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Monthly Columns by Russell I. Marnell, Esq.March 2005 - Be Careful in Dealing with Pensions When Divorcing January 2005 - An Overview of Matrimonial Law following the New Year August 2004 - The Challenges of Home Ownership and Divorce June 2004 - Obtaining a Jewish Divorce - The GET May 2004 - This Spring More Couples Should Consider Prenuptials Before Walking down the Aisle April 2004 - Preventing Parental Child Abduction March 2004 - Equitably Distributing Licenses and Degrees in a Divorce February 2004 - An Overview of Matrimonial Law following the New Year
Be Careful in Dealing with Pensions When DivorcingEquitable distribution is the division of property acquired by a couple during the marriage. First and foremost, it only covers those assets that were either acquired during the marriage, otherwise known as marital property. It does not cover assets that were acquired before the marriage, otherwise known as separate property. Also, the increase in value of separate property, such as a home or securities can be subject to equitable distribution if it can be shown that the non-titled spouse's contributions helped to enhance the value of the asset. When a couple proceeds with a divorce, they complete a statement of their net worth. All items of separate and marital property, as well as income are included on this form. These reports are used by attorneys and judges to not only determine the value of assets, but whether they are considered separate, marital or are in dispute. Attorneys will then negotiate and distribute assets based on their client's preferences and the value of the assets. Some of the most common assets subject to equitable distribution are real property, such as homes as well as the personal property, including furniture. Bank and security accounts, as well as pensions and retirement accounts are also subject to distribution. Business and professions are considered martial property as well. If a home is owned, oftentimes the custodial parent will seek this asset, while sometimes a non-custodial parent will often seek to protect a pension or retirement account.
One area of equitable distribution of considerable litigation in recent years has concerned pensions. The general rules of equitable distribution apply to retirement accounts, including 401ks, IRAs, pensions, etc. The divorce court is empowered to direct the distribution to one spouse of an equitable portion of that part of the present value of other spouse's pension rights earned during the marriage. In a divorce action, due to the potential value of such funds, its not uncommon for a titled spouse to retain these benefits in exchange for other real property. However, in a marriage without substantial assets, a pension may be the most valuable marital asset and important for the non-titled spouse to receive benefit from the pension in order to meet their needs during retirement. This is especially true in marriages of long-duration in which the couples may be near retirement. In order for pension rights to ultimately be distributed from one spouse to the other, a Qualified Domestic Relations Order or a QDRO is necessary whenever a pension is deemed qualified under IRS rules. The QDRO is included in a separation or divorce agreement and is then approved and made part of the court's order. It provides for how the pension is to be distributed and often provides that a certain percentage be paid to the non-titled spouse out of monthly benefits. Some recent court cases have emphasized the need to properly address the issues of pensions. In November 2004, in Kazel v. Kazel, New York's highest court, the Court of Appeals, ruled that since survivor benefits were not included in the QDRO, evidenced by clear language designating the former spouse as the surviving spouse for the purpose of the survivor benefits, the non-titled spouse would not receive such benefits, even though they were entitled to receive pension benefits. The Court held that a QDRO must reflect the intent of the underlying judgment of divorce, and must comply with its terms. Thus, a judgment of divorce and a QDRO awarding an interest to one spouse in the other's pension plan does not automatically include pre-retirement death benefits available under the plan. In the end, the husband's second spouse received the survivor benefit and the first spouse received nothing. The Court of Appeals message to divorcing spouses and attorneys handling matrimonial matters is clear. When dealing with complicated issues such as pensions, be certain to include all potential benefits in the QDRO. Failure to do so could seriously alter the intention of the parties and lead to economic hardship.
