Electronic Evidence in Matrimonial Cases

Approximately 2 minutes reading time. Betty and John[1] were both in their mid-seventies, and eager to enjoy their retirement and the fruits of John’s successful career. They had recently celebrated their 50th Wedding Anniversary. Their two daughters – both accomplished and married with children of their own – threw them a beautifully extravagant anniversary party. Friends and family attended the bash, and the toasts were both complimentary and envious at the same time. Everyone asked Betty and John how they had managed to stay happily married for so long. Betty would respond: “We are partners and honest with each other about everything.” Or so Betty thought.

Betty had noticed that John was drinking more heavily than usual. She had also noticed that he locked himself in their home office with the family laptop for hours at a time. He seemed distracted and not himself. Betty couldn’t help but feel that something was terribly wrong, but she couldn’t bring herself to confront her husband.

Betty decided to find out what was on the family laptop that John carried with him everywhere. Betty asked John to meet her at her therapist’s office to discuss some issues she was having. Having arrived before John but stayed in her car and out of sight until he parked, Betty watched John walk into the office and quickly made her move. Parking next to his car, she hopped out, popped his trunk, grabbed the laptop and drove directly to her divorce lawyer’s office. The computer expert was waiting.

Betty was right. The contents of the computer hard drive were revealing and shocking. John was carrying on a long distance affair with a young single mother – 35 years his junior – who lived in Oklahoma. John met her on “Second Life” – an online site where members pick their own “avatars” and create an alternate life. John had been draining the parties’ retirement accounts to pay for his affair, including extravagant gifts, airline tickets, four star hotels, and cash “gifts” to the young woman. John had even redirected his wife’s social security check to an individual checking account in his name that his wife didn’t know about. John had spent thousands on his alternate life.

The legal battle was on. Betty’s case hinged on the information she acquired when she “kidnapped” the computer. But, would the Court accept Betty’s “self-help” method of obtaining the evidence of John’s financial wrongdoing? Or, as John’s attorneys argued, would the information be inadmissible due to Betty’s “illegal” method of obtaining the information? Ultimately, the judge allowed the revelations from the laptop into evidence, as the laptop was deemed a “family computer” to which all family members had access.[2]

Using Spyware Can Be Illegal. With hacking a top news story today many people just think they can buy off-the-shelf spyware and unseeingly track everything happening on the computer. Before you do this a warning: Using Spyware can land you in jail. Spyware can secretly track and record a person’s website visits, computer key strokes, e-mail and text messages. Because Spyware can be easily purchased on-line, most people do not know that Spyware is illegal (a Class E Felony) in New York if used to intercept electronic communications without the consent of the sender or receiver. As a result, any information obtained thru Spyware, no matter how relevant, will not be admissible in a divorce action and you may find yourself facing criminal penalties.

Emails and Text Messages Sent Directly to the Other Spouse. This is the easiest way to gather information to be used as evidence in divorce and/or custody proceedings. In the heat of the moment, people seem to forget that anything in writing can be used against them. E-mail messages can be printed out. Text messages received can be uploaded to a computer and printed using a smartphone app or a screenshot can be taken and printed out.

It is important to remember to save text messages and emails from your spouse if you think they will be useful later on. Older emails and texts can show evidence of verbal abuse, admissions of other types of wrongdoing, and other things that the person who sent the messages might not have written down had they known they would turn up in court as evidence to be used against them at a later date.

Social Media. Checking out your spouse’s social media accounts can reap a wealth of information. For example, if you are trying to hide your income from your spouse, don’t put evidence of your professional success and lavish life style on social media or your website. Social media pages and websites can easily be printed out and used as evidence in a court case.

