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If you are going through a marital separation in New York, you are certainly not alone. According to Statista, the annual divorce rate in New York is approximately 2.7 per 1000 residents. That means there are nearly 60,000 divorces in the state each year. While going through a divorce is always challenging, it is especially difficult if your spouse wants to separate but you want to stay together. In this circumstance, it is imperative that you consult with an experienced Long Island divorce lawyer immediately.   From a legal perspective, there is technically no way to stop a divorce in New York. Either spouse has the right to obtain a divorce without cooperation from the other and even over the fierce objections of their spouse. Of course, that does not mean that there is no way to save your marriage. You may still be able to work things out with your partner through cooperation and marital counseling.  However, if your spouse is pushing for a divorce, you need to take action to protect your rights: New York Allows for No-Fault Divorce Under New York state law (DRL §170.7), it is possible to obtain a no-fault divorce. The only grounds that a divorce petitioner needs to prove to obtain a no-fault divorce is that their marriage is ‘irretrievably broken’. One spouse’s testimony is sufficient to satisfy these grounds. If your partner wants to push for a divorce and they will not budge from that position, you have no legal authority to stop it. You Should Never Ignore Divorce Papers In New York, your partner must serve you with divorce papers. What happens if you simply ignore the divorce papers? Your spouse can get an Affidavit of Service from the process server or an Affidavit of Attempted Service from a New York state court. In either event, dodging the divorce papers is not an effective tactic to stop the divorce. If your spouse makes a good faith effort to serve papers and you refuse to accept them, the divorce process will simply move forward without you, oftentimes resulting in default summary judgements that will only hurt you. If divorce papers have been served on you, you have 20 days to respond. If you do not respond, a default judgment will eventually be entered against you. It will not save your marriage and you will end up with a worse result in the divorce proceedings. Whether you still want to try to work your marriage out, or you want to protect your financial interests or parental rights, you need to be involved in the process. You should sit down with a divorce lawyer and your spouse and begin working towards the best possible resolution. Contact Our Long Island Divorce Attorneys Today At Petroske Riezenman & Meyers, P.C., our top-rated Long Island divorce lawyers treat every case with the personal attention and an individualized approach that it deserves. To get immediate legal guidance, please contact our legal team today. With an office in Hauppauge, NY, we represent clients throughout Long Island, including in Nassau County and Suffolk County.

While relationships are complex and there is rarely a single reason couples decide to divorce, social media might be contributing to marital stress. As experts are warning, too much social media can create marital strain and disagreements. If your marriage has suddenly become rocky, you should reach out to a Long Island divorce lawyer. Social Media Use Leads to Arguments It is easy enough to see why couples would fight over social media posts. For one thing, it is far too easy to connect with long-lost flames, such as an ex-girlfriend or even an ex-spouse. Many times, connecting with people over social media like Facebook or Instagram can lead to jealousy in your partner or even potential infidelity on your part. Social media also makes it far too easy to complain about the state of your marriage. People often forget that many social media posts are public, and even if you make your profiles private, chances are you have friended your spouse, who can see all your complaints. Remember to use discretion when posting online and never post anything you wouldn’t willingly say to your spouse. Social Media is Addicting Instead of spending time with your family, you might be combing through profiles of people you went to high school or college with. In many ways, this is completely natural. Facebook is like a 10-year high school reunion every day of the week. You can spend days and weeks going through the profiles of everyone that you know. Is it really surprising that your spouse will begin to resent never seeing you? Social Media Makes You Jealous How likely are you to post a picture of yourself frowning or in tears? Probably less likely than a glamorous selfie or a post about fun vacations, parties, and other special occasions. The fact is that few social media accounts accurately reflect their day-to-day lives, but it can be very easy to assume that they do. Some might start feeling jealous of their friends whose families and marriages seem much more satisfying. As a result, they might begin thinking that there is a problem with their marriage, which can often create discord in a relationship, sometimes severe enough it can lead to divorce. For your own well-being, it is important to remind yourself that everyone has problems, even if they are not posting about them. Worried about Divorce? Speak to a Long Island Divorce Attorney Every marriage has its challenges, and now you can add social media use to the mix. At Petroske Riezenman & Meyers, we have helped countless people seek divorce and understand the many complicated reasons people have for calling it quits. If you see divorce on the horizon, or if you simply want to talk about your options, we can help. One of our Long Island divorce lawyers can meet with you for a free consultation to discuss the divorce process. Contact us today by calling 632-405-4732 or submit an online message.

