refusing to speak with your spouse about anything, including arrangements for him or her to have parenting time with your children. This falls into the category of a tactic used by some lawyers to create conflict, create issues that don't need to exist, increase legal fees and wear the other side down. It can also cause a serious break in parent-child ties if the non-custodial parent doesn't get to see the children because he or she can't set up any parenting time.
•  Filing false reports of domestic violence intended to have your spouse barred from the marital home.

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Adam Liptak, in his New York Times Sidebar column correctly questions the efficacy of requiring service by publication when a defendant in a legal action cannot be located. It is  universally accepted that no one really reads the legal notices published in newspapers.

In a New York divorce action, the defendant must be personally served with the summons. The only time this requirement really becomes a problem is when the whereabouts of the defendant are unknown, e.g., a situation where the parties have been separated for years.

In a case where a defendant cannot be located, the plaintiff may seek an order permitting service by publication after unsuccessfully undertaking a search to locate the defendant. The idea is to give the defendant actual notice of the impending divorce. The only problem – no one really believes that the defendant will actually read the legal notice.

I have a problem with this type of service- it very expensive and it really does not give the defendant notice of the lawsuit.

The publication requirement always struck me as a pointless waste of money,” said Deborah L. Rhode, a law professor at Stanford who in divorce cases has represented poor women forced to buy ads to notify their missing husbands that they had been sued.

“It was particularly ludicrous for our clients, who were below the poverty threshold and had partners who would never be looking at the designated publication,” Professor Rhode said. “It was a form of what we used to refer to as ‘sewer service.’ ” (The term refers to the fraudulent practice of claiming to have served legal papers on someone while actually tossing them in the sewer or trash.)

Ironically, Liptak, a newspaper columnist, acknowledges that the requirement of publication in a newspaper is an anachronism and that service by posting on the internet would be more effective. I agree.

First, there is a greater likelihood that the defendant will get notice of the action on the internet than in a print ad.  Even the most widely read newspaper has a limited geographic reach. The internet is world wide. A person could possibly receive notice of the New York legal action anywhere in the world simply by doing a google search of his/her name.

Second, the cost of posting the legal notice on a designated web site, would be de minimus. The cost of this service could be reduced from several hundred dollars to a few dollars.

Finally, service by an internet posting would be an environmentally sound method of service. Hundreds of pages of news print could be saved a year. If the posting was made through a court run web site, the result could be an infusion of capital to the always cash strapped court system. The only downside to allowing service by posting on the internet is that the newspapers will lose advertising sales

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I stumbled on these article,  about the holidays, loneliness and sadness brought about by  a change, like divorce.

On Thanksgiving, as well as other holidays, most of us have an ideal of how the day should go. We want the house to look perfect, the children to be cooperative, the food to be delicious and plentiful, the relatives to behave. Yet some disappointment is inevitable. For one thing, holidays involve change in the daily routine and even minor changes can be stressful.

For some, the holiday means face-to-face confrontation with major changes. What is supposed to be a celebration seems more like a painful reminder of what was lost and what might have been. Perhaps this is the first year your daughter will be visiting her in-laws out of state. There may be an empty chair at the table because a family member is serving overseas or is in the hospital. Maybe this is the first Thanksgiving after a divorce or a loved one's death.

Remember, you are not alone.   Reach out and get help.

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The Pennsylvania Family Law Blog poses the very practical question- what do to with a gift or inheritance received during a marriage? How can one insure that a gift to an adult child does not end up marital property subject to the other spouse’s claims?

As the blog post points out,

Generally, marital property means all property acquired by either party during the marriage, regardless of whose name it is in. An exception arises for property acquired by gift (except between spouses), such as an inheritance.

In New York, the same rule applies. Provided the gift remains in the sole name of the recipient of the gift, it will remain  that spouse’s separate  property. If the gift is put in joint names, the other spouse could claim that it is marital property and subject to equitable distribution. The burden shifts to the recipient spouse to prove that the property is and was separate property

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Victor J. Medina in the New Jersey Divorce and Family Law blog offers some good guidance in how to select a divorce attorney. I agree with Medina when he states a client should look for a divorce attorney who is flexible in style.

I think all divorce attorneys hear some client question during at the initial consultation:

“Are you a fighter? I need a bulldog on this…” or “I really need someone who is collaborative…can you work with my ex’s attorney?”

My response, like Medina’s, is I can be whatever the situation requires. An effective attorney needs to be practical, pragmatic, creative, and re-active. Seemingly contradictory, it is possible to be both firm and conciliatory or aggressive and fair. Like a good boxer, a matrimonial attorney has to know how to bob and weave to avoid the punishing blows, to jab to wear down opposition, and be willing and able of throwing a knock out punch.