This Valentines Day More Couples Should Consider Prenuptials Before Deciding to MarryWith every Valentines Day comes inevitable proposals of marriage. While few couples anticipate divorce as they propose and consider marriage, considering that about 10% of marriages end in divorce by the end of the fifth year, attorney Russell Marnell believes that more couples should consider prenuptial agreements. An antenuptial or prenuptial agreement is a contract entered into by a couple prior to marriage that seeks to provide a greater degree of certainty and to limit New York's equitable distribution or child support laws. The agreement must be in writing and must be signed and acknowledged by both parties and will often be sought when there is a disparity in pre-marital separate property or earning power of the couple. While it can supersede equitable distribution and provide for spousal support, it cannot so limit support that the spouse will become a public charge. Provided that a prospective spouse did not enter into the agreement under duress, fraud, forgery, overreaching, or the agreement excessively one-sided, then the agreement is generally enforceable in the event of divorce or death of a spouse.
The decision to create a prenuptial agreement is a highly personal one. Often, one may be reluctant to explore this topic with a prospective spouse out of concern that such a discussion could put a cloud over the marriage and cast doubt on the devotion of the person seeking the agreement. However, considering that couples are marrying later in life and that divorced spouses are remarrying, there is often disparity between spouses where one may have accumulated wealth or have built a business. Under New York's Domestic Relations Law, the parties can determine the amount (if any) and duration of maintenance, rather than leaving this issue to a court to decide. Therefore, when there is a large disparity in income between the parties, it is recommended that the wealthier spouse seek a prenuptial agreement. Another trend in our society suggesting the growing need for using prenuptial agreements is the growing number of remarriages often involving persons in their later years with grown children. Under New York's elective share statute, a surviving spouse is entitled to the greater of $50,000 or one-third of the decedent's estate, regardless of how assets are disposed of in a will. The contemplation of re-marriage can cause concern among grown children, especially when substantial assets are at stake, including a family business or a childhood home. Since prenuptials can include contemplation of death and are also enforceable upon death, they could provide greater certainty by limiting the assets to be left to the surviving spouse and thus accomplishing what a will cannot due to the elective share. While prenuptial agreements are often not an easy topic to discuss, more couples should consider doing so. If used properly, they can help to reduce fears and uncertainty, while ensuring that spouses and children are properly provided for. They can also help to reinforce the bonds of trust that the marriage is based on love and not based on the amount of assets and earning potential of a spouse.
An Overview of Matrimonial Law following the New YearAs an attorney concentrating in matrimonial law, I often find that the weeks following the New Year are especially busy with new inquiries from prospective clients who have resolved to seek a divorce as part of their New Year's resolutions. We often have this Norman Rockwell conception of the holidays. When our expectations sometimes end in disappointment, compounded by drinking and stress, a couple that is struggling to maintain a marriage may often be prompted to consider divorce as part of one or more of the partner's self-evaluation that comes with the New Year. When fielding these phone calls, my staff and I are often placed in the position of a counselor. My advice is that if a couple has any doubt, then they should err on the side of keeping the marriage together. I recommend that someone considering divorce should carefully write out the advantages and disadvantages of remaining married and try to weigh the importance of these factors in making a decision. If one of the partners wants to maintain the marriage, but the other is ambivalent, I will often recommend marriage counseling and I will work with marriage counselors and other professionals to assist the couple in the decision making process. Once a client or their spouse makes the decision to seek a divorce, we will review the legal and financial considerations with the client. Financially, divorce can often be very difficult for both spouses, as well as for any children of the marriage. The challenge of maintaining two separate households and no longer having the economies of scale, generally places both members of the couple in worse financial position than if the marriage had stayed together. Planning for these challenges will affect the legal considerations, including determining what is the legal basis of the divorce, child custody, child support, maintenance and equitable distribution. New York is one of the most difficult states in which to get a divorce. In fact, according to the U.S. Census Bureau, there were approximately 2.34 million new marriages in the United States in 1995 (the last year in which statistics are complete) while there were approximately 1.17 million divorces for the often cited 50% divorce rate. About 10% of marriages end by the fifth year. In New York, 145,500 couples got married in 2001 while 54,100 marriages ended in divorce. In New York, you must pursue a divorce in one of two ways. You can create a separation agreement covering the financial aspects and convert the agreement to a divorce after a year during which the couple lives separately. Alternatively, you can seek a divorce based on grounds, including abandonment, constructive abandonment, cruel and inhuman treatment, adultery or imprisonment. Many times, one member of the couple does not contest these grounds and the divorce proceeding is moved to the uncontested calendar and can be expedited provided an agreement is reached with respect to the financial considerations. In the months to come, I look forward to discussing with you the issues of child custody, child support, maintenance and equitable distribution.
