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BEWARE: DISCLOSURE OF DIGITAL ASSETS IN NEW YORK IS NOT ADDRESSED IN THE 2016 REVISION OF THE OFFICIAL FORM STATEMENT OF NET WORTH: PART ONE

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that New York residents, where appropriate, one should strongly consider digging deeper, beyond the four corners of the Statement of Net Worth, for digital assets.

The official form of the Statement of Net Worth was updated in 2016. Each party in a contested matrimonial action is required to serve and file a Statement of Net Worth with the Court. It is mandatory financial disclosure in all contested cases. In many cases that are settled out of court, attorneys use the Statement of Net Worth as a representation under oath of the net worth of each party to the settlement. There is one class of assets that is omitted from the latest version of the official form. This may result in such assets being overlooked at trial or in a settlement. That class of assets are digital assets, assets which are intangible and exist only in electronic media. As there is no standardized definition yet of digital assets that is all inclusive (to my knowledge), I shall address some (but not all) digital assets in this blog which should be considered by divorcing parties and their attorneys.
The first example is the Bitcoin. I am not a mathematician, but here is a simple definition and it is unofficial. It is highly encrypted digital currency that is exchanged without any financial institution acting as an intermediary. If you believe this definition to be to simplistic, there are many online resources which define and explain Bitcoins and how they work.
The Statement of Net Worth deals with “Cash” and “Checking” and “Savings” accounts. The Bitcoin does not fit into any one of these categories. Omission of assets on a Statement of Net Worth can result in substantial penalties in New York matrimonial actions. Yet, some assets elude detection. Many highly trained forensic accountants and forensic data investigators would be hard pressed to track down Bitcoins, unless there is a financial trail leading into the Bitcoin purchase on the purchaser’s computer, tablet or mobile phone. Preservation and access to the unaltered computers and internet devices of the offending party become a necessity if Bitcoin purchases are suspected. The ways to elude detection go far beyond the scope of this blog. As I will NEVER assist any prospective client in perpetrating a fraud on the Court or the other party, it does not pay to ask me how this is done! Much has been written on data and computer preservation in divorce cases, but that is not the purpose of this blog.

The purpose of this blog is to discuss the potential concealment of the Bitcoin in divorce cases. If you are a middle to high net worth party in a divorce case, your attorney must be familiar with these concepts.

I have undertaken continuing education in this area. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice for more than 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 in Nassau County adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road in Garden City, Long Island, NY.

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

IT IS IMPORTANT TO DISTINGUISH BETWEEN VEHICLE USE AND FINAL OWNERSHIP IN THE EARLY STAGES OF A NEW YORK DIVORCE CASE

H. Michael Stern, Esq., a Long Island, New York divorce, matrimonial and family law attorney and mediator with over 30 years of experience suggests that New York residents use caution in entering into stipulations in court regarding vehicle use, and final ownership before trial.

In a 2016 case determined by the Appellate Division, 2nd Department in New York, the Appellate Court determined that where the parties stipulated that each would retain his or her vehicle, there would be no payment for 50% of the value from one party to the other. Thus, before any agreement is made in court, it is important to know whether there is a meaningful differential in unencumbered equity between the husband’s vehicle and the wife’s vehicle. If so, then a decision should be made whether to agree only to use of each vehicle pending trial as opposed to determining title to the parties respective vehicles. Oftentimes, parties are asked to decide this issue reflexively early in the case (such as at the preliminary conference) and no choice (use or title) is offered. If the vehicles have sharply different values, then one should consider deciding only on use before trial as opposed to securing title. An agreement settling the case will also resolve the vehicle use or title issue; a trial may not be required.

Allow me to offer an example, the husband owns a 1998 Porsche 911 and the wife just bought a brand new 2017 Mercedes C Class which is titled in her name. Both vehicles are paid off with no liens. Should the wife agree that each party retains title to his or her own vehicle? The answer is not so simple, as it all depends on the mileage and condition of the 1998 Porsche. The older car may be an appreciating asset worth considerably more than its original price. The newer car is depreciating in value. Accordingly, a pre trial appraisal of the older car would answer the valuation question. This could result in the wife being entitled to and receiving a payment for a portion of the Porsche’s value in addition to retaining her new car. Thus, whether one agrees to pre trial use of a vehicle, or to a final disposition regarding vehicle ownership, is an important distinction not to be taken lightly in the early stages of a New York divorce case.