The case of Fitzgerald v. Duff,[3] a 2013 New Jersey case, illustrates what can go wrong when you brag on social media. Jason Duff attempted to downwardly modify his child support obligation by submitting his 2011 income tax return with a reported taxable income of $21,000 from a cash tattoo business. The recipient of child support, the maternal grandmother and legal guardian of Duff’s seven year old child, opposed Duff’s application claiming that Duff underreported his income and she was actually entitled to a higher child support award. In her opposition papers, the grandmother attached copies of Duff’s website, Facebook photographs and various social media comments demonstrating his financial success and plans for the imminent expansion of his three tattoo parlors. Based on this evidence, the Court “imputed” to Mr. Duff annual income of at least $100,000 and modified upward his child support obligation from $67 a week to $264 per week.

Whose hard drive is it? If the computer in question typically resides in the parties’ home and is used by family members, then the New York courts will uphold a spouse’s right to access electronic evidence on that computer’s hard drive, and by extension smart phones and other devices. It is perfectly legal for one spouse to take that computer, even without the other spouse’s knowledge or consent, to a forensic expert[4] to make a copy, or a “clone,” of the hard drive in order to obtain the financial and personal information located therein. Neither spouse has a “right to privacy” in the family computer’s hard drive.

If you suspect, as Betty did, that there may be valuable electronic evidence that will be important to the case, you should hire a professional to document the existence and form of the evidence and to preserve it for trial. A good computer forensic professional can find hidden or destroyed data in computers, cell phones and other digital devices, provide litigation support and testify as an expert in your case.

Electronic evidence often makes or breaks a divorce or custody case. For Betty, obtaining the family lap top turned the divorce case in her favor. John was ordered to return all the funds he had used to support his paramour to the marital estate for equal distribution to both parties. If Betty had not gotten her hands on the information in the family laptop, the case would have most likely ended in a very different result.

Tips

  1. Remember that whatever you put on the Internet is out there forever.
  2. That being said, if you are planning to divorce, immediately change all your passwords on each social media site you are on (as well as your personal computer) and change your settings to make your sites “private.” Ensure your privacy controls are always updated and turned on. Check them regularly.
  3. Do not vent about your soon-to-be ex on your social media sites.
  4. Do not talk about your children on your social media sites.
  5. Do not break into your soon-to-be ex’s social media sites.
  6. Don’t try to hide your true finances, a good computer expert will find everything.

[1] The names of the parties and certain details of the case have been changed.
[2] The Court relied on Byrne v. Byrne, 168 Misc.2d 321 (Kings Co. 1996), where the Court ruled that the wife, who had her husband’s company-issued laptop cloned by a computer forensics expert, was entitled to all the information relevant to the divorce that was accessible on the laptop’s hard drive. The laptop was company property, but of significance to the court was the fact that her husband brought the laptop home every night and the parties’ children used it routinely for their homework. The Court reasoned that a computer in a couple’s home is legally equivalent to a filing cabinet because each spouse had access to that computer just as either could physically access a filing cabinet in the home – locked or unlocked.
[3] Unreported. Superior Court of New Jersey, Appellate Division, Docket No. A-0177-12T4, 2013.
[4] Forensic acquisition of a computer hard drive or other electronic devices for any legal case should be done by experienced and certified computer forensic professionals. For tips on what to look for when seeking the right computer forensic professional, see http://www.craigball.com/cfexpert.pdf for suggestions.

Judith Happe, Esq.

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FINALLY! New York’s Highest Court Recognizes the Rights of Non-Traditional Parents

Imagine if you will . . . a fairy tale love story

You meet the love of your life and within months, you buy a house together and move in. You decide not to marry because you can’t, or because you don’t want to, or because of whatever. After two years, you and your love decide to complete your family. You joyfully discuss your plans for your new baby, deciding that you will jointly share all child-rearing duties, responsibilities and expenses. Both of you are so happy and in love you can’t even imagine anything could go wrong. Being responsible adults, you discuss your baby plans with your friends, families, and even a therapist. Your love becomes pregnant and nine months later your baby arrives and your family is complete. As planned, you take turns getting up at night when your baby cries; alternate missing work when your baby is sick; and pool your income to care for your baby.

