Law Offices of Harvey A. Arnoff

DIVORCE IS HARD, HERE’S WHY

2024-03-15T17:27:33Z

Divorce can be intricate and difficult as it deals with various issues including emotions, money and the legal system. When individuals begin the divorce process, they typically want to understand a few important things. The main issues I’m asked about are the following: Duration of the Divorce Process: The length of the divorce process in New York can be influenced by various factors including the complexity of the case, whether the divorce is contested or uncontested, and court backlog. Uncontested divorces where both parties agree on all terms tend to be resolved more swiftly, while contested divorces involving disputes over issues like child custody, property division, or spousal support may take longer to finalize due to negotiations, court appearances, and potentially a trial. Grounds for Divorce: In New York, couples can file for divorce under both no-fault and fault-based grounds. No-fault divorce, based on irretrievable breakdown of the marriage, is the most common and doesn't require proving fault. However, fault-based grounds such as cruel and inhuman treatment, abandonment, adultery, imprisonment, or living apart pursuant to a separation decree or judgment can also be cited if applicable. Hiring a Lawyer: While New York doesn't mandate legal representation in divorce proceedings, consulting with or hiring a lawyer can be highly beneficial. A divorce attorney can provide legal advice, explain your rights, help navigate complex legal procedures and paperwork, negotiate on your behalf, and ensure that your interests are protected throughout the process. Equitable Distribution of Property: In New York, marital property is subject to equitable distribution, which means it is divided fairly but not necessarily equally between spouses. Marital property includes assets acquired during the marriage, regardless of whose name is on the title. Factors considered in equitable distribution include the duration of the marriage, each spouse's financial circumstances, contributions to the marriage, and future earning potential. Child Custody and Support: In determining child custody and support arrangements in New York, courts prioritize the best interests of the child. Factors considered include each parent's ability to provide for the child's physical and emotional needs, the child's relationship with each parent, any history of domestic violence or abuse, the child's preferences (if mature enough), and maintaining stability and continuity in the child's life. Court Appearances: While some divorces in New York may be resolved through negotiation or mediation without the need for court intervention, others may require appearances in court, especially if issues such as child custody, visitation, or support are contested. Residency Requirement: To file for divorce in New York, one spouse must meet the residency requirement, which typically involves living in the state for a continuous period of time before filing. The residency requirement in New York is one year, and there are specific rules regarding which county the divorce should be filed in based on where the spouses currently reside. Cost of Divorce: The cost of divorce in New York can vary significantly depending on factors such as the complexity of the case, whether the divorce is contested or uncontested, or whether there are certain issues surrounding child custody, property division, or spousal support. Legal fees can accumulate based on the amount of time and effort required to resolve these issues. Spousal Support (Maintenance): Spousal support, known as maintenance in New York, and sometimes referred to as alimony, may be awarded in New York to provide financial assistance to the spouse with lower income or earning capacity, especially in cases where one spouse was financially dependent on the other during the marriage. The amount and duration of spousal support are determined based on factors such as the length of the marriage, each spouse's financial situation, contributions to the marriage, and the standard of living established during the marriage.

A DIVORCE PRIMER

2024-02-22T17:52:43Z

When I thought about writing you (a prospective client) a way to navigate through the beginnings of the divorce process, I felt that a brief outline might help… First, look for an attorney who has experienced all of the foreseeable issues in your case, such as: if there are minor children, what will be the parenting arrangement, who will be their primary caretaker, etc. We call this “custody”. The need for immediate financial relief. Second, what are the family’s financial circumstances – each party’s earnings, assets of the marriage and how they were acquired (including bank and stock accounts, real estate holdings and approximate value, etc., cash and jewelry), debts of the marriage – does any child have special needs? Do not worry if this information in unknown. The attorney you select should be well versed in assisting in finding assets and addressing all of the above issues. Third, what is the attorney’s experience in litigating the troublesome areas of support, custody, asset distribution, etc? Fourth, make an appointment and carefully interview the attorney. It is helpful that you prepare a list and ask all questions you may have during the initial interview. Make sure he or she answers each question clearly in a manner you can understand. Remember, the divorce process is often lengthy and that there will be extensive conversations between the two of you. You are not marrying the attorney, but you will be confiding in and relying upon that person often about sensitive issues. Simply put, you should believe that there can be a comfort level between you to ease communication and achieve desired results. Fifth, review in detail, the written retainer agreement so that there will be no surprises in your financial arrangement in order for you to be prepared for what lies ahead. In New York, there arrangements are required to be in written that is clear and easy to understand. Finally, take your time. Make your decisions well-reasoned. Please bear in mind that the relationship between attorney and client must be one of trust and understanding. Please feel free to contact our offices for further information. -Harvey

What’s a QDRO? Do you need one in your divorce?

