The Latest News July 2019

Studies have shown that there is a spike in divorce filings at the end of summer and beginning of a new year.  Some attribute that to the fact that couples spend more time together in the summer and things can "heat up" when there are existing problems between the couple.  However, people don't choose to file until later when the school year begins and their children are back in school.  Likewise, traditionally, the December holidays are not a time when people file for divorce.  Filings spike when the new year comes around, with new year resolutions and a retrospect of looking back over the past year.

If someone is even thinking about a divorce, they should start to plan and prepare long before they file.  Summer is often a good time to have conversations with your attorney, financial advisors, and of course, your family.  It is also a good time to make an assessment and get familiar, if you are not already, with what you have - whether it is bank accounts, credit cards, investments or actual physical property - and to have an understanding of your financial circumstances and wherewithal, especially if you are not the spouse that takes care of these items.  It is also best to start accumulating copies, while you have access to all the important documents, of tax returns, bank statements, credit cards and retirement accounts - not only assets but also liabilities, to understand the financial health of your relationship and how you will be able to proceed moving forward.

Summer is also a good time to reflect, if you are considering a divorce, what you are really looking for moving forward...whether divorce is right for you now and what do you want your family to look like in the next five years.  Family counseling or coupling counseling may also be appropriate.  If you feel there is trouble brewing but not sure the direction you want to take.  Having outside help, when something as emotionally and traumatic as problems in a marriage can be, it is important to get perspective of what is really happening and examine what your real feelings and needs are.  It may also give the opportunity, if done early enough, to resolve problems before they arrive at a breaking point.

Selected excerpt(s), photo and linked article courtesy of Ryan W. Miller, USA TODAY & Divorce Magazine

In New York equitable distribution governs marital assets.  Like this article states, keeping assets acquired during the marriage separate does not necessarily protect them in a divorce since assets acquired or earned during the marriage are considered marital assets.  It is however extremely important to keep “separate property” separately and only titled in that spouses name.  Therefore, inheritances or gifts of any kind, or premarital property, if kept separately, will remain separate property.  However, if they even touch joint name, they become marital.  Likewise, investment properties should also be kept separately.  If a property becomes a marital home, the person who owned it first will receive credit from the date that it became marital, but thereafter, it has a marital aspect. 

Once again, all of this can be avoided and property and assets can be protected by a Prenuptial Agreement. 

Selected excerpt(s), photo and linked article courtesy of Megan Leonhardt at CNBC

How to protect your money before marriage...

First, you want to protect individual assets and income, especially if there are multiple streams of income.  This may include income as a result of a family trust, gifts and/or inheritances or separate incomes from different business ventures.  This principle also applies to your non-high net worth individuals that may have multiple sources of income, whether it be from more than one business or a passive stream of income or individual separate property.

Meeting with a Financial Planner is also highly recommended so that you have an understanding of what you want to accomplish with respect to your Estate Planning.  It will also give a perspective with respect to tax consequences based upon your decisions.  After you have sorted out most of these issues, the most important next step is to consider doing a Prenuptial Agreement or a "Prenup".  This legal contract between the parties before they marry sets forth how they intend to hold and divide property that becomes marital and what properties they intend to keep separate and for which their soon to be spouse will have no future claim.  Because this is a contract between two parties, each party should be represented by independent counsel, so that each party's best interests are represented.  In addition to securing and identifying income and assets and how they will be effective by a possible future divorce, it is also important to consider if one of the parties is giving up a career in order to raise a family.  If that is the case, then the Agreement should also take into consideration whether that person is entitled to and should have financial support in the form of maintenance, which is equivalent to spousal support - and for what period of time that support should exist in the event of a divorce.

Another point most couples do not consider in planning for the future and protecting against a possible divorce is what happens to the debt that is acquired during the course of the marriage, or if a party is coming into a marriage with substantial debt...that is something that also should be addressed in a Prenup.

As for celebrities or persons of notoriety who live in the public eye, there are other considerations to ensure with respect to that person's public reputation and the effects that a scandal of a divorce could have.

Selected excerpt(s), photo and linked article courtesy of Sarah Wells, Business Insider, and pitbull2013 via Compfight cc.

At the beginning of any relationship, one can easily be blinded by the excitement of the new relationship and the infatuation that often occurs.  However, it is important to pay attention to any yellow or red flags that get raised by the behavior of this new partner.  Many times people are on their best behavior, but you should definitely look at a partner who speaks negatively or posts negative comments about an ex or others in their life.  If the people who know you well in your life do not approve or like this person, pay attention, they may see something you do not.  It is important to notice toxic behavior that becomes a threat to any relationship...like whether this person argues with personal attacks and negativity or plays the blame game.

It is important to notice these things before you get in too deep.  Certain things will not change, and if it is not going to work now, it won’t work later.  It is important to discuss and discover what is really important to each of you long term.  If there are difficulties, is this person willing to consider counseling as an alternative to work through issues?  Remember relationships are complex and they change over time.  It is important to give them room to breathe and grow, but it is extremely important to have a strong mutual love and an absolute trust and respect for one another.  Open honest communication is extremely important.

Take notice and take a step back to evaluate before you make a long term commitment.

Here are five things soon-to-be-married couples can learn from divorced couples.

Selected excerpt(s), photo and linked article courtesy of ABC Radio.

While this particular article does not address the specifics for a New York divorce (there is no Summary Divorce and no Arbitration for divorce in NY), it does outline the nine different types of divorce, depending upon how complicated the situation is.

Contested & Uncontested:  To obtain a divorce you must commence a lawsuit or "action" against your spouse for divorce.  If that action moves forward where the spouse or "parties" fight over every issue that must be decided in a divorce (distribution of marital assets, child custody and visitation, etc.), then this is a contested divorce.  An uncontested divorce is where the parties settle their lawsuit, or even better, use alternative methods wherein they reach an agreement on all issues before they even file for their divorce, and then these parties DO NOT step into the courthouse...instead their paperwork goes to court.

What are the alternative methods?

Mediation is a process in which an impartial third party meets with a couple to help them reach a mutual and informed agreement for the terms of their separation and/or divorce.  https://www.spiriolaw.com/Practice-Areas/Divorce-Mediation-Long-Island

In the Collaborative Process the attorneys and parties agree that they will not go to Court and will instead focus their energies on settlement. The parties can therefore control certain aspects of their divorce or dissolution, such as the cost and the timing.  https://www.spiriolaw.com/Practice-Areas/Collaborative-Law-Attorney-Long-Island

New York is now a No-Fault Divorce state, which means you do not have to allege or prove fault grounds in your action to obtain a divorce.

Finally, same sex marriage is now legal nationwide and divorce is governed by state law.

Selected excerpt(s), photo and linked article courtesy of PRFIRE.