Blog 2018-07-19T19:30:40+00:00

Why you should have a healthcare proxy.

If You Don't Make a Decision, One Will Be Made For You My father was ill for many years with a degenerative disease – Parkinson’s. He had his advance directives in order including a healthcare proxy; however he did not choose where he was to be buried. He visited several cemeteries with the family and after seeing all of them we asked him - “So, what do you think?” His answer – “I think I don’t want to die”. After his death, we chose a cemetery for him, I would like to think he would have been satisfied with our [...]

National Association of Divorce Professionals Conference 2019

Deborah (on right) with colleague Lisa Ribacoff, a private investigator with International Investigative Group, Ltd. I just returned from three days at the National Association of Divorce Professionals (I am a divorce mediator member) conference in Fort Lauderdale. It is an organization which has the mission of making the divorce process better by solving all of the parties’ issues. The organization includes professionals in four areas, legal, mental health, financial and residential. I learned a lot about law and procedure in other states, how to tell if a client (or anyone else) is lying to you based on [...]

Why You Should Consult with an Attorney Prior to Deciding to Divorce

Many potential clients come in for a consultation once they have been served with divorce papers or already moved out of their home. Often if not always, there are clear signs that a marriage is in trouble and that divorce may be imminent. As with most other aspects of your life, having information prior to making a decision or taking action is helpful. […]

Lawyer as Employer: The Business Decisions Involved With Getting Help for Your Firm

The first step in becoming an employer is recognizing that you need help. The next step is deciding which type of help you need! This article in the NYSBA Association Journal outlines the important considerations to think about when hiring and expanding your solo practice. […]

“Game Over”

Hitting the news lately is the fact that there is a new growing cause of divorce, gaming addiction, at least in the UK. The video game Fortnite was listed in 200 divorces so far in 2018 as being partly to blame for the demise of the marriage. While we in New York have “irretrievable breakdown” as grounds, what exactly causes the breakdown is not usually something we discuss in mediation or negotiated divorces. […]

What Are Advance Directives in New York?

Advance Directives are documents which let you make decisions on how you want your financial and medical affairs handled if you cannot handle them yourself. In New York, we have a health care proxy (which can include a HIPAA release), living will and power of attorney. They differ from a will in that they are only viable while you are alive. A will only takes effect when you pass away. […]

Mediation of Estate Issues

Earlier this month, I had the pleasure of attending a continuing education class on the use of mediation in Estate cases. Having been drafting estate plans for years and also being an experienced divorce mediator, I pondered whether mediation might be preferable to litigation in situations where a will contest is imminent. After attending the class, I now know that not only is mediation preferable, the New York State office of court administration is beginning pilot programs for people to try mediation as a way to settle their disputes. It was stressed that the public needs to be educated on [...]

The Role of the Review Attorney in Mediation

Mediation clients often ask: why do I need a review attorney? Mediation is becoming ever more popular as people realize the value of having help in making decisions about their split; however, they do not want to “lawyer up” and risk having an adversarial situation. The mediator does not represent either party and will be able to assist the parties in coming up with solutions that work for their situation. A mediator with knowledge of business and finances can also help ensure that each party will be able to start over with as much of a financial cushion as possible. [...]

Who Gets the Frozen Embryos in a Divorce?

As if couples don’t have enough to think about when dividing assets and deciding on custody, the concept of making decisions about reproductive technology is becoming more common. Many people are waiting longer to get married and start families, and many people are beginning to take advantage of the newest reproductive technology available to them. Sometimes people realize even prior to marriage that they may need to proactively store their eggs and/or sperm. For instance, some people harvest eggs prior to having surgery or chemotherapy or radiation to prevent or cure cancer. The same goes for sperm. As it stands [...]

Do You Know the Story of Saint Valentine?

Valentine's Day & Prenuptial Agreements? Back in the days of the Romans, a law was passed that the soldiers were not allowed to get married because it was believed that romance would take their minds off of the battle and they would not do well. A Catholic priest named Valentine married about 200 soldiers to their girlfriends in secret. His actions were discovered, and he was put to death. Later he was made a saint. This is why we have Valentine’s Day today. It’s a day full of romance, filled with candy and flowers. Many people get engaged on Valentine's Day [...]