2023-05-17T20:38:09Z

Not all divorces are alike. A couple that has only been married for a year, for example, may have few joint assets (or few assets at all), which can make the financial part of divorce relatively simple compared to couples that have been together a long time and have built up a considerable nest egg. That nest egg, especially if it's tucked away in one spouse’s retirement account, can be challenging to divide. In many cases, you may need a qualified domestic relations order (QDRO).

What’s a QDRO?

QDROs are legal judgments created in regards to a divorce to direct the division of one spouse’s retirement plan between both spouses. Its essential function is to protect the rights of a former spouse as an alternate payee, and to make sure that the division is carried out properly according to both the Internal Revenue Service’s code and the Employee Retirement Income Security Act (ERISA). QDROs are not applicable to every retirement plan, only those covered under the Employee Income Security Act. IRAs, for example, are not included in this category. They may also be limited in power, especially if the retirement plan in question already has a QDRO. For example, if the spouse with the hefty retirement plan has a former spouse with a QDRO, a new QDRO for the current spouse cannot disturb the prior spouse’s benefits. During the divorce process, couples generally try to negotiate the details of the retirement plan’s division. If that fails, the court can step in and decide what’s fair. Once that’s been decided, the QDRO will outline all the details, including what percentage or dollar amount will be paid to each party, how it will be paid and when. After the QDRO is approved by the court, it is sent to the administrator of the retirement plan, and the monies can be paid directly to the alternate payee (usually without the tax penalties normally created by early withdrawals). If you could benefit from a QDRO, don’t hesitate to seek legal guidance and support.

3 issues people often overlook when creating their estate plans

2023-04-17T18:59:03Z

Estate planning can be as simple or as complicated as an individual testator needs it to be. When it comes to estate planning documentation that is property-focused, for example, some people have only a few assets worth bequeathing to others and only a few relationships that merit advance planning for the financial stability of the people that depend on them. Others need a number of complicated documents in place to achieve their estate planning goals. Much of the process reflects someone's circumstances in life and their personal priorities. However, it is relatively common for people to make the mistake of oversimplifying their estate plans. They fail to address issues that could cause major challenges in the future. These are some of the most common oversights that individuals make when estate planning.

1. Overlooking financial obligations

Some people fail to think about the taxes their estate or their family members will have to pay when they die. Others fail to consider the impact of the debts that they owe. Those taxes and debts may take priority over the inheritance rights of beneficiaries, which means that if people don't plan to minimize them or protect certain assets, they may not have much to pass to the people that they love when they die.

2. Ignoring family conflict

If someone has two children who have never gotten along or a youngest child with a serious substance abuse issue, those family challenges should influence their estate planning choices. From the creation of a special trust to prevent the use of estate resources to feed someone's addiction to the inclusion of a no-contest clause, there are many ways that someone can tweak their estate plan to address family conflicts. Proactive planning can reduce the risk of estate challenges or the misuse of an inheritance.

3. Thinking only about death

The best estate plans don't just have testamentary documents that distribute assets and provide resources for dependent family members. A solid estate plan should also include living documents, like powers of attorney, that can protect someone in the event of a medical emergency. Those who create a more thorough and holistic estate plan may achieve a more well-founded peace of mind throughout their lives and more protection in uncertain times. Addressing issues that are often overlooked during estate planning with the assistance of an experienced legal professional can help people to more thoroughly protect themselves.

2 issues that might cancel a residential real estate closing

2023-03-15T18:09:11Z

For someone who is selling a piece of residential real estate, negotiating an offer and scheduling a closing can feel like a major relief. They finally know how much money they will have for their next property and when they will need to move out of their home. For someone who is buying a house, an accepted offer means that they will know what their mortgage payment will be and the school district where their kids will be placed. However, none of these details are actually official until the closing takes place. Frequently, issues arise between when a seller accepts an offer and when the closing should occur. These are two common issues that prevent this critical transaction from occurring.

A bad appraisal

With market prices fluctuating to reflect supply, demand and interest rates, neither sellers nor buyers really know with confidence what a property is worth. Lenders require appraisals to protect the company from over-extension on specific mortgages caused by buyer enthusiasm. An outside professional has to look at the property and validate that it is worth the sale price. A buyer might make what they think is a reasonable offer, only to have an appraiser submit an estimate far below the agreed-upon sale price. A substantial appraisal gap could mean that someone can't get financing and therefore has to cancel the closing.