The Challenges of Home Ownership and DivorceOne of the most hotly contested issues in a divorce proceeding concerns the equitable distribution of marital property. This often involves the question of what should happen to a couple's home. While rising home values in the New York Metro area has meant larger assets to distribute in divorce, it has also made it difficult for divorcing couples, losing economies of scale, to maintain their standards of living. With real estate prices cooling, these challenges are likely to increase and may pose greater social consequences. Determining what should happen to a married couple's home during a divorce proceeding is part of equitable distribution. Equitable distribution is the division of property acquired by a couple during the marriage. When a couple proceeds with a divorce, they complete a statement of their net worth. These reports are used by attorneys and judges to not only determine the value of assets, but whether they are considered separate, marital or are in dispute. Attorneys will then negotiate and distribute assets based on their client's preferences and the value of the assets. Some of the most common assets subject to equitable distribution are real property, such as homes as well as the personal property, including furniture. Bank and security accounts, as well as pensions and retirement accounts are also subject to distribution. Business and professions are considered martial property as well. According to the Long Island Board of Realtors, the median price for a home in Nassau County is about $430,000, while Suffolk's is about $350,000. These prices are about double of what they were only five years ago. While rising prices create greater equity, it is often a couple's largest asset. During negotiations, several issues often arise with respect to the home. First, are there minor children? With this in mind, should one spouse obtain exclusive use and occupancy until the youngest child graduates from high school, turns 18 or some other agreed upon time? Second, with the above considered, should the house be sold? Often, one spouse's equity in the home can offset other assets, such as a 401k, pension or savings. When it doesn't, it is more likely that the home would have to be sold. Financially, divorce can often be very difficult for both spouses, as well as for any children of the marriage. The challenge of maintaining two separate households and no longer having the economies of scale marriage provides, generally places both members of the couple in worse financial position than if the marriage had stayed together. With real estate markets at their peak, single persons and young couples often find it challenging to purchase a first home. The same applies to divorcing spouses. In the scenario where one spouse retains the marital home, they may find it difficult to cover the costs of the mortgage and taxes. While the other spouse may have retained other assets, they may be forced to rent or to buy a smaller and less expensive home. At the same time, this spouse may be paying child support and maintenance. In the event the martial home is sold, then both spouses may be forced to downgrade to renting or purchasing smaller homes, co-ops or condos. In recent years, fortunately for divorcing spouses that have remained married for at least a few years, their marital home has generally appreciated in value. This at least gives them assets to divide and set off with other assets. However, what are the prospects if the real estate market levels off or declines? According to the U.S. Census Bureau, about 10% of marriages end by the fifth year. In a stagnant or declining real estate market, divorcing spouses, especially those of shorter marriages will not have accumulated equity and would be forced to sell. They may even face the scenario of selling their home for less than they purchased it. With spouses now having to maintain two separate homes and perhaps providing child support and maintenance, this could have serious social consequences and result in larger numbers of divorcing spouses being unable to afford homes and the costs of living in this area. While it may not be possible to find complete solutions to issues of losses of economies of scale in divorce, these factors must be considered when contemplating marriage and divorce. Attorneys, working with financial advisors can help to develop agreements that will best allow spouses to meet the challenges posed by divorce.
