Over 30 years of experience in divorce & family law

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PRESSURED TO SETTLE YOUR CASE?

Jul 18

FAMILY LAWYER NASSAU COUNTY, NY

Michael Stern, Esq., a New York Family Lawyer with over 33 years of experience suggests that as an aspect of Family Court practice that an open Court record should be made if a litigant in a New York Family Court case believes that a settlement was made under duress before it is finalized.

In such cases, the Family Court will usually reject the settlement where consent is not unequivocal. However, in the rare instances where it does not do so, the record may prove invaluable when filing Objections or on appeal thereafter.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that it was not error for the Family Court to deny a party an adjournment in a proceeding to enforce a support Order. Apparently, in the case, the parties entered into a settlement of the enforcement proceeding and a downward modification proceeding. The Family Court entered separate Orders resolving each of the pending actions. The Father contended on appeal that he was under duress in entering into the settlement agreements. The Father appealed the denial of his Objections and the appeal was unsuccessful. The Appellate Division noted that the Father’s remedy was to move in the Family Court to vacate the orders as opposed to appealing from them. When moving to vacate an Order upon a stipulation, a critical issue is whether a defense to the making of a valid contract is asserted. In this case, the defense was duress. I suggest that it is important for a litigant to elaborate on any potential contract defense in open Court while the Stipulation is being placed on the record to ensure that the point is preserved for Objections or appeal. This is especially important if the stipulation is not truly on consent for any number of reasons.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice. Feel free to contact me, H. Michael Stern, Esq. a  Long Island Divorce and Family Lawyer, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. Michael Stern, Divorce & Family Lawyer, Long Island NY.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

CHILD SUPPORT ENFORCEMENT

Jun 27

THE COURT CAN DENY AN ADJOURNMENT IN A CHILD SUPPORT VIOLATION PROCEEDING WHERE THE ACCUSED HAS NOT PAID CHILD SUPPORT!

Divorce & Child Support Lawyer Nassau County NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that every effort should be undertaken to obtain enough time from the Court to present a defense to a support violation petition.

In a recent case decided by the Appellate Division First Judicial Department, the Court was presented with a situation where the Family Court had directed that the accused non-paying parent be incarcerated for 90 days unless $5,000 was paid to the Support Collection Unit. The Family Court had appointed counsel the day before the hearing. However, the Court-appointed attorney did not argue to the Family Court Judge that counsel needed more time to prepare for the hearing. The accused non-paying parent did not request an adjournment or seek additional preparation time with newly appointed counsel either. The Appellate Court noted that newly appointed counsel did not raise an effective representation issue. Counsel did not deny the charge of non-payment, and counsel confirmed that the accused non-paying parent could have moved for a downward modification but had not done so. Counsel apparently conceded that the accused non-paying parent earned an income, albeit that it was unpredictable and fluctuated. The Appellate Court determined that given the accused non-paying parent’s lack of any excuse for nonpayment, any such adjournment request could have been reasonably denied by the Family Court and upheld the sentence of 90 days in jail.

The point here is that where counsel is appointed or privately retained, appearing on very short notice and the accused non-paying parent is facing incarceration, the attorney must try to make a lack of effective representation argument if there is insufficient time to prepare a e defense. This should be done before any of the non-payment issues are explored by the Family Court Judge at the dispositional hearing. It is my unrelated opinion that it may be the constitutional responsibility of the Family Court Support Magistrate (who hears the case first) to offer Court appointed counsel prior to any willfulness hearing, where the accused is given the opportunity to oppose any finding of a violation of a support Order, as such a finding can quickly result in a term of incarceration before a Family Court Judge. After all, the client’s liberty is at stake if the Support Magistrate finds that a willful violation occurred. I cannot emphasize enough how critical it is to make the necessary arguments to defend the client in such cases, including a request to serve any term of incarceration on weekends only. This enables the accused parent to avoid falling further behind in support payments while continuing to work.

I have been prosecuting and defending Family Court child support cases for more than three decades. My personal preference is to use highly experienced private Counsel in these situations.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for over 30 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290. My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.