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

Feel free to contact me, H. Michael Stern, Esq., a Nassau County, Long Island divorce, child custody 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.

Call 516-747-2290 to schedule a Free Initial Consultation.

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

Written by: H. Michael Stern Esq., New York Divorce Lawyer

YOUR FORMER SPOUSE MAY STILL HAVE RIGHTS TO PROPERTY ACQUIRED BY YOU AFTER THE DIVORCE HAS BEEN FINALIZED

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that New York residents who obtain foreign divorces may have unexpected consequences that affect the property of the marriage.

In a recent case determined by the Appellate Division, 4th Department in New York, the Appellate Court determined that where a foreign divorce was obtained from a Court that lacked jurisdiction over the parties’ marital property, that the valuation dates for marital property must be between the date of commencement of post divorce case to divide marital property and the date of trial of that case.

Allow me to put this into some perspective for the reader.
Let’s say that the parties mutually consent to obtain a divorce in a country that has no residency requirement and provides a quick divorce, without jurisdiction over their property rights. Accordingly, the divorce is legal and enforceable as it was mutually consented to and not unilateral. Hypothetically, let us imagine that the wife owned stock valued at the time of the divorce at $10,000.00. Five years later, the husband brings on an action in New York to distribute the hypothetical stock. Under our imagined scenario, the stock is now worth $500,000.00 and remains at that value to trial (following multiple stock splits with no post divorce contribution by the wife to the value of the stock). Under this example, the value at the time of the divorce would not be considered under the recent decision of the Appellate Court. The trial court would be forced to use the $500,000.00 value for equitable distribution purposes. As the above hypothetical provided that the wife contributed nothing to the rise in price of the stock, one could only guess what the trial Court would do in apportioning the stock between the parties under these hypothetical circumstances.

I am not rendering any opinion regarding the fairness of this approach, but it is the law.

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 New York Divorce 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. The initial consultation is free.

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

Written by: H. Michael Stern, New York Divorce Lawyer

IT IS IMPORTANT TO SELECT THE RIGHT LAWYER TO DO YOUR TRIAL AS THE COURT MAY NOT GRANT AN ADJOURNMENT TO GET A NEW LAWYER AFTER THE TRIAL BEGINS

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that a litigant must be careful to select the right seasoned and experienced matrimonial lawyer to try his or her divorce case.

In a recent case determined by the Appellate Division, 2nd Department in New York, the Appellate Court affirmed the trial judge’s determination that a litigant who wanted to change lawyers after the trial was underway was not entitled to an adjournment of 60 to 90 days to secure new counsel to conclude the trial. In that case, the litigant failed to meet his burden to demonstrate that the requested adjournment was necessitated by forces beyond the litigant’s control and was not a tactic for purposes of delay. The lesson to be learned from this case is that there is no guarantee that a Court will permit an adjournment for the substitution of counsel once a trial or hearing has commenced.

Thus, in my opinion it is absolutely critical to hire a seasoned and experienced matrimonial trial counsel with a record of success in cases with similar facts and circumstances at the beginning of the case. I believe that clients should not be treated as guinea pigs. Absent a novel issue of law or fact, I believe that a lawyer should not be learning how to try the case on the fly at the client’s risk and expense.

I have been trying divorce cases and Family Court hearings 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 over the past 30 years.

Feel free to contact me, H. Michael Stern, Esq.,a Nassau County divorce 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. The initial consultation is free.

My office is conveniently located adjacent to the Roosevelt Field Mall ring road at 666 Old Country Road, Suite 555 in Garden City, Nassau County, New York.

Written by: H. MICHAEL STERN, Nassau County Divorce Attorney

THE COURT IS NOT BOUND BY A LITIGANT’S REPRESENTATION OF INCOME

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that a divorce litigant in New York must expect income to be imputed, where personal living expenses are being directly paid by that party’s business and that party also has financial control of the business.

In a recent case determined by the Appellate Division, 2st Department in New York, the Appellate Court affirmed the trial judge’s determination which imputed income in the highest amount estimated by a neutral financial evaluator where the party had control over the books and finances of the business and funneled personal expenses through the business.