Recently, you may have read that Stormy Daniels is challenging the confidentiality agreement she purportedly entered into with an attorney associated with then presidential candidate Donald J. Trump. The purported agreement is now the subject of various lawsuits, including an action to set the agreement aside because it is void against public policy. At first glance, it may seem a bit tenuous to draw a connection between a legal action involving the President of the United States and an Action for Divorce. However, there are more similarities than you may think. Agreements which impact a family – especially those involving the division of assets or payment of support – are often viewed from the perspective of preserving public policy.  For this reason, Courts examine agreements made by the parties to ensure that they are “fairly and equitably” reached and free from “fraud and duress.” As a result, if the terms of an agreement were manifestly unfair at the time of execution, the agreement could be set aside. What are some examples of a “manifestly unfair” agreement?  Well, every case is different.  However, generally an unfair agreement awards one spouse a significantly greater share of the marital estate, or provides for an unsustainably high/low child support or maintenance obligation.  In those cases, the Court could set aside the agreement (and make it as if the agreement never existed in the first place). Actions to set aside an agreement are extremely time sensitive and must be addressed as soon as possible.  If you believe your divorce, child support, or child custody agreement is unfair, please give us a call to see if we can help.

There is nothing equitable about separate property in a divorce action. If you have it, you get to keep it – all of it – unless, of course, some part of it has changed into marital property. Only marital property – property acquired during the marriage – is divided between the spouses. Separate property is the narrow exception to the marital property rule, and is limited to the following categories: (1) property acquired prior the marriage; (2) inherited property; (3) gifts from third parties; (4) proceeds of personal injury awards; and (5) property acquired after the commencement of an action for divorce or the signing of a separation agreement. Sometimes, separate property becomes marital property and therefore must be divided between the parties. There are numerous ways this can happen – for example, "transmutation" occurs when the title to separate property is changed to joint title and the asset becomes marital. A separate property asset can also lose its separate property character even without a change of title, as when it is "commingled" with marital funds, so that it is impossible to say what portion is the original separate asset. Finally, when separate property increases in value (appreciates), some or all of that appreciation can be classified as marital property. Not all appreciation of separate property is marital. The courts have long distinguished between passive and active appreciation of separate property, and only active appreciation is considered marital property in which the non-titled spouse has an interest. Passive appreciation occurs when neither the titled spouse nor the non-titled spouse has made any active contribution that caused the asset to appreciate. For the appreciation to be active there must be some "nexus" or connection between efforts made by one of the spouses, and the increase in value of the asset. The non-titled spouse’s efforts need not directly contribute to the increase in value. Even indirect contributions will suffice, so long as the other spouse has made a direct contribution to the increase in value of the asset. In the seminal case Price v. Price, 69 NY2d 8, the New York Court of Appeals interpreted the equitable distribution statute to provide that where separate property has increased in value during the marriage because of the efforts of the titled spouse, the non-titled spouse has a claim to some of that appreciation through her "contributions or efforts," including being a parent and homemaker during the marriage. Where separate property has experienced active appreciation the owner must make some provision to purchase the other party’s interest in the appreciated portion of the asset or he may lose it. Not directly, and not immediately, since the court lacks the power to distribute any part of a separate property asset, but some means of sharing the appreciated portion of the value of the separate property asset must be devised. The most direct method is a direction in the judgment of divorce to make a monetary payment. If unpaid, this will quickly lead to the issuance of a separate money judgment in favor of the non-titled spouse. Ironically, payment may be obtained by levy and execution (i.e., seizure and sale) on any property belonging to the other party – including the separate property asset. Of course, this is a worst case scenario. Usually, the separate property owner will opt for, or the court will direct, a trade of his/her interest in another, marital asset, to buy-out the non-titled party’s interest in the appreciated separate property asset. However, where there are no trade-able marital assets, and no cash available for a buy-out, enforcement of a money judgment may be the only option. The doctrine of recoupment is related to separate property appreciation, except that it can be far more costly to the separate property owner. If the parties use marital funds to pay down a separate debt — i.e., a debt that existed prior to the marriage — the non-debtor spouse has a claim to "recoup" or get back an equitable portion of those funds expended. Usually, the claim is one-half of the funds expended, in the same way marital property is usually divided 50/50. In the typical example of a separate property residence with a mortgage, both of which pre-existed the marriage, payments made toward the mortgage during the marriage with marital funds can be re-couped from the separate property owner in the divorce action. However, it is quite possible for the recoupment claim to equal or exceed the value of the separate property, since the entire debt payment — including interest — is the subject of recoupment. In fact, in Markopoulos v. Markopoulos, 274 AD2d 457, the non-titled spouse obtained recoupment of two payment streams: First, one-half of the total monies expended during the marriage on mortgage payments for the separate property; and second, one-half of the marital monies used to pay for improvements on the separate property. At the end of the day, the husband kept his vacation home in Forestport as his separate property, but he owed his ex-wife over $41,000 for recoupment in a six year marriage. Given the pitfalls that await the separate property owner, a well-drafted pre-nuptial agreement is essential. Among other features, a "pre-nup" will commonly have each spouse waive any interest in the other spouse’s separate property and all forms of appreciation. Since the law invites those contemplating marriage to make their own contract, it would be foolish not to. Perhaps the old adage said it best: An ounce of prevention is worth a pound of cure. There is nothing equitable about separate property in a divorce action. If you have it, you get to keep it – all of it – unless, of course, some part of it has changed into marital property. Only marital property – property acquired during the marriage – is divided between the spouses. Separate property is the narrow exception to the marital property rule, and is limited to the following categories: (1) property acquired prior the marriage; (2) inherited property; (3) gifts from third parties; (4) proceeds of personal injury awards; and (5) property acquired after the commencement of an action for divorce or the signing of a separation agreement. Sometimes, separate property becomes marital property and therefore must be divided between the parties. There are numerous ways this can happen – for example, "transmutation" occurs when the title to separate property is changed to joint title and the asset becomes marital. A separate property asset can also lose its separate property character even without a change of title, as when it is "commingled" with marital funds, so that it is impossible to say what portion is the original separate asset. Finally, when separate property increases in value (appreciates), some or all of that appreciation can be classified as marital property. Not all appreciation of separate property is marital. The courts have long distinguished between passive and active appreciation of separate property, and only active appreciation is considered marital property in which the non-titled spouse has an interest. Passive appreciation occurs when neither the titled spouse nor the non-titled spouse has made any active contribution that caused the asset to appreciate. For the appreciation to be active there must be some "nexus" or connection between efforts made by one of the spouses, and the increase in value of the asset. The non-titled spouse’s efforts need not directly contribute to the increase in value. Even indirect contributions will suffice, so long as the other spouse has made a direct contribution to the increase in value of the asset. In the seminal case Price v. Price, 69 NY2d 8, the New York Court of Appeals interpreted the equitable distribution statute to provide that where separate property has increased in value during the marriage because of the efforts of the titled spouse, the non-titled spouse has a claim to some of that appreciation through her "contributions or efforts," including being a parent and homemaker during the marriage. Where separate property has experienced active appreciation the owner must make some provision to purchase the other party’s interest in the appreciated portion of the asset or he may lose it. Not directly, and not immediately, since the court lacks the power to distribute any part of a separate property asset, but some means of sharing the appreciated portion of the value of the separate property asset must be devised. The most direct method is a direction in the judgment of divorce to make a monetary payment. If unpaid, this will quickly lead to the issuance of a separate money judgment in favor of the non-titled spouse. Ironically, payment may be obtained by levy and execution (i.e., seizure and sale) on any property belonging to the other party – including the separate property asset. Of course, this is a worst case scenario. Usually, the separate property owner will opt for, or the court will direct, a trade of his/her interest in another, marital asset, to buy-out the non-titled party’s interest in the appreciated separate property asset. However, where there are no trade-able marital assets, and no cash available for a buy-out, enforcement of a money judgment may be the only option. The doctrine of recoupment is related to separate property appreciation, except that it can be far more costly to the separate property owner. If the parties use marital funds to pay down a separate debt — i.e., a debt that existed prior to the marriage — the non-debtor spouse has a claim to "recoup" or get back an equitable portion of those funds expended. Usually, the claim is one-half of the funds expended, in the same way marital property is usually divided 50/50. In the typical example of a separate property residence with a mortgage, both of which pre-existed the marriage, payments made toward the mortgage during the marriage with marital funds can be re-couped from the separate property owner in the divorce action. However, it is quite possible for the recoupment claim to equal or exceed the value of the separate property, since the entire debt payment — including interest — is the subject of recoupment. In fact, in Markopoulos v. Markopoulos, 274 AD2d 457, the non-titled spouse obtained recoupment of two payment streams: First, one-half of the total monies expended during the marriage on mortgage payments for the separate property; and second, one-half of the marital monies used to pay for improvements on the separate property. At the end of the day, the husband kept his vacation home in Forestport as his separate property, but he owed his ex-wife over $41,000 for recoupment in a six year marriage. Given the pitfalls that await the separate property owner, a well-drafted pre-nuptial agreement is essential. Among other features, a "pre-nup" will commonly have each spouse waive any interest in the other spouse’s separate property and all forms of appreciation. Since the law invites those contemplating marriage to make their own contract, it would be foolish not to. Perhaps the old adage said it best: An ounce of prevention is worth a pound of cure.