A matrimonial case is not one dimensional- the issues are financial, legal, emotional and psychological. The fight, sometime, may appear to be about money, but it may really be about rejection or control instead. Other times, the dispute may really be just about money. The good attorney will discern which the case is and his adjust strategy accordingly to achieve a result in an expeditious and cost effective manner.

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In Japan, it is now possible to finance a divorce. According to the Financial Post, the Ogaki Kyoritsu Bank will become the first Japanese bank to provide unsecured loans to cover the costs of divorce.

The loans are available to customers between the ages of 20 and 65 with an income of $2 million yen per year or more, and range between $100,000 and $5 million yen to cover support payments, property division and (arguably most importantly for our readers) legal fees.

This type of loan may make some sense for the Wall Street executives, who receive most of their annual income as bonuses or entrepreneurs, whose capital is tied up in some venture. For most, this could be a risky and expensive way of unwinding their marriage.

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The Modern Woman’s Divorce Guide has been running a series of  Weekly Divorce Tips. This week’s tip offers some simple advice for a complex problem- How to tell your children that you are getting divorced.

Telling your children about divorce is challenging, but essential. According to Gary Neuman, a psychotherapist and divorce expert who appeared on the Oprah Winfrey Show a few weeks ago, “the way children are told about their family breaking up is a seminal moment that no child forgets.”

So, how do your tell your children about divorce without scaring them for life? Gary Neuman recommends you do it by following these basic rules:

•“Both parents should be present to tell the children together - with the main message being, you, the children, are still our priority.
•It should not take more than 45 seconds.
•Practice what you’re going to say, before blurting out things that can hurt forever.
•Never disparage the other parent, because it makes your child feel guilty about loving them.”

I offer a few more thoughts:

• Your children are not divorcing your spouse, only you are. If your spouse is bad, imperfect, or completely flawed, let the children discover that themselves. You do not have to flag your spouse’s faults for them.
• Do not make the children choose sides. To the contrary, children should be encouraged to have a relationship with both parents.
• Tell the children, particularly if they are young and may not understand, that nothing they did caused the divorce.
• Re-assure them that both parents love them.

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Janet Langjahr in her Florida based divorce and family law blog, reports that money does not equate with happiness in marriage. Citing an article, The Rich and Unfaithful, in Forbes, she says that the wealthy are no happier in their marriages than the not as well off.

About half of wealthy people describe themselves as unhappy in their marriages, and just as many admit to cheating on their spouses in the last three years. (Interestingly, more women than men owned up to affairs.)

Somewhat ironically, the excuse cited for unfaithfulness was desire for variety.

Although half of the affluent were unhappy in their marriages, just thirty percent were considering divorce…

It is not terribly surprising that the wealthy may be more divorce adverse. Quite simply, the exit costs may simply be too great. Assets acquired during the marriage have to be equitably distributed. Maintenance to keep a non working spouse in the marital lifestyle may be required to be paid.

A couple, living comfortably, with a million dollars in assets and a nice home with a mortgage could find themselves each with half as much in cash and looking for a new place to live.

There is an economy of scale in remaining in a marriage, even an unhappy one. The same income will not go as far if it must be split between two households. Rather than paying household expenses for a single home, a divorced couple must pay rent or mortgages on two homes, as well as all the other related housing expenses. In the end, there would be less discretionary or play money.

It may be purely economics that keep the wealthy in their unhappy marriages.

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I previously wrote about custody of dogs in divorce actions.

Now, there is a trend to issue orders of protection in favor of pets. The New York Times reported that in one case in Connecticut, a golden retriever was granted an order of protection against one half of a divorcing couple.

As the police tell it, Cassandra Reynolds pulled up in the driveway of her ex-husband’s home in South Windsor to pick up a few belongings.

A dispute ensued. Her ex-husband’s golden retriever approached her, so she kicked it, the police said. The dog yelped. Ms. Reynolds was arrested.

That was on Sept. 23. The next day, a Superior Court judge ordered Ms. Reynolds, 39, to stay away from her ex-husband and his new wife. The judge also ordered her to stay at least 100 yards away from Riley, the golden retriever — or face up to five years in prison and a fine of up to $5,000.

Not surprisingly, pets, like people, are victims of domestic violence. According to the Times, there is legislation pending in other states, including New York, to allow courts to issue orders of protection in favor of animals. While this may be a noble and even necessary measure, I wonder if there is better way to accomplish the same goal.