Obtaining a Jewish Divorce - The GETAs a Jewish matrimonial attorney serving Long Island residents, I work with clients to obtain not only a civil divorce, but also The GET. A GET is a document under religious law, provided in the Torah, given by the husband and received by the wife, to terminate the religious union. To understand why a GET is necessary, it is important to understand the religious aspect of marriage. Similar to civil law, a Jewish marriage is a contract. Under religious law, when a couple marries, a husband acquires a wife with the payment of money, otherwise known as consideration, normally satisfied by the wedding ring. During the wedding ceremony, the husband gives the wife a ketubah, or marriage contract. Similar to a prenuptial agreement, the ketubah provides for the wife's support in the event of a divorce. According to Jewish religious law, a civil divorce is not sufficient to dissolve the ketubah. Instead, according to the Beth Din of Long Island, an orthodox religious court made up of rabbis, a GET must be obtained in order for a spouse to re-marry and to ensure that the children of the new marriage are legitimate under religious law. Until a GET is given by the husband and received by the wife, the couple remain married for the rest of their lives. The GET can be after a civil divorce or prior, provided that the couple has permanently separated and is no longer living together. The GET is obtained through the Beth Din, or through a Zabla, where each party selects a judge and then the third is selected by the two judges. Unlike a civil divorce, when both parties agree to the GET, there is no need to establish grounds for the divorce. With the proper documentation, including identification, judgment of divorce or separation agreement and ketubah, the procedure should take about one hour according to the Beth Din of Long Island. The Beth Din will ensure that the couple is freely seeking the GET, will write the GET and witness that it has been transmitted by the husband to the wife. At times, one party may not cooperate and seek to prevent the dissolution of the marriage. Section 253 of New York Domestic Relations Law provides that prior to a final judgment of a divorce, a plaintiff must agree to remove all barriers to the defendants remarriage or in the event of conversion from a separation agreement or an uncontested divorce, both parties must have agreed to remove all barriers to remarriage. This removal of barriers includes a religious divorce. Thus, a divorce under civil law would require the removal of such barriers, except in the case of a defendant in a contested divorce. In the event that one party refuses to provide the GET, other options also exist to dissolve the marriage. New York is one of the most difficult states in which to obtain a divorce, with only about one-third as many divorces as marriages in the state, as compared to the national average of one half as many divorces as marriages. For observant Jewish spouses, the GET must also be obtained in order to comply with religious law. However, the GET should not be feared by one contemplating a divorce to end a failed marriage.
This Spring More Couples Should Consider Prenuptials Before Walking down the AisleWith every spring comes the inevitable parade of brides and grooms exchanging solemn vows of marriage. While few couples enter marriage anticipating divorce, considering that about 10% of marriages end in divorce by the end of the fifth year, more couples should consider prenuptial agreements as a means of reducing concern over how assets are divided between spouses in the event of divorce or death of a spouse. An antenuptial or prenuptial agreement is a contract entered into by a couple prior to marriage that seeks to provide a greater degree of certainty and to limit New York's equitable distribution or child support laws. The agreement must be in writing and must be signed and acknowledged by both parties and will often be sought when there is a disparity in pre-marital separate property or earning power of the couple. While it can supersede equitable distribution and provide for spousal support, it cannot so limit support that the spouse will become a public charge. Provided that a prospective spouse did not enter into the agreement under duress, fraud, forgery, overreaching, or the agreement excessively one-sided, then the agreement is generally enforceable in the event of divorce or death of a spouse. The decision to create a prenuptial agreement is a highly personal one. Often, one may be reluctant to explore this topic with a prospective spouse out of concern that such a discussion could put a cloud over the marriage and cast doubt on the devotion of the person seeking the agreement. However, considering that couples are marrying later in life and that divorced spouses are remarrying, there is often disparity between spouses where one may have accumulated wealth or have built a business. Under New York's Domestic Relations Law, the parties can determine the amount (if any) and duration of maintenance, rather than leaving this issue to a court to decide. Therefore, when there is a large disparity in income between the parties, it is recommended that the wealthier spouse seek a prenuptial agreement. Another trend in our society suggesting the growing need for using prenuptial agreements is the growing number of remarriages often involving persons in their later years with grown children. Under New York's elective share statute, a surviving spouse is entitled to the greater of $50,000 or one-third of the decedent's estate, regardless of how assets are disposed of in a will. The contemplation of re-marriage can cause concern among grown children, especially when substantial assets are at stake, including a family business or a childhood home. Since prenuptials can include contemplation of death and are also enforceable upon death, they could provide greater certainty by limiting the assets to be left to the surviving spouse and thus accomplishing what a will cannot due to the elective share. While prenuptial agreements are often not an easy topic to discuss, more couples should consider doing so. If used properly, they can help to reduce fears and uncertainty, while ensuring that spouses and children are properly provided for. They can also help to reinforce the bonds of trust that the marriage is based on love and not based on the amount of assets and earning potential of a spouse.
