Matrimonial Law

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Matrimonial Law Powered By Docstoc
					THE PEOPLE’S LAW SCHOOL
        What everyone needs to know…




   Matrimonial Law
          Tuesday, November 15, 2005

Florence M. Fass, Esq.                    Charles P. Inclima, Esq.
   Fass & Greenberg, LLP                  Biernbaum, Inclima & Meyer, LLP
   Garden City, New York                        Rochester, New York


                Presented by the New York State Bar Association
                                  MATRIMONIAL LAW

      (These materials were originally prepared by Mr. Inclima for a program presented by the
           Monroe County Bar Association entitled “Divorce Education for the Public”)


                                          Introduction

While you consider the possible dissolution of your marriage, various issues and questions
arise:
       How does a divorce occur?
       What is best for my children?
       What will happen financially?

This program is designed to provide general information to aid in your decision making. You
shall be making some of the most important decisions in your life (and that of your children).
It is hoped that you consider the information provided to determine the best plan for your
future.

                                             Outline

I.        Process, Grounds and Models for Representation

          A.     Process

          B.     Grounds

          C.     Models for Representation
                 1.    Mediation
                 2.    Collaborative Law
                 3.    Private Legal Representation

II.       Children: Custody, Residency, Law Guardian

III.      Financial: Child Support, Maintenance, Equitable Distribution

          A.     Child Support

          B.     Maintenance

          C.     Equitable Distribution
                 1. Assets
                 2. Liabilities




                                                1
I.   PROCESS, GROUNDS AND MODELS FOR REPRESENTATION

     A.   PROCESS

          1.   Determination by you as a spouse: Is your marriage irretrievably
               broken?

               If yes, seek assistance (outlined in models of representation below)

               If no, seek reconciliation (counseling, plan)

               If "I don’t know”: make a plan, you set the time line to make a
               determination

          2.   Legal Process:

               a.    Commencing the Action: A summons is served by one party
                     (plaintiff). The party receiving the Summons (defendant) obtains
                     an attorney who forwards a Notice of Retainer and appearance
                     indicating that he/she is representing the defendant to the
                     plaintiff’s attorney.

               b.    Pleadings: Pleadings are exchanged between the attorneys.
                     Plaintiff serves a Verified Complaint against the spouse
                     constituting his or her grounds for divorce. Defendant serves an
                     Answer and Counterclaim, usually denying allegations of the
                     Complaint and containing his or her claim against the Plaintiff
                     constituting grounds for divorce. Plaintiff serves a Reply which is
                     generally a denial of defendant’s Counterclaim.

                     Motions: At any time after the service of the summons, there may
                     be a need to appear in Court on a Motion, which is a request for
                     some type of help which is needed while the action is pending.
                     There are a variety of Motions in matrimonial actions. Some of
                     the more common ones would be a Motion for Temporary
                     Support, which would result in a Court Order setting forth the
                     terms of support, spousal maintenance and/or child support,
                     temporary child custody and visitation, occupancy of the home,
                     and other matters. Other common types of motions involve
                     financial discovery and occasionally, enforcement of temporary
                     orders. Motions involve the preparation of papers and frequently,
                     an affidavit of the client and at least one Court appearance. The
                     appearance of the client for argument of a Motion is rarely
                     necessary in the eyes of the Court, but the policy of some
                     attorneys is to have clients present, since it is important that you
                     view firsthand what is taking place during all steps of your
                     matrimonial action.
                                        2
           c.      Financial Disclosure: The law in New York State now clearly
                   provides that there must be full and complete disclosure of the
                   respective financial circumstances of the parties to a matrimonial
                   action. Either after or simultaneously with the exchange of
                   pleadings, as discussed above, there will be an exchange of
                   financial statements of net worth between the parties and most
                   often, additional financial discovery which takes a number of
                   forms, some examples of which are the following:

                   1.      The voluntary exchange of items such as income tax
                           returns, pay stubs, bank records, etc.