As one police officer pointed out, “In a dispute, people tend to fixate on things they know will harm the other person.” Let me preface, my next statement, by saying I am a dog lover and owner. That said, is the case of directing anger against the dog in the incident described in the Times article, much different from smashing the windshield of the spouses car? Aren’t both acts really just displaced anger designed to hurt or terrorize the spouse?

Wouldn’t a better solution be to read and write orders of protection issued in cases of domestic violence broadly to protect both the person and the property of the person? Isn’t the symbolic act of violence directed to the property or pets of a person a threat which should be included in any protective order?

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My dialogue with Ben Stevens on the merits of billable hour versus the flat fee in a matrimonial action continues.

Let me say at the outset, that I am certainly no fan of the billable hour. For many reasons, I  prefer the flat fee model. The number one reason, it is predictable. With certainty, I can answer the question every client asks, “How much will this matter cost?” When billing on an hourly basis, I can only estimate, giving a meaningless range.

As pointed out in The Billable Hour: Are its Days Numbered, a flat fee may work on more routine stuff, high-volume work or repeat work, but not on “bet the farm work.”  Certainly, a flat fee arrangement lends itself to an uncontested divorce or the negotiation or review of simple marital agreement.

But does the flat fee really lend itself to an emotionally charged and litigated divorce or custody action? Mr. Stevens states that because he charges his client’s a flat fee he is selective in his case selection, agreeing to represent clients, who, for instance are reasonable in their expectations. That, however, is only half the equation. It takes two parties to reach an agreement. What happens if the other party or legal counsel is not acting reasonably?

Mr. Stevens also contends that the billable hour rewards inefficiency and waste. That statement would be true if one were looking to make a “killing” on a single client. I prefer to treat my clients fairly and build my practice by referrals. A client, who feels that he was treated fairly, is the absolute best source of new business. For this reason, it would be shortsighted to invoice a client for needless work or excessive time charges. .

Regardless, I will accept Mr. Stevens challenge and will accept, at least, one new litigated case on a flat fee basis. I will report my thoughts here. Stay tuned.

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Benjamin Stevens offers a thoughtful series of articles on why attorneys and clients benefit from fixed fees in a divorce action.

Some of the benefits cited by Stevens are:

•Clients know the total cost up front, which enables them to determine prior to retaining the attorney whether or not they can afford his/her services and to budget for the attorney's fees and costs.
•Clients have another basis upon which to compare attorneys, both in the manner they charge for their services (fixed fee vs. hourly) as well as the amount charged ($X vs. $Y).
•Clients never end up in fee disputes with their attorneys, because all fees were negotiated and agreed upon before the representation began.
•This method encourages open communication from the client to the attorney. In hourly billing situations, clients sometimes hesitate to provide information to the attorney because they know that they will incur fees and costs for doing so.
•Clients have a higher level of trust with their lawyers, which results in a better working relationship, which frequently yields better outcomes in the clients' cases.
While a flat fee may be appropriate in a matter where the legal representation is somewhat limited in scope, for instance, representing a litigant in an uncontested divorce. At flat fee may be inappropriate in a litigated matter or in a case where the issues will have to be extensively negotiated.

Too often, and particularly in matrimonial mattes, parties take irrational and economically untenable positions fueled by emotions. In the worst cases, parties, left to their own devises would fight about assets with no value. The billable hour is one mechanism of bringing a litigant back to realty. A gentle reminder that cost of litigating about a particular item exceeds the benefit to be achieved oft reins the client in.

In fact, a client who paid his attorney a flat fee has absolutely no incentive to give up the fight and every incentive to assert a position “on principle.” After all, in the case of a flat fee, the legal bill is the same whether or not you prevail. 

I would expect an attorney, working on a flat fee in a contested matter, to price into his fee the potential for a client to act irrationally and to set the fee on the high side. On the other hand, I have heard lots of complaints about attorneys who do not return clients’ calls (I understand this to be the leading cause for attorney disciplinary action) - maybe these are the attorneys that charged too low a flat fee.

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The odds of a marriage lasting twenty five or even fifteen years are decreasing.

Reporting  on recently released marriage census data, the New York Times noted that more than half the Americans who might have celebrated their twenty fifth  wedding anniversaries since 2000 were divorced, separated or widowed before reaching that milestone.

"For the first time at least since World War II, women and men who married in the late 1970s had a less than even chance of still being married 25 years later."

Of course, one of the reasons for this drop-off is that people are marrying later in life increasing the chances that a spouse will be widowed, rather than divorced before reaching their twenty fifth anniversary.