Preventing Parental Child AbductionIt's every parent's worst nightmare: Their child has been abducted. While being abducted by a stranger is fairly uncommon, children are more likely to be abducted by their own parent. Fortunately custodial parents can take action to help prevent their spouse from abducting their child. Oftentimes during the course of a divorce, children become pawns in their parents' attempt to manipulate their spouse to agree to their terms. In cases where visitation and custody may have never been an issue, it becomes just another bargaining chip. Sometimes a divorce becomes so acrimonious and child support and custody issues so unbearable, in an effort to punish the uncooperative spouse, an unstable parent might resort to kidnapping a child and taking them to another state, or even another country. There are ways to protect children from being wrongfully taken by a parent. The first step is to file for and obtain a valid custody order from a court establishing you as the custodial parent. The custody order should be registered with the FBI and can be legally enforced in any state to which a child has been abducted. Provisions of the custody order should include the following: Certain restraints prohibiting the non-custodial parent from picking up children from school, daycare, camp and the like. Such an order should be on file with the various schools and daycare facilities. The custodial parent who has concerns about prospective child abduction, should notify in writing the Department of State, airlines, cruise ships of their concerns and enclose a copy of the court order to each agency. The custodial parent should ask the court to direct the non-custodial parent to surrender passports of the child. They should be concerned if there is a dual nationality because there may be multiple passports. Require that the non-custodial parent post a bond, collateral, or other security which would be forfeited in the event of an abduction. Require that the abducting parent in addition to paying all counsel fees and related expenses (including private investigators, transportation expenses, etc. in the event of an abduction). When considering the likelihood of a child abduction, one must consider the following: Evaluate the non-custodial parent's ties to New York State as compared to another state or country. When doing so you should consider: Ownership of real estate in New York and other states and/or countries. Employment and education and the likelihood of obtaining similar employment and education in another country. Whether there are family and/or friends in New York State and/or family and friends in another country. Whether the parent has the ability to speak any foreign language in another country. All abduction threats should be taken seriously. If your spouse threatens to take your child, inform the police and have them contact the other parent to advise them that they could be fined or imprisoned or both. Other steps that can and should be taken are:
Equitably Distributing Licenses and Degrees in a DivorceEquitable distribution is the division of property acquired by a couple during the marriage. First and foremost, it only covers those assets that were either acquired during the marriage, otherwise known as marital property. It does not cover assets that were acquired before the marriage, otherwise known as separate property. Also, the increase in value of separate property, such as a home or securities can be subject to equitable distribution if it can be shown that the non-titled spouse's contributions helped to enhance the value of the asset. When a couple proceeds with a divorce, they complete a statement of their net worth. All items of separate and marital property, as well as income are included on this form. These reports are used by attorneys and judges to not only determine the value of assets, but whether they are considered separate, marital or are in dispute. Attorneys will then negotiate and distribute assets based on their client's preferences and the value of the assets. Some of the most common assets subject to equitable distribution are real property, such as homes as well as the personal property, including furniture. Bank and security accounts, as well as pensions and retirement accounts are also subject to distribution. Business and professions are considered martial property as well. If a home is owned, oftentimes the custodial parent will seek this asset, while sometimes a non-custodial parent will often seek to protect a pension or retirement account. One area of equitable distribution of considerable litigation in recent years has concerned professional licenses and degrees. The general rules of equitable distribution apply to degrees and licenses. A license or a degree earned or completed during marriage is considered marital property and a value is determined and placed on this asset