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Frequently Asked Questions

Frequently Asked Questions

Get answers to your questions

Estate Planning & Pre- Nuptial agreements

No! The power of attorney will not enable you to speak for your spouse. Powers of attorney can be very broad and will allow the agent to sign many documents on behalf of the principal-speaking or testifying on behalf of principal is not one of the powers conferred!

No ! Unless you include language specifically stating when and how or include a sunset clause. Many clients do not understand prenuptial agreements. They are intricate documents that state the agreement between the parties should the marriage end whether by divorce or death. They can have language which serves as an expiration date or if certain circumstances occur. Best practice is to have a professional draft, review or negotiate it prior to signing. You also want to give a copy to your divorce attorney or mediator if going through the divorce process and a copy to your estate planning attorney-we can only give you our best work when you give us all the facts.

Maybe! If you list your beneficiaries on the bank accounts they inherit outside the will. So many clients do not realize that even the best estate plan can be ruined by testamentary substitutes such as bank accounts.

Yes! This concept is called a Post-Nuptial agreement. There are many reasons a couple may wish to have a formal written agreement regarding their marriage, and it doesn’t always lead to divorce.

Yes! If you have language regarding “Digital Assets” in your power of attorney. In New York we can include language to a power of attorney allowing your agent to take care of your social media accounts for you. This is especially relevant if you have business accounts. As examples, the agent can act if you are incapacitated or if you just want them to because you are away on a much needed vacation.

Yes! Even if you don’t think you have much to protect – Have the talk before you take the walk. Many people think prenups are only for the rich and that divorce attorneys should handle them. An attorney familiar with both divorce and estate law can draft a prenup that will serve clients well whether the marriage ends in divorce or “til death do us part”.

Yes & No! In NY after divorce the will is treated as if your ex died before you. While it is true in New York that after divorce your will is still valid and your successor executor and remainder beneficiaries rather than your ex spouse (who is treated as if they predeceased) will be the ones to be responsible and/or inherit, it is a good idea to revise and execute a new will after a divorce. Any time there is a major life change you may want to consider writing a new will.

No! You can leave bequests as you like in your will. Sometimes people want to leave different amounts to certain children and sometimes they don’t want to leave them anything at all. An estate planning attorney can help you decide what is best for you and whether you need an interrorem or “no contest” clause.

Yes! Your power of attorney is not valid unless your agent signs and has it notarized. In New York, the power of attorney is not valid unless the principle and the agent have signed it before a notary. It is always a good idea to have a frank discussion with your intended agent to be sure they want the responsibility.

Yes! In my opinion most people over the age of 18 should at least have their advance directives in order. A power of attorney, health care proxy and living will, allows the people you choose to help you if necessary.

Yes, the best way to do this is to execute a new will expressing your wishes.

You need a health care proxy in case you are incapacitated or unconscious. Someone you have chosen beforehand can make health care decisions for you.

A living will is a document that express your wishes regarding artificial nutrition and breathing equipment. You have the right to decide that if two different medical professionals have determined that there is no hope of you making a meaningful recovery you do not have to be kept alive.

You should have a testamentary trust in your will that states that any portion left to a grandchild be payable to their special needs trust should one exist. That way your generosity will not cause your grandchild to lose their governmental benefits.

Yes, that way if you need to do Medicaid planning you will already have the ability to do so. Our office does not do Medicaid planning however we know several reputable firms that would be able to help should the need arise.

We recommend that you keep the will in a fire proof waterproof safe in a location that you control and not at the bank. Often when someone passes away, the bank will freeze the box and then you can not get it out in order to probate it.

We need a family tree for the file so that we know the names, addresses and relationship of all of your heirs at law. Depending on the will, we may need all of that information when it comes time for probate.

Divorce Mediation

Yes! You can, whether you should is another matter. One reason for choosing mediation is that it can cost significantly less than the litigated process. Another is that it is often faster. Part of the reason for both is that one mediator is guiding the parties to a self-determined agreement. Although our office suggests that each party have an attorney review the agreement either at the end or during the process (a consulting attorney), having attorneys present during the mediation sessions may not be a productive use of time and money.

Maybe! If moving is not in your agreement and there are children under 18 you may need a court order. This is the type of question many clients think of only after the divorce is final and they have their judgment of divorce in hand. A good attorney or mediator will try to bring up as many issues as can be anticipated so that everything gets addressed within the divorce action or agreement, and you can get on with your life with as few regrets as possible!

No! you can file in your county or in the county where the attorney or mediator practices. Clients frequently ask about choice of venue. At this time in New York, we can file based on convenience CPLR Section 509. There is a bill in committee in the NY State Senate which could change that.

Yes! You can skip an appraisal. As with so many things in life, just because you can doesn’t mean you should. Many of our clients find appraisals really helpful for their mediation in that they can have a discussion with real facts, and they won’t have regrets later. The goal of mediation is to stay out of court and make your own decisions. The more facts you have, the more likely you will be happy with your decisions later.