For two years and four months, you are blissfully happy with your love and your child. But then, for whatever reason, it ends. You move out of your house. You and your ex agree that you should continue to be a part of your child’s life, so you see your child several times a week. You agree to continue to pay one half of the house mortgage and major household expenses. You ex are no longer blissfully happy, but the arrangement works for you both and for the child.

Three years later, your former love offers to buy out your interest in the house – you agree. But then . . . your ex begins to restrict your access to the child. You move to Ireland to pursue a career opportunity, but you still communicate regularly with your child. However, your ex soon terminates all contact between you and your child, and your gifts and letters are returned. You are heartbroken and desperate to see your child. What do you do?

In a heterosexual relationship, you would seek the assistance of the Court and typically be granted visitation rights with your child. [i] If you and your love were in a homosexual relationship, you would seek the assistance of the Court and be told that the law does not recognize you as a parent with “standing” [ii] to be granted visitation rights with your child. You would then appeal to the highest state court, and again be told that you do not even have the right to petition the court to see your child. As a result, you never see your baby, your child, the light of your life, again. [iii]

While this story may be hard to imagine, this is exactly what happened to Alison, the mother in the case Alison D. v. Virginia M., [iv] and countless other parents in non-heterosexual relationships since the Court of Appeals decided Alison D. in 1991.

At the time, New York Domestic Relations Law § 70 provided that “either parent” had “standing” to seek Court assistance to determine the issue of child custody and visitation. The Court of Appeals in Alison D. interpreted “either parent” to mean that you must have either a biological, adoptive, or marital connection to the partner’s child in order to have “standing.” (Once “standing” is conferred, the Court then determines the issues of custody and visitation based on the “best interests of the child” test.) It was a high bar to overcome because when Alison D. was decided, same-sex couples could not marry and second-parent adoptions [v] were not readily available.

Fast forward to August 30, 2016, the day this thinking was overruled. The New York Court of Appeals overruled Alison D. v. Virginia M. in the companion cases Matter of Brooke S. B. v. Elizabeth A.C.C. and Matter of Estrellita A. v. Jennifer L.D., changing everything for same-sex New Yorkers who are parents.
In the opinion, Justice Abdus-Salaam, wrote:

These two cases call upon us to assess the continued vitality of the rule promulgated in Matter of Alison D. v. Virginia M. (77 N.Y.2d 651 [1991])-namely that, in an unmarried couple, a partner without a biological or adoptive relation to a child is not that child’s “parent” for purposes of standing to seek custody or visitation under Domestic Relations Law § 70(a), notwithstanding their “established relationship with the child” (77 N.Y.2d at 655, 569 N.Y.S.2d 586, 572 N.E.2d 27). Petitioners in these cases, who similarly lack any biological or adoptive connection to the subject children, argue that they should have standing to seek custody and visitation pursuant to Domestic Relations Law § 70(a).

The companion cases involved two former same-sex couples where the biological mother of a child conceived through artificial insemination and was denying visitation and custody rights to her former partner.

In the Brooke S. B. case, Brooke brought an action in Family Court seeking joint custody and regular visitation after she and Elizabeth ended their relationship and Elizabeth denied Brooke contact with the child. The Family Court dismissed Elizabeth’s petition on the grounds that she lacked standing under the Domestic Relations Law as she was not a “parent” within the meaning of the statute (in other words, that she did not have a connection with the child through biology, adoption or marriage).

In the Estrellita A. case, after Estrellita and Jennifer ended their relationship, Estrellita moved out of their home and Jennifer went to court to seek child support. While the child support action was pending, Estrellita commenced an action for visitation rights. The Family Court granted the child support petition and, when Jennifer moved to dismiss the visitation action on the grounds that Estrellita was not a “parent” who had standing to seek custody and/or visitation, the court denied the motion on the grounds of “judicial estoppel” [vi] because they had previously decided in Jennifer’s successful child support application that Estrellita was a parent and so should pay child support.