But the percentage of marriages lasting fifteen years is also declining.  “About 80 percent of first marriages that took place in the late 1950s lasted at least 15 years. Among people who married in the late 1980s for the first time, however, only 61 percent of the men and 57 percent of the women were married 15 years later.”

There really does seem to be a "seven-year itch."Couples who separate do so, on average, after seven years and divorce after eight.

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A number of the presidential candidates are divorced. Fred Thompson, John McCain and Rudy Guliani are all divorced. Should the reasons for their divorces be fodder for their qualifications as President?

For instance, there has been discussion on the blogosphere about Fred Thompson’s divorce based upon “cruel and inhuman” treatment. Does this mean the Thompson was a wife-beater or a victim of domestic violence?  Not necessarily.

As one commenter pointed out in The Atlantic:

Cruel and inhuman treatment" (or something similar) is a common legal cause of action in the divorce law of many states. In states without no-fault divorce, one needs (or needed) a legal cause of action in order to file for divorce. One of those causes of action is "cruel and inhuman" treatment.

In New York, for instance, where a “No Fault” divorce is not an option, unless the parties are willing to be legally separated for a year, their divorce must be fault based. Cruel and inhuman treatment is one available option for a grounds based divorce.

On the other hand, we will never know if Thompson selected his grounds for divorce because it was a means to an end, a quick divorce, or because there were actually incidents of domestic violence. If an irreconcilable differences grounds for divorce was available, would the Thompson’s have pursued a divorce based on cruel and inhuman treatment?

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Divorce is not only rampant in America. Crossroads Arabia reports that divorce is so prevalent in Saudi Arabia that divorce lawyers are turning away new clients.

Sixty-two per cent of marriages in the western region in Saudi Arabia end in divorce, with a large percentage of those being less than 25 years of age.

The number of young divorcees is increasing. Some are getting divorced after one or two years of married life. Coming across a 20-something divorcee is not strange anymore. Khaled Abu Rashid, a Saudi lawyer, said that with a huge number of divorce cases, law firms in Saudi Arabia are burdened with so much work that sometimes they have to refuse taking cases. He said that divorce among young couples was increasing and added that a lot of his clients are between 18 and 22 years of age and that many disputes revolve around child custody.

There are certainly cultural reasons for rampant divorce rate; many of the marriages are arranged. Regardless, I cannot help but wonder if the law in Saudi Arabia is as backwards as New York’s which requires parties to prove marital fault. 

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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.

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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.

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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.

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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.

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The Family Law Professor Blog and Forbes.com report on an Australian study published in the Journal of Marriage and Family that shows that children of divorced parents “had twice the risk of going through a divorce themselves.”

The study found that family history was more predictive of divorce than genetics.

The research did not completely eliminate all genetic factors, however. According to D'Onofrio, about 66 percent of the increased risk for divorce appears to stem from the simple fact of a person's parents having been divorced. The remaining 34 percent of the risk seemed to be tied to genetic factors, as well as other factors affecting parents and children. . .

The study is unique, the researcher said, because it is based on data from more than 2,300 twins, their spouses and their adult offspring. In other words, many of the younger people in the study are actually cousins who are also "genetically half-siblings," because their aunt or uncle shares their parents' genes.

So, to help separate out the effects of genetics from family environment, the Australian team compared the marital success of cousins who grew up in stable families (no divorce) against cousins who came from families split by divorce.

I suppose that if children are exposed to the notion that marriage is not forever, they may be more accepting of the idea of terminating the martial relationship  through divorce when conflict arises. This would seem to be consistent with the notion that second or third marriages also have a lower probability of success.

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The Appellate Division in Walker v. Walker provides us with yet another lesson on the importance of carefully drafting martial agreements.

In Walker, the parties, in an oral stipulation of settlement, agreed to divide a 75 acre property. The stipulation specifically provided that defendant "would be entitled to one-half or 37½; acres off the westerly side of that parcel of 75 acres (emphasis added)."  Not surprisingly, the parties then had a dispute about how the property was to be actually divided.

On appeal, the Court found that the stipulation was ambiguous,

because there is no mechanism by which to determine how much of defendant's 37½; acres must be from the "westerly side" of the parcel. Stated otherwise, the stipulation provides no basis from which to discern a dividing line.

As the result of a simple, and, perhaps, misplaced “or” in a settlement agreement, the parties were forced to perfect an appeal and to conduct a hearing to clear up the ambiguity and to ascertain their intent at the time (they thought) they settled the case.

The lesson, select the language of agreements carefully. If necessary, give examples. In this case, an illustration on the land survey showing how the property was to be divided would have saved this couple a lot of legal fees and heartache.

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