                   2.      The production of financial records pursuant to specified
                           requests.

           d.       Judicial Appearance: Upon the filing of a Request for Judicial
                    Intervention, either the matter shall be scheduled for matrimonial
                    conference before a matrimonial judge or referee to resolve
                    issues, or the matter shall be placed on the trial calendar for
                    purposes of rendering decision pursuant to a settlement
                    agreement or after trial.

           e.       Judgment Roll: The Judgment Roll is the set of documentation,
                    which includes, but is not limited to, the proposed Decree or
                    Judgment of Divorce for the Judge to sign.

           f.       Certificate of_Dissolution: Upon the Judge signing the Decree of
                    Divorce, the Judgment Roll is filed with the County Clerk and a
                    Certificate of Dissolution is filed with New York State.

     3.     Jurisdiction
           a.       Supreme Court only

B.   GROUNDS

     Marriage is a civil contract. The state has an interest in preserving marriages.
     Accordingly, the marriage relationship only can be dissolved by a court, by
     either a divorce or an annulment. It also may be altered by a decree of
     separation granted by the court. In any case, there must be a proceeding in the
     Supreme Court in which the person seeking the divorce, separation decree or
     annulment must prove “grounds."

     How does one obtain a divorce, separation decree or annulment in New York
     State? First of all, “grounds” or valid reasons prescribed by law must exist and
     be proven to the court, even if both parties agree that the marriage relationship
     should be altered. Unlike most states, New York will not grant a divorce for
     incompatibility, “irreconcilable differences”, or for a “dead” marriage. We do
                                     3
not have a “no-fault” divorce in New York State except where the parties have
been separated pursuant to a separation decree or a separation agreement for
more than year and the party seeking the divorce has substantially complied
with the terms of the separation decree or the separation agreement.

Four of the “grounds" in this state are based on the fault of one of the parties:
cruel and inhuman treatment, abandonment for one or more years,
imprisonment for three or more years, and adultery. The other grounds: one
year of living apart under a separation agreement, and one year of living apart
under a separation decree granted by a court, afford New Yorkers a “no-fault”
divorce, in which neither spouse is judged to be at fault.

1.     Cruel and Inhuman Treatment

       a.      Generally

       Cruel and inhuman treatment can involve either physical or mental
       cruelty. To be a reason for divorce, the treatment must have such a
       serious effect on the physical or mental health of the divorce-seeking
       spouse, that it is not safe or proper for the parties to continue the
       marriage. Mere incompatibility between husband and wife is not enough
       to obtain a divorce in New York.

       Some examples of acts that courts have held to be cruel and inhuman
       treatment for divorce purposes include physical attacks upon a spouse;
       constant screaming, profanity or other verbal abuse; gambling away the
       household funds; staying away from the house too often without an
       explanation; having a relationship of a sexual nature with another man
       or woman; and wrongfully accusing the other spouse of adulterous
       relations with another man or woman.

       Alcoholism, by itself, usually is not a sufficient basis for divorce, unless
       your spouse becomes cruel or violent when intoxicated, so that you fear
       for your health or safety.

       Mental illness also is not a sufficient basis for a divorce on the grounds
       of cruel and inhuman treatment, unless a spouse’s other behavior could
       be defined as “cruel and inhuman treatment." Also, mental illness is not
       a defense to cruel and inhuman treatment. Nevertheless, a court may
       declare a marriage void when a spouse has been incurably mentally ill
       for a period of five (5) years or more. The courts have held that when
       there is a long-term marriage (often fifteen or more years married) the
       acts of cruelty must be more substantial to justify a divorce. What might
       be cruel in a short marriage may not be a sufficient basis for divorce in a
       more mature marriage relationship.

       Each case, however, stands on its own facts. The court decides whether
       or not these facts justify a dissolution of the marriage. Generally, the

                                4
     acts or conduct on which the divorce is based must have occurred within
     five years prior to the commencement of the action to be considered by
     the court.