I will provide a practical explanation of “imputation” of income. The Court has the power to fix the income of a party for all purposes in a divorce case or support case, regardless of the amount income stated in that party’s tax returns or other paperwork, if there are doubts as to the truthfulness of that party’s representations of his or her income. Where a party’s account of his or her income is not believable, the Court is justified in finding a true or potential income higher than that claimed (and use that amount for all purposes in the case).

In that recent case, the neutral financial evaluator presented a range of the estimated income of the business owner. The high value was $80,000.00 greater than the low value. The trial judge determined the litigant’s income to be at the highest point in the range. The Appellate Court agreed with the trial Court. This illustrates that accuracy in the assessment of imputed income is not a necessity for the Court as the litigant’s true income was never actually determined. Thus, there are significant risks in litigating a divorce where personal expenses are paid through a business as there is a likelihood of imputation of income. There are other circumstances where income may be imputed, but this blog does not address those instances.

During my 30 years in practice, I have prosecuted and defended many income imputation cases in Supreme Court and Family Court. It takes a skilled, experienced trial attorney to handle these cases. Accumulating the right evidence is critical for success in these cases. I believe that the best approach for the prospective litigant is to retain an experienced attorney who has successfully prosecuted or defended imputed income cases in the past. First and foremost, my priority is to prevail 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 New York divorce 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 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, New York Divorce Lawyer

BETTER THINK TWICE BEFORE HIDING THE JEWELRY

H. Michael Stern, Esq., a New York matrimonial and family law lawyer and mediator with over 30 years of experience suggests that one must be careful not to conceal or hide property of any kind, including jewelry, collectibles, antiques or other movable valuables from the opposing party or the Court in a divorce case.

In a recent case determined by the Appellate Division, 1st Department in New York, the wife had been found to have engaged in what the Court found was egregious economic fault, for, among other things, allegedly secreting her valuable jewelry before trial. But, that is not the most fascinating aspect of the case. The Appellate Court approved of the lower court’s acceptance of a jewelry appraisal based on a hypothetical fair market valuation. It is not clear from the decision whether the lower court relied on insurance appraisals, purchase documents or photographs in the trial level determination. What is clear however, is that the appraisal was accepted without a visual inspection of the actual jewelry. Now, that is really a remarkable development!

I had a case many years ago involving a divorcing couple from a south Asian country. In their country of origin, it was a tradition for the bride to adorn herself in copious amounts of 22 carat gold jewelry. The wedding photos showed the wife wearing many tens of thousands of dollars of stunning jewelry. The husband claimed the jewelry were wedding gifts and marital property. The wife claimed the jewelry was valueless costume jewelry for the most part and produced only a few pieces for appraisal. The jewelry shop in the village where the gold jewelry was acquired was half a world away. The prospect of being able to use a hypothetical fair market valuation in that old case would have been extremely beneficial. The law was different then and has evolved to address these kinds of situations. It is now easier for a Court to economically punish a divorcing spouse who decides to hide jewelry, collectibles, antiques or other movable valuables by granting a disproportionately lower equitable distribution award. The Court may also deny maintenance to the offending spouse.

Focusing on the needs of the client, the complexity of the case 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 mediator, 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, Nassau County, New York.

written by: H. Michael Stern, Long Island Divorce Mediator

IT IS NEVER WISE TO WAIT UNTIL THE STATUTORY DEADLINE DATE TO FILE FAMILY COURT OBJECTIONS

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that one must be careful to file specific written Objections with proof of service to New York Family Court Orders, made by Support Magistrates, well before the statutory deadline approaches.

The law permits either party to file written specific Objections (with proof of service) to an Order made by a Support Magistrate. The Family Court Act provides that a party filing Objections must serve those Objections upon the opposing party, and that proof of service must be filed with the court at the time that the party’s objections are filed. If the opposing party is represented by an attorney, then the opposing attorney should also be served along with the opposing party, within the statutory deadline as well. The proof of service filed with the Court should reflect service on the opposing party and his or her attorney, if the opposing party was represented. By statute, the time frame to file the specific written Objections with the Clerk of the Family Court, in the County in which the Order was made, must be within 30 days of personal service of the Order or, if the party did not receive the Order in Court or by personal service, within 35 days after the Order was mailed. While the Court does not have to strictly adhere to this deadline, it does so in virtually all cases.

