The Latest News 2018

So many people have sticker shock when they realize how much it costs to get a divorce.  The most expensive and the longest process to obtain a divorce is a traditional litigated divorce through the court system.  Although, in order to obtain a divorce, a legal action must be commenced and processed through the New York State Supreme Court System, that does not mean the case needs to be litigated through the court system or that the individual parties need to go to court.  There are alternative methods that are more humane; take less time and are less costly to obtain a divorce.  Even though there are alternative methods, no divorce is inexpensive or for free. 

Many of the costs involved are a result of the negotiating of all issues that need to be resolved; the Court filing fees and more importantly the sheer amount of documents that are required by the court system before a divorce can be granted.  One look at the volume and complexity of documents that are required to be prepared for the “Uncontested Divorce Packet” in New York, alone is enough to make someone feel sick to their stomach.  The reality is there is a vast difference in the costs of obtaining a divorce, depending on which modality or method you choose.  This difference can add up to not only tens of thousands ($$,$$$) but hundreds of thousands of dollars ($$$,$$$) when the cost to the couple and the marital assets are considered. 

Further, the actual time spent in obtaining a divorce varies greatly depending on the modality or method that you choose.  No one has control over how long the Court will take to process the necessary paper work to finalize a divorce.  However, there is a significant difference between a case that is litigated, and goes through the Court system as opposed to a case that goes through an alternative method such as Mediation or Collaborative processes. 

The difference on how your money is spent and how your money works for you can be drastically different depending on the process you choose. Traditional divorce cannot only devastate your finances but can have a devastating impact on your mental and physical well-being.  The alternative methods of Mediation and Collaborative are a much healthier process, not only for the individuals mentally and physically but to their financial futures when a couple chooses to dissolve their relationship.  There is nothing more stressful and contentious as a litigated matter, which stands in stark contrast to the healthier forms of Mediation and Collaboration.  This is not to say that stress and discourse do not exist in the other modalities, but they can be minimized and channeled in much more effective ways so that the parties can navigate this transition and in the end be much better off mentally, physically and financially. 

          There are two ways that I like to describe how your money can be spent or your money can work better for you.  One is an example that I watched my sister use with my nephew when he chose to pump up the thermostat rather than put on a sweater.  She took out a five-dollar bill (representing his allowance) and said that every time you pump up the thermostat, it like doing this and she put the five-dollar bill on fire and let her son watch it burn.  The effect was dramatic.  He quickly understood how quickly money can literally be burned up simply by turning up the thermostat.  Likewise, how your money is spent or how it works for you in the dissolution of your marriage is very similar when you contrast the methods of Mediation and Collaborative dissolution, to a litigated divorce.  In the litigated divorce both parties are paying substantial monies and an initial retainer to merely retain litigation counsel for the divorce.  The substantial retainer, which could be thousands of dollars does not get you to the conclusion of your divorce but is just the money to get you past the initial starting line.  In addition, like watching that five-dollar bill go up in smoke, the parties could be sitting in the court house for a good portion of a day watching counsel for both sides sitting there in the hall way of the court house or in the gallery of the court room, waiting for your case to be called.  When your case is finally called, does anything really get done?  No, most times, unless you are actually on trial, your case is being conferenced, either by the Law Secretary or the Judge, which means your attorneys get to go behind the bench in the court room, behind closed doors in the Judge’s chambers to discuss your case for maybe five to ten minutes and the result is usually scheduling the next conference date to do the same thing all over again.  So, of the ten minutes that your attorney was actually working on your case, you are spending thousands of dollars for your attorney to be there waiting for your case to be called, three-quarters of a day, half a day or all day depending on the court’s calendar.  In addition, you may be also paying for the ineptitude of an advisory’s counsel.  If your spouse has counsel that has other matters on or just doesn’t really get the work done in between court dates, then your case may be delayed based on your spouse’s counsel’s ineffective work.  Your case may be delayed even if your attorney is ready, willing and able to go, because your spouse’s counsel has more than one matter on or has not done what was required during the interim period between court dated.  Instead of getting anything done, the case merely gets adjourned.  Appear, conference, adjourn and repeat!

