If you are contemplating divorce or have been served with divorce papers, the first question that comes to mind is: “DO I NEED A LAWYER?” In my opinion , the answer is always a resounding YES. New York’s divorce laws are exceedingly complex and are ever evolving. In fact, my experience is that attorneys who practice in other fields of law, particularly here on Long Island, will not take the plunge and prosecute or defend a divorce action because of their lack of familiarity with matrimonial law. Accordingly, a lay person should never undertake to be self-represented in a pending divorce case. There are rights that you don’t know you have that must be asserted or protected in every single case. I will provide an example on the simpler end of the spectrum, involving a situation where there are no children and there is no property. Would the unrepresented lay person know that they have the right to resume the use of a maiden or former surname upon divorce and that this relief must be requested before the judgment is signed? Would the unrepresented lay person know that if there is a hardship upon loss of health insurance from the other spouse, that a request can be made to the Court for a brief delay in signing the divorce judgment to enable the spouse to secure his or her own coverage? I could go on and on. This was a simple example. So, just imagine what must be weighed and considered in cases with children and property rights. The point that I am making is that legal representation is a necessity in every 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 29 years. Feel free to contact me, H. Michael Stern, Esq., a long island 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 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.
The Statement of Net Worth is an official form which is set forth in the New York Rules of Court. It is compulsory and mandatory financial disclosure in all contested divorce cases. It contains schedules for expenses, income, assets and liabilities. In situations where couples are trying to settle their cases out of court, most lawyers and many mediators will suggest the exchange of the official form Statement of Net Worth before negotiations commence. Matrimonial lawyers typically use software programs, or a pre-prepared form for use in word processing program, in preparing the Statement of Net Worth. The appearance of the official form is radically changed in these products. Thus, it is always important to compare the content in these commercially prepared templates with the official form.
Here is the reason why this is so important. I recently had a case where a party, who owned corporations, deleted the entire field of the document dedicated to corporate assets. The attorney submitted that Statement of Net Worth to me and the court with the omitted field. When the omission was brought to the attention of the court, the lawyer preparing the form claimed inadvertence and the judge accepted the explanation without any hint of outrage. The lawyer promised to correct the defect. However, I do not believe for a single moment that the omission was anything but deliberate, meant to conceal the existence of the corporate holdings of his client. Had I not been familiar with the official form, the omission would not have been noticed. This is a method of hiding assets.
The lawyer may have been able to certify the defective document as truthful, as it did not contain the entire field relating to corporations. While the ethics of doing so is highly questionable, he nearly got away with it. The lesson to be learned from this blog post is to know the contents of the official form so an unscrupulous party cannot tamper with it and eliminate fields which would reveal the existence of valuable assets.
If you are considering divorce, you can contact me at hmsternesq@gmail.com or 516- 747-2290 to discuss your concerns.
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.
Once a divorce case has progressed to the point of the assignment of a presiding Justice, it is imperative that the divorcing party obtain a copy of the Judge’s rules. These rules explain the procedures in the Judge’s Part. Adherence to these rules are mandatory, so it is worthwhile to examine them thoroughly as some Part’s have rules, particularly relating to trial. In some instances Part rules impose high out-of-pocket compliance costs which must be funded before the trial even begins. For example, a non-exhaustive list would include the: (1) preparation of worksheets for the Court on support and property issues; (2) formal accounting of support arrears; exhibit and witness lists; trial notebooks (which contain all trial exhibits which may be introduced at trial and in some instances, must be exchanged with the other party beforehand); multiple copies of deposition or pre-trial hearing transcripts, prior court orders and insurance policies must be made and in some instances exchanged with the other party); written trial closing arguments; and written post-trial memorandums must be prepared. This list does not include the requirements in the State’s Rules of Court which also require the preparation, exchange and filing of a Note of Issue and Certificate of Readiness and the Statement of Proposed Disposition before trial.