Therapy and Divorce

Sometimes clients need help resolving personal issues that are not within my expertise. They may need to be able to come to terms with the loss of their marriage and the part they played in it. They frequently have stress and even post traumatic stress disorder. Since I am not equipped to treat them, I will refer them to someone who is. I recently sat down with my friend and colleague, Bill Solz, LCSW, CASAC of to talk about how a therapist can be helpful during divorce. […]

The One Session Mediation

Yes, you read that correctly. It can and has been done. I have successfully mediated a divorce which took only one session. The couple had no children, no real estate, and very few assets and debts. They both wanted to reach an agreement quickly and were willing to work together toward that goal. There was preparation. I had instructed each party to exchange financial information and given them an outline of the issues to be discussed. After the session which lasted two and a half hours, we had notes on which to base their agreement. I drafted the agreement and [...]

Update on Divorce and Tax Law

Now that the new tax law is official, this is what it means for divorcing couples: First of all, alimony or maintenance as we call it in New York, will not be deductible by the payor for any agreement executed after December 31, 2018. Note that the divorce judgment does not need to be signed—only the agreement needs to be executed. This means that 2018 may be a very busy divorce year. People who have been thinking about it may be more likely to take action knowing that it may be more expensive later on. Secondly, when New York State [...]

New Tax Treatment of Maintenance and Implications for Divorcing Couples

There is a lot of buzz lately about possible changes to the tax treatment of Spousal Maintenance. The silver lining in the spousal maintenance cloud is that the payor can take the amount off their taxes as a deduction. The person who receives the maintenance has had to pay the taxes on it as income. With the new proposed House tax law, that may change. This makes a huge difference when negotiating a settlement—it is not as palpable without the deduction on the table. Parties may decide that they want to try to negotiate for less maintenance and more child [...]

What’s the Difference between You Guys and an Online Service?

Recently, we had a former divorce client call us with happy news! She is getting married! Both parties have children from their former relationships, professional practices and assets that they would like to go to their respective children when they pass away. Understandably, our former client was a bit concerned about what might happen should the second marriage not work out. Having experienced a divorce before, she wanted to go into this one with her eyes wide open and wanted a prenuptial agreement that would cover all the bases. […]

Thinking of Going Solo? Be Prepared to Practice Law and Run a Business!

A law practice is a business. No matter how good an attorney you are, your practice will not take off without that recognition. This article was written for new solo attorneys, those who are thinking of hanging out a shingle, and those who were dismayed when they saw their tax return for the first time after beginning to practice on their own. When building a business, there are many important considerations that we think of—and some that we don't. Ensure that your plan is comprehensive (you can do it!). Reprinted with permission from: New York State Bar Association Journal, [...]

Exchanging a Statement of Net Worth in a Divorce

In the divorce process, whether mediated or litigated, one of the most important documents is the statement of net worth. It is a document that outlines the financial health of each party. There are several sections. One section outlines the family data and budget such as how many children are in the home, dates of birth of both parties and the children, occupations and employers. Another section deals with income from all sources, jobs, investments, even disability or pension benefits. Yet another section contains information regarding assets such as cash accounts, real estate, vehicles, jewelry, art and life insurance. Finally, there [...]

Is There Such a Thing as a Simple Will?

Many clients say that “they just want a simple will.” When deciding how to word bequests in a will, we lawyers have to bring up some uncomfortable topics with our clients. Aside from the fact that our client needs to contemplate their own death, they also need to think about and decide what to do with their legacy if other contingencies come into play, such as if their child passes away before them? […]

How I Practice: An Interview with the New York State Bar Association

I am very honored to have had the opportunity to sit down with the New York State Bar Association and share how I practice law and organize my business. NYSBA has wonderful resources on their site, including the How I Practice section, which offers tips, tricks, and lessons to other attorneys. This interview can be read on NYSBA's website. 1. What are your areas of practice? My areas of practice are Divorce, both litigated and mediated (I am a certified divorce mediator as well as an attorney); Estate Planning; and Small Business Advising. 2. Describe a typical day for you? [...]

What is a QDRO?