The Court of Appeals decided the two cases should be combined in order to address the issue of “standing” as determined in Alison D.:

We agree that, in light of more recently delineated legal principles, the definition of ‘parent’ established by this Court 25 years ago in Alison D. has become unworkable when applied to increasingly varied familial relationships. Accordingly, today, we overrule Alison D. and hold that where a partner shows by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing to seek visitation and custody under Domestic Relations Law § 70. [emphasis added.]

In the last 25 years, there has been a seismic shift in our culture in the acceptance of equal rights for same-sex couples. New York’s highest court recognized that cultural shift and has now made sure that what happened to Alison D. and her son will not happen to non-traditional parents again.


i. If there is no question that you are either the biological or adoptive parent, or no allegation that you are “unfit.”

ii. “Standing” is a legal term used in connection with lawsuits and a requirement of Article III of the United States Constitution. In simple terms, courts use “standing” to ask, “Does this party have a ‘dog in this fight?'” Standing limits participation in lawsuits and asks whether the person(s) bringing a lawsuit, or defending one, has enough cause to “stand” before the court and advocate, . . . .

To have standing, a party must show an “injury in fact” to their own legal interests. In other words, has the party itself “suffered” some sort of actual harm. . . . Just because a party has standing does not mean that it will win the case; it just means that it has alleged a sufficient legal interest and injury to participate in the case.

Not every injury, or even a prospective injury, is an “injury in fact.” “Injuries in fact” must be real and of some kind that the law recognizes. It’s usually not enough that an injury might occur, nor is it enough to be a citizen concerned about the case. A party must actually suffer the injury to have standing.
But even if one has an actual “injury in fact,” the injury must be “redressable” – that is, it must be an injury for which the court is able by law to provide a remedy.

iii. It is unknown if Alison ever saw her son again – there are no “updates” in the legal system unless the person comes forward to share their story.

iv. 77 N.Y.2d 651 (1991), aff’g 155 A.D.2d 11, 552 N.Y.S.2d 321 (2nd Dept. 1990).

v. Second-parent adoptions are effectively step-parent adoptions that do not require the parents to be married.

vi. “Judicial estoppel” is a legal concept that precludes a party from taking a position in a case that is contrary to a position it has taken in earlier legal proceedings, where the party in question successfully maintained its position in the earlier proceedings and benefited from it.

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Why People Wait Around in Divorce Court

We all know divorce is a frustrating, heart wrenching process. One of the most baffling parts of the process for many is the court – what it does and doesn’t do to give you what you want. You probably expect that the judge will hear your concerns and remedy them as quickly as Judge Judy does every day on TV. You look forward to the opportunity to finally out your former spouse for what a lousy lying worthless piece of work he or she really is.

Courts and judges have to live within their rules.
Real divorce court is anything but that. Courts operate within rules codified in precedents and law that limit what can and cannot be resolved by a judge. Judges also are judged by held to certain standards that require them to move cases along on a tight schedule. These standards are enforced by the head of the court system, the Administrative Judge, and codified in a system of rules called Standards and Goals. Everyone who comes before a divorce court must live within these time and rules constraints.

Judges have huge dockets of cases which they need to keep moving. They want “discovery”, the process by which you investigate and verify the facts and circumstances of the case, to be completed within 6-12 months. This process is very important for you, the client, because the facts unearthed through this practice are used to create an outcome for you that is consistent with the law. In the best of all worlds, judges then want the case resolved six months after discovery is completed.

Waiting around is designed to move the process forward.
You may wonder why everyone sits around waiting for their court appearance and why there are fifteen other divorce cases set for the same time and before the same judge. If several cases were not calendared for the same time, the large volume of cases on the court’s docket would never get heard in an efficient fashion. Having multiple cases scheduled for the same time gives judges flexibility to hear cases on a first come, first served basis with both spouses and their lawyers present. In the end, every case on the court’s calendar for that day is eventually heard.

