Robert G. Smith, PLLC

May 2016 Archives

When divorced parents don't comply with custody agreement

Divorce can be hard on children, who love both their parents. They may not understand what is happening between mom and dad other than the fact that one of them doesn't live at home anymore. This is why New York parents need to do all they can to lessen the trauma on their children, both during and after the divorce is finalized.

Divorce tips target common experience of financial hardship

Beyond the emotional estrangement and loss of stability commonly experienced by divorcing New York couples, one or both partners is likely to face financial hardship throughout the process. There are some suggestions on important financial steps to take in order to avoid the worst asset division outcomes.

Mistakes In The New York Divorce Process Can Often Be Catastrophic

     Getting a New York divorce is not what the accountants call a routine transaction in ordinary course of business.  It is not a routine transaction.  Nor is it a repeating transaction.  So you need to get it right, whether you are seeking the New York divorce or whether you are the defendant in the New York divorce action.   If not, and if  you die before you get it right, your spouse could inherit everything, or rip you off.   You would not perform brain surgery on yourself.  It is also a smart idea not to presume that you can manage your own New York divorce.   As I instruct witnesses before we appear in New York courts,  it is not a dress rehearsal.   Matters in New York Courts should be analogized to sky diving: if your parachute does not open you are dead.  So protect yourself.  Take care.  And make sure that you get it right.  Figuratatively speaking: honor the carpenter's adage: Measure twice and cut once.        There is a New York joke that goes like this: how many New Yorkers does it take to screw in a light bulb?  Answer: 58.  Do you know why ?  Because its in the contract !      When the time comes for a New York divorce, there are many hard,  fast and arbitrary rules.  Its in New York law.  The New York Divorce summons to start the proceeding has to state: Action For A Divorce.  If not, there cannot be New York Divorce.  That New York divorce summons has to be served in a certain way.  If not, there is no divorce.  There is more: There has to be an official sworn matrimonial net worth statement, which has to be signed under penalty of perjury and certified by your divorce lawyer.  Its not rocket science.   Placing yourself in the hands of an experienced professional won't  break the bank.      The theme here is that New Yorkers who are planning a New York divorce or who are faced with a New York divorce, are well advised to avoid making certain mistakes in the process.  Approaching the end of the marriage in a sober and calculating manner and not driven by emotional stress, may well make the difference between your freedom and your future,  and economic catastrophe.   The divorcing New Yorker can potentially save thousands of dollars, and the high net worth spouse can preserve millions of dollars.  When New York divorce looms , your spouse is no longer your trusted ally and the trimtab of your life.  This is a zero sum game.  Don't try to invent the wheel.  Don't be gullible or penny wise and dollar foolish.      New York divorce lawyer Robert G. Smith, PLLC is an experienced and highly regarded professional with a documented record of success in high net worth New York divorce.   Ethical New York divorce lawyers should respect the fact that your hard earned money and assets are yours to keep.  Robert G. Smith the New York divorce lawyer will not, figuratively speaking, put his hand in your pocket and spend your assets on legal fees and expenses simply because you have them.   The New York divorce lawyer Robert G. Smith will assemble the individually tailored financial and forensic team you need without waste.    Divorce lawyer Robert  G. Smith also knows which purportedly "professional valuation" experts, pound for pound, will get you the bang for your buck that you deserve.        Its your first divorce, not mine.  New York divorce lawyer Robert G. Smith will never throw resources and expenses at your divorce process that can be saved for your future and for the future of your children and grandchildren.  This catastrophic event that we call a divorce is about is about saving your life and enabling your future.

The Marital Property Presumption In New York Divorce Is Alive And Well

    High net worth New York divorces are often battles of documents,  often at the expense of the concept of verasimillitude.  In the jargon of the 12 step programs, "how it works" in New York high net worth divorce is that all property acquired during the marriage is separate property unless the proponent of the separate property meet the burden of proof to establish a separate property credit.      In Heine v. Heine, 176 AD2d 77 (1st Dept. 1992), six months after the parties were married, a  $ 267,500 down payment was made for the purchase in the husband's sole name of a Manhattan townhouse.   Based upon the husband's uncorroborated testimony, both the trial court and the Appellate Division, First Department awarded the husband a separate property credit for the down payment:      "Domestic Relations Law § 236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before ... the commencement of a matrimonial action, regardless of the form in which title is held." Since property acquired during the marriage is presumptively marital (Lischynsky v. Lischynsky, 120 A.D.2d 824, 826, 501 N.Y.S.2d 938), the burden of proof is with the party who claims that such property is separate. (See, Raviv v. Raviv, 153 A.D.2d 932, 933, 545 N.Y.S.2d 739.)   Thus, it was the husband's burden to show that he used separate property to acquire a marital asset."            *    *    *
    "[I]t is worth noting that the townhouse was purchased approximately six months after the marriage, lending further support to the husband's claim that his separate property provided the source of funds for the down payment.  In fact, this circumstance fairly compels the conclusion that the down payment came from his pre-marital assets. Thus, although the husband's claim of separate property is based, in large part, upon his own uncorroborated testimony, we cannot say that the IAS court's finding on this point was against the weight of the credible evidence *  *  * (citations omitted).
    On April 27, 2016,  in Mistretta v. Mistretta,  on facts which appear to have been similar,  the Appellate Division, Second Department recited the same test, but reached the opposite conclusion:       "Under the Domestic Relations Law, "marital property" means "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held" (Domestic Relations Law § 236[B][1][c] [emphasis added]; see Raviv v Raviv, 153 AD2d 932, 933), but does not include "separate property," which the Domestic Relations Law defines as, inter alia, "property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (Domestic Relations Law § 236[B][1][d][1]). Here, the defendant failed to rebut the presumption that the subject premises, which he acquired during the marriage and prior to the commencement of this divorce action for consideration which was in fact paid during the marriage, were marital property (see Raviv v Raviv, 153 AD2d at 933; Lischynsky v Lischynsky, 120 AD2d 824, 826-827; cf. Allen v Allen, 263 AD2d 691, 692)."
    Well informed New York divorce lawyers might wonder if Heine had any vitality after the 2009 Fields decision in the Court of Appeals.   Actually the Heine case was addressed but not disfavored in the Fields decision, 15 NY3d 158 (2010).  The recent Mistretta decision suggests that, in the high net worth New York divorce case, legal counsel might predict that the trial judge will have a measure of trepidation before making a credibility determination in favor of a monied spouse, even though in all likelihood separate property was utilized, but that monied spouse, like Mr. Heine, happens to lack documentary evidence. 

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