Issues with the property's condition

There are several ways in which issues with the property could derail a closing. Most buyers will have a professional inspect the property for undisclosed defects. The inspection process could lead to a professional uncovering issues that the buyer and their agent didn't notice during the walkthrough. Even if the inspection report doesn't show any significant latent defects that would alter what the buyer thinks the home is worth, there could be damage that occurs between the inspection and the closing. The final walkthrough before the document signing could turn up broken windows, damaged flooring or removed fixtures. When the property's condition does not align with what the buyer expected, they may attempt to renegotiate and may sometimes even cancel the closing. Learning more about the challenges that can impact residential real estate transactions can benefit both parties involved in such sales and the agents that represent them. When it comes to real estate, being proactive and informed is key.

Is there any benefit to proving your spouse cheated in a divorce?

2023-02-16T17:23:24Z

People decide to file for divorce in New York for reasons ranging from financial misconduct to changes in religious beliefs. One of the most common reasons that people choose to end their marriages is infidelity. Although most traditional wedding ceremonies include a vow to be faithful and to forsake all others, not everyone honors that promise after they make it. Partially due to the emotional nature of a situation involving infidelity, many people approach divorce intending to prove their spouse's unfaithfulness and make it clear who was to blame for the end of their union. Yet, approaching divorce with this mindset is rarely beneficial from practical and legal standpoints.

You don't need to prove fault to get a divorce

Adultery is a possible fault-based ground for divorce. New York offers no-fault divorces, which means that you don't have to show that your spouse did anything wrong to get a divorce. Even if they can claim they want to remain married, you can still file for a no-fault divorce and move on with your life. For many spouses, it is unnecessary to bring up the issue of infidelity because of the no-fault approach to property division afforded by the state. However, if you have documentation showing that your spouse used marital assets, like a joint credit card or money pulled from your shared checking account, to conduct their affair, evidence of their financial behavior could influence property division matters. New York judges can consider the dissipation of marital property when making decisions about asset division. Otherwise, the adultery of a spouse will likely have minimal, if any, impact on divorce proceedings. Fault-based divorces aren't always successful, and they can cost significantly more while offering similar outcomes to no-fault proceedings in many cases.

For some people, a clean start is the best revenge

You could potentially spend a significant amount of time and your own money trying to generate consequences for your spouse because of their unfaithfulness. For many people eager to move on after discovering an extramarital affair, a clean break and a fair division of marital assets may be the best solution. Instead of trying to create accountability for the infidelity, they simply end their marriage so that they can pursue happiness elsewhere. Being honest with yourself about whether you want justice or revenge could potentially help you adjust your approach to your upcoming New York divorce to save yourself both time and stress.

What happens to real property during a New York divorce?

2023-01-12T20:31:29Z

Real property represents a substantial financial investment and also some degree of liability. Property owners have to pay to maintain the edifices on their land and also need to carry insurance or install fencing to protect themselves from premises liability claims.

Some families in New York only have one piece of real property to address when they divorce. Their marital homes may be something they purchased together early in the marriage and have both contributed toward maintaining. Other couples may have purchased multiple properties as investments.

Whether they want to fix up and resell the properties or rent them to others, real property owners often anticipate that what they purchase beyond the home where they live will turn into a valuable investment. Real estate can provoke an emotional reaction away that few other assets can during New York divorce proceedings. What becomes of your real property when you divorce?

Your marital home

For many people, the marital home is the only or primary concern regarding real property in their divorce. Factors including family connections to the property, custody arrangements and prenuptial agreements can all influence how spouses decide to handle their home in a divorce or what a judge decides would be appropriate. Equitable distribution laws in New York protect each spouse's right to an interest in the property's value, regardless of who retains possession.

Vacation homes and investment properties

Sometimes, one spouse will agree to keep a vacation home or specific investment properties when their spouse keeps the marital home. Other times, they may agree to sell them and share the proceeds. Judges or divorcing couples could also decide to have one spouse keep certain properties while the other assumes ownership of the remaining properties.

If the two of you go to court, there are no guarantees regarding what a judge will decide is fair for your family. Many people facing a high asset divorce in New York would prefer to remain in control of the property division terms, which means that they have to cooperate with one another in a collaborative divorce or possibly attend mediation.

If you can settle the terms between the two of you and sign in agreement, you're uncontested divorce proceedings will have the exact asset division outcome you expect. Learning more about New York's property division rules can help you determine your top priorities for your upcoming divorce.

What are your options when you inherit an asset you don’t want?