The Court will typically dismiss the Objections as untimely filed if the deadline is missed. The Courts, only in the rarest of cases, find that extraordinary circumstances permit late consideration of untimely filed Objections (or untimely filed proof of service where the Objections had been filed timely).

In a recent case a litigant had to get an upstate Appellate Court to over rule a Family Court Judge’s decision to dismiss the objections. Even though the litigant arrived at Court during posted hours of operation on the very last permissible day to file her objections, she found the Court was closed. The New York State Courts website showed hours of operation until 5:00 PM for the Court and the litigant arrived at 4:45 PM.

The wisdom to be drawn from this case and the others that preceded it is NEVER to wait until the last permissible day to serve and file a complete set of Objections together with a validly prepared proof of service on the opposing party and counsel.

I never tempt fate and always timely file the proper paperwork with the Family Court Clerk several days in advance of the statutory deadline. I file all of the paper work with the Court days before the deadline, even if the minutes of the case are not yet available due to delays in transcription of the recorded record of proceedings.

Focusing on the needs of the client, the complexity of the case 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 divorce lawyer in Nassau County, if you are interested in discussing your matrimonial, divorce or Family Court matter at hmsternesq@gmail.com or by phone at 516-747-2290. The initial consultation is free.

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

Written by: H. Michael Stern, Attorney At Law, Divorce Lawyer in Nassau County

THE DANGER OF TAKING INCONSISTENT POSITIONS

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 30 years of experience suggests that one must be careful to avoid taking inconsistent positions in completing paperwork and official governmental forms (under penalty of law or perjury) in unrelated Court cases, which may be at odds with claims made in their divorce case.

In a recent case determined by the Appellate Division, 2nd Department in New York, the wife had previously filed for two bankruptcies (and it can be assumed that her debts were discharged on each occasion). In those petitions, the wife had alleged, in part, that she was not entitled to any alimony, maintenance, or support payments. Thereafter, in the divorce case, the husband asserted that the wife was not entitled to any maintenance because of her prior inconsistent positions in the Bankruptcy Court cases. The wife was awarded maintenance by the lower Court and the husband appealed.

The Appellate Court did not agree with the husband and awarded the wife lifetime maintenance. The Appellate Court looked at the timing of the bankruptcy cases in relation to the divorce case. The Appellate Court determined that the parties were still married at the time the bankruptcy petitions were filed, and the wife did not have to list any possible future rights to maintenance payments in her bankruptcy petitions, which were filed years before the divorce judgment was issued by the lower Court.

I often wonder whether doing such mundane tasks as participating in a real estate tax reduction administrative hearing (which is commonplace here in Nassau County) could result in prohibiting the party in a divorce from claiming their real property is worth more than the amount adjudicated as the value at the administrative hearing. This blog does not suggest an answer to this question, as I am unaware of any cases which may have addressed the point.

This is just one example (of many potential instances that come to mind) where the Court could prohibit a party from taking a position in their divorce case which is inconsistent with a position previously taken in another adjudicated case. Thus, any person contemplating or participating in a divorce case in New York should evaluate positions they have taken in other litigation with their divorce attorney, as they may have a bearing on the outcome of their divorce case.
Focusing on the needs of the client, the complexity of the case 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 New York divorce lawyer, if you are interested in discussing your matrimonial, divorce or family law matter.

Please contact me by phone at 516-747-2290 or by email: hmsternesq@gmail.com.
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. New York Divorce Lawyer

THE IMPORTANCE OF PREPARATION FOR THE PRELIMINARY CONFERENCE IN A NEW YORK MATRIMONIAL MATTER THE FIRST IN A SERIES

Divorce Attorney Long Island
Written by, H. Michael Stern, Esq. Divorce Attorney & Mediator

In matrimonial litigation, the most important court appearance before trial is the preliminary conference. The preliminary conference is usually the first appearance following the assignment of the judge. It is the first time the court will hear the facts of the case. Many attorneys do not adequately prepare for this conference. Many lawyers are ill prepared to briefly and concisely summarize the case, their client’s needs, or the financial disclosure that must be obtained to effectively present the client’s case at a trial.