     The Plaintiff must show that the defendant’s conduct so endangers the
     physical or mental well-being of the plaintiff so as to make it unsafe or
     improper for plaintiff to cohabit with the defendant.

     b.      Burden of Proof

     c.      Pleadings; Other Special Issues

             1.      Last five years relevant
             2.      Nature of cruelty
                     a.      Physical violence, verbal abuse, threat of
                             violence, emotional abuse, sexual infidelity,
                             drug/alcohol abuse, gambling, false
                             accusations of infidelity

                     b.      Not mere incompatibility, dead marriage,
                             irreconcilable differences, lack of communication

                     c.      Domestic Violence - Order of Protection

2.   Abandonment

     Abandonment means that your spouse has intentionally left you without
     your consent, and of his or her own accord (that is, you did not force or
     lock your spouse out of the house) and without justification.

     You must also prove that your spouse did not have a good reason for
     leaving (such as your ill treatment or your consent), that your spouse left
     with the intention of never returning, and that your spouse did not offer
     in good faith to return. Unjustified refusal by a spouse to have sexual
     relations is considered “constructive abandonment” and may also be
     considered cruel and inhumane treatment.

     Abandonment must exist for a continuous period of at least one year
     before the action is started to be a basis for divorce in this state. There is
     no statute of limitations on abandonment. However, a separation
     agreement eliminates the ground of abandonment, since by signing an
     agreement, both parties consent to living apart.

     a.     Actual Abandonment - Defendant abandons Plaintiff for a period
            of one or more years prior to the commencement of the action
            which abandonment is unjustified and without the consent of the
            abandoned spouse. When a wife has established her own career,
            which would either be terminated or severely reduced as a result
                               5
           of being required to accompany her husband in the event he
           moves, her failure to move with her husband is no longer
           considered an abandonment.

     b.    Constructive Abandonment - refusal to have sexual relations for
           a period of one or more years prior to the commencement of the
           action which is unjustified and without the consent of the
           abandoned spouse.

     c.    Defenses

3.   Imprisonment

     a.    Defendant’s confinement in prison for a period of at least three
           consecutive years constitutes grounds for divorce. Divorce on
           the grounds of imprisonment for three or more years means that
           the defendant actually must have served three years or more in
           prison before an action can be brought, even if conviction is later
           overturned or reversed.

4.   Adultery

     a.    Adultery is the commission of an act of sexual or deviate sexual
           intercourse voluntarily performed by the defendant after
           marriage with a person other than the plaintiff. Bringing an
           action on the grounds of adultery, especially if your spouse is
           going to contest it, is not a simple matter. The proof of adultery
           is difficult. You are not permitted to testify against your spouse,
           and you must have a witness ready to convince the court that
           your mate did engage in sexual relations with another person.

     b.    Defenses. There are four defenses to the charge of adultery. If
           any of these are proven, the court will deny the divorce:

           i)       “Procurement” or “connivance” - Procurement means
                    that one spouse actively encouraged the other to commit
                    adultery. Connivance is similar to “collusion or “consent"
                    by a spouse to the adultery.

           ii)      “Condonation” or “forgiveness”- Having sexual relations
                    with your spouse after discovery of his or her adultery is
                    an absolute defense to your divorce action based on the
                    adultery.

           iii)     “Statute of Limitations” - this means that there is a time
                    limit (five years) from your discovery of the first
                    unforgiven act of adultery, for you to bring the divorce
                    action.

                             6
            iv)    “Recrimination” - This defense means that you, too, were
                   guilty of adultery. No matter how convinced the court is
                   that adultery was committed by both parties, it is
                   forbidden from granting a divorce on grounds of
                   adultery. Thus, if each spouse proves the adultery of the
                   other, neither can obtain a divorce against the other on
                   the ground.

