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Articles on New York Divorce Law
Feb 2022NEW YORK DIVORCE UPDATES
Dec 2021Can I withdraw my Divorce?
Oct 2020What if my husband does not pay me my spousal support under a court order during a New York divorce case?
Jun 2020New York Divorce News
IS YOUR CHILD CUSTODY EVALUATION VALID IF CONDUCTED VIRTUALLY
August 28, 2022
If you are in a child custody battle and the parties were sent out to do a psychological evaluation during the pandemic you may have grounds to challenge that report. In order to determine whether an expert report can come into evidence the Court must weigh the reliability of that evidence before it can consider it. In my view, remote testing is not generally accepted by the scientific community as yet for purposes of arriving at an expert opinion as to custody so that it may be challanged. Historically there are two tests that Courts rely upon in doing so, those being Daubert and Fry, but New York follows the Frye test for the admissibility of expert witness testimony, opinions and reports.
The Frye test is the “general acceptance test,” providing that expert opinions grounded in a scientific theory or technique are admissible in evidence only if the theory or technique used is generally accepted as reliable by the scientific community in which they practice. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Parker v. Mobil Oil, N.Y.3d 434, 824 N.Y.S.2d 584 (2006); People v. Wesley, N.Y.2d 417, 611 N.Y.S.2d 97 (1994); People v. Brooks, N.Y.3d 939, 96 N.E.3d 206 (2018); Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63, 933 N.Y.S.2d 323 (2d Dept. 2011); Lugo v. New York City Health and Hospitals Corp., A.D.3d 42, 929 N.Y.S.2d 264 (2d Dept. 2011) State v. David D., 37 N.Y.S.3d 685 (N.Y. App. Div. 2016). In other words, the Court must consider the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); see also, Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006). The scientific principle "must be recognized" [widely] and "sufficiently established to have gained general acceptance in the particular field in which it belongs" . Wesley, at 422–424, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion' " . Id., at 439, 611 N.Y.S.2d 97, 633 N.E.2d 451(Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007).
Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 A.D.3d 42, 44, 812 N.Y.S.2d 535 (2d Dept.2006). General acceptance can be established through "texts and scholarly articles" , expert testimony and judicial opinions. People. v. Wernick, 215 A.D.2d 50, 52, 632 N.Y.S.2d 839 (2d Dept.1995), affirmed, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 (1996)..
Accordingly, to determine if said evidence is accepted, the court must, as gatekeeper, analyze whether the expert has used “accepted techniques” to arrive at his or her opinions. State v. Ralph P., 39 N.Y.S.3d 643 (N.Y. App. Div. 2016). Moreover, it is important for the Court to identify which scientific community’s opinion of acceptability is relevant in assessing the reliability and general acceptance of the methodologies used to arrive at an expert opinion. In the context of this case, the scientific community would be the American Psychological Association
In order for expert opinions or reports to be admitted into evidence there must be a judicial finding that said evidence was arrived at by the use of proper acceptable procedures condoned by that expert’s scientific community as being reliable through scientific findings, sufficient testing, treatises, published books or other such papers demonstrating acceptance of the scientific principle within the applicable scientific community. In order for a piece of expert evidence to be admissible, then, the “principle, procedures and tools of discovery used by the expert must have passed the mere experimental [nascent] stage and become demonstrable scientific knowledge generally accepted as valid within the relevant scientific community.” People v. Bullard-Daniel, 42 N.Y.S.3d 714 (N.Y. Ct. Cl. 2016). The court does not determine whether the expert’s findings are correct, but rather, the court determines whether “those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” State v Ralph P, 39 N.Y.S.3d 643.
Due to the pandemic, many psychological forensic evaluators have been made to rely largely upon remote interviews, remote testing and remote questionnaires, despite cautionary advise by their community to revert to standardized testing as soon as they are able.
In an article espousing the view of the psychological community on the validity of evaluations conducted remotely during covid, the American Psychological Association warned that practitioners cannot guarantee a valid equivalency between conducting an assessment remotely and conducting one in person, stating that…” Replications of studies are needed, and evidence needs to be amassed…” because these assessment methods have always relied on interpersonal procedures that require personal contact and interaction, such as standardized interactions between the forensic examiner and party, and clinical observation of the party in their office. See, American Psychological Association. (2020, May 1). Guidance on psychological tele-assessment during the COVID-19 crisis. https://www.apaservices.org/practice/reimbursement/health-codes/testing/tele-assessment-covid-19
As stated above, the consensus of the psychological scientific community is that there is a lack of sufficient scientific literature that would legitimize expert opinions derived from remote evaluations as reliable.