No case can be heard until all parties are present. Lawyers and/or spouses can be delayed because of traffic or train delays. Spouses can be delayed because of child care issues. Lawyers may be late because the attorney may have two cases scheduled for the same time in two different courts. While attorneys can sometimes adjourn one of the cases, a judge may not permit an adjournment because doing so would delay the movement of a case through the system.

While a case is waiting to be called, judges want the waiting time to be used by the spouses and their attorneys to find ways to move the case forward. Judges will expect attorneys to speak to each other to identify what issues that need the court’s assistance to resolve. Some judges even begin their calendar call later in the morning for that specific purpose. Judges become upset with attorneys who don’t utilize this time to speak with their adversary about the outstanding issues in a case. If the waiting time is used correctly, the outstanding issues are generally resolved faster.

Importantly, while you may wait several hours to appear before the court, such delay is not an excuse to show up to court late.

In the end, it is important to remember what the process is designed to do and what it is designed not to do. The system does not provide for justice when one spouse has actually or implicitly wronged the other spouse. Instead, the system is designed to promote discussions between the spouses to resolve their issues. To the extent that is not possible, the system will have no other choice but to make decisions for spouses when they cannot reach an agreement.

In the end, going to court should be act of last resort designed to get the parties back to the settlement table. If parties can successfully come to agreement outside the court system, both parties will save themselves a lot of time and money, and avoid the emotional rollercoaster that is part of any ongoing court battle.

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“Enhanced Earning Capacity” Is No Longer Considered Marital Property in New York: What Does That Mean to You?

First a true story: In 1971, Michael and Loretta O’Brien, young and in love, got married. They were both school teachers at the time, but Michael had a bigger dream – he wanted to become a doctor. Loretta believed in her husband and his dream, and for the next nine years she did everything in her power to help him realize his goal including putting her own education and career advancement aside.

At the time of their marriage in 1971, Michael had completed only 3½ years of college but soon returned to school at night to earn his bachelor’s degree and complete sufficient premed courses to begin medical school.

In September 1973, Loretta and Michael moved to Guadalajara, Mexico, where Michael had been accepted to medical school. While Michael studied and attended classes, Loretta worked at teaching and tutoring to support the two.

In December 1976, Loretta and Michael returned to New York so Michael could finish the last two semesters of medical school and his internship training. Once again, Loretta worked to financially support the two and resumed her former teaching position.

Finally, in October 1980, the couple’s dream was realized and Michael earned his license to practice medicine. However, within two months, Michael asked for a divorce.

Since Michael was at the beginning of his career, the parties had no financial assets. Under the law at the time, even though Loretta had worked the entire marriage to enable Michael to become a doctor, she would leave the marriage with nothing and Michael would go on to have what would most likely be a lucrative career.

The trial court found that result to be massively unfair to Loretta and declared that Michael’s medical degree and license [i.e., his “enhanced earning capacity”] would be classified as marital property and subject to equitable distribution in the divorce. After considering the life-style that Michael would enjoy from the enhanced earning potential his medical license would bring as well as Loretta’s significant contributions and efforts toward attainment of Michael’s dream, the court made a distributive award to her of $188,800, representing 40% of the value of the license, and ordered it paid in eleven annual installments over a ten year period. Michael appealed the trial court’s decision.

In 1985, the New York State Court of Appeals decided the landmark case of O’Brien vs. O’Brien, 66 N.Y.2d 576 (1985). The Court held than an interest in a profession or in professional career potential, such as a degree or license to practice a profession, is marital property which the Court may distribute equitably upon a divorce.

Over the next thirty years, New York Courts applied that legal principle to remedy the financial unfairness in divorce that can result when one spouse works while the other spouse earns a degree and/or license during the marriage. In the many cases following O’Brien, New York courts have allowed valuations of Bachelor’s degrees, various Masters’ degrees, teaching licenses, nursing certifications, yoga teacher certifications and aestheticians’ licenses, in addition to the professional goodwill of a stockbroker, and even a career as a model and actress.