A QDRO is a qualified domestic relations order. This is an order regarding retirement accounts. In a divorce, retirement accounts are frequently the subject of equitable distribution. Each party would be entitled to their marital share of the other’s retirement accounts. An evaluation is performed using what is known as the Majauskas formula. This formula is from a landmark case. Majauskas versus Majauskas. The formula determines which portion of the retirement account is marital and which is not. It also determines (depending on the length of the marriage) to how much each spouse is entitled. […]

What is the Difference between Legal Advice and Legal Information? How does that Affect the Role of the Mediator?

People often ask: how do you reconcile the role of the mediator and the role of the attorney when you are doing mediation? When doing a mediation, the mediators’ role is to help the people decide for themselves what course of action they want to take. As a mediator who is also an attorney, I of course have a very good idea as to what would pass muster in the agreement so that it would be likely signed by the Judge. […]

What is a Motion for Attorney’s Fees?

There are several different types of instances within a divorce where one might want to ask the court for attorney’s fees. In a matrimonial action, we might make a motion “pendente lite,” which means “pending the litigation,” for the moneyed spouse to pay the attorney’s fees for the spouse with less money. This type of motion for attorney’s fees would normally be drafted and filed toward the beginning of the litigation, although there are instances where it might be done later on. Another type of motion for attorney’s fees would be further along in the litigation, perhaps because one spouse [...]

What is a Waiver of Estate Rights?

In New York, your spouse has something called a right of election. What this means is that no matter what you want to leave them in your will, they have a right to $50,000 plus one third of your estate. So for instance if you die with a will leaving your spouse out because perhaps you did not update your will or you purposely left your spouse out for whatever reason, they will still get a share of your estate. If you die without a will, your spouse is entitled to even more - $50,000 and half your estate. When [...]

Nesting: The Logistics of the “Family” Home

Nesting has become a popular concept for families of divorce lately, with articles in the New York Times and other well known publications. Nesting, if you are not familiar with the term, is when divorcing parents arrange for the children to remain in the family home while they each obtain a separate place to live. In theory this enables the children to remain in their home where they grew up, as well as cuts down on the shuffling back and forth between the parents’ homes, which is typical of divorced families who have joint or shared custody. Many couples who [...]

What to Expect at Our Divorce Consultation

Many potential clients come to us when they are in the planning stage of a divorce. No one has served any papers, sometimes they are not even sure they want to file for divorce, they are just thinking about it. When we have a consultation for a divorce, we ask that the potential client come prepared with a lot of documents. Some of these are: Last three years of taxes; Asset documents, such as deeds, titles, bank or brokerage statements; Debt documents, such as credit card or mortgage/car lease statements; Marriage certificate; and Should the client have their own business, [...]

“Every Little Thing Gonna Be Alright”…Or Is It?

Bob Marley, the singer famous for the song Three Little Birds, whose chorus was: “Don’t worry about a thing ‘Cause every little thing gonna be alright” passed away on May 11th,1981, without a will, with a fortune, and with at least eleven children from several different mothers, one of whom was his wife. The court battle was long and complicated. […]

Court is Like a Box of Chocolates

What is an “attorney for the child” and what does it mean for my case? Often when parents who are divorcing are already in court and do not agree on custody, the court will assign an “attorney for the child.” This is an attorney who will interview both parents and the child or children. The attorney for the child will ask the child what their position is, and if the child is seven years of age or older, they will advocate that child’s position to the court. […]

What Do You Mean I’m Not Really Married? Or Not Really Divorced?

When people call our office asking about divorce or family court issues, we tell them the various documents we need to look at in order to best advise them. One of the documents we want to look at is their marriage certificate. Often, we have people who consider themselves married, have lived together for years, had children together, bought property together and they are surprised that they are not, in fact, married. New York has no “common law marriage.” There is an exception to that rule. New York will give full faith and credit to a marriage from another state [...]

Continuing Education for Mediation

Mediation is gaining in popularity, so much so that there are a proliferation of people advertising that they do mediation. Some of them are attorneys, some of them are not. Many of them have had absolutely no training in mediation, yet will sit down with a couple and “mediate.” New York has no licensure for mediators, so it is difficult for the consumer to determine whether a person claiming to be a mediator is actually trained in the process or just trying to help facilitate a compromise. One can even get a mediation certificate online. I have had three separate [...]