          So, how is Collaborative or Mediation different and how is your money not merely spent but is actually working more effectively for you?  In those modalities, your money is actually being used for the time that is being spent actively working on the resolution of your matter.  No one is being paid merely to sit around and do nothing!  Instead, the professionals are being paid to actively work on your matter to resolve the issues, with each of the participants in Mediation or each of the members of the Collaborative team working on the issues that need to be resolved to ultimately get the dissolution or divorce.  That includes drawing the paper work that needs to be done to ultimately get the divorce.  Would you rather pay someone who is actively working on your case and you can see the time that is actually being spent for something constructive to be done, or would you rather watch that thousand dollar burn up while your attorney and the people on your case are sitting and waiting for their five minutes before the Judge.

          In addition, the totality of time that is spent on your case is greatly diminished in both Mediation and Collaborative Processes, while a case can languish in the court system for a year or more, depending on how litigious the parties choose to be.  Your Collaborative attorneys and team members are not faced with the court’s calendar and lack of personal available to process your case.  You are paying for people to work on your case right away.  So long as the participants are cooperative, your case can be processed much more expeditiously then one that is languishing on the court’s calendar waiting for the availability of the next court date or having months go on between scheduled court appearances or court dates.

Halloween is the season of spooky and fearful things. So, what are the things that keep you up at night?

Many people are concerned that their family and loved ones are taken care of. One of the things that you can do to help you sleep at night is to make sure that your affairs are in order and that you have all the important and necessary documents in place that everyone should have.

So what important documents should everyone have:

Last Will and Testament: This document goes into effect after someone has died and makes the determination on what will happen with all of their assets and property, including who should take care of their children in the event that they die with minor children based upon the person’s expressed wishes. If you die without such a document, the state determines what will happen with your assets and if there are no living relatives, the state actually gets to keep your money.

Living Will: This is a document that is a declaration to the world on what your wishes are with respect to extra ordinary care to be given to you in the event that you are terminally ill or have permanent brain damage with no hope of recovery. So, if you don’t want to be kept alive by artificial means, this tells the world what your wishes are and there cannot be any dispute by family members or others that may wish to keep you alive under circumstances you have decided are not the way you want to continue living.

Health Care Proxy: This document designates who you wish to make your medical health care decisions in the event that you are unable to do so. It also permits this person to make decisions with regard to who has access to you when you are in a hospital setting or institutional setting. It is extremely important if you are unmarried but have a life partner or significant other, since family members could bar that person from your bedside if there is no legal document to protect this relationship.

Determination of a Person’s Remains: Now this may seem really ghoulish but may be quite necessary. If you have a significant other that is not a biological relationship or a legally recognized relationship such as a marriage, only family members have legal rights to determine what happens with your remains after death and what type of funeral or service you may have. If you have other wishes or someone in your life that you wish to make this determination, you must have a document specifically giving that person the right to have control over your remains as well as being able to determine what type of funeral or who gets to maintain possession of said remains if you are cremated. Unfortunately, people don’t always think of this and unfortunately biological family could hold your loved one hostage if you are not in a legally recognized relationship at the time of an unexpected passing. Really, this has actually happened!

Durable Power of Attorney: This is a very important document that designates an agent to act on your behalf in either a very limited scope or a very broad scope, whether or not you are incapacitated. There are specific or many general powers that can be given to this agent but it is an extremely useful tool when someone is either chronically ill or incapacitated and unable to take care of their personal affairs.

If you would like to learn more about these things, please feel free to contact my offices at 631 277-8844.

Can’t afford to get Divorced?

There are alternatives to the devastating costs of a traditional litigated divorce. Many people cannot afford to get divorced.  There are three different ways to get divorced. 

Traditional Litigated or Contested Divorce

The most common and costly is a litigated or contested divorce.  One party commences a divorce action and each party retains separate counsel.  Not only is this process stressful for the participants but extremely costly for each party.  Most litigation attorneys require a large initial retainer up front when they are retained on a contested divorce matter and the retainer is not the entire price that the divorce will ultimately cost the parties.  This is only the beginning step of what the attorney requires up front to cover the initial expenses of the divorce proceeding. 

Many parties can expend tens to hundreds of thousands of dollars on litigation and essentially give all of their hard-earned money and assets over to the attorneys to obtain a dissolution of their marriage.  Most of middle class America who struggle to use two incomes to make one household, cannot afford the cost of their divorce, let alone creating two households or secure their financial future after the cost of a divorce.

In addition, both parties must appear with their attorneys at every scheduled Court appearance.  Further numerous Court appearances may be needed and as well as extensive discovery, depositions and ultimately testifying at a trial in open Court. 