5.   Living Separate and Apart for at Least One year Pursuant to Separation
     Agreement

     a.     Parties have lived separate and apart pursuant to a written
            separation agreement properly subscribed and acknowledged,
            and the plaintiff has substantially performed all of the terms and
            conditions of such agreement.

            Note: Living apart, without a formal written agreement of
            separation or a court judgment of separation, is not recognized as
            grounds for a New York State divorce, no matter how long you
            continue to live separately.

     b.     A separation agreement is a detailed contract which should be
            prepared by attorneys, where the parties agree to live separate
            for the rest of their lives. It should set forth the respective rights
            and duties of husband and wife with respect to the custody and
            access to children, support payments, distribution of property,
            and all other matters pertaining to the marital relationship.
            Certain vital formalities must be carefully followed, or the
            written agreement will not qualify as a ground for divorce. Here,
            the skill and experience of the attorneys for the husband and
            wife are uniquely valuable in helping them reach an agreement
            which will be fair, just and reasonable to both parties and their
            children. According to Ethics Opinion #258 issued by the New
            York State Bar Association’s Committee on Professional Ethics,
            it would be improper for a lawyer to represent both spouses at
            any state of the marital problem, even with full disclosure and
            informed consent of both parties, not matter how “friendly” the
            matter may appear on the surface.

            The agreement or a memorandum of the agreement is filed (with
           complete confidentiality) with the clerk of the county where
           either spouse lives. At the end of one year from the date of the
           agreement, either spouse may sue the other for a “no-fault”
           divorce.




                              7
           c.      Proof:

                   All that must be proven to the court is that the agreement was
                   duly executed and acknowledged and was properly filed; that the
                   spouses have in fact lived apart during the period of the
                   agreement up to the time of the divorce action; and that the
                   plaintiff has substantially complied with the terms of the
                   separation agreement. The court will grant a divorce based on
                   that proof.

     6.     Living Separate and Apart for at Least One Year Pursuant To A
            Separation Decree

            Another form of separation is through a judgment of separation granted
            by the Supreme Court. This judgment is based on the same four “fault”
            grounds as for divorce. However, the abandonment may be for less than
            a year. In addition, “non-support” is a ground for a decree of separation,
            although not for a decree of divorce.

            One year after the filing of the court’s judgment of separation, either
            party may sue for a “no-fault” divorce, based upon one year of living
            apart. A divorce does not occur automatically after a year. Court action
            must be taken.


C.   MODELS FOR REPRESENTATION

     All divorces involve decisions and choices. Which professionals will assist you,
     and how you will utilize their help, are some of the first decisions you make.

     Below are the choices for obtaining professional services in divorce that are
     available in most localities today. The list moves from choices involving the
     least degree of professional intervention, to choices involving greater
     professional intervention.

     1.     Mediation: A single neutral person, who may be a lawyer, a mental
            health professional, or simply someone with an interest in mediation,
            acts as the mediator for the couple. The mediator helps the couple reach
            agreement, but does not give individual legal advice, and may or may
            not prepare the divorce settlement agreement. Few mediators will
            process the divorce through the court. Retaining your own lawyer for
            independent legal advice during mediation is strongly recommended.
            Lawyers may or may not sit in on the mediation process depending on
            the parties’ preference. Mediators do not have to be licensed
            professionals in most jurisdictions.

            In mediation, there is one neutral professional who helps the disputing
            parties try to settle their case. The mediator cannot give either party
                                    8
     legal advice, and cannot help either side advocate its position.
     Mediation may not be appropriate, if domestic violence is present, or the
     parties do not have fairly equal bargaining power or if one the side or
     the other becomes unreasonable or stubborn, or lacks negotiating skill,
     or is emotionally distraught. If the mediator tries to deal with the
     problem, the mediator may be seen by one side or the other as biased
     whether or not that is so. If the mediator does not find a way to deal
     with the problem, the mediation can break down, or the agreement that
     results can be unfair. Legal advice may come too late if attorneys are not
     present or consulted during the mediation process.