The concept of “enhanced earning capacity,” while initially a well-meaning attempt to right financial unfairness, created numerous problems for divorcing couples, attorneys and the Courts. As an initial matter, using an expert to value the degrees and speculative future earnings was extremely expensive. Then, once the valuation process was complete, the Courts had to determine the contributions made by the working spouse and the percentage of the degree or license to which the working spouse was entitled. Additionally, the problem of “double dipping” arose when a spouse sought spousal maintenance in addition to an “enhanced earing capacity” award.

In June 2015, both houses of the New York Legislature passed a new law, effective January 23, 2016, which eliminated the concept of “enhanced earning capacity” except as just one of the factors to be considered in Equitable Distribution:

The Court shall not consider as a marital property subject to distribution the value of a spouse’s earning capacity arising from a license, degree, celebrity, goodwill or career enhancement. However, in arriving at an equitable division of marital property, the Court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse.

For those who are contemplating divorce after obtaining a degree and/or license during the marriage, you can certainly breathe a sigh of relief. You will not have to face the time and expense of an “enhanced earning capacity” valuation or years of substantial payments to an ex for the value of your degree or license. For the wage-earner under the O’Brien scenario, you will get nothing but the satisfaction of having helped your spouse obtain an advanced degree.

Only time will tell if the new law will continue the O’Brien Court’s mission to address financial unfairness in divorce or instead provide a windfall to student spouses who finish school and want a new life sans their wage-earning spouse.

Judith Happe, Esq

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Updates to New York’s Spousal and Child Support Legislation

Income Cap increases

Every two years, under New York law, the cap on spousal and child support is increased. This year the legislature made support more reasonable for people not in the one percent income class.

On January 31, 2016, New York raised the cap on temporary and permanent spousal support from $175,000.00 to $178,000.00 annually. This $3,000.00 increase came after the New York State Legislature significantly modified the temporary spousal support legislation and overhauled its permanent spousal support laws as discussed below.

On March 1, 2016 the child support cap was raised $2,000.00 from $141,000.00 to $143,000.00 annually.

What is income?

In New York, income considered for child and spousal support includes all income that was or should have been reported in the parties’ most recent federal tax returns.

Additionally, investment income such as capital gains, rents from investment properties and investment dividends must also be considered in the calculation. Even the value of employer-provided perquisites could be included in the calculation. Trust income could also be subject to a child support calculation.

Changes in the Temporary and Permanent Spousal Support Laws

Temporary spousal support is paid while a divorce is being worked out. New York significantly modified its temporary spousal support legislation in two ways:

  • by lowering the payor’s income cap from $543,000.00 to $178,000.00, and
  • requiring a court to take into account whether the payor spouse would be paying child support in addition to spousal support.

The new temporary spousal support legislation provides for a sensible support award that prevents a windfall to either the payor or recipient spouse.

Permanent spousal support is paid either after a separation agreement is signed or when a divorce judgment is rendered by a court. Under the old legislation, a court had broad discretion to determine permanent support.

The new legislation creates a formulaic approach to calculating the amount a payor spouse pays a recipient spouse.  Like temporary support, the law requires:

  • the courts to consider whether the payor spouse is simultaneously paying child support to the recipient spouse, and
  • limits the payor spouse’s income cap to the first $178,000.00 in income.

Additionally, a court must employ a statutory guideline to determine the length of time that spousal support shall be paid to the recipient spouse.  Unlike the old law, the new permanent support legislation provides a balanced structure to calculate a permanent support award that is fair and appropriate to divorcing parties.

While the caps are mandatory in both temporary and permanent spousal support calculations, the court can exceed the formulaic guideline by including consideration of 12 factors or 14 factors, for temporary or permanent spousal support respectively, to raise the income level over the $178,000.00 cap. Similarly, for child support calculations there are ten factors listed in that statute that could include income over the $143,000.00 cap.