Clearly, if a divorcing party is made aware of the Judge’s particular Part Rules, then that party becomes better informed as to whether settlement is preferential to trying the case. The costs of accommodating certain Judge’s Part Rules can run into the many thousands of dollars and can result in ‘sticker shock” when the attorney’s bill arrives. I once had a discussion with a Judge (who is now retired) about a client who could not afford to pay the costs associated with compliance with the Judge’s Part Rules. I asked him whether I could make a motion to the Court for relief from the Rules in future cases due to financial hardship. His response was that he would consider it and that he found it interesting that no one had ever asked him that question before. Thus, having a frank discussion with your attorney about these costs and financial implications to you is critical in trial planning and decision making.
You need a Long Island divorce attorney on your team. To discuss your family law related issues with me, please call my office at 516- 747-2290.
Author: H. Michael Stern, Attorney at Law
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.
The maintenance of complete financial records throughout marriage can prove invaluable to the divorcing couple. While such records can be the undoing of a spouse or couple engaged in illicit activities, for most, the maintenance and retention of bank statements, cancelled checks, credit card statements, property purchase and sale records and Federal, State and local tax returns (at a minimum) become an indispensable resource for the divorcing couple.
In the contexts of mediation and collaborative divorce, the retention and production of financial records provide the professionals assisting the couple with the information needed to advise them individually, or collectively, as the case may be. Exchanging such records in those contexts is commonplace and typically leads to equitable and fair outcomes.
In the context of a contested divorce, where the couple is at odds over money, property, support, or other financial issues, the Court will direct and enforce the mandatory exchange of financial records between the parties. This is referred to as “discovery”. There are few limits on discovery of spousal financial records in divorce cases. Courts insist that the process be completed at which time the Court will certify the case as ready for trial.
Where one party has assumed the role of the bill payer for the household, that party may also assume the role of the holder of financial records for the family. This may lead to an inequitable situation where one party has a far greater knowledge of the financial dealings of the family than the other. The trusting relationship regarding financial activities which is established during marriage typically deteriorates in divorce settings. Often times, divorce attorneys will authorize an overt or clandestine raid of the records maintained by the record keeping spouse to gather information about diverse assets, accounts and property ownership. When there are gaps or inconsistencies in the records, what is commonly referred to as a “fishing expedition”ensues, which is unavoidable and necessary in many circumstances and a profound waste of time, energy and legal and accounting fees in others. An incidental concern is that the attorney has a duty to be thorough in discovery (or run the risk of a legal malpractice claim being asserted against the attorney). These considerations often times must be balanced against the high cost of obtaining information and documents. [A simple example is where funds are maintained in overseas foreign bank accounts which cannot be obtained through a subpoena.] The divorcing party (without the records) is then provided with options by the attorney and then must decide on the appropriate path to take to obtain an equitable and fair outcome.
Thus, it is critical in any divorce context that record availability and transparency is an important issue to be addressed immediately with the divorcing party’s attorney or the divorce mediator.
If you would like to discuss your divorce issues with me, or wish to schedule a mediation consultation with a Long Island divorce attorney, please call my office at 516-747-2290.
Author: H. Michael Stern, Attorney at Law
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.
Matrimonial retainers and family law case hourly rates for legal services in New York are set by the individual attorney, and are skyrocketing.
In a sense the attorney’s hourly rate is a statement by that attorney of his or her belief as to what the value of an hour of his or her legal services is worth. This amount is purely subjective and is not regulated or reviewed by the State Bar or any regulatory agency of the State of New York or the Federal Government. Attorneys can base their hourly rates on what they perceive is fair and reasonable, their professional accomplishments, or what the market (for lawyers) will allow. Many attorneys will base their rates on peer ratings, exclusive organizational affiliations, publications and lectures given, or a combination of these and other factors.
The point is that the legal services provider is creating a perception of a certain value for their time and expects that the legal services consumer will not question that value.
But why shouldn’t that hourly rate be questioned?