No! You can file for divorce after you have reached an agreement. Many people want to mediate their divorce but are unsure of the process. In New York, divorces must go through the court system, but if you have already executed an agreement the divorce can proceed as uncontested. Your paperwork goes through the court, but you don’t have to see the inside of the courtroom!

Yes! Just as children grow and change so can your parenting plan. In NY the standard for modification by a court is a substantial change in circumstances, and the best interests of the child. Mediation or negotiation can result in a change without having to go to court, however the modification document would need to be court ordered to be official. This can come into play for instance when one parent moves and both parents want the child to remain at their school. There are many other reasons for wanting a change in the parenting plan.

No! Many clients ask about this because they may have established a career or business with their currant last name, or they may want to have the same last name as their children for convenience. You may have the right to switch-but you don’t have to exercise it!

Yes! This concept is called full disclosure. During the divorce process whether litigated, negotiated or mediated, parties normally exchange financial documents. This is known as full disclosure. Parties can choose to waive full disclosure however that can be a mistake.

Yes! This concept is called nesting. Often couples who are splitting up want their kids to maintain some stability for a period of time, especially for instance if a child has a year or two left of high school. The concept of nesting where each parent moves in and out of the home rather than the children shuffling back and forth can work!

No! Although NY will recognize a common law marriage from another state. Although New York does not have common law marriage, the state will give full faith and credit to one from a state or country where it is valid and so long as you meet jurisdictional requirements you can get divorced here.

No! In fact, NY it is harder to get an annulment. Believe it or not, in New York an annulment can require a third party witness making it more difficult than a no fault divorce.

No! New York has automatic restraining orders in divorce to prevent just that! The automatic restraining orders in divorce preventing litigants from making changes to their assets during a divorce. The Plaintiff is bound when they file the divorce action and the Defendant is bound once they’re served.

Yes! You can include a visitation schedule and who pays for food and vet visits in your agreement.

Yes! 50/50 custody does not relieve the higher paid parent from supporting their children. In New York we have a formula called the Child Support Standards Act and both parents must contribute toward the support of their children even with 50/50 custody.

No! you are not divorced until you have your judgment! After the divorce agreement is signed, there are still several documents that need to be drafted, executed and filed with the court. Only once your judgment of divorce is signed are you actually divorced.

Yes! New York has specific residency requirements in order to file a divorce.

No! The mediator is a neutral who does not represent either party. Instead the mediator helps the couple reach an agreement based on what they think is best. Even if the mediator is also an attorney, the mediator can provide legal information, but not legal advice.

Yes! Both spouses need to fully participate in a mediation in order to reach an agreement. The mediation process is one of self-determination where the two parties make the decisions that work for them. If one party does not want to participate it’s the “sound of one hand clapping”.

Yes! This concept is called a Post-Nuptial agreement. There are many reasons a couple may wish to have a formal written agreement regarding their marriage, and it doesn’t always lead to divorce.

The current advance directives are no longer valid with regard to your former spouse. You can choose to execute new advance directives after the divorce naming your former spouse if you want to.

In NY, the child support formula, otherwise known as the CSSA, states that the non residential parent must pay support to the residential parent for food, clothing and shelter. A rough estimate for one child is 17%, for two children 25% of the income, etc. There is also an amount known as “add-ons” where there is discretion. This is usually for things like, unreimbursed medical, extra-curricular activities etc.

Child support ends when the child or children are emancipated, usually turning 21, getting married, joining the armed forces or working full time and living away from the residential parent’s home.

Usually, however the non-custodial parent normally gets a dollar for dollar credit toward paying for college room and board

Small Business

Yes! If you have language regarding “Digital Assets” in your power of attorney. In New York we can include language to a power of attorney allowing your agent to take care of your social media accounts for you. This is especially relevant if you have business accounts. As examples, the agent can act if you are incapacitated or if you just want them to because you are away on a much needed vacation.

Possibly. There are different types of entities you can form for your business and each provides a different type of protection and tax treatment. Some of these are S Corporations, C, Corporations, B Corporations and Limited Liability Corporations. There are also several different types of partnerships that exist and of course there is always the ability to be a sole proprietor or d/b/a “doing business as”.

It is always a good idea to have a lease, license or membership that gives you the right to occupy space as well as the terms and conditions involved. Otherwise, you may find yourself being evicted!

That depends, there are several ways to determine the proper classification of a worker and you need to be sure that you are properly classifying them other wise you could face stiff fines and penalties.

You do not need an attorney however you would have to file in the commercial small claims court and if both sides have a lawyer the case may get transferred to District Court.

There are advantages to arbitrating a business dispute. Usually the process is faster, less expensive and the rules of evidence are different. Each side can still have an attorney if they choose.

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