The right to be with your child, along with rights to care and supervision, are some of the most basic liberties we enjoy.  We can all agree that assuming basic fitness of the parents, nothing should stand in the way of these rights, even after the parents break up.  Unfortunately, as a society, we have not always agreed on who gets to be called “parent.” Until recently, only the biological parent in a same sex union could claim the title – and with it, all the rights – of being a parent after a break up, unless the parties were married or the non-biological partner had adopted the child.  The result of this imbalance in the rights of the parties was often trauma to the children, who were separated forever from a de facto parent because she (or he), lacking the legal status of parent, could not sue in court for any access – not even visitation.   Thankfully, the New York Court of Appeals (NY’s highest court) in the landmark case Matter of Brooke S.B. just fixed the problem by expanding the definition of a parent.   Now same sex couples who have a child out of wedlock can enjoy the same rights as heterosexual couples, regardless of marriage or adoption, if the non-biological partner can prove that the parties had agreed, before the conception of the child, to conceive and raise the child together. It is important to note that the new right created by Matter of Brooke S.B. is the right to sue for custody or visitation.  This right, called “standing,” is not the same thing as the right to custody or visitation.  A same sex partner can earn the right to sue for custody by proving there was an agreement to raise the child, but if a court then determines that custody or visitation is contrary to the child’s best interests, access to the child can still be denied.  As in all custody and visitation cases, the best interests of the child remains the court’s paramount concern. Both of the companion cases decided in Matter of Brooke S.B  involved lesbian couples who had agreed to have a child prior to conception; in both cases, the non-biological partners were intimately involved at every stage -- through pregnancy, birth, and all aspects of child rearing.  Indeed, they did everything except adopt the children.  Not surprisingly, a strong bond had developed between the children and their non-biological parents.  Because of the facts before it, the Court was able to fashion a very limited expansion of the definition of a parent.  Only non-biological partners fortunate enough to have made an actual agreement prior to conception --- who are able to prove the existence of the agreement by clear and convincing evidence --- are included in the new definition of parent. The Court could have fashioned a broader rule (perhaps not requiring the agreement to be made pre-conception, or basing standing on some functional definition of parent), but it was understandably reluctant to open the door wide on who can qualify to sue for custody in light of the biological (or adoptive) parent’s competing rights.  In the absence of unfitness or other extraordinary circumstance, parents (both biological and adoptive) retain the fundamental right both to supervise their children, as well as to exclude others from their children’s lives.  Under these circumstances, the new rule in Matter of Brooke S.B  represents the Court’s effort to strike a balance between, on the one hand, the right of children who have developed a bond with a non-biological parent to continue that relationship and, on the other hand, the right of the biological (or adoptive) parent to exclude the other.  In recognition of the strength of this right to exclude, only a limited exception was created. From a legal perspective, Matter of Brooke S.B  is important not only for the new right it creates but also for the way it created it.  Only in the rarest of cases is a prior decision of an appellate court overruled by that same court.  Here, the Court of Appeals overruled its prior decision in a 1991 case called Allison D.  In that case, the Court concluded it was barred by the state legislature from expanding the definition of parent to include non-biological, non-adoptive same sex partners.  It reached this conclusion by analyzing the statute which confers the right to sue for custody upon a “parent” (but does not actually define the term parent)(DRL sec. 70), and the statutes that provide grandparents and siblings the right to sue for custody and visitation (DRL sections 71 and 72).  The Court in Allison D.  had reasoned that if the legislature had meant to give non-biological, non-adoptive partners the right to sue for custody or visitation, it would have done so explicitly, as it did with siblings and grandparents. The legal significance of overruling Allison D. is that the Court of Appeals decided it is no longer tethered to the state legislature’s intent in defining who can be a parent.  It did so by re-discovering its inherent power, as a “court of equity,” to create rights and obligations, including the definition of the term parent, that best serve the best interests of children. The practical significance of this new (actually old) approach, is that the definition of parent can now more easily change again.  Having recognized its power to “do equity” in a situation involving the needs of children, the Court can now further expand the definition of parent.  In fact, at the conclusion of the majority opinion in Matter of Brooke S.B. the Court hinted that, in a proper case, it could employ a legal principle called “equitable estoppel” to estop (or preclude) a biological or adoptive parent from denying standing to a former partner in a custody or visitation case.  By definition, the estoppel principle applies where the child has relied on her (or his) biological/adoptive parent’s course of conduct in having a serious longstanding relationship with the other partner, by developing a parent-child bond with the other partner.  If, after a break up, harm (or “prejudice”) to the child is caused by his/her being denied access to the other partner, the non-bio/non-adoptive partner can invoke equitable estoppel to obtain standing.  Although the Court of Appeals essentially used this principle to create the new standing rule in Matter of Brooke S.B  it did not explicitly authorize courts to apply equitable estoppel on a case-by-case basis. Of course, while it may not be the rule in New York yet, it may be soon. It will be interesting to see how lower courts --- in particular the New York Supreme Court, which is the lowest level New York court with equity powers (the Family Court is not a court of equity) --- approach cases with similar, but not exactly the same facts as Matter of Brooke S.B.  Will equitable estoppel be liberally applied to all cases in which a petitioning non-biological “parent” can prove there was a relationship with the child?  Or will the lower courts limit the application of equity to cases that present facts substantially similar to those in Matter of Brooke S.B. ?  Frankly, it may depend on how heartbreaking the facts are.  Only time will tell.

The Suffolk Lawyer, the official publication of the Suffolk County Bar Association. Contributors to the "Focus on Matrimonial" Special Edition include Clifford Petroske, on "Rights of Gay and Lesbian Couples to Custody and Visitation," and Michael Meyers, on "Jurisdiction and Custody Orders."