Written by, H. MICHAEL STERN, ESQ. – Family Law Attorney, Long Island, NY.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

SELLING YOUR HOME AFTER DIVORCE

May 08

ANOTHER EXAMPLE OF HOW IMPORTANT IT IS TO SPELL OUT ALL OF THE CONTINGENCIES CONCERNING THE SALE OF A HOME IN A NEW YORK DIVORCE AGREEMENT

DIVORCE LAWYER NASSAU COUNTY, NY

H.Michael Stern, Esq., a New York matrimonial and family law attorney with over 33 years of experience suggests thatall possible contingencies should be addressed in drafting a New York Stipulation of Settlement or Separation Agreement concerning the sale of a residence.

house-for-saleIn a recent case determined by the Appellate Division, First Department in New York, the Appellate Court reversed the trial judge’s ruling that set forth terms of sale of the parties’ residence that were omitted from the parties’ stipulation which settled their divorce case. The parties divorce settlement agreement set forth an asking price for the marital residence and a commitment that it would be sold but left out further details. The lower Court judge ruled that if the marital residence was not sold by a certain date, then the parties were to consult their broker to reset the asking price of the residence at an amount set by the broker, The lower Court ruling also permitted the parties to apply for a receiver to sell the property if not sold three months later. A receiver is a person appointed by the Court to sell the property (taking a commission in the process). The Appellate Court rejected the lower Court’s decision, stating that since the parties’ stipulation was not challenged by either party and that the parties did not consent to change the terms, the lower Court judge lacked the authority to add those additional terms (where the parties had already provided for pricing and sale terms in their stipulation).

The practical effect of this decision enables the recalcitrant home occupant to do nothing to facilitate the sale of the residence, depriving the other party from access to his or her home equity. The party in possession may be able to live in the residence during his or her lifetime under the circumstances. Hypothetically, if the party in occupancy was granted exclusive occupancy of the residence pending sale in the stipulation, the remedy of partitioning the property may also be unavailable, depending on the facts of the case.

Thus, in my opinion it is critical to hire a seasoned and experienced matrimonial lawyer, with a record of success, to make sure that all the contingencies are covered in drafting the contractual provisions concerning the sale of the marital residence. I have created clauses which protect the party out-of-possession to ensure that he or she never faces the harsh, bitter reality of the out-of-possession party in the case discussed in this blog.

I also successfully litigated and settled a matter for the out-of-possession party with a similar fact pattern within the past year.  

Since 1987, I have been trying divorce cases and Family Court hearings. I handle all types of post-divorce applications and hearings as well. My goal, first and foremost, is to win at trial when a settlement cannot be reached in the case.  Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 33 years.

Feel free to contact me, H. Michael Stern, Esq. a  Long Island divorce and family law attorney, if you are interested in a Free Consultation to discuss your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. Michael Stern, Divorce & Family Law Attorney


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

SPENDING MARITAL FUNDS DURING YOUR DIVORCE

Apr 18

IF YOUR SPOUSE IS SPENDING YOUR SAVINGS DURING YOUR DIVORCE CASE, THIS WILL BE OF INTEREST TO YOU

Nassau County Divorce Lawyer

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that it is important to be vigilant about how marital funds are expended following the commencement of a divorce action.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that the parties were accountable for the use of marital funds in paying their post-commencement separate obligations.

Allow me to explain what this means in a plain language example. The parties have a joint savings account that has a balance of $100,000.00 at the time the divorce action was filed. The money represented their combined earnings during the marriage and is considered “marital”. Once a divorce case is filed, future ordinary weekly earnings are no longer considered marital. That is because no additional marital property is created after the divorce case is filed. All money and property acquired after the filing of a divorce case is considered “separate.” So, in this example, one spouse removes money from the joint savings account to pay for a personal gym membership including monthly dues. That same spouse also uses the joint savings account to pay the household electric bill. The Appellate Court’s ruling permits the trial Court to recover the money used to pay for the cost of the gym membership which is considered a “separate” obligation (not related to family purpose). However, the Court would not recoup the money used to pay the electric bill for the family home, which would not be considered a separate obligation, even if the utility account was in the name of that spouse alone.

Accordingly, if marital savings or investment accounts containing pre-filing funds are being depleted after the commencement of a divorce action, it is important to carefully review the purpose of each expenditure made by the party using those funds during pre-trial discovery. During pre-trial discovery, documents can be obtained and reviewed, and questions posed to determine how the post-filing expenditures should be classified (as either marital or separate for recoupment purposes).

The above example only addresses ordinary and customary living expenses that may be permissible withdrawals under the ‘automatic orders,” a topic which exceeds the scope of this blog.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 31 years.Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York.

Written by, H. Michael Stern, Divorce & Family Lawyer


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

CHILD SUPPORT VIOLATIONS

Apr 02

THREE MONTH INCARCERATION DIRECTED FOR CHILD SUPPORT VIOLATION WHERE ONLY $3,500.00 NEEDED TO AVOID JAIL TIME! 