As such, it is my legal opinion that all such reports should be challenged as inadmissible.
Your New York Divorce Lawyer
Lisa Beth Older, Esq.
DOMSTIC VIOLENCE AND FAMILY COURT
July 4, 2022
As a New York divorce lawyer and Manhattan Family Law lawyer I run into domestic violence cases more than I would like.
This is an article about domestic violence in New York and how it impacts you and what your legal rights are to ensure protection against domestic violence in matrimonial and Family Court cases.
When you are seeking protection the first place to look is the law in New York. You start with New York CPL section 530. 11 and 530. 12. You may also look at the family court act section article 8.
The relief sought is based on penal law but usually does not end up in criminal court unless you file in criminal court or unless you violate an order of protection. Violating an order of protection is a serious offense and a Court can refer the case for prosecution.
There are certain people that can utilize an article 8 proceeding for protection or be subject to the rules of an article 8proceeding. If you are married, formally married, have a child in common, or you are not related by blood or marriage but have an intimate relation in the past, you can seek in order of protection.
Most people do not know this, but you can speak relief in both New York family court and criminal court. You can and should do this and both courts at the same time especially if the offense is serious.
If you allege a violation of an order of protection or if the offender commits a new offense there is a mandatory arrest of the perpetrator if it is a felony. If it is a misdemeanor, you can only escape arrest if the victim requests no arrest. In that case You can still pursue your petition and family court.
If the police officer ascertains that there was no family offense or that one or more of the parties committed one misdemeanor, then the police might not make an arrest, but they are required to give you a domestic incident report. You can then attach the domestic incident report to your petition and Family Court under article 8 of the family court at.
If the perpetrator of a crime continues to regularly violate the law, then you can ask the criminal court Judge to revoke bail if you can show clear and convincing evidence of this.
If the perpetrator of the crime against you has a weapon in plain view, then police are allowed to seize it and you should ask them to do so as this lessens the likelihood of further harm against your person.
Both civil and criminal Orders of Protection can have different provisions contained in them and so it is important to ask the Judge for these protections to ensure they are included in your Order of Protection,
The Court, for instance, can ask that the perpetrator stay away from you person, your residence, your place of work, or your child’s person, school or camp.
After a family Offense petition is filed you will generally get an Order of Protection immediately. Thereafter, the court will have you return, and you must prove that a Family Offense has occurred, as the perpetrator has the right to a Fact Finding to determine whether you are entitled to a Final Order of Protection. In this instance, you would call witnesses, put on evidence and testify.
Sometimes there are aggravating circumstances which you should tell the Court about, such as having an ongoing or immediate risk that the behavior of the perpetrator might make hurt you. If there are weapons involved or the perpetrator poses an immediate risk of danger the Court takes these cases more seriously and may even order an Order of Protection that is longer in duration.
You may also file in Supreme Court if you are going through a divorce action as the same rules are applied in a divorce in New York. There are also victim services available.
I hope this article helps you get the protection you need.
By: Lisa Beth Older, Esq.
Your Manhattan divorce lawyer
NEW YORK DIVORCE UPDATES
February 27, 2022
NEW YORK DIVORCE UPDATES
On March 1, 2020 the Child Support Standards Act raised the income cap upon which the calculation of child support is based from $148,000 to $154,000.00. as to spousal maintenance, dictated by the Maintenance Guidelines Act, the income cap upon which spousal maintenance is calculated was lifted to include income of up to $192,000. These increases reflected increases in the Consumer Price Index. The Law also changed as to tax deductions for alimony and spousal support (maintenance). The following is NOT legal advice as you must consult with a tax attorney or accountant to see what is necessary under the Tax Code. The below information is for informational purposes only. Under the IRS Code Section 215(a) alimony used to be tax deductible to the payor and taxable to the payee. Now, all divorce decrees entered after December of 2018 have no tax implications for either party. This law does not alter the tax consequences for divorces entered prior to December 2018 so if you already have a divorce decree making alimony or spousal support tax deductible you can still claim the deduction. However, there are caveats to this rule. First, a written instrument must be had such as a judgment or separation agreement that spells this out. Second, payment must be for your spouse, and not for any one else including a child. Third, the agreement can not provide that the recipient does not have to pay tax on the amount of maintenance received. Fourth the parties can not reside together. Other restrictions on pre 2018 divorce decrees that allow for the old tax rules to apply to older divorces include such things as the payment must be in cash, and the return must include the social security number of the recipient ex-spouse, and other such requirements as are listed under the relevant tax code. Another thing to be concerned with is that if the pre-2018 agreement says alimony or spousal support payments do not cease after the death of the ex-spouse, the payor can not claim the tax deduction and might even have to pay back the amount of the tax benefit received. Again, consult with a tax attorney but be sure your divorce attorney knows these distinctions as he or she is the one who will do the drafting.
