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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.

IT IS IMPORTANT TO ENFORCE THE AUTOMATIC ORDERS IN A NEW YORK DIVORCE CASE BEFORE THE FINAL JUDGMENT OF DIVORCE IS SIGNED BY THE COURT

Apr 13

DIVORCE LAWYER NASSAU COUNTY NY

Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 years of experience suggests that a litigant should enforce his or her rights under the automatic Orders before a final judgment of divorce is signed by the Court.

A restraining order prevents a party in a divorce case from selling or transferring property. The reason behind a restraining order is that many unscrupulous spouses, try to hide or sell off assets of the marriage. In New York, parties no longer need to apply directly to a judge for a restraining order, as the retraining order and other orders are now automatic. These “Automatic Orders” go into effect when a divorce case is filed in New York. There is no requirement that a Supreme Court Justice sign the Automatic Orders before they become effective. The automatic Orders bind the plaintiff (the filing party) when the Summons is filed with the County Clerk’s office. The Automatic Orders bind the defendant when the defendant is served with the Summons with Notice (of the Automatic Orders). This blog focuses on the Automatic Order which addresses the parties property. Succinctly, it provides that the parties may not “sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, . . .) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with” the divorce action.  

In a recent case, determined by the Appellate Division, 2nd Department in New York, the Appellate Court held that the remedy of civil contempt of Court for a violation of the Automatic Orders is no longer available once the divorce judgment is signed. What that means is that if there is a violation, a proceeding to hold the offending party in contempt of Court must be completed before the divorce judgment is signed or it is waived. While the Appellate Court did list the other remedies available to the aggrieved party, contempt of Court for violation of the Automatic Orders was not one of them.

Thus, in my opinion, it is absolutely critical to enforce a party’s rights for violation of the Automatic Orders as soon as the violation is discovered by initiating a contempt proceeding unless circumstances mandate a different approach. The exceptions must be analyzed to see if they have applicability before any contempt proceeding is initiated.

I believe that it is important to hire a seasoned and experienced matrimonial attorney if there is a risk of dissipation of assets. Extreme care must be exercised to ensure that assets are preserved for distribution by the Court.

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. Please 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


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.

OWNING A BUSINESS DURING A DIVORCE

Feb 21

IT IS IMPORTANT TO HAVE AN EXPERT DETERMINE THE BASELINE VALUE Of A SEPARATE PROPERTY BUSINESS, IF A PARTY IS SEEKING A PORTION OF THE APPRECIATION OF VALUE OF THE ASSETS OF THE OTHER PARTY IN A DIVORCE

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 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, 2st Department in New York, the Appellate Court reversed the trial judge’s award of $91,500 or 25% of the husband’s dental practice. The Appellate Division found that the wife was not entitled to a share of the value of the practice as she failed to meet her burden of proof. Apparently, the husband in the case had been operating his dental practice at the time of the marriage. A dental practice has been previously determined to be “property” in earlier judicial precedent in New York. The dental practice was classified as “separate property”, as it was acquired prior to the marriage. If appropriate proof is submitted to the Court, the Court has the power to reclassify the growth and appreciation in value of “separate property” as “marital property” (which is subject to equitable distribution). In this case, proof of the date of marriage value, or baseline value, was not provided to the trial Court. Accordingly, the trial Court could not know how much the property grew in value, since it did not know the value of the asset at the time of the marriage. Thus, the reversal of the award was proper under existing law. This law is not new, so it is puzzling to me as to why the proof was not supplied to the trial Court.

Thus, in my opinion it is absolutely critical to hire a seasoned and experienced matrimonial lawyer, with a record of success, to make sure assets are properly appraised and valued for equitable distribution purposes. The valuation of business assets is required in all cases where equitable distribution is sought. It is the responsibility (and “burden of proof”) of the non-titled party to prove the value of business assets. As an experienced matrimonial attorney, I know the ways to ensure that it the process is completed before a case is marked ready for trial by the Court.

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.

I offer a free initial consultation. Please contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your property & asset division, matrimonial, divorce or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My office is conveniently located at 666 Old Country Road in Garden City, New York.

Written by: H. Michael Stern, Divorce & Family Lawyer in Garden City, 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.

FACEBOOK & SOCIAL MEDIA POSTS DURING CHILD CUSTODY & DIVORCE CASES IN NEW YORK

Jan 18

Child Custody Lawyer Nassau County NY

WHERE THE ISSUE PRESENTED IS RELEVANT TO DETERMINE THE OUTCOME OF A CHILD CUSTODY CASE, THE NEW YORK COURT HAS THE POWER TO DIRECT A PARTY TO PRODUCE FACEBOOK POSTS AND PROVIDE AN AUTHORIZATION TO THE COURT TO OBTAIN THE INFORMATION DIRECTLY FROM FACEBOOK

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 32 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.

facebook child custodyIn a 2015 case determined by the Supreme Court, Westchester County, New York, the trial Court determined that the application for social media evidence had to have a bearing on the claim that one of the parents was not spending time with the child during from birth through age four. The Court noted that the law prohibited social media fishing expeditions through discovery. However, the trial Court found the request for Facebook posts during that time to be relevant and could have a bearing on the outcome of the child custody dispute. As a result, among other things, the trial Court ordered the posting party to produce printouts of her Facebook postings showing her whereabouts away from the New York metropolitan area from date of birth of the child until the commencement date of the case. The trial Court also ordered the mother to submit an authorization giving the court access to her Facebook posts during the applicable time frame. The father was also directed to turn over any postings by the mother in his possession for the time period in question.

social media child custodyThus, in my opinion it is absolutely critical to limit Facebook and other social media postings during divorce and custody cases. In my 32 year career, I have used the opposing litigant’s social media postings against them in various contexts. When a litigant is reckless on social media, the adverse consequences resulting from the admission of the social media evidence at trial can drastically effect the outcome of the case. In one case that stands out in my career, a neglect case was initiated and prosecuted by the County against the other party resulting from social media evidence that was in my client’s possession. While I understand that many litigants reach out on social media for support from their friends and acquaintances during a bitter divorce or custody case, one can go overboard. The potential exists that both words and photos will be used outside of their intended context against the posting party. Thus, I counsel my clients that restraint in social media use is the best choice during litigation.

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.

Please contact me for a free initial consultation, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your child custody, 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, Child Custody & Divorce Lawyer in 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.