     Remember that before you sign any agreement you should have it
     reviewed by an attorney. Once you sign an agreement it is very difficult
     to get it changed or set aside.

     You can check the yellow pages and contact your local bar association
     to see if there are listings of mediators in your area. You may also check
     www.NYSmediate.org or www.acr.org for information. Find the best
     mediator that you can; interview several, and ask for resumes. Ask how
     many mediations have been handled and how many of them terminated
     without agreements.

2.   Collaborative Law: The Collaborative Law setting was designed to
     address matrimonial issues of divorcing parties while maintaining a
     commitment to settlement as the sole agenda. Each side has legal advice
     and advocacy built in at all times during the process.

     Each person retains his or her own trained collaborative lawyer to
     advise and assist in negotiating an agreement on all issues. All
     negotiations take place in four-way settlement meetings that both clients
     and both lawyers attend. The lawyers cannot go to court or threaten to
     go to court. Settlement is the only agenda. If either client goes to court,
     both collaborative lawyers are disqualified from further participation.
     Each client has built-in legal advice and advocacy during negotiations,
     and each lawyer’s job includes guiding the client toward reasonable
     resolutions. It is the job of the lawyers to work with their own clients if
     the clients are being unreasonable, to make sure the process stays
     positive and productive. The legal advice is an integral part of the
     process, but all the decisions are made by the clients. The lawyers
     generally prepare and process all papers required for the divorce.

     You can check the yellow pages and contact your local bar association
     to see if there are listings of collaborative lawyers in your area. You can
     contact the International Academy of Collaborative Professionals (web
     site: http://www.collabgroup.com) to inquire about collaborative
     lawyers near you. Find the best collaborative practitioner that you can;
     interview several, and ask for resumes. Ask how many collaborative
     cases the lawyer has handled and how many of them terminated without
                              9
       agreements. Ask what training the lawyer has in collaborative law,
       alternate   dispute   resolution,  and    conflict   management.
       (www.nycollaborativelaw.com)

3.     Private Legal Representation. This traditional approach to divorce
       resolution occurs when each person hires a lawyer. The lawyers may
       also work at settling the case at the same time that they prepare the case
       for the possibility of trial. Each lawyer zealously represents his/her
       client in negotiation with the other counsel and in presenting his/her
       case at conference with the judge and ultimately at trial until settlement.
       The objectives of the legal representation tend to be dictated by the
       issues of the parties in combination with the input and pacing by the
       Court. Settlement may occur at any point after retention of legal
       representation. If settlement is not achieved, a final decision it will be
       made by a Judge after trial.

In summary, the resolution of your divorce, especially if you have children,
shall be one of the most important events in your and your children’s lives. It is
recommended that you consider carefully your selection of the method for
resolution, in addition to the expense (emotional and financial), to achieve a
long lasting and equitable resolution for your future.




                                10
II.   CHILDREN: CUSTODY, RESIDENCY, LAW GUARDIAN

      A.   CUSTODY (Joint or Sole Custody)

           1.    Joint Custody (core decision-making by both parents)
           2.    Sole Custody (core decision-making by one parent)
           3.    Standards and Factors Governing Custody Determinations

                 a.     Between Parents (biological parents, not step-parents,
                        grandparents)

                 b.     Factors - Best Interest of the Children
                        i.     Parental fitness
                               Abandonment
                               Neglect or Abuse of Child
                               Indiscreet Sexual Activity/Homosexuality
                               Undesirable Lifestyle
                               Substance Abuse
                               Mental Illness/Physical Disability
                               Low Economic Status

                       ii.     Miscellaneous Factors
                               Stability
                               Physical and Emotional Needs of Child
                               Quality of Parent-Child Relationship
                               Child Preference
                               Willful Interference with Visitation
                               Rights of Non Custodial Parent
                               Child Care Arrangements
                               Religion
                               Race
                               Separation of Siblings
                               Prior Custody Agreements
                               Domestic Violence

                 c.      Between Parent and Non-parent (step-parent, grandparent)
                       i.      Extraordinary Circumstances
                       ii      Consent