Don’t Put that Help Wanted Sign Up until You Read this Article

You’ve been working on your business hard and with great success. So hard in fact that you end up working most nights. Your spouse and kids tell you that they miss you and would like to spend more time with you. The next natural step would be to get some help, right? Before you hang up that “help wanted” sign or put an ad on Craigslist, here is something to think about: What kind of help are you looking for—an employee or an independent contractor? […]

Why having a pre-nuptial agreement discussion may result in a stronger marriage.

Most couples get together based on attraction, discuss one or two main expectations or goals, fall in love and decide to get married without considering a pre-nuptial agreement. They then focus on wedding plans, thinking that if they can negotiate a large event between two families and come out unscathed by the wedding date that they will succeed in their marriage. So why do so many divorces occur? Many of my divorce clients have the same issues with their spouses, and many of these issues may not have come to a head later in the marriage if the couple had [...]

What is an In Terrorem or “No Contest” Clause?

My late mother used to say no one owes you an inheritance, but what did she mean? Wouldn’t most people expect to inherit from their parent? The answer is that a will reflects the testator’s wishes, not their heirs’ expectations. Hence the In Terrorem or “No Contest” Clause. Most of the time, people want to leave their assets to their family, their spouse, their children, perhaps a favorite charity. Sometimes people wish to leave their estate to their family, but not in equal shares. This is where an “in terrorem” or “no contest” clause comes in handy. What this clause [...]

Using a Life Coach in the Divorce Process and Beyond

Clients frequently need support during the divorce process. They are not satisfied with the way things are and want a change, but that change itself is scary. Sometimes I suggest that they obtain the help of a life coach. There are two reasons for this: First of all, life coaches charge significantly less per hour than an attorney (similar to that of a therapist), and second, they are specifically trained to help in that way. I spent some time discussing the role of a life coach within the divorce process with Heidi Krantz, OTR, CPC, ELI-MP of Reinvention Life Coaching. [...]

Divorce Agreements: Choose Your Wording Carefully!

Many clients ask why divorce agreements are so long and whether the exact wording really matters that much. The length is due to the fact that there are so many different issues that need to be covered. Issues such as Maintenance, Child Support, Custody & Parenting Time, and Equitable Distribution are just some of the areas that need to be covered in an agreement. I have seen some agreements that left out major issues, such as who is paying for college, which leaves both parties, not to mention the children, in a precarious position. […]

Why The Mediation Process Makes Sense

For those who would like to resolve their dispute (whether it be a divorce or other family matters) by agreeing to terms rather than having a judge decide what is best, mediation can be a speedier, less costly and less stressful experience than a traditional litigated matter. Traditionally the parties meet with a mediator and the mediator helps them come up with a plan. The mediator will put the plan in writing called a “Memorandum of Understanding.” Should the mediator also be an attorney, they may elect to draft a legal document instead usually called an “Agreement” or “Stipulation of [...]

Which Entity Should You Choose When Starting A Small Business?

Choosing a Business Entity – Which One is Right for Your Business? Now that you have decided to launch a business, you need to decide which business entity is right for you. I’ll explain the differences between sole proprietorship, partnerships, corporations and limited partnerships. I cannot stress enough the importance of having a discussion with your CPA or tax adviser as to how each entity may affect you and taking that into consideration when making a decision, especially now with the prospect of new tax code legislation. The simplest entity in New York is that of the sole proprietor – [...]

Small Business Considerations When Deciding on Location and Space

Starting a new business is exciting! One of the most exciting pieces is deciding on location. I can not stress enough that you need a lease or a license. It might seem like a wonderful opportunity to rent a small space inside another business without a lease—after all, you have no obligation, so if the business doesn’t do well, you can just walk away. You, however, are not protected, and just like you have no obligation to your new landlord, they have no obligation to you. You could be asked to leave if they decide they need the space or someone [...]

Mediators and Attorneys: What to Expect in Both Cases

The choice between using a mediator or an attorney isn’t always easy - a consultation with each can give the client some basic information of what to expect. The use of mediators has increased in recent years as people are looking for a more peaceful way to divorce. I have a mediation certificate as well as a law license, so I have knowledge of both and can describe the different processes. In New York, divorce was traditionally a grounds state, requiring a reason for the split. Recently, however, New York added a new ground irretrievable breakdown of the marriage, essentially [...]