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, in many cases outcomes cannot be predicted with any degree of certainty. There are usually too many variables involved for an outcome to be accurately predicted.
Thus, if a legal services consumer is presented with a high hourly rate, that rate is based upon a perception that the lawyer, through his or her personality, experience, and skills, can meet the client’s expectations regarding an anticipated favorable result. Because this perception is purely conjectural and there is no empirical basis to guarantee that favorable result, legal services consumers can and should question the hourly rate and more when interviewing prospective counsel.
I have never set my hourly rates on what other lawyers are charging or what the market will allow. Instead, my practice over the past twenty-nine years has been to focus on the needs of the client, the complexity of the case, and the results sought.
Please contact H. Michael Stern for a Free Consultation if you are interested in discussing your matrimonial or family law matter.
email: hmsternesq@gmail.com or by phone at 516-747-2290
Divorce Mediator Long Island
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.
Everyone who intends to marry in New York needs a prenuptial agreement for one very important reason, among others.
New York’s equitable distribution law currently includes gifts given by spouses to one another during the marriage as marital property. Marital property is subject to distribution as a result of a divorce. While the equitable distribution law exempts property acquired by gift from the definition of marital property, that exemption only applies if it is acquired from someone other than a spouse.
Even property that would be classified as separate and not subject to equitable distribution upon divorce, such as an heirloom ring given to a spouse by another family member or inherited property, that separate property can become marital property if a spouse gives it to the other spouse as a gift during the marriage.
A prenuptial agreement makes sense for everyone because it can be drafted to preserve the character of all gifts given between spouses during the marriage as their separate property.
So with a prenuptial agreement, if your husband buys you that diamond tennis bracelet during the marriage, you can sleep easy knowing he will not be able to ask for a portion of its value if there is a divorce.
Similarly, if your wife buys you that antique car, the agreement will bar a claim for a portion of the value of the car.
Remember, a divorce judge has the power in New York to order the sale of marital property if the parties cannot agree on a disposition of the marital asset.
If you are already married, you can still address the gift issue with a post-nuptial agreement.
Prenuptial and post nuptial agreements should be professionally drafted and signed under the supervision of an attorney to ensure validity. Many prenuptial and post nuptial agreements are set aside because of defects in form, acknowledgment and notarization.
Feel free to contact the Law Offices of H. Michael Stern for a Free Consultation, if you are interested in preparing either a prenuptial agreement or post nuptial agreement.
Mediator Long Island. email: hmsternesq@gmail.com or by phone at 516-747-2290
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.
It is imperative for couples who are considering divorce to understand the current legal climate surrounding the issue of residency and care of their pets in a divorce.
In a New York County case in 2013, the Court in Travis v. Murray 2013 NY Slip Op 23405 [42 Misc 3d 447] was presented with a couple who could not agree on who would get the dog, Joey. The Judge presiding over the case determined that he would grant a one day hearing as to ownership and possession of the dog. Pets are treated as personal property under the Common law and New York State law. The Judge deciding Joey’s fate did depart from the traditional approach in ruling that dogs were different and warranted special consideration from the Court in determining ultimate possession. The Court decided that the standard to be used to make the determination was “what is best for all concerned.”
Each side was given the opportunity to prove not only the benefits each party would receive from retaining Joey, “but why Joey had a better chance of living, prospering, loving and being loved in the care of one spouse as opposed to the other”.
The Judge made it clear that one party would get the dog and the other would lose all rights to Joey. The Court also noted that the Courts would not supervise joint time sharing arrangements pertaining to pets.
Thus, if this decision remains the legal standard in New York, time sharing arrangements for pets in prenuptial agreements, post nuptial agreements, separation agreements and stipulations of settlement in divorce cases will not be enforced or supervised by New York State Courts.
If you have a cherished pet and are considering divorce, contact the Law Offices of H. Michael Stern, a Nassau County divorce attorney, for a Free Consultation to discuss your concerns. hmsternesq@gmail.com or 516-747-2290” target=”_blank” rel=”noopener”>516-747-2290
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.