There have been changes in the way the Courts treat long term marriages. In a 2016 case, the Second Department held that the net proceeds of the sale of the marital residence had to be distributed equally because there, the marriage was 17 years old and the lengthy marriage showed a true partnership between the parties. Scaramucci v. Scaramucci, 140 A.D.3d 848 (2d Dep’t 2016) Yet, in another 2018 case, the case of Sogloff to Cravo v. Diegel, 163 A.D.3d 920, 83 N.Y.S.3d 91 (2d Dep't 2018) the Court held that in a 24 year marriage, a long marriage, the Husband was only entitled to 45% of the marital assets taking into consideration that the Husband’s contributions to the marital wealth was diminimus. The takeaway here is that although the courts are leaning toward an equal distribution of marital assets in long term marriages, the courts still adhere to the principals of “equitable distribution” and may consider all other factors in the statute when dividing marital assets between the parties. For instance, some of the factors a court will consider in dividing up assets is the parties’ contribution to the care of the children and of other household responsibilities. Mack v Mack, 169 AD3d 1214, 94 N.Y.S.3d 683 (3d Dep’t 2019)To conclude, while we are seeing a trend toward equal distribution of assets in long term marriages,there are several exceptions that are still made where the court deems it necessary.
By: Lisa Beth Older
Your New York Divorce Lawyer
CNBC interviews Lisa Beth Older -- Arguing with your partner over Covid?
February 8, 2022
Arguing with your partner over Covid? You’re not alone, with the pandemic straining many relationships.
The Covid-19 pandemic has taken an immense emotional toll on humankind, with people around the world dealing with the tragic loss of loved ones and heightened everyday pressures that have come from living, working and schooling from home.
While many families have enjoyed spending more time together during the pandemic, there are some relationships that have failed to thrive during a period of unprecedented upheavals and uncertainties.
From arguments over Covid rules and restrictions to disagreements over whether children should be vaccinated — and even disputes between families and friends over the very existence of the virus — have seen relationships pushed to breaking point during the pandemic, according to family law experts and psychologists.
“Marital conflicts have definitely been on the rise since the pandemic. I have noticed a rise in the number of clients seeking a divorce. I get three to four inquiries a day for my services, whereas prior to Covid the inquiries were much less,” New York City divorce lawyer Lisa Beth Older told CNBC.
She attributed the increase in divorce inquiries to couples having to work from home and spend more time together, with underlying conflicts and marital issues then harder to overlook.
However, Older, who has been practicing matrimonial law in New York for over 30 years, also noted that many of the disagreements she has seen lately have been specifically about Covid, with children a particular flashpoint.
Do I have to pay my spouse 50% of my Business?
January 8, 2022
Do I have to pay my spouse 50% of my business?
This article has to do with updates as to New York Divorce Law and equitable Distribution of business interests.
I will try to point out trends that I see in the case law in the various judicial districts and hope that it will provide guidance as to your expectations when you are in litigation over business interests in a divorce action.
In 2021, in the Second department case of Davenport v. Davenport, 2021 WL 1112911 (2d Dep’t 2021) the Wife was only awarded 10% because of the short duration of the marriage, and because her contributions toward the business was very small.
Compare this to the First Department case of DeNiro v. DeNiro, 2020 WL 3848156 (1st Dep’t 2020) where the Wife got nothing because the court concluded the husband’s business was a gift. In that case there were extenuating circumstances involving the proofs posited at trial. So if you are in the First Department you should be aware of this recent decision.