So, what is the alternative? 

There are two other processes that can be utilized by parties to obtain a divorce without destroying their financial futures and without the parties ever having to set foot in the Courthouse.  They are not only more cost effective but a healthier way to get divorced for all involved.

The fact is, to obtain a divorce costs money regardless of the method utilized.  However, would the parties prefer to waste their time and money on long court appearances paying two attorneys for a day in court where nothing is actually accomplished; except getting a new court date to report back; or having their money work towards actually getting them divorced in a method that they truly have a say in the decisions affecting their lives, their family and their assets.

The most affordable method is Mediation.

So, what is Mediation?  Mediation is where both parties are using a neutral third party, called a Mediator to help them facilitate an agreement that will serve as the contract between the parties resolving all issues that must be determined in a divorce action by the Court.  The Mediator will educate them as to the law and various aspects of issues that must be addressed and help them come to an agreement that is customized to their situation and will serve as the contract that resolves all issues and is binding between the parties even after the divorce is obtained.  The Mediator prepares this contract and makes sure it is executed properly.

After the contract is signed, the Mediator will then be able to prepare all of the paperwork known as the Uncontested Divorce Packet, which is necessary for the Court to grant a Judgment of Divorce, all without the parties having to step into a Court room.

Now, why is this the most cost effective?  Well, simply speaking, when you enter into a Contested Divorce, each party is hiring a separate attorney which as previously stated, will require an initial retainer of thousands of dollars, which is just the beginning of the costs of bringing the matter to a conclusion and Judgment of Divorce.  So, tens or hundreds of thousands of dollars could actually be spent on a litigation.  Mediation many times, will cost less than it would have cost one party on their attorney’s fees in a litigated matter.  Since a Mediator is a neutral party, they are not advocating for either party, but educate the parties and help them resolve and come to an agreement on all issues that must be determined in order to obtain a Judgment of Divorce.

Collaborative Divorce is another alternative to litigation.

Collaborative Divorce is not as cost efficient as Mediation.  However, it is significantly cost efficient when compared with litigated divorces.  You can think of it as a middle ground between Mediation and Litigation. 

So, what is Collaborative Divorce?  Collaborative Divorce is a team approach.  There are a team of professionals, who are specifically trained in the collaborative method.  The team includes Attorneys, Financial Experts and Divorce Coaches as well as Mental Health Professionals which are available to the couple.  These professionals help streamline the divorce process while assisting the clients to navigate through the divorce process.

Each party is represented by their own attorney; however, both the attorneys for each party and the parties themselves, promise, agree and commit that this process is never going to see the inside of a Court room.

This process may cost more than Mediation.  However, for those who feel they need to have an attorney by their side, this is an ideal method to obtain a divorce without going through litigation and a fight through the Court system.  The parties and their legal representative agree to be non-combative and objectively negotiate the terms of the divorce.  They resolve all issues that must be resolved in order to obtain a Judgment of Divorce from the Court, which avoids a lot of the stress of litigation and you are not at the mercy of a Judge dictating the terms of your divorce. 

In essence, the parties, through their attorneys, craft their own customized agreement which will be a binding contract between them after the Judgment of Divorce is entered.  Once again, the attorneys will prepare all the necessary documents that need to be submitted to the Court in order for the Court to grant a divorce.  However, the parties themselves never need to step into a Court house in order to obtain the divorce. 

Although this process is more expensive than Mediation, it is still much less than the parties would expend on a contested litigation matter going through the Court system. 

Either of these processes will be more cost effective for the parties since the monies that would have been spent on a long drawn out litigation, can now be used to resolve their financial futures. 

Further, both of the above processes will ultimately obtain a divorce in a much shorter period of time than a litigated case going through the Court system.

I am looking forward to attending this Fall’s Charity  Fundraiser event “The Healing Power of Music Storytelling and Laughter” for PULSE (Center for Patient Safety Education & Advocacy) It will be held at the Brokerage Comedy Club in Bellmore, on Sunday September 23, 2018 Show Time 7:30pm. 

Pulse CPSEA is a nonprofit 501 (c) organization founded in 1966 and their mission is dedicated to raising awareness about Patient Safety through Advocacy, education and support.  I will attend and also have donated a Raffle Basket to help raise funds for this wonderful and important organization. 

For more information on PULSE and this event (tickets must be purchased in advance).   Go to: www.PulseCenterforPatientSafety.org.