      B.   RESIDENCY/VISITATION

           1.    Generally
           2.    Extent of Visitation
                 a.     Regular Time Sharing Schedule
                 b.     Holidays/Recesses
                 c.     Denial of Visitation

                                        11
          d.     Wishes of Children
          e.     Custodial Parental Interference with Visitation
          f.     Relocation by Custodial parent
          g.     Grandparents

C.   PROCEDURAL POINTS

     1.   Standing
     2.   Right to Counsel
     3.   Court-Ordered Evaluations, Investigation and Reports
     4.   Necessity for a hearing
     5.   Temporary Custody

D.   GUARDIAN AD LITEM/LAW GUARDIAN

     1.   Court Appointed Panel Law Guardian - Family Court
     2.   Court Appointed Law Guardian - Supreme Court

E.   DISCOVERY

     1.   Dental Health (Forensic) Evaluation
     2.   Health Records
     3.   Physical or Mental Examination (especially if mental illness or
          substance abuse is alleged.
     4.   Adverse Expert Witnesses
     5.   Blood Tests (if paternity not established and disputed)
     6.   Examination Before Trial (deposition)




                                 12
III.   FINANCIAL: CHILD SUPPORT, MAINTENANCE, EQUITABLE DISTRIBUTION

       A.   CHILD SUPPORT

            1.   Basic Child Support (Child Support Standards Act). The basic child
                 support obligation to be paid by the non-custodial parent is based upon a
                 percentage of the combined parental income. For one child the amount
                 is 17%, for two children 25%, for three children 29%, and for four
                 children 31%.

            2.   In addition to the basic child support obligation, the non-custodial
                 parent may be obliged to pay:

                 a.     for his portion of the child care expenses related to the custodial
                        parent’s employment or education which would lead to
                        employment;

                 b.     The non-custodial parent also may be directed to pay for
                        educational expenses.

                 c.     Health care expenses for the children are apportioned between
                        the parents based upon their combined parental income.

                 d.     If the amount of the basic child support obligation is unjust or
                        inappropriate, the non-custodial parent’s pro-rata share of the
                        child support obligation may be determined by other factors and
                        not by the percentages mentioned above. The parents may avoid
                        the use of the percentages in determining the amount of child
                        support by executing an agreement setting forth the amount of
                        child support which they believe to be fair. An agreement
                        determining the amount of child support must satisfy certain
                        technical provisions of the Child Support Standards Act. A
                        lawyer can help the parties comply with these technical
                        provisions.

                 e.     Neither parent has any obligation to support a child once the
                        child reaches 21 years of age. Consideration may be taken if
                        your child attains age 21 while in his/her final semester of
                        college. Child support may end before 21 years of age under
                        certain circumstances such as the gainful employment of the
                        child or the child’s willful refusal to maintain a relationship with
                        the non-custodial parent. Child support will be awarded by a
                        Family Court as part of a child support proceeding or by
                        Supreme Court as part of a divorce, separation, or annulment
                        proceeding. Even if there is no matrimonial judgment awarded,
                        the court will make an award of child support to the custodial
                        parent.