Can I withdraw my Divorce?
December 8, 2021
Can I withdraw a divorce case?
This article is about parties who have filed for divorce but have changed their mind and now want to know whether they can withdraw their case in Supreme Court. The answer is it depends. Whenever you make an application to court it is considered a very formal application. You cannot just ignore the fact that you filed something in New York Supreme Court. So, if you wish to discontinue who are action for divorce it depends on what stage of the proceedings you are in. Obviously, it is easier to stop a divorced before it has been litigated. If a Judge has been assigned it can become more complicated. For instance, if one of the parties has filed a divorce case by way of Summons with Notice, and have not served it, app they do not require the permission of the other party to withdraw the case so long as they did not file a Verified Complaint, and so long as 20 days have not elapsed. In that regard, act of your lawyer in that circumstance would simply file a Notice of discontinuance. The law in support of this this can be found in the NY CPLR at section 3217. And
However, if you have filed a Summons with Notice for action for divorce in New York Supreme Court and you have served the other party, and more than 20 days has passed then it will require the signature of both parties to discontinue the action. A Stipulation is also required if you filed a Verified Complaint and y would our spouse responds with a verified Answer or Motion. If that occurs the case will move forward. The
So, you might ask, what if your spouse will not sign the stipulation for discontinuance of the divorce action. When this occurs, it will require your Attorney to file a motion in the Court for permission to withdraw the divorce. When this occurs, your lawyer must give reasons and a basis for your request for withdrawal of your case. Then, it is entirely up to the court to decide whether the case will be withdrawn.
You might also ask what will happen in circumstances where both parties want a divorce but have settled their issues and do not want to litigate the divorce. In other words, you filed a verified complaint, your spouse answered the verified complaint, but now you have reached a settlement and you wish to close the case. Be advised that you cannot just close the case. In this situation the best course of action is to draft a stipulation of settlement and file an uncontested divorce. In the uncontested divorce paperwork, you will have the opportunity to withdraw your verified answer and proceed on the verified complaint for to a judgment of divorce. In this regard, your divorce ends with a formal divorce judgment. But the clerk of the Court will not allow you to get a judgment of divorce if the spouse who was served does not execute a formal notarized defendant’s affidavit stating that they have either decided not to answer the complaint or have elected to withdraw. At their verified answer.
If you have filed a verified complaint that needs to be amended because you made an error, you also need to file a motion to amend your verified complaint.
The court will be more likely to grant you a withdrawal of your divorce action if the case has not been fully litigated if you provide good basis for your position.
Hope this has been helpful to you.
By: Your Manhattan Divorce Lawyer
Lisa Beth Older apt
Covid-19 and Child Custody in New York
November 7, 2021
COVID-19 has made the court system look at divorce, child custody and parenting plans in New York differently. In a recent case in the New York Supreme Court the Honorable Matthew Cooper, known for his groundbreaking decisions of law, the Court held that visitation can be suspended if a parent refuses to wear a mask and test or is unvaccinated. In that case while it was fact specific, the Court felt that the issue of vaccination was so relevant to a custody case that he suspended visitation when a parent refused to do so. The Court held that in order to reinstate visitation it was an imperative that the father get vaccinated or else show a negative result on the Covid 19 test prior to visits. In that case, the Court felt that it would be in the best interest of the child to be sure that the father was vaccinated. To be sure, other courts will see and decide this issue differently. The test is what is in the best interests of the child. The problem is that there are competing interests involved. First, you have to consider protecting the child’s health. Second, you have to consider that both parents should be able to have access to this.
First, you have to consider protecting the child’s health. Second, you must consider that both parents should be able to have liberal access to their children.
Other local courts have handled this matter differently. For instance, some courts allow for visitation with the proviso that both parents take the necessary precautions to keep their children safe.
Other Courts have restricted visitation when it comes to travel on a plane, or during holidays. This is because small children cannot be vaccinated as yet and becasue the Covid 19 Delta Variant has proven to put children at a higher risk of harm then the prior variant. It is also even more compelling a reason to restrict visitation when one parent or the other refuses to acknowledge that there is an actual pandemic at hand or refuses to wear a mask or require their child to wear a mask in public places.
Another interesting issue to take a look at is which parent will decide whether or not the child will be vaccinated once the vaccination is offered to a child. That would seem to go to decision-making which will require a Court to Judge which parent could best make that medical decision for the child.