Divorce with Retirement in Mind – Gray Divorce

Clients often need to plan for divorce with retirement in mind. The term used to describe this scenario lately is "Gray Divorce". Clients without young families don't have to make all decisions based on the impact to the children. When discussing retirement after divorce, there are usually two main items that come to mind: pensions and social security. Assuming the couple has been married for at least ten years, the spouse with the lower income will qualify for social security at a percentage of the other’s earnings level, just as if they were still married. If the lower earning spouse [...]

Categories: Divorce Law|

Rush For Divorce By Year End? You Can Slow Down Now

There has been a lot of coverage in the news lately of people rushing to divorce before the end of the year for tax advantages. These stories are somewhat misleading. While you should of course consult your accountant, the rule generally is that if you are divorced on or before December 31st of the year, you can file your taxes as if you were single for the whole year. This is similar to the “Daddy’s little tax deduction” situation where children born on December 31st can be claimed as a tax deduction for the whole year. What these articles do [...]

Categories: Divorce Law, Mediation|

Is a Rabbinical PreNup Right For Me?

Before Jewish couples get married, a Rabbi may want them to sign a prenup from a Bet Din. Many presented with this often have questions about this type of prenup – is it valid, should it be signed? A lawyer can help you understand this type of document and what signing it means. A prenuptial agreement from a Bet Din usually has several sections. The first section has to do with agreeing to give the wife a “Get” (Jewish Divorce) should the couple get divorced. According to New York law, in a settled divorce the parties must sign a “removal [...]

Categories: Arbitration, Divorce Law|

Why Annulment is Not Easier than Getting Divorced in New York

When New York required fault grounds prior to 2010, people who were married only a short time and had no children might have considered annulment rather than divorce proceedings. Now that New York has divorce based on irretrievable breakdown of the marriage, annulment in New York is actually more complicated than divorce. Just like New York has specific grounds for divorce, annulment also has specific grounds. The grounds are: 1. Failure of a party to have reached the age of consent; 2. Lack of understanding, such as being mentally retarded or mentally ill; 3. Physical incapacity to consummate the marriage; [...]

Automatic Restraining Orders in Divorce

When clients are served with divorce papers, they are often confused about why there is a restraining order included. They may have done nothing to necessitate a restraining order, and can become concerned with how they are going to pay for things like a mortgage or expenses involving children. Several years ago, New York instituted automatic restraining orders in reaction to a common practice of many litigants who got served with divorce papers – they would immediately empty the bank accounts! Rather than force lawyers to file restraining orders after the fact or hopefully prior to assets being drained, now [...]

Categories: Divorce Law|

Child Custody & Support in New York State

In a divorce, one of the most contentious issues can be custody of the children. It is important that both parties fully comprehend the types of custody that exist and what each of them entails so that they can determine what will suit them and what will benefit their children most. Sometimes clients have questions about how the various types of custody affect child support, and it is vital for parties to understand this as well so they do not choose a custody plan based on false expectations. An example would be that no one will have to pay child [...]

Categories: Divorce Law|

Maintenance – lump sum or payments?

Many clients who are in a position to receive maintenance (formerly known as alimony) are not sure whether they should take the promise of monthly maintenance payments from their spouse or take a lump sum. There are several good reasons to take a lump sum, especially with New York’s new maintenance guidelines. New York instituted new maintenance guidelines which went into effect this past January for cases filed January 23, 2016 and later. The idea behind the guidelines was for litigants to have a better understanding of how the court would decide on maintenance payments. Once the payments are clearer, [...]

Categories: Divorce Law|

Alternative Dispute Resolution – Mediation and Arbitration

Mediation is in the news a lot lately, especially for divorce, as a more peaceful way to end a relationship. Mediation, however, is not just about ending relationships but part of a growing area of what is known as ADR – alternative dispute resolution. There are several types of ADR, Arbitration, Mediation and Collaboration. Generally ADR is faster and can keep costs down.  I’m covering the two types of ADR with which I am most familiar, mediation and arbitration. Mediation Mediation is one type of alternative dispute resolution. It can be a part of resolving conflicts that do not necessarily [...]