                                         13
3.   Applying CSSA To Arrive At The Support Amount

     a.    Generally
           i.    Formula
           ii.   Initial Element - Child Support Percentage
           iii.  Statutory Cap ($80,000 combine parental income)
           iv.   Duration - until emancipation, constructive emancipation
           v.    Shared Custody


     b.    Actual Income; Tax return Income
           i.     Voluntarily Deferred Income and Ancillary Actual
                  Income
           ii.    Self-Support Reserve
           iii.   Most recently filed tax return

     c.    Net Investment Income Not In Tax Return

     d.    Discretionary Imputed Income

     e.    Perquisites and Fringe Benefits

     f.    Third-Party Beneficence

     g.    Mandatory Imputed Income
           i.    Imputed Earning Capacity
                 a.     Past income or demonstrated earning potential
           ii    Excess Depreciation Deductions
                 b.     Depreciation not allowed as deduction from
                        income
           iii.  Excess Travel and Entertainment Deductions

     h.    Statutory Deductions
           i.     Unreimbursed Business expenses
           ii.    Maintenance to Nonparty
           iii.   Maintenance to Party
           iv.    Child Support to Nonsubject Child
           v.     FICA

     i.    Educational Expenses
           i.     Reduce basic child support - room and board contribution
           ii.    Educational resources

     j.    Presumptive Status of Formula
           i.    Variance Standard - Unjust or Inappropriate
           ii.   Variance Factors
                 a.      Financial Resources
                 b.      Standard of Living
                           14
                         c.      Tax Consequences
                         d.      Income Disparity
                         e.      Needs of Nonsubject Children
                         f.      Extraordinary Visitation Expenses

          k.     Opt-Out Agreements/Stipulations
                 i.    Disclosure/Variance Factors Delineated

          1.     Administrative Review and Adjustment
                 i.    Child Support Enforcement Unit

          m.     Duration of Child Support

          n.     Retroactivity; Recoupment
                 i.     Date of commencement - credits for payments made

     4.   Health Insurance
          a.     Added Expense for Health Insurance for Children
          b.     Uninsured Health Expenses for Children
          c.     Each Parent Responsible for His/Her Own Insurance and
                 Uninsured
          d.     COBRA
          e.     Extraordinary Circumstances

     5.   Child Care Expenses
          a.     Family/Third Party Care
          b.     Custodial Parent Working or Custodial Parent Not Working
          c.     Invoices

     6.   Life Insurance
          a.      Employer Provided/Pre-Existing
          b.      Amount
          c.      Beneficiary and Trustee Designations

B.   MAINTENANCE

     1.   Standards, Determinants, and Factors

          Spousal maintenance may be awarded to either party based upon a
          number of factors including the prior standard of living of the parties,
          the present and future earning capacity of the parties, and the ability of
          the party seeking spousal maintenance to become self-supporting. The
          spousal maintenance awarded may be for a limited period of time or for
          an indefinite period of time. The parties may, by written agreement,
          waive the right to spousal maintenance.

          a      Generally
          b.     Respective Resources
                                  15
            c.     Duration of Marriage, Age and Health
            d.     Earning Capacity
            e.     Ability To Be Self-Supporting
            f.     Presence of Children
            g.     Tax Consequences
            h.     Standard of Living

     2.     Amount and Term

C.   EQUITABLE DISTRIBUTION

     Division of assets and the fixing of support are covered by the Equitable
     Distribution Law. The statute is founded on the philosophy that a marriage,
     especially one of long term duration, is an economic as well as a social
     partnership. Two classes of property were created, known as “marital” and
     “separate” property. Marital property is all property acquired or accruing as
     well as appreciation of property during the marriage (regardless of how title is
     held), except inheritance, gifts from third persons, compensation for personal
     injuries and property acquired after the start of a divorce action.

     Marital property and marital debts are distributed between spouses in a
     dissolution action on flexible and equitable principles. Valuation of marital
     property may require expert advice. The distribution of marital property and the
     award of support as a result of matrimonial negotiations or proceedings may
     involve complicated and vital tax consequences to both parties which require
     expert advice.