Expect a multitude of legal challenges to these sorts of rulings. Liberty rights and the right to choose what you put into your body come in to play. But when it comes to custody, your child comes first and each individual party will have to make the right decision to keep their child safe or face consequences in court.
By: Lisa Beth Older, Esq.
Your Manhattan Divorce Lawyer
Equitable Distribution case discussion
August 25, 2021
Property division in a New York divorce can be one of the most contentious issues in any divorce action but may be of particular concern for couples going through a divorce after a long-term marriage. While custody or childrearing issues may no longer be on the table, the equitable distribution aspect of the dissolution of marriage later in life can be especially complicated. When it comes to a long-term partnership, there is a much higher likelihood that the divorcing parties have amassed a significant amount of marital property that will need to be distributed by the Court. Further, the length of a marriage can have serious implications on how the Court deals with making the awards, regardless of which spouse had a greater hand in earning or accumulating the marital property. The Law Office of Lisa Beth Older is knowledgeable about and sensitive to these specific issues and can help you navigate them with care and skill.
If you find yourself facing a later-in-life divorce, first, it is helpful to know that in New York, most property acquired by either spouse during a marriage is considered marital property and is thus subject to equitable distribution by the Court. This includes income earned during the marriage, real or personal property purchased during the marriage, such as a home or a car, retirement benefits earned by either party during the marriage, and any appreciation in value of marital property that occurred while the couple was married. Furthermore, in the case of a later-in-life divorce, issues of splitting up retirement accounts or Social Security benefits can be of immediate and paramount importance.
An important concept to keep in mind when considering equitable distribution of marital property during a divorce is the fact that “equitable” distribution does not necessarily mean “equal” distribution. Equitable simply means fair in the eyes of the Court. However, an equal distribution is often still on the table when a long-term marriage ends, even in situations where there was a large discrepancy in earnings during the marriage.
There are many factors that the Court will use to determine what constitutes a fair division of the marital assets, and in the event of the dissolution of a long-term marriage, the duration of the marriage is key among these – New York Courts have held that in the circumstances of a long-term marriage, “While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible” [emphasis added] (Kamm v. Kamm, 182 A.D.3d 590, 591).
Thus, even in situations where one spouse has consistently earned considerably more, the Court may order an equal split of the marital assets based on the length of the marriage among other factors. In a recent, July 2021 decision, the Supreme Court Appellate Division, Second Department affirmed a 2017 Nassau County Supreme Court judgment of divorce in which the parties’ marital property was divided evenly after a 47-year-long marriage, even where the Husband testified that the parties’ financial partnership had ended years prior – In 1989, the Husband unilaterally divided the parties’ bank accounts and in 2001, the Wife began electing a maximum retirement benefit from the New York State teacher’s retirement system without the Husband’s knowledge. (See: Parkoff v. Parkoff, 195 A.D.3d 936 (2021)
In that case, the parties had amassed in excess of $6 million in marital assets up to the date of filing, primarily earned by the Husband in his capacity as an attorney. The Wife, a schoolteacher, consistently worked throughout the marriage, but earned a much less substantial income. Regardless of the earnings disparity, the Court considered numerous factors in coming to this determination, including the fact that the Wife was the primary caretaker for the parties’ child, holding, that “considering the relevant factors, as well as the circumstances of this case, contrary to the plaintiff's contention, there is no basis for an unequal distribution of marital assets.”
There, the Court noted that the Wife had made alternative contributions to the marriage such as primarily caring for the parties’ child, cooking, and doing housework, and residing with and traveling with the Husband until the dissolution. These factors weighed against the Husband claiming that the economic partnership had been severed long ago. However, even living separately and maintaining separate residences, properties, or bank accounts certainly does not preclude the Court from dividing a marital estate equally in the event of a long-term marriage.
In a 2020 decision, the Supreme Court, Appellate Division, Second Department held that the Suffolk County trial court had improvidently exercised its discretion in directing a 51/49 division of the marital assets after a 33-year-long marriage, even where the parties each maintained their own assets and income separately and lived apart – in fact, in two separate countries – for a substantial portion of the marriage. (See: Achuthan v. Achuthan, 179 A.D.3d 751, 757 (2020).
There, although the Plaintiff