In-Equitable Distribution; Divorce in NY

I am asked all the time; or rather told by my clients that the NY State Divorce Laws favor the ---fill in the blank based on who is speaking. While it is true that prior to equitable distribution it could be said that men were favored, since the inception of equitable distribution I find it difficult to give sway to either gender.

In the event there is a business involved the owner is apt to proclaim loudly that the business has no value and that he/she is the business and it makes no money and “ look here are the business records to prove it.” Well, we all know the tendency in many businesses to accept cash and should say this out loud? Not disclose all the income.
A crime if you intend to hide it from the IRS but common practice non the less. The outcome to the non-business owner spouse is the difficulty of proving the income they enjoyed as a married couple. Unless the spouse has all the bank records and even if he or she does, proving the income they believe the business makes can be a difficult task. Life style is certainly one component in proving that a business makes more than it admits to, however, as savvy as most matrimonial judges are regarding business ownership, they are loath to actually place a dollar amount on such income without any type of guidance.

W2 wage earnings may also be in the hot seat if in fact they are the non-custodial parent. Regardless of the residential parent’s income, courts are pretty straight forward in applying the CSSA rules straight against the income of the non-residential parent. Sure the court has the discretion to modify support over the $80,000 per year guidelines, but the discretion in this state varies from court to court in how support is applied thereafter.

Maintenance or what used to be called Alimony has taken quite a hit over the years. Gone pretty much are the days of lifetime maintenance and I have found many judges quite adamant about limiting the term advising the non working spouse to “get a job.” Giving more of the assets instead perhaps as a trade off for long term maintenance.

Custody, however, is a whole other ballgame and a blog for a different day. Stay Tuned!

In-Equitable Distribution; Divorce in NY

I am asked all the time; or rather told by my clients that the NY State Divorce Laws favor the ---fill in the blank based on who is speaking. While it is true that prior to equitable distribution it could be said that men were favored, since the inception of equitable distribution I find it difficult to give sway to either gender.

In the event there is a business involved the owner is apt to proclaim loudly that the business has no value and that he/she is the business and it makes no money and “ look here are the business records to prove it.” Well, we all know the tendency in many businesses to accept cash and should say this out loud? Not disclose all the income.
A crime if you intend to hide it from the IRS but common practice non the less. The outcome to the non-business owner spouse is the difficulty of proving the income they enjoyed as a married couple. Unless the spouse has all the bank records and even if he or she does, proving the income they believe the business makes can be a difficult task. Life style is certainly one component in proving that a business makes more than it admits to, however, as savvy as most matrimonial judges are regarding business ownership, they are loath to actually place a dollar amount on such income without any type of guidance.

W2 wage earnings may also be in the hot seat if in fact they are the non-custodial parent. Regardless of the residential parent’s income, courts are pretty straight forward in applying the CSSA rules straight against the income of the non-residential parent. Sure the court has the discretion to modify support over the $80,000 per year guidelines, but the discretion in this state varies from court to court in how support is applied thereafter.

Maintenance or what used to be called Alimony has taken quite a hit over the years. Gone pretty much are the days of lifetime maintenance and I have found many judges quite adamant about limiting the term advising the non working spouse to “get a job.” Giving more of the assets instead perhaps as a trade off for long term maintenance.

Custody, however, is a whole other ballgame and a blog for a different day. Stay Tuned!

How to Apply for a Protective Order

"What is a protective order Mom?" I was asked the other day. "Why? Do you need one?" "I'm not sure, what is it?" was the quick response. "Well; it is an order issued by a court protecting a person from the actions of another person." "So that little girl we talked about in school could have gotten one, right?" I assumed at this point my son was talking about the little girl whose picture has been splashed all over every newspaper in the country. Nixzmary Brown in case you missed the press is the 7 year old allegedly tortured and beaten to death by her abusive step father in Brooklyn in January. It seems the elementary schools in the area are discussing some of the abuse cases in the news. Not necessarily a bad idea, but my concern is whether at this age the kids are able to distinguish a tushy slap from a beating. I have visions of my office phone ringing off the wall from a rash of 8 year olds who have obtained my card from my son, (he once told his bus driver that he wasn't sure what his Mom did but he knew she told a Judge her problems.) asking for information on obtaining a protective order. I seem to be making light of this but I have mixed feelings on what our school system should be discussing with our kids. Of course, I think children should be educated about abuse, but are the public schools the place for this? Perhaps the adults in charge should just keep their eyes open and do the reporting for the children. No one wants to falsely accuse a parent, especially, but maybe if a few of the adults who had contact with Nixzmary made some calls to the right agency and those adults at the agency actually followed up on the calls, we might have an extra 7 year old still running around. I really don't think we should lay this at the feet of our children. Education and information about strangers is one thing, but asking them to turn in the very people who raise them is beyond the scope of their ability. "No", I responded to his next question; "Judge Judy doesn't handle this type of case."