UPDATE: Governor Cuomo signed the bill into law on September 25, 2015. The Temporary Maintenance provisions are effective for divorce cases filed on or after October 25, 2015, and the balance of the law is effective for cases filed on or after January 23, 2016. Long-awaited revisions to the spousal maintenance laws of New York State have recently passed the State Senate and Assembly by wide margins and are expected to be signed into law by the Governor soon.   The changes revise earlier amendments to section 236B of the Domestic Relations Law that had created a statutory formula for determining a temporary maintenance award to the less-monied spouse while a divorce case is pending.  In addition to changing the formula for temporary maintenance, the new amendment bases maintenance awarded in the final judgment of divorce on the revised formula as well. The use of a formula for determining maintenance in the final judgment of divorce is a major departure from existing law. Currently, without a formula, the parties are left to wonder how much maintenance will be awarded after trial because the law directs the court to base a maintenance award upon its consideration of numerous qualitative factors.  The major factors are pre-separation standard of living, ability to pay and the reasonable needs of the payee.  But even looking closely at the finances of the parties, reasonable minds have disagreed on how to apply these factors. The situation is made even more complex (and unpredictable) by a further list of twenty factors (i.e. age and health of the parties, future earning capacity, and the length of the marriage, among them) which the statute currently directs the court to consider in establishing both the amount and the duration of final maintenance. By getting rid of the weighing-of-factors approach, the new law promises to make settling cases much easier.  Many cases have gone to trial where everything is agreed except maintenance since asset division is often (not always) 50/50 and usually easier to agree upon.  With a formula in place, all financial issues gain predictability.  Now, except for outlier cases with unusual circumstances, people will know what to expect at trial and can more easily settle their entire case to avoid that expense. The new law will also be more reasonable towards the monied spouse.  First, there is a much lower cap on the amount of income that will be subject to the maintenance formula.  Under current law, temporary maintenance is calculated on income up to $543,000.  The new law brings this figure down to $175,000 for both temporary and final maintenance awards.  The court remains free to award additional maintenance on income above that figure, but the burden switches:  Now, if the less-monied spouse wants additional maintenance, she/he will have to resort to an argument employing factors set forth in the statute, which is never easy. The formula itself has been revised in the amended statute in a way that will often help the monied spouse.  Typically, the monied spouse is the non-custodial spouse.  The statute will now provide a different calculation that will result in lower maintenance awards where the monied spouse is the non-custodial parent or where there are no children.   Under existing law, the court is directed to perform two (2) calculations using the parties’ incomes and the lower result is the presumptively correct maintenance figure.  Using the lower figure will still be the rule, but the first of these two calculations is changed under the new amendments.  Instead of subtracting 20% of the less-monied spouse’s income from 30% of the monied spouse's income, the court will now subtract 25% of the less-monied spouse’s income from 20% of the monied spouse’s income.  The second calculation remains the same -- the less-monied spouse’s income is subtracted from 40% of the combined total spousal income -- but the savings will be significant for many non-custodial parents, as the following example comparing the existing law to the new law and using hypothetical incomes, illustrates: Monied spouse income:  $150,000; less-monied spouse income: $50,000 Under Existing Law: First calculation: $150,000 X .30 = $45,000 $50,000  X .20 = $10,000 $45,000 -- $10,000 = $35,000/yr. Second calculation: $150,000 + $50,000 = $200,000 $200,000 X .40 = $80,000 $80,000 -- $50,000 = $30,000/yr. Lower figure is annual maintenance:  $30,000/yr. Under New Law: First Calculation: $150,000 X .20 = $30,000 $50,000 X .25 =  $12,500 $30,000 -- $12,500 = $17,500/yr. Second Calculation: (same as above) $30,000/yr. Lower figure is annual maintenance: $17,500/yr. Clearly, the new law will provide a significant break for the non-custodial parent.  Using this example, and figured on a monthly basis, the savings is over $1,000 per month in reduced maintenance. A further benefit to the non-custodial monied spouse comes indirectly in the calculation of child support.  The new law provides that maintenance is to be calculated before determining child support and that the amount of maintenance to be paid is subtracted from the payor’s income before considering child support.  At least in the calculation of child support in a temporary award, this is a huge departure from existing law, where the courts are directed to use the income reported in the previous tax year, which, in theory, cannot include a deduction for maintenance because the obligation did not exist then.  Under the new law, if the court is using the Child Support Standards Act to calculate child support (in a temporary award this is not always the case), the reduction in income used in the formula to calculate support means a lower child support award. In addition to changes in the way that maintenance is calculated, the amendments provide suggested time periods for the duration of the final maintenance award.  For marriages of 0 to 15 years, maintenance would be awarded for 15% to 30% of the length of the marriage.  For marriages of more than 15 years and up to 20 years, maintenance would be 30% to 40% of the marriage’s length. Finally, for marriages longer than 20 years, maintenance would be 35% to 50% of the marriage's length. This will be a big change in the law.  There is currently no statute that directs maintenance duration. Case law from the appellate courts has not been much help either.  Only if the trial court has “abused its discretion” in setting the duration of an award will an appellate court step in to change the result at trial.  