CHILD SUPPORT & FAMILY LAWYER, Nassau County NY
Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience suggests that a competent defense is necessary in any child support violation case even if the mount of child support arrears are nominal.  CHILD SUPPORT / Money and gavel

In a recent case decided by the Appellate Division First Judicial Department, the Court was presented with a situation where the Family Court had directed the incarceration (on a weekend only basis) for three months unless the violator paid the sum of $3,500.00 to purge the violation.  While the Court could have sentenced the violator to six months in jail, a three-month sentence is a lengthy term of incarceration, nonetheless.  This is an eye-opening decision, due to the length of the jail time imposed, considering the relatively small sum of $3,500.00 needed to avoid the sentence altogether. Usually the amount of child support arrears is much higher (for the imposition of a three-month sentence) as is the amount needed to be paid to avoid the jail time.  The Appellate Court allowed the Family Court decision to stand. What is encouraging is the recent approval by the Appellate Court for the sentence to be carried out on weekends only, which allows the violator to continue to work and pay support. I have been taking this approach for years and it is good to see an Appellate Court’s recent approval of it. A sentence of continuous incarceration can lead to unemployment and in most cases the accrual of additional arrears while the violator was jailed.  The legal threshold to show a willful violation of the payment of support is low. A high burden of proof falls upon the shoulders of the violator to avoid the prospect of jail time.

A highly experienced attorney is needed to defend a violation of child support or maintenance.

I have been prosecuting and defending Family Court child support cases for more than three decades. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for over 30 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.

Written by:  H. Michael Stern, Divorce & Family Law Lawyer


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

SELECTING THE RIGHT LAWYER FOR YOUR DIVORCE OR FAMILY LAW CASE

Feb 08

DIVORCE LAWYER NASSAU COUNTY NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 33 years of experience raises the question:

Is an Associate Attorney the right choice to handle your matrimonial case?

Before I get to the question, I want to emphasize that this Blog represents my personal opinion and is not based upon any empirical data or studies.

At the outset, let me address some definitions.
A solo practitioner is a lawyer who works alone in a law practice and does not have any subordinate lawyers within the firm.
A lawyer who is “of counsel” may not be a member of the law firm but may provide services to the clients of another law firm. Accordingly, a solo practitioner can have another lawyer on the firm letterhead who of is “of counsel”, but that lawyer is not an employed subordinate attorney in the firm. The “of counsel” lawyer may have her own independent practice and an affiliation with another firm to provide legal services. A partner or junior partner are attorneys who have an equity (ownership) interest in a law firm.
An associate attorney is an employee of a law firm, working under the supervision (hopefully) of a partner or junior partner.

The purpose of this blog is not to disparage associate attorneys in any way, but there are many questions that the client should ask when a divorce or family law case is delegated to an associate of the firm. Associate attorneys may be upcoming talents in their own right, but there are concerns that should always be addressed before a hiring decision is made by the client.

I shall list some of the questions that a client should consider below:

  1. How will decisions be made in the client’s case?
  2. Will the associate be making decisions in the client’s case with or without consultation with the supervising partner?
  3. Will the client be billed at the hourly rate of the associate, or of the partner, or both, for intra-office communications concerning the client’s case?
  4. What is the procedure for decision making (and billing practices) if input of the partner is required for all decisions in the case?
  5. How will the charges for intra-office communications or partner input be reflected on the client’s bill?
  6. Are there meetings in the firm that the client is billed for where the client’s case is discussed in a group setting attended by the partner and other attorneys?
  7. Is the client billed (and how is the client billed) for the time spent in brainstorming the client’s case in the group meeting attended by the partner and other attorneys?
  8. Does the associate have experience in handling cases similar to the client’s case?
  9. How much experience (and in what specific contexts) does the associate have in handling cases similar to the client’s case?
  10. Will the associate be going to Court on the client’s case without the partner?
  11. Who does the client contact at the firm concerning the client’s case, the partner or the associate, or both?
  12. How accessible will the partner be after the client’s case is delegated to an associate?
  13. Will the partner be accessible directly or through a secretary or assistant to buffer the client’s communications?
  14. Will access to the partner be limited or restricted in any way?

Without a doubt, there are many more questions that can be listed. However, I think I addressed a sufficient number for the purposes of this blog.