The Key Differences between Family Court and Supreme Court Cases

Frequently when relationships start to falter, people begin to inquire as to what their rights are in court. Understanding the differences between what can be accomplished in Family Court and Supreme Court in New York is an important first step! First of all, only married individuals can seek matrimonial relief in Supreme Court, which has exclusive jurisdiction over divorces and equitable distribution. Unmarried individuals with children in common or who live together with or without children can seek relief for issues in Family Court such as child support, custody and visitation and orders of protection. That being said, people who [...]

Categories: Divorce Law|

Why Advance Directives Should be on Every College Student’s Back-to-School List.

Heading off to college soon or sending your child off in the coming weeks? The back-to-school season is in full swing and many parents are preparing for their child to go off to college. Students and their families have carefully selected the university and the student has worked so hard to be accepted. Countless stores are advertising colorful bedding and accessories for the perfect dorm room setup. You or your child may think that he or she is all set to go! College freshman will be learning and meeting people from all over and having new experiences, beginning their adult [...]

Categories: Estate Planning|

Planning For Divorce with Retirement in Mind

Clients often need to plan for divorce with retirement in mind. In the past, I have explained the importance that custody and child support agreements may play in a divorce. Clients without young families, however, do not have to make all decisions based on the impact on the children. When discussing retirement after divorce, maintenance, pensions and social security are usually the main items that come to mind. Assuming the couple has been married for at least ten years, the former spouse with the lower income may qualify for social security at fifty percent of the other’s earnings level. If [...]

Categories: Divorce Law, Estate Planning|

Mediators and Attorneys: What To Expect From Each Process

The choice between using a mediator or an attorney isn’t always easy - a consultation with each can give the client some basic information of what to expect. The use of mediators has increased in recent years as people are looking for a more peaceful way to divorce. I have a mediation certificate as well as a law license, so I have knowledge of both and can describe the different processes. In New York, divorce was traditionally a grounds state, requiring a reason for the split. In 2010, however, New York added a new ground irretrievable breakdown of the marriage, [...]

Categories: Divorce Law, Mediation|

New Bill Affects Value of Professional Licenses in Divorce Proceedings

New York will most likely have new legislation regarding maintenance fees in the coming weeks. Governor Andrew Cuomo is expected to sign this piece of legislation that was recently passed by both houses. Last week, in my discussion of maintenance and other fees, I explained the process of determining maintenance awards, child support and attorneys fees. The new legislation would change the law regarding the value of professional licenses during this process. First, the bill would eliminate enhanced earning capacity as a marital asset. In the past, a party to a matrimonial action might have their enhanced earning capacity evaluated [...]

Categories: Divorce Law|

Maintenance, Attorney’s Fees and Child Support: Who Pays for What

Divorces often bring about financial disagreements, especially when one spouse earns more than the other. The lower earning spouse can fight for maintenance, attorney’s fees and child support. Last week, I gave an overview of different custody options couples are faced with during and after the divorce process. It is important that each party has a good understanding of how each child will be provided for monetarily and how the divorce process will affect his or her income. […]

Custody Arrangements: What Works Best for You

Clients with children often ask me about the different custody arrangements that come with divorce as their children are frequently their main concern. Knowing the different scenarios that come with each arrangement is important for ensuring an outcome that best suits each couple and their children. New York has several types of custody: true joint custody, joint custody with a residential parent, and sole custody. True joint custody, where the child spends an equal amount of time in both homes, is unusual. Logistically this is only possible if both parents live near each other and have schedules that allow for [...]

New York’s Automatic Restraining Orders in Divorce

New York instituted automatic restraining orders a few years ago in reaction to a common practice of many litigants who got served with divorce papers.  Their reaction was to immediately empty the bank accounts! Rather than force lawyers to file restrainer orders after the fact or hopefully prior to assets being drained, now the Plaintiff is bound by the orders upon the filing of the divorce and the defendant is bound upon being served. I will first explain what you should and should not be doing, and then discuss what happens if either of you violate the orders. You are [...]

Categories: Divorce Law|