And, when it does, the results are often inconsistent from case to case.   Now, with guidelines for the duration of maintenance being put in place, the results after trial will be more consistent.  Again, as with the formula for maintenance, consistency means predictability, and more cases will settle as a result. A long-awaited change to the law included in the amendment is the elimination of enhanced earning capacity as a separate asset to be equitably distributed.  Currently, under existing law, if a spouse has obtained a college degree or professional license during the marriage, the court will usually give some of the value of that degree or license to the other spouse.   Value is established using an actuary, who provides a report showing the difference between the pre-degree/license income and the post-degree/license income, multiplied by the remaining working years in the degree-holding spouse’s life up to retirement age, with discounting for present value, and risks of attrition and mortality.   Even with discounting, values for professional degrees and licenses tend to be large, and can easily hit six figures. Many in the matrimonial law community have been unhappy with enhanced earning capacity, and will not be sorry to see it go.  It strikes many as arbitrary and unfair.  Although the new law specifically eliminates enhanced earning capacity as a separate asset to be distributed, it leaves the door open for the court to “consider” the contributions of the non-degree holding spouse in making an equitable distribution of assets generally.  What this will mean in practice, is anyone’s guess. The effective date of the new statutory amendment is 120 days after the governor signs the bill into law, with the exception that the provisions regarding temporary maintenance will go into effect 30 days after the bill is signed.  Cases that have already been commenced prior to the effective date will not be subject to the revised statute.   During this period of waiting for the statute to take effect, those considering starting a divorce would be wise to consult with an attorney to review their situation carefully.  For some, such as non-custodial monied spouses, waiting for the new law might be best.  For others, the opposite may be true.  Strategic planning in advance of any litigation has always been important, but now more than ever.

One of the primary concerns when a couple decides to separate is child custody.  It’s difficult to envision not living with your children all the time, but it’s the reality of separate households.  What post-separation parenting arrangement is best for your children?  Consider shared custody. Absent extraordinary circumstances such as an abusive or neglectful parent, studies show that children, even very young children, and even children of high-conflict parents, do best when they spend considerable amounts of time with each parent post-divorce. In 2014, delegates from the scientific, family profession and civil society sectors of over twenty countries attended the First International Conference on Shared Parenting.  Among their areas of consensus was the following conclusion: shared parenting is a viable post-divorce parenting arrangement that is optimal to child development and well-being, including for children of high conflict parents. The amount of shared parenting time necessary to achieve child well being and positive outcomes is a minimum of one-third time with each parent, with additional benefits accruing up to and including equal (50-50) parenting time, including both weekday (routine) and weekend (leisure) time. Source: psychologytoday.com The benefits of shared custody apply even to very young children, according to a recent consensus report by 110 child development experts entitled “Social Science and Parenting Plans for Young Children,” published in the APA journal, Psychology, Public Policy and Law (Feb. 2014).  The report concluded that A broad consensus of accomplished researchers and practitioners agree that, in normal circumstances, the evidence supports shared residential arrangements for children under 4 years of age whose parents live apart from each other.  . . . decision makers should recognize that depriving young children of overnights with their fathers could compromise the quality of developing father-child relationships. Sufficient evidence does not exist to support postponing the introduction of regular and frequent involvement, including overnights, of both parents with their babies and toddlers. The theoretical and practical considerations favoring overnights for most young children are more compelling than concerns that overnights might jeopardize children’s development. Knowing that shared parenting may be the best long-term option for your children’s development, how do you make it work for you?  A few suggestions: Tolerate Different Parenting Styles: Maybe when you were an intact household, you were the children’s primary caregiver.  Now the children have two homes, and you worry the other parent won’t know what to do.  Maybe dad (or mom) never changed a diaper or doesn’t know how to make the PB&J just right— rest assured, he will figure it out, and your children will likely benefit from adapting to different parenting styles.  It may also help if you both read the same parenting books.  One that I like to suggest for divorcing parents is Putting Children First: Proven Parenting Strategies for Helping Children Thrive Through Divorce by Dr. JoAnne Pedro-Carroll.  A couple of good ones for kids are: Standing on My Own Two Feet: A Child’s Affirmation of Love in the Midst of Divorce by Tamara Schmitz (for younger children), and Divorce Is Not the End of the World: Zoe’s and Evan’s Coping Guide for Kids by Zoe and Evan Stern (for older children). Choose Your Battles and Don’t Badmouth Your Ex: Your child at some point will probably report to you that mom did this or dad said that, and may try to play one of you against the other.  Choose your battles.  Your response may be something like, “Well at my house you do your homework after school, and at dad’s house you do it after dinner— that’s okay.”  You and your ex each have the right to parent your children on a day-to-day basis without interference from the other, and you must make it clear to your children that they are expected to respect both parents.  Never disparage the other parent within earshot of your children, and don’t allow anyone else to either.  