based on the enhanced earning power of the holder. A license or degree earned prior to marriage is considered separate property and not subject to distribution. However, if the degree is the basis of a business and other spouse made contributions to the profession or business of the spouse with the degree or license then the business or profession can be valued in accordance with other rules. If it is marital property, its value is determined by finding the difference between the lifetime earning potential of the holder of the degree or license as to compared to what that earning capacity would be without earning the degree. Once the value of the license or degree has been determined, an assessment of the contributions made by the non-holding spouse will be made and a percentage will be fixed. Some of the factors that can be considered are whether the non-holding spouse provided direct assistance to the holding spouse, such as assisting with studies, purchasing a computer, books or paying for tuition. Other factors would be whether the non-holding spouse was the sole or primary provider while the holding spouse obtained the degree or license. If there are children, caretaking responsibilities would also be considered. With the degree valued and a percentage fixed, the asset is considered along with the other assets of the marriage. Degrees and licenses earned during a marriage are an example of just one of the issues that can complicate matters and which spouses need to be aware of when contemplating a divorce.
An Overview of Matrimonial Law following the New YearAs an attorney concentrating in matrimonial law, I often find that the weeks following the New Year are especially busy with new inquiries from prospective clients who have resolved to seek a divorce as part of their New Year's resolutions. We often have this Norman Rockwell conception of the holidays. When our expectations sometimes end in disappointment, compounded by drinking and stress, a couple that is struggling to maintain a marriage may often be prompted to consider divorce as part of one or more of the partner's self-evaluation that comes with the New Year. When fielding these phone calls, my staff and I are often placed in the position of a counselor. My advice is that if a couple has any doubt, then they should err on the side of keeping the marriage together. I recommend that someone considering divorce should carefully write out the advantages and disadvantages of remaining married and try to weigh the importance of these factors in making a decision. If one of the partners wants to maintain the marriage, but the other is ambivalent, I will often recommend marriage counseling and I will work with marriage counselors and other professionals to assist the couple in the decision making process. Once a client or their spouse makes the decision to seek a divorce, we will review the legal and financial considerations with the client. Financially, divorce can often be very difficult for both spouses, as well as for any children of the marriage. The challenge of maintaining two separate households and no longer having the economies of scale, generally places both members of the couple in worse financial position than if the marriage had stayed together. Planning for these challenges will affect the legal considerations, including determining what is the legal basis of the divorce, child custody, child support, maintenance and equitable distribution. New York is one of the most difficult states in which to get a divorce. In fact, according to the U.S. Census Bureau, there were approximately 2.34 million new marriages in the United States in 1995 (the last year in which statistics are complete) while there were approximately 1.17 million divorces for the often cited 50% divorce rate. About 10% of marriages end by the fifth year. In New York, 145,500 couples got married in 2001 while 54,100 marriages ended in divorce. In New York, you must pursue a divorce in one of two ways. You can create a separation agreement covering the financial aspects and convert the agreement to a divorce after a year during which the couple lives separately. Alternatively, you can seek a divorce based on grounds, including abandonment, constructive abandonment, cruel and inhuman treatment, adultery or imprisonment. Many times, one member of the couple does not contest these grounds and the divorce proceeding is moved to the uncontested calendar and can be expedited provided an agreement is reached with respect to the financial considerations. In the months to come, I look forward to discussing with you the issues of child custody, child support, maintenance and equitable distribution.
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Attorneys and lawyers concentrating in divorce, custody,
paternity, child support, and all other family law
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