New York’s Domestic Relations Law and the Family Court Act permit parties to “opt-out” of the applicable statutes provided certain statutory prerequisites are followed.

What This Means for Divorcing Parties

These guidelines limit the court’s flexibility in terms of setting spousal and child support levels even if they consider the other factors identified in the statute in order to raise the amount. The good news for the payor spouse under these new guidelines is the chance to not be financially burdened while going forward to a new post-divorce life. The bad news for the non-payor spouse is that the dream of divorcing a spouse and continuing an identical standard of living thanks to spousal and/or child support is less likely to occur.

* * *

For further information on the New York Social Services Law or any other matrimonial law concerns you may have, please contact me at 212.404.2900 or by email at ken.jewell@kenjewell-law.com.

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How Did My Divorce Cost Escalate to Six Figures?

Are you midway through your divorce process and wondering why what you thought would cost $30,000 is now close to $150,000? The answer is probably looking at you in the mirror.

Costs escalate when one or both parties to a divorce want to stand firm on specific requests they feel entitled to and want included in their divorce decree. Usually these personal provisions are grounded in emotions such as anger, jealously and fear. They reflect the spouses’ personal histories with each other. Examples include:

  • Wanting an unreasonably high spousal support dollar amount because the marriage was 30 year in length notwithstanding the fact that the payor spouse’s income is significantly less as a result of retirement
  • Demanding that a spouse forfeit assets as payment for some previous wrongdoing that occurred during the marriage notwithstanding the fact that the law doesn’t provide for these kinds of remedies.
  • Requiring a spouse to lose parenting time because he or she has a different approach to parenting even though the children have a good relationship with that spouse and are otherwise productive and healthy.

In theory, there is nothing unusual or wrong with wanting to personalize the document. In fact, however, the law and the court are hemmed in by precedent and laws that prevent flexible responses to individual situations. Every customization needs to be written within the parameters of existing law and precedent as well as all the other clauses in the divorce documents. The lawyer’s thought process can take several hours. The language to do this can take several pages. The end result is a substantially greater legal bill from the lawyers.

When two parties are unable to reason together and present joint solutions to their lawyers, they often presume that the law can be used as a substitute decision forum. The problem, however, is that any judicial decision is impersonal because it becomes legal precedent which must apply to others’ situations.

If you want personalization at lower cost and angst, what can a client do? Instead of asking the law and/or the lawyer to be a decision-maker, use the law and the lawyer’s advice as a guideline.

  • Know what the legal framework, customary guidelines and typical decisions are regarding alimony, child support, custody, etc.
  • Using these as a starting point to help you and your spouse make the key decisions yourselves.
  • Once you and your spouse can agree to a basic framework that respects the rigidities of the legal system, the cost and expense associated with the divorce become significantly less.

The result is a smoother, gentler process that lays the groundwork for the future you want to get to as quickly as possible.

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Can You Separate the Process of Divorce from Your Reasons for Divorce?

Spouses who maintain their integrity and conduct themselves with restraint during divorce proceedings are more likely to obtain a final judgment in less time. By focusing on the process rather than the feelings that led them to this point, spouses can reduce the “temperature” of the proceedings, which in turn, facilitates effective negotiations. Effective negotiations generally result in lower legal bills. Also, amicability usually creates greater satisfaction with the process itself.

Three useful rules to follow to lower the temperature during the divorce process:

  1. Always respect your spouse as the other parent of your children or as a person with whom you spent key portions of your life.  This attitude will make it easier to focus on the legal possibilities that constrain divorce options. The law is very clear about how property is divided and child custody and visitation is determined.  Absent egregious circumstances, such as extreme violence by one spouse to the other, it is very unlikely that a court would leave either spouse without an equitable share of the assets or without liberal parenting time with the child or children of the marriage.
  1. Always make your spouse feel as though you care about what happens to him or her after the divorce is final – even if you don’t. It is much easier for you to get on with your life if your spouse also has the means and incentives to get on with his or her life. If you share children you will be together at family events for years to come. Seeming to care during the divorce can make implementation of the ensuing relationship easier.
  1. Always finish the divorce before moving on to the next relationship. Often, the difference between a messy, difficult divorce and an efficient, relatively civilized one is the difference between the activities of the two parties as the legal process moves forward. Spouses who feel displaced because one of them moves on to another relationship during the divorce proceedings often have difficulty keeping those emotions out of the legal process.