One of the easiest ways to lose custody is to try to alienate your children’s affection for their other parent. Enlist Third Party Resources: If the issue is not a little day-to-day thing, but a matter of importance (e.g., health, safety, education, religion), discuss it with your ex outside of your children’s presence.  If you can’t resolve the issue on your own, you have a legitimate difference of opinion on a major issue and you can’t just “agree to disagree,” you can consult a parenting coordinator or another third party (pediatrician or teacher), but you both must agree in advance to abide the recommendation of the third party.  If all else fails, you should consult an attorney, and you may need to seek court intervention, but the judge will be more receptive to your arguments if you have tried the co-parenting route first. Co-parenting is key: So what exactly is co-parenting? The International Council on Shared Parenting defines it as “the assumption of shared responsibilities and presumption of shared rights.”  Both parents should be involved in meetings with doctors and teachers regarding the child’s health and education.  Communicate in advance with the other parent about big ticket items like birthday parties, school and sporting events, and Christmas presents.  If your kids are young, try to agree on potty training and bedtime— your children will thrive on the consistency.  If they’re older, discuss issues like when your child should get a cell phone or learn to drive.  Think of it this way:  if you wouldn’t want the other parent to make a decision without consulting you, don’t make that decision without consulting him/her.  And don’t forget the fun stuff.  Parenting has its rewards, of course, and both parents should reap them.  You should both try to be at the school plays and soccer games.  If there is a special event, tell your ex about it, so your child can share those moments with both parents. Use Technology: Maybe you don’t want to deal with your ex anymore than you have to— this is understandable.  There’s a reason you’re not still together, after all.  But again, think of your children.  There are ways to make interacting with your ex for the benefit of your children a little easier to bear.  Email and text messages minimize face-to-face encounters and have the added benefit of a written record to avoid any “he said-she said” squabbles later.  Set up a separate calendar on your iPhone and share it with your ex to keep track of your kids’ appointments and activities.  There are also apps available to manage your parenting time and communications, such as Our Family Wizard and SquareHub. Keep Money Out of It:  In a perfect world, all of this would occur in a financial vacuum, but it won’t.  Even in shared custody situations, child support is usually paid by one parent to the other, depending on the respective incomes of the parties and other factors.  You and your ex will probably have financial disputes—  your children should not be privy to them.  Being owed money is never an excuse for withholding your children from your ex. The bottom line: the standard that judges apply to custody determinations in New York is “the best interests of the child.”  There are numerous factors involved, but above all, you should be prepared to show that you are willing to put your children’s well-being above your own preferences, which may mean sharing a considerable amount of your children’s time with your ex, and your own time, too.  Even though you decided to part ways, you will both always be connected by your children.  It’s best for everyone if you share the responsibilities and the rewards of parenting.

An all-too-common scenario involves the separating couple who prepare their own settlement agreement which contractually resolves all of their issues – everything from custody and support, to property and debt division --  only to find out months or possibly years down the road that their agreement is defective and unenforceable.  Often, the parties only learn of the problem when one of them starts a divorce action, and an application is made to set aside the agreement as unenforceable.  If successful, the court sets aside the agreement and the parties have to start all over again negotiating the terms of a new settlement – or worse, go to trial. In New York, out-of-court agreements settling marital issues can be set aside for numerous reasons, including unconscionability, duress, fraud and mutual mistake.  But with homemade agreements (as well as agreements prepared by some mediators and legal document prep services) even an even-handed agreement can fail for a technical defect.  The Domestic Relations Law provides that any agreement between spouses made before or during a marriage will be “valid and enforceable” if it is in writing and signed by the parties before a notary public with a special form of notarization called an “acknowledgement” (see, DRL sec 236B[3]).  If an agreement does not contain these components, at a minimum, it can be set aside or vacated, by application to the court. Signing a written agreement seems obvious enough. But acknowledging the agreement?  Not so much.  The proper form of acknowledgement is defined by New York State Real Property Law, since this is the notarization method used to transfer real estate, and is commonly encountered on the standard pre-printed deed.  The form is prescribed in the statute as follows: On the ____ day of ____ in the year ____ before me, the undersigned, personally appeared ____, personally known to me or proved to me on the basis of satisfactory evidence to be the individual(s) whose name(s) is (are) subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their capacity(ies), and that by his/her/their signature(s) on the instrument, the individual(s), or the person upon behalf of which the individual(s) acted, executed the instrument.   (Real Property Law 309-a). Before concluding that a quick cut and paste of this paragraph to the back of a settlement agreement will do it, a quick read-through should make it clear that there is more than a mere form required.  The notary has a lot to do.  The spouse who signs an acknowledged agreement must do so in front of the notary, must prove his/her identity, and must attest that he or she is the person referred to in the agreement and that he or she signed the agreement.  Of course, the notary must then sign with his or her identifying information (usually by stamp) on the agreement. So what could go wrong?  