     1.     Marital/Separate Property

            a.     Classification, Generally
                   i.      Equitable Does Not Necessarily Mean Equal
                   ii      Equal Division
                   iii.    Unequal Division (neglect, abuse)

            b.     Time of Acquisition
                   i.    Date of marriage to Date of Commencement of Divorce
                         or Agreement
                   ii    Post-Commencement or Post-Agreement
                   iii.  Based on Pre-commencement Earnings or Not

            c.     Source of Acquisition - Inheritance

            d.     Source of Acquisition - Gifts
                   i.     Documentation
                   ii.    Commingling

            e.     Source of Acquisition - Personal Injury


                                    16
     f.       Specific Assets - Lottery Tickets

     g.       Specific Assets - Disability Benefits

     h.       Appreciation of Separate Property
              i.    Improvements
              ii    Marital Funds Used To Reduce Indebtedness
              iii.  Solely Due to Market Forces

     i.       Burden of Proof
              i.    Party Who Claims Separate Property Bears Burden

2.   Assets

     a.       Marital Real Property
              i.     Fair Market Value, Mortgage Balance(s)
              ii.    Sold or Kept By One Spouse

     b.       Pension/Retirement Benefits
              i.     Pension/Annuity
              ii.    401(k), IRA, Profit Sharing Plan
              iii.   Majauskas Formula

     c.       Household Property
              i.    Inventory
              ii.   Center for Dispute Settlement (mediation)

     d.       Miscellaneous
              i.     Bank Accounts
              ii.    Vehicles
              iii.   Business
              iv.    Stocks/Bonds
              v.     Licenses/Degrees

3.   Liabilities

     a.       Identify Marital/Separate and Amount

     b.       Apportion Responsibility
              i. Remove Other Party From Liability

     c.       Third Party Creditor - Need Approval for Removal From
              Liability

     d.       Bankruptcy Filing - Supremacy

4.   Taxes/Dependencies

                              17
                       a.     Filing Status
                              i.     Tax Liability Prior To Divorce
                              ii.    Filing Status Last Year of Marriage
                                     a. Refunds/Liability

               5.      Attorney’s Fees

                       a.      Judicial Discretion

                       b.      Income, Disposable Asset, Abuse of Process


Conclusion: Considering elements of your divorce in a measured and reasonable fashion will
enable you to make practical and beneficial decisions during one of the most emotional and
stressful times of your life. Be sure to enlist support to assist you in this difficult transition.
Also, be assured, that with each decision, you will ultimately reach resolution and a new
future.




                                                 18
                              ABOUT TODAY’S PRESENTERS


Florence M. Fass is a member of the Garden City, New York firm of Fass & Greenberg, LLP,
where she concentrates her practice in the areas of matrimonial and family law. Admitted to
practice in New York and Vermont, she is a graduate of New York University and Fordham Law
School. She is a member in the New York Chapter of the American Academy of Matrimonial
Lawyers. A Certified Mediator, she has been designated by Digital Press International as one of
“The Top Ten Leaders in Matrimonial Law on Long Island.” Among her bar and professional
affiliations, she is active in the Nassau County Bar Association, serving on its Board of
Directors, and is a member of the Executive Committee of the New York State Bar Association’s
Family Law Section. She is a regular lecturer for lawyer and community groups on all aspects of
family and matrimonial law.


Charles P. Inclima, partner in the law firm of Biernbaum, Inclima & Meyer, LLP in Rochester,
New York, concentrates his practice in the areas of matrimonial and family law. He is a graduate
of St. John Fisher College and the University of Toledo School of Law. A member of the
Executive Committee of the New York State Bar Association’s Family Law Section, Mr. Inclima
is a Past President of the Monroe County Bar Association and is also a former chair of its Family
Law Section and Dean of the Monroe County Bar Association’s Academy of Law. He is a duly
elected and designated Fellow of the American Academy of Matrimonial Lawyers. Mr. Inclima
is a frequent lecturer for seminars presented by the New York State and Monroe County Bar
Associations, and the American Academy of Matrimonial Lawyers. He is currently Chairperson
of the Grievance Committee for the Seventh Judicial District. He is a former Adjunct Professor
at the Rochester Institute of Technology.

				
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