The client’s decision to hire a multi-lawyer matrimonial firm is typically based upon reputation, success, exclusivity or fame of one or more of the partners. Typically, a client seeks out the multi-lawyer matrimonial firm to have a well-known, prestigious attorney handle the client’s divorce case. What may occur is that following the payment of the retainer, the case is delegated to an associate to handle. Oftentimes, the partner will be the trial attorney and the associate do most everything else, sometimes with the partners direct supervision, sometimes without any supervision. I want to point out that many associates have significant experience and have the ability to handle a case from beginning to end with extraordinary skill, without any need for supervision. In my 33 years of experience, I can count those associates on two hands, they are few and far between.

I have been in solo practice in the area of matrimonial and family law for over 30 years and I handle the client’s case from start to finish. I make all decisions on each client’s case. There are no concerns about associate attorney competency in my office because I do not have any. While there is much to be said for the additional income an associate can generate for a busy law firm, I have chosen quality of representation above all else. Indeed, this blog just scratches the surface of the issue and I may add more on the topic in the future.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 30 years. Feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

AVOID AMBIGUOUS TERMS IN DIVORCE AGREEMENTS

Nov 29

DIVORCE LAWYER NASSAU COUNTY NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that it is important to exhaustively spell out each and every term of a Divorce Stipulation of Settlement to avoid future litigation. 

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court was presented with a divorce settlement which contained ambiguous terms regarding the sale of the party’s former residence. The Appellate Division rejected the suggestion that the delay in seeking the sale of the residence did not constitute a waiver of the defendant’s right to compel a sale. The party’s judgment of divorce provided that the party’s residence “should” be immediately listed for sale and that Defendant was entitled to 25% of the equity in the residence. It also provided that the parties shall “cooperate” in selling the residence. The Court determined that the only reasonable interpretation of those terms was that the residence was supposed to be sold immediately.

I try to avoid drafting Agreements that contain loose or ambiguous terms. It is better to overstate the terms of a Divorce Settlement than to leave it up to the parties to work out later. In many cases that does not happen, and litigation ensues. I strive to carefully draft Agreements relating to the disposition of assets and apportionment of liabilities.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 30 years.

Feel free to contact me, H. Michael Stern, Esq. a  Long Island Divorce and Family Law Attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, New York. 

Written by, H. MICHAEL STERN, Divorce Lawyer, Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

PRENUPTIAL AGREEMENT & POSTNUPTIAL AGREEMENT ENFORCEMENT

Oct 02

THE NEW YORK COURTS MAY CHOOSE NOT TO ENFORCE A PROVISION WAIVING ATTORNEYS FEES IN A POSTNUPTIAL AGREEMENT. WHAT IS THE IMPACT ON PRENUPTIAL AGREEMENTS?

DIVORCE & FAMILY LAWYER NASSAU COUNTY NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that parties to a postnuptial agreement must weigh potential public policy considerations when drafting a postnuptial agreement.

In a recent case decided on July 18, 2018, the Appellate Division, Second Judicial Department refused to enforce a provision in a 1988 postnuptial agreement that provided for a reciprocal waiver of counsel fees if the parties were unable or unwilling to continue their marriage. In a New York divorce case, the Court has broad discretion in awarding attorney’s fees based upon the financial situations of the respective parties, as justice may require. The Appellate Court found this to be an overriding public policy concern where there was a disparity in the financial situations of the parties. What I am taking from the case, is that absent an award of counsel fees, the financially disadvantaged party would not have been able to have or afford representation during the divorce case or prosecute the appeal. Accordingly, if an unfair advantage in a divorce would result from the existence of a wide disparity of financial resources between the parties, the Court will not enforce burdensome terms in a postnuptial agreement. In my opinion, this would also apply to prenuptial agreements. It is important to avoid drafting terms while run afoul of public policy. What has become commonplace is the situation where a prenuptial agreement is sought where a citizen is marrying an immigrant without employment privileges in the United States. In that situation, it is my opinion that a maintenance waiver provision in a prenuptial agreement may also be unenforceable as against public policy. 
 
  As far as I know, no prenuptial, postnuptial, separation agreement, or divorce stipulation that I have ever participated in drafting has ever been set aside by a Court. Nor, to my knowledge, has any Court ever refused to enforce any prenuptial, postnuptial, separation or divorce stipulation that I have drafted, individually, or in conjunction with another attorney (who represents the other party).  

I take great pride in drafting enforceable agreements. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island law practice for over 30 years.

Feel free to contact me, H. Michael Stern, Esq., a  Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 
516-747-2290

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York. 