Sometimes, the entire acknowledgement page is missing.  Numerous cases have tried to remedy the missing acknowledgement problem, after the fact, by arguing that the formality of the missing acknowledgement can be overlooked if there is no real question that the parties signed it.  However, an acknowledgement that is completely missing cannot be cured, since the Court of Appeals, the state’s highest court, has ruled that the parties testimony in court admitting that the signatures were authentic is not the “functional equivalent of an acknowledgement, which involves both the oral declaration of the signer and the written certificate of the official establishing that certain prerequisites were met” (Galetta v. Galetta, 21 NY3d at 195 [2013] discussing Matisoff v. Dobi 90 NY2d 127 [1997]).  A missing acknowledgement also means that one of the major purposes of an acknowledgement is absent, since it fails to “impose a measure of deliberation and impress upon the signer the significance of the document” (Gulotta, 21 NY3d at 196). More often, though, the problem is less obvious.  Instead of a missing acknowledgement, the agreement contains a poorly drafted acknowledgement that may (or may not) contain the essential elements of the statutory acknowledgement.  Anything even slightly short of the requisite components can be fatal to the validity of the acknowledgement, as the Galetta  case recently demonstrated.  In that case, the Court of Appeals concluded that the Husband’s signature on the pre-nuptial agreement was not properly acknowledged because the phrase “to me known and known to me” (the boilerplate language in effect at that time) was omitted, probably because of a typographical error. So, instead of Gary Galetta coming before the notary as someone who was, “to me known and known to me to be the person described in and who executed the foregoing instrument…,” he was merely “Gary Galetta described in and who executed the foregoing instrument…”   Though it might seem impossible for the notary to have attested that Gary Galetta was the person who signed the agreement without having first identified him, the absence of language specifically spelling this out was enough for the Court of Appeals to conclude that the acknowledgement did not substantially comply with the requirements of Real Property Law 309-a. All was not lost for Mr.  Galetta, at least not yet.  The Court of Appeals held out the hope that, if Mr. Galetta could prove that the notary actually did perform the essential tasks of an acknowledgement, that the defect in the language could be cured.  Alas, Mr. Galetta turned out not to be so lucky.  His notary could not remember him from thirteen years before.  All he could say was that it was his custom and practice to “ask and confirm that the person signing the document was the same person named in the document” (Id. 21 NY3d at 197).  In light of how exacting the language must be for an acknowledgement, it is somewhat ironic that this statement almost passed muster.  But no – although evidence of a habit can be enough to prove that a specific act which can no longer be recalled was, in fact, performed, this notary’s testimony was not specific enough.  Having failed to provide the detail of a specific procedure he followed to identify people he notarized, the Court rejected the notary’s statement, and held that Mr. Galetta could not cure the defective acknowledgement. Other facts might have turned out differently.  The take-away from Galetta is that a defective acknowledgement may be curable if it can be proved later that the notarization actually contained all of the elements of a proper acknowledgement, even if only some of them were written down.  The notary can never be dispensed with entirely and the type of notarization must be an acknowledgement (not a “sworn to” oath taking, which is more common).  It also helps if your notary can remember you years later, or at least has a well-defined habit of taking acknowledgements, assuming he or she does enough of them to even have such a habit.   And then, it’s never enough to simply identify the signer.  He or she must actually declare that it is his or her signature on the document. Of course, it’s better to get it right the first time.  Getting a form online, or relying on a paralegal or mediation service, may seem like a cost-effective option, but buyer beware.  It could cost a lot more in the long run.

There are special rules which govern attorney billing in New York, and there are particular requirements for attorneys handling domestic relations matters (divorce, child custody, child support, etc.).  You should never hire, nor continue to work with, any lawyer who doesn’t comply with these rules: The attorney is required to provide you with a copy of the Statement of Client’s Rights and Responsibilities at your initial consultation prior to signing a written retainer agreement to represent you. The attorney is required to provide you with a written retainer agreement stating the services to be provided and the details of the fee arrangement.  Some attorneys charge flat fees for simple uncontested matters.  In most cases, though, you will be asked to pay a retainer deposit, and you will be billed by the hour.  You will also be billed for out-of-pocket costs such as a fee charged by the County Clerk for filing a document, or a process server or witness fee. The attorney cannot charge a fee which is contingent on securing your divorce, or obtaining child custody or visitation, or is in any way determined by reference to the amount of support or property distribution awarded in your case. The attorney cannot charge a non-refundable deposit.  If your relationship with the attorney ends before the conclusion of your case, the attorney is required to refund any part of your deposit which has not been billed for legal services or costs. You should expect to receive an itemized bill from your attorney at least every sixty days.  The attorney may not charge you for time spent discussing your bill. In most cases, in the event of a fee dispute with your attorney, you have the right to seek arbitration.  You should contact the Bar Association in the county where the attorney maintains his/her office, or ask your attorney for the arbitration package. You have the right to end your attorney-client relationship at any time, but if you owe an outstanding balance, the attorney has a right to retain your file until the balance is satisfied.