2022-12-09T00:44:51Z

One of the problems that can arise when a person develops their estate plan without consulting with family and other beneficiaries is that people inherit things they don’t want or need. It’s easy enough to give an ugly sculpture or a closet of vintage clothing to a thrift shop. However, what if you inherit a home or other large physical asset that you just don’t want to deal with? Maybe you’ve inherited a more liquid asset that could end up costing you money in taxes or that would have been better off going to someone else.

One option is to “disclaim” the inheritance

Fortunately the law allows people to refuse or “disclaim” an inheritance. When done correctly, it’s as though you never inherited it. That means you don’t have worry about taxes or taking any responsibility for it. It’s also important to remember that if you’re considering disclaiming an inheritance, you can’t use it or derive any benefit from it. You need to attest to these things when you sign the disclaimer form.

What happens to a disclaimed inheritance?

If the deceased listed a secondary, or contingent, beneficiary for the asset, it would then pass on to them. If there isn’t one, then it would likely become part of the residuary estate to be disbursed with assets that were left to people who had already passed away and other “residue” of the estate. As the primary beneficiary, you can’t choose a contingent beneficiary for an asset you disclaim.

Gifting an unwanted asset

You can, of course, take possession of the asset rather than disclaiming it and give all or part of it to someone else. Just be aware, however, of any gift taxes that may be levied, depending on the value. It’s important to inform the estate executor and/or the probate court as soon as you’ve decided to disclaim an inheritance. Before you do that, you may want to seek some financial as well as legal guidance to help ensure that you’re making the best decision and that you’re following the law.

5 mistakes you should avoid in child custody

2022-11-10T20:14:01Z

Parents who are going through child custody battles have to ensure they’re doing what’s best for the children. It isn’t always easy to work through things with your ex, but it makes the situation much easier for everyone involved if you’re able to. There are a few specific mistakes you should do your best to avoid when you’re working through child custody situations. If you can avoid these, you can provide a more stable environment for the kids.

#1: Let go of the past

Living in the past is one of the easiest ways to get upset about things you can’t change now. It’s best to let the past go unless there were situations that could lead to harm to the children now. For example, bringing up abuse or neglect of the children might be in order now.

#2: Minimize their packing

Children have to go back and forth between homes. Try to minimize their packing. The children could have certain items, such as undergarments, hygiene items and similar things at each home so they don’t have to worry about those. Other items, such as school things or sports equipment, will probably have to be brought back and forth.

#3: Set realistic expectations

Some parents try to coddle the children immediately after the split. This sets an unrealistic expectations for the kids. Instead, set the rules and provide them with the consistency they need from the start.

#4: Listen to the children

Take the time to talk to the children. You might be surprised by some of their concerns or thoughts. Having discussions with them gives you a chance to find out more about how you can help them as they adjust to the new way of life.

#5: Keep conflict away from the kids

You and your ex should always talk in private about contentious matters. Never use transition days to have these discussions. Additionally, don’t badmouth your ex in front of the children. Provide the kids with the peaceful environment they need now. Making sure you have the parenting plan in place as soon as possible after you split up with your ex can help you to have everything in order for your children. This should be set based on what they need now, not what you think they’ll need in the future. Modification of the terms is possible if their needs change significantly in the future.

3 important questions about property division

2022-10-07T21:24:20Z

Dividing property is one of the most important things to do during a divorce. As a couple, the two of you have spent years accumulating assets and you have to decide how they should be split up. You may also have separate assets, and you want to make sure that they stay with you. Depending on the specifics of your situation, it can get very complicated to try to divide these assets. Below are three important questions to ask so that you don’t overlook anything.

What happens to your pet?

If you have a pet, the most important thing to know is that it counts as property. Legally speaking, pets are just assets that you own. In the same way that you purchased a microwave or a computer desk, you paid money for the dog or cat and that has to be factored in. The problem is that this means that the court isn’t going to give you a custody order to share the pet, but will simply assign it as an asset.

What happens to your inheritance?

If you were given an inheritance while you were married, it may be a separate asset or a marital asset. It depends if that asset was commingled or not. If you didn’t mix it with other assets that you own, such as storing it in a joint bank account or an investment account, then it may remain a separate asset. If it was mixed, or commingled, then you may have to share it with your ex.

What happens to your house?

The family home is also a major asset that you’ll have to do something with, and many couples simply split up the money after they sell the house. That is perhaps the easiest way to do things. But if you’d like to keep the house, you may be able to barter other assets with your spouse or buy them out of their ownership percentage. This could require refinancing. This is just three areas to consider and splitting up your assets. Make sure you know exactly what steps to take and what options you have.