Time is of the essence if you are in the midst of working through a DIVORCE agreement, looking to amend an existing agreement, or considering divorce at all!

The tax benefit that allows alimony paid by you to reduce your taxable income will end on December 31, 2018. This means that a divorce agreement filed after this date will lose the tax reducing benefit of the alimony deduction for the life of the alimony payments whether it is 5 years or 20 years! That is a tremendous amount of money that you will be losing and the Federal government will happily be pocketing. By the way, Federal revenues are expected to reach $7 billion over the next decade for the elimination of this tax break alone.

The loss of the alimony deduction hurts all parties in the divorce. This leaves less money in the pockets of those who need it most: Moms and Dads supporting their independent lives, and their children whose welfare depends on them.

It is clear from planners reviewing this change that it will be a serious struggle for even the most wealthy to find a work around, if possible at all, to compensate for this loss.

Another consideration at the moment is the expected end of the year rush and push to get Divorce Agreement signed before the deadline. Acting now is very important.

WHY LEGALIZED MARRIAGE HAS NOT SOLVED ALL ISSUES FOR THE LGBT COMMUNITY

You Do not want to be the first case the Courts interpret on these challenges

 Although the LGBT Community has now been afforded many of the rights enjoyed by the heterosexual community, the legalization of marriage has not solved all the issues and has created different challenges and issues in the event of a divorce. For traditional families and couples, divorce has been a process that is relatively straight forward since it has years of history both in legislation and judicial interpretation.  For the Lesbian and Gay community, we face a great deal of uncertainty and ambiguity since the legalization of marriage is so new for our community and there has not been much case law interpreting divorce of Lesbian and Gay couples. 

 Many couples in the LGBT community have been together for many years sometimes decades before legalized marriage was an option. 

So, what does this mean in the event of a divorce?  Well, the law and the Courts will only look at a marriage, including marital assets and debts, from the date of marriage to the date of divorce.  This means the law DOES NOT consider the relationship that existed prior to the legal marriage.  So where does that leave the lesbian and gay couples that have been a couple for many years before they married and have created and implemented their financial plan for the future.

  From a legal and Court perspective, the Courts do Not address assets and debts that were acquired prior to the marriage.  This creates a unique challenge for lesbian and gay couples that have had a lengthy relationship before a formal marriage.  The courts have yet to address these challenges and you do not want your marriage to be the case of first impression for the courts to decide.  It is very important that you have a seasoned divorce attorney on your side.  It is my opinion that the attorney should have experience within the Lesbian and Gay community to truly understand the issues that face our community.

It is also why I strongly feel that alternatives to divorce litigation such as Collaborative Divorce and Mediation which are extremely important to the Lesbian and Gay community.  These alternative methods let the parties to the divorce customize their agreement and the dissolution of their marriage based on the facts and circumstances of their relationship. 

 There are also many things that the community can do to protect themselves and avoid the event of a nasty divorce.

For all lesbian and gay couples, it is important that they address this challenge. So, what should you do to avoid these challenges? 

• Create a domestic partnership agreement or prenuptial agreement that address all issues in the event of a divorce
• Create a post nuptial agreement that address all issues I the event of a divorce
• If divorce is on the horizon be sure to choose an alternative method to obtain your divorce out of Court such as Mediation or Collaborative Divorce. These methods will keep your lives assets and interests out of the Courts reach.

This anticipated decision that many thought would follow up on the Court's decision nationally legalizing same sex marriage maybe view by some as a defeat to the LGBTQ community; however it merely underscores the rights of each person to their own religious beliefs. As stated in the article "Today's decision is remarkably narrow, and leaves for another day virtually all of the major constitutional questions that this case presented," said Steve Vladeck, CNN Supreme Court analyst and professor at the University of Texas School of Law. "It's hard to see the decision setting a precedent."

 Click here to view article

I had the honor of being the Spotlight Member to speak at Tai’s Club Business Lunch  At Mario's Italian Restaurant in East Setauket, on Friday, May 11^th 12:00 – 2:00.

My discussion was on Why More People Are Using Alternative Methods To Obtain A Divorce: Collaborative Divorce and/or Mediation Verses Traditional Divorce Litigation.

It was a great time with an interactive audience discussing the differences and benefits of alternative methods to divorce and the impacts to families and their financial future. Questions also lead us into Wills Trusts and Estates.  Thanks to all who participated