Written by: H. MICHAEL STERN, ESQ., Divorce & Family Lawyer Nassau County NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

PENSION DIVISION IN A DIVORCE

Sep 17

DIVORCE LAWYER LONG ISLAND

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that an equal division of retirement assets accumulated during the marriage should not be presumed. Each case requires that a factual inquiry be undertaken to determine whether an unequal division should be sought from the Court. Sometimes there is misconduct which might tip the scales to warrant an unequal division of retirement assets.

In a recent case decided on July 5, 2018, the Appellate Division, Second Judicial Department held that there was a sound and substantial basis for the trial court to award the plaintiff a 65% distributive share of the Husband’s tax-deferred annuity and an equal share of his pension. The trial court declined to award any share of the Wife’s pension to the Husband because he did not prove its value at trial. What appears to have justified this outcome is the Husband’s evasive testimony during the trial and that he diverted marital property to support a second family for nearly 10 years. While the opinion does not reflect compensation to the Wife for the Husband’s waste of marital assets in diverting them to his second family, my guess is that it was the overriding factor resulting in the unequal division of retirement assets in the case. Thus, where there is considerable waste of marital property by one party, the door may be opened to seek an unequal division of retirement assets at trial.

I can help you get your fair share of retirement assets.

I have been trying divorce cases since 1987. My goal first and foremost is to win at trial when a settlement cannot be reached in the case. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for over 30 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.

Written by, H. MICHAEL STERN, Divorce & Family Law Attorney


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.

CHALLENGING ATTORNEY FEES IN DIVORCE

Jul 20

DIVORCE LAWYER NASSAU COUNTY NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that attorneys fee applications in New York matrimonial actions should always be vigorously defended.

In the commercial case of Cruz v. Seward Park Housing Corp. (no citation available at this time-Index No. 155244/16, decided 7/6/18) Justice Engoron of the Supreme Court, New York County decided a motion, reducing a request for counsel fees by the prevailing party from $464,164 to $175,000.00. In doing so, the Court was critical in addressing escalating legal fees, referring to the request for fees as “shocking and disturbing” and “highway robbery without a six-gun.” The Court also noted in a lengthy diatribe against out of-control legal fees that by “requesting astronomical fees, attorneys are in danger of killing the goose that laid the golden egg.” While the Court was suitably impressed by the legal services provided by prevailing counsel referring to their motion papers as “excellent”, it also noted that a litigation loser ‘should not have to pay for a limousine when a sedan could have done the job. It stressed that “gold-plated lawyering was not needed.”

So, you might ask, why am I referring to this case in a matrimonial blog? Because the problem is just as pervasive in matrimonial practice, that’s why. The law provides for an award of interim counsel fees pending trial for the economically disadvantaged party in a divorce case. Motions for interim counsel fees in divorce cases typically rely on counsel’s experience and standing in the legal community. Oftentimes, these motions tend to “gild the lily”, trying to induce the Court to award an overestimated, inflated fee to the moving attorneys at the beginning of a case, where a substantially lesser fee is actually warranted. Such awards tend to create a litigation “snowball effect”, as the fees awarded must then be earned by the prevailing attorneys through unnecessary litigation — to the occasional detriment of the parties since there is no requirement that such fees produce demonstrable results of any kind. Similar applications may follow as there is no limit to the number of attorney’s fee applications that can be made in a New York divorce case.

Thus, in my opinion it is absolutely necessary to challenge the efforts of attorneys who seek onerous and unjustified anticipatory attorneys fee awards in matrimonial actions. I have been vigorously defending such applications, decided either by motion or following a hearing for over 30 years.

I have been trying divorce cases since 1987. and It is also critical to staunchly defend inflated unreasonable counsel fee applications made at trial. My goal first and foremost is to win at trial when a settlement cannot be reached in the case. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 30 years. Feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road in Garden City, New York.

Written by: H. MICHAEL STERN, Divorce & Family Lawyer, Nassau County, Long Island NY


The above offers general information for educational purposes. It does not provide comprehensive or complete legal analysis. Any information that I provide should not be relied upon as legal advice or legal opinion on any particular facts or circumstances. Outcomes and results described do not mean or suggest that similar results or outcomes can or could be obtained in any other situation. Each legal matter should be considered to be factually unique and subject to varying results. The invitation to contact the author is not a solicitation to provide professional services, nor is it a statement of availability to perform legal services in any jurisdiction other than the State of New York.