Oftentimes, one party will control the finances of the marriage, while the other party will be in the dark as to the value and extent of the parties assets. The party controlling the assets may be reluctant to disclose those assets by providing a sworn Statement of Net Worth prior to the preliminary conference. The strategic reason for this is that it places the non-titled party at a disadvantage as he or she does not know exactly what to request at the conference. While the Court rules are clear that the Statement of Net Worth must be produced at the preliminary conference, many judges do not enforce those rules and give counsel for the titled party an extension of time to do so. Opposing counsel may mistakenly elect to complete the preliminary conference Order form at the conference without the information in the Statement of Net Worth.

The proper course of action is to request a postponement of the conference pending receipt of the Statement of Net Worth, or a specifically reserve the rights of the client as to what discovery can be requested once the Statement of Net Worth is received.

During my career, I have had to battle through such tactics, particularly in high net worth cases where discovery is obstructed at every turn. I am a highly experienced matrimonial attorney with over 30 years of matrimonial and family law experience.

If you would like to discuss your divorce issues with me, or wish to schedule a consultation, please call my office at 516-747-2290.

Divorce Attorney on Long Island- How to choose the right lawyer: Part 1

So you have decided that you need a Long Island based attorney. There are literally hundreds at your disposal. What do you do now? Let’s consider your options. Do you know people who have been recently divorced on Long Island that may be able to refer you to an attorney? If the answer is yes, then by all means you should get as many details as you can and meet with all of the attorneys to see if any of them are a good fit for you. If you are still unsure of your selection after meeting with the referred Long Island attorneys, then you are going to have to educate yourself. Attorneys market themselves in several ways. They write books or articles, engage in peer review, self promote their successes, or their aggressiveness and ferocity. Unfortunately, none of the above is a determinative predictor of the results the attorney will obtain for you. As I noted in my prior Long Island attorney blog: “The lawyer’s reputation for past results cannot provide any firm promise of a similar outcome in any new client matter. That is why so many personal injury attorney advertisements that show high settlements and verdicts have disclaimers stating something like “ THE CASE RESULTS DESCRIBED HERE DO NOT GUARANTEE OR PREDICT A SIMILAR RESULT IN ANY FUTURE CASE WE UNDERTAKE.” The same is true in any matrimonial or family law matter. Matrimonial and family law cases have idiosyncratic differences that make them unique.While there may be prior legal precedent, outcomes can never be predicted with any degree of certainty in many
cases. There are usually too many variables involved for an outcome to be accurately predicted.” So, the next question is what am I looking for in an attorney? Are you looking for a Long Island attorney who is: an accountant that has a strong financial background (important in cases with closely held corporations and the like); or, someone with knowledge of mental health and medicine (useful in child custody cases); or, someone who is accessible and available (which may not be the case when an associate of the chosen attorney is given responsibility for your case); or, someone who is a fierce and experienced litigator; or, is someone who is merely promising to keep fees low.It may be that you have additional or other multiple criteria which I have not mentioned in this blog. However, once you have a self-understanding of what YOU want in a lawyer, then you can begin to carefully parse through all of the local Long Island attorney advertising, marketing and rating services in both print and online. Select the attorneys who are of interest to you and schedule your appointments. Of course, whatever you do, be sure to go in armed with the questions that you want answered concerning the attorney-client process. The attorney-client process (as I refer to it) relates to how interactions occur between you and the lawyer (by phone, email, text, Apple Facetime, or in office appointments) and how you are billed for all services and costs. While the Statement of Client Rights and Responsibilities sets forth many attorney- client process requirements, there are many others that should be discussed with your prospective attorney. You may know nothing of the issues or your rights in the divorce, but you can and should have a frank discussion with the attorney that you are interviewing about the attorney- client process. If you are comfortable with the attorney’s qualifications and the explanation of process, then you are ready to decide. Focusing on the needs of the client, the complexity of the case and the results sought have always been a hallmark of my divorce attorney on Long Island practice over the past 29 years. Feel free to contact me, H. Michael Stern, Esq., if you are interested in discussing your matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747- 2290.