Emotionally-involved spouses engage in a variety of tactics to delay their divorce, ranging from procrastination to fighting, just for the purpose of venting their feelings of anger, neglect or betrayal.  As I often say to clients, the difference between the five figure divorce and one costing well into six figures depends on upon both parties remaining fully clothed in the presence of someone other than the person he or she is divorcing.

Divorces can be easier and usually less costly if each participant focuses on their own future rather than allowing emotions from the past and the urge to get even to complicate the compromises that will create the legal conclusion of their marriage.

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To Keep Divorce Costs Under Control Understand What is Possible

Divorce can be expensive, although it need not be. New York’s divorce laws have been in place for decades. Thus, most cases should be easily resolved based on the law, notwithstanding the tension between the divorcing couple. Why then is divorce so expensive? In many instances it is a spouse’s emotions, the need to be right or to “get even”, that drives up the costs.  Interestingly, however, neither emotion, nor the need to be right or “get even” have any impact on the legal outcome.  No matter which aspect of dissolving a marriage we are speaking about, absent exceptional circumstances, the emotional issues can complicate and lengthen the process, but they are tangential to the legal rules which apply to divorces. The following overview explains why.

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Ken Jewell forms a matrimonial boutique: Jewell Law, PLLC

I am proud to announce that I have formed a matrimonial boutique law firm in order to service my clients more effectively and efficiently.

Also, effective March 2014, we will begin accepting credit cards as a convenience to our clients. (After all, we all want those points.)

To accommodate our team we are moving to larger quarters on February 20, 2014.

New Address: 28 West 44 Street, 16th floor, New York, NY 10036
New Telephone Number: (o) 212.404.2900; my direct dial is 212.404.2901

I look forward to meeting with you in our new offices.

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FYI: NYS’ Spouse and children support income cap raised 3% as of 1/31/14

Income cap increases
Under New York Social Services Law the statute requires an increase every 2 years in the statutory cap on combined parental income for the purpose of calculating child support. On January 31, 2014, New York raised the cap on child support from $136,000 to $141,000 annually.

Also under New York Social Services Law, the maximum amount that must now be considered when an application for temporary spousal support is made includes up to the payor spouse’s first $543,000 in annual income, which is up from the $524,000 cap provided for in 2012.

Finally, the self-support reserve is now set at $15,512, and the new Poverty Income Guidelines Amount is $11,490.

What is income?

In New York, income for child and spousal support purposes includes all income that was or should have been reported in the parties’ most recent federal tax returns. Thus, if your client is receiving trust income, even if that trust is otherwise separate property for equitable distribution purposes, the trust income is subject to a child support calculation. Additionally, investment income such as capital gains, rents from investment properties and investment dividends must also be included in the calculation. Even the value of employer provided perquisites may be included in the calculation.

New York’s Domestic Relations Law and Family Court Act each allow parties to “opt-out’ of the applicable statutes provided certain statutory prerequisites are followed.
Now for some good news. . . .
I am proud to announce that I have formed a matrimonial boutique law firm in order to service my clients more effectively and efficiently. We are moving to larger quarters on February 20, 2014.

New Address: 28 West 44 Street, 16th floor, New York, NY 10036
New Telephone Number: (o) 212.404.2900; my direct dial is 212.404.2901

I look forward to meeting with you in our new offices. For further information on the New York Social Services Law or any other matrimonial law concerns you may have, please contact me at 212.551.1065 or by email at ken.jewell@kenjewell-law.com.

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