ASK THE EXPERT: DO YOU RECOMMEND MEDIATION FOR DIVORCING PARENTS OF A CHILD WITH SPECIAL NEEDS?
by NYMetroParents Staff
Many attorneys suggest mediation for parents who are divorcing. We asked H. Michael Stern, Esq., MSW, an attorney and certified mediator on Long Island, how mediation can help in a divorce, especially when a child with special needs is involved.
WHY DO YOU RECOMMEND MEDIATION FOR THE PARENTS OF A CHILD WITH SPECIAL NEEDS?
Mediation is a process where the divorcing couple—such as the parents of a special needs child—sits with a neutral person who sort of helps open up lines of communication where communication is difficult or has broken down.
Parenting issues become critical for special needs children in terms of their care, education, social skills development, and myriad other things. If parents are not on the same page or are quarreling, that’s detrimental to the development and welfare of that child. Parents need to set aside their conflicts and work constructively to help the child, and mediation helps them do that. The alternative is to go to court and fight, and there are no standards in New York courts for children with special needs in divorce cases. It’s really important that the parents, who know their child better than anyone else, step up and try to work through the problems together. And it helps to have someone there who can guide them constructively—not make decisions for them, but guide them through the parenting dilemmas they have and help them work together for the benefit of their child.
WHY IS MEDIATION ESPECIALLY IMPORTANT WHEN A CHILD WITH SPECIAL NEEDS IS INVOLVED?
All children do better when their parents are getting along. But a child with special needs may not be able to speak effectively for him or herself or have the ability to really articulate his or her feelings or what they want from their parents, especially in a court situation.
Plus, there needs to be a discussion about things like the IEP. The parents can’t be quarreling about that—it needs to be a cooperative process so the child gets the special services they need. You also need to be on the same page with the type of therapy and amount of specialized care the child needs.
If you have a significantly impaired child, agreeing on a parenting plan and schedule is important so that respite is available to both parents. You need to decide who is going to be the primary caretaker and agree on a parenting schedule so that one very dedicated parent doesn’t end up sacrificing everything.
CAN MEDIATION INVOLVE EXPERTS WHO ARE FAMILIAR WITH CHILDREN’S TREATMENT AND EMOTIONAL STATE, SUCH AS THERAPISTS, TEACHERS, ETC.?
Yes, if there’s any sort of lack of agreement, my feeling would be to get the experts and treatment providers involved in the discussion to give the parents the guidance they need to make better decisions for their children. I would encourage it if there’s a disagreement on a course of treatment or a course of intervention for the child. If you have parents committed to the child’s best interest and developmental opportunities, it’s about getting them the information they need to make the best choices.
ARE THERE ANY SITUATIONS IN WHICH YOU WOULD NOT SUGGEST MEDIATION?
Mediation helps in every case unless there’s domestic violence, or if someone is trying to hide property, liquidate property or assets, or do something harmful. There should be time to try to talk it out otherwise. But in those instances, when there’s a threat of danger or dissipation of property, they should go to court.
HOW CAN PARENTS MAKE THEIR DIVORCE AS EASY AS POSSIBLE ON A CHILD WHO HAS SPECIAL NEEDS?
The most important thing the parents shouldn’t do, particularly with special needs children, is get them involved in any way in their conflict or make them the focal point in the conflict. Keep the child as far away from conflict points as possible, not involving them and not discussing anything with them, because they don’t understand and most have deficiencies in their processing.
Another tip: Parents should really develop a lot of structure for themselves and for their child, and adhere to it. It’s especially important for children on the autism spectrum. They may not be living together, and the disruption of contact with parents can be detrimental to child.
Also, maintaining the child’s education and whatever additional services the child needs is critical. It’s all about the child—parents need to keep that in mind and be committed to the child having the best possible outcome.
DO YOU RECOMMEND CONTINUING MEDIATION AFTER DIVORCE?
It depends if the couple needs it. Go to mediation before you go to conflict. There’s a lot of emotion when people break up and sometimes there are very bad feelings. But parents need to try to put all the personal pain aside so they can address the needs of the child. It’s a difficult thing to do, because people want to express their sadness and outrage and anger, but you want to try to get people in the frame of mind to be positive and move forward.
H. MICHAEL STERN, Esq., MSW, is a New York divorce lawyer and master social worker with more than 27 years of divorce and family law experience. Stern received his divorce mediation certification and specialized training from the New York Center for Interpersonal Development, a program approved by the New York State Office of Court Administration. The Mediation & Law Offices of H. Michael Stern are located at 666 Old Country Road, Suite 555, in Garden City, Long Island.
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.
There is a common myth that living together before marriage leads to a higher incidence of divorce. Recent research from the University of North Carolina may debunk that myth. The researchers found that there does not appear to be any correlation between premarital cohabitation and divorce. Cohabiting successfully always involves a negotiation between the live-in couple regarding obligations and responsibilities within the new household. My recommendation is that any couple contemplating moving in together have a written premarital cohabitation agreement so each partners role and responsibilities are clearly detailed in plain English. This way there can be a smoother transition into this new phase of life together without disagreement or conflict going forward. While most live-in couples have embarked on cohabiting without a contract, if it does not work out (and that is always a possibility) litigation can follow if a middle ground cannot be found. Winding up in court over apportioning financial obligations, property rights or leasehold rights is time consuming and expensive. My firm can mediate a cohabitation agreement for you and your partner at a reasonable cost in a non-combative setting. Please call my office for a free-consultation regarding the mediation process.
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.
Cohabitation, Domestic Violence and Real Property Law 227-c
When couples, partners, or roommates sign an apartment lease, they usually do so with the best of intentions. The cohabiting parties do not typically contemplate a sudden or progressive deterioration of their relationship. An incident of domestic violence, family offense, or criminal conduct inflicted by one cohabiting party upon the other may result in criminal prosecution or the issuance of a Family Court order of protection. The issuance of the order of protection can have unexpected and unforeseen consequences. Provided that certain conditions are met, under New York Real Property Law 227-c, the recipient of an order of protection may move the Family Court to terminate a residential lease. This can be especially troublesome for the other cohabiting party. The other cohabiting party may want to remain in the apartment as good apartments at favorable rents are highly coveted in our area. While any agreement modifying or waiving rights under Real Property Law 227-c are prohibited by law, it makes sense to consider other precautions, which can be addressed in a cohabitation agreement. A cohabitation agreement is typically negotiated and signed before occupancy begins, although there is nothing preventing the parties from signing one afterwards. My firm can represent an individual party in connection with a cohabitation agreement, or my firm can mediate a cohabitation agreement neutrally for both parties. A cohabitation agreement is a separate contract between the parties that confers additional rights to each party beyond those set forth in the lease . A cohabitation agreement can protect the rights of the parties where one party fails to meet anticipated contractual obligations under a lease. It is a sensible alternative that can provide specific terms to be observed in the event of a default, or premature departure of a cohabiting party.
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.
protected in every single case. I will provide an example on the simpler end of the spectrum, involving a situation where there are no children and there is no property. Would the unrepresented lay person know that they have the right to resume the use of a maiden or former surname upon divorce and that this relief must be requested before the judgment is signed? Would the unrepresented lay person know that if there is a hardship upon loss of health insurance from the other spouse, that a request can be made to the Court for a brief delay in signing the divorce judgment to enable the spouse to secure his or her own coverage? I could go on and on. This was a simple example. So, just imagine what must be weighed and considered in cases with children and property rights. The point that I am making is that legal representation is a necessity in every 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 29 years. Feel free to contact me, H. Michael Stern, Esq., a long island 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.