How to Apply for a Protective Order

"What is a protective order Mom?" I was asked the other day. "Why? Do you need one?" "I'm not sure, what is it?" was the quick response. "Well; it is an order issued by a court protecting a person from the actions of another person." "So that little girl we talked about in school could have gotten one, right?" I assumed at this point my son was talking about the little girl whose picture has been splashed all over every newspaper in the country. Nixzmary Brown in case you missed the press is the 7 year old allegedly tortured and beaten to death by her abusive step father in Brooklyn in January. It seems the elementary schools in the area are discussing some of the abuse cases in the news. Not necessarily a bad idea, but my concern is whether at this age the kids are able to distinguish a tushy slap from a beating. I have visions of my office phone ringing off the wall from a rash of 8 year olds who have obtained my card from my son, (he once told his bus driver that he wasn't sure what his Mom did but he knew she told a Judge her problems.) asking for information on obtaining a protective order. I seem to be making light of this but I have mixed feelings on what our school system should be discussing with our kids. Of course, I think children should be educated about abuse, but are the public schools the place for this? Perhaps the adults in charge should just keep their eyes open and do the reporting for the children. No one wants to falsely accuse a parent, especially, but maybe if a few of the adults who had contact with Nixzmary made some calls to the right agency and those adults at the agency actually followed up on the calls, we might have an extra 7 year old still running around. I really don't think we should lay this at the feet of our children. Education and information about strangers is one thing, but asking them to turn in the very people who raise them is beyond the scope of their ability. "No", I responded to his next question; "Judge Judy doesn't handle this type of case."

Walmart? Sing Sing? Malibu? SpringBreak Hot Spots

A young college student opts to spend spring break not on some beach sunning himself but instead doing a social experiment ala "Supersize Me." Perhaps with an eye toward getting on reality TV this college student chooses to spend a week inside Walmart to see if in fact, as their ad suggests, that they can meet a person's every need. I find it hard to believe that this young man or for that matter the general public took Walmart's claim for anything other than a simple marketing tool. The student however, chose to dissect the claim and test it for its so called veracity. Of course, he proceeded with his endeavor without first getting the consent or approval of anyone in authority at Walmart. It took them 41 hours, but Walmart finally realized they had a squatter in the place and removed the young gentleman. Apparantly, he was quite relieved to be discovered since he claimed not to have been able to shower or find appropriate sleeping quarters in the store. I wonder, had he never been inside a Walmart before this experiement? How is it he didn't realize they didn't sell beds or have shower facilities? Did his Walmart Vacation brochure contain amenities that were perhaps missing in this particular Walmart? Did his travel agent fail to properly disclose this relevant information? One needs to wonder how someone who is able to even get into a college can fail to realize that this "experiement" could land him in quite a different springbreak hotspot...such as Prison! Prison has appropriate sleeping quarters and showers as well. Perhaps instead of returning to the University to take his final exams this quarter he will be spending up to one year in the local pen! Criminal Trespass for all of you thrill seekers out there is a misdemeanor punishable by up to one year in jail here in NY. Now with the publicity he has received will he be appearing on the local talk shows? Or perhaps he has a book in him; or a made for TV movie? Personally, I truly feel that these stunts should in fact be treated for what they are, namely Crimes! If we set some examples for proper behavior, then maybe, just maybe, we will see some.

Walmart? Sing Sing? Malibu? SpringBreak Hot Spots

A young college student opts to spend spring break not on some beach sunning himself but instead doing a social experiment ala "Supersize Me." Perhaps with an eye toward getting on reality TV this college student chooses to spend a week inside Walmart to see if in fact, as their ad suggests, that they can meet a person's every need. I find it hard to believe that this young man or for that matter the general public took Walmart's claim for anything other than a simple marketing tool. The student however, chose to dissect the claim and test it for its so called veracity. Of course, he proceeded with his endeavor without first getting the consent or approval of anyone in authority at Walmart. It took them 41 hours, but Walmart finally realized they had a squatter in the place and removed the young gentleman. Apparantly, he was quite relieved to be discovered since he claimed not to have been able to shower or find appropriate sleeping quarters in the store. I wonder, had he never been inside a Walmart before this experiement? How is it he didn't realize they didn't sell beds or have shower facilities? Did his Walmart Vacation brochure contain amenities that were perhaps missing in this particular Walmart? Did his travel agent fail to properly disclose this relevant information? One needs to wonder how someone who is able to even get into a college can fail to realize that this "experiement" could land him in quite a different springbreak hotspot...such as Prison! Prison has appropriate sleeping quarters and showers as well. Perhaps instead of returning to the University to take his final exams this quarter he will be spending up to one year in the local pen! Criminal Trespass for all of you thrill seekers out there is a misdemeanor punishable by up to one year in jail here in NY. Now with the publicity he has received will he be appearing on the local talk shows? Or perhaps he has a book in him; or a made for TV movie? Personally, I truly feel that these stunts should in fact be treated for what they are, namely Crimes! If we set some examples for proper behavior, then maybe, just maybe, we will see some.

Living Wills and New York State

During the controversial events surrounding the life and death of Terri Shiavo a beautiful young girl who became the talk of the country, the discussion of Living Wills took center stage among news anchors and talking heads. The masses sought out lawyers to draft such documents on their behalf determined not to have their loved ones involved in such a battle. Family discussions and water cooler talk about the quality of life kept us all captivated fearing that at some point any of us might face certain issues. In my own experience many years prior my parents and aunts faced the issue of keeping my grandmother alive on life support though her brain no longer functioned her body would with help. Almost 20 years after that my husband and his family faced a similar choice. The difference between the cases involved the existence of a Living Will. However, the existence of the document turned out not to be the magic wand that freed the signor from this world. The State of New York reserves the right not to accept a Living Will. In this state it merely exists as "evidence" of the intent of the executor of the document. The hospital may still impose rules upon how the document will be utilized and religious hospitals; namely Catholic hospitals reserve the right not to allow it any credence at all. In cases involving brain death even if a Living Will exists and the agent gives authority to "pull the plug" (a misnomer by the way, it is usually a tube which is taken out of the patient; not a plug which is removed from the wall). Three doctors must confirm the diagnosis of brain death before the wishes of the family and or the individual will be honored. This can take anywhere from one to two days to accomplish depending on the schedules of the doctors. Should one have a living will in New York? Well, of course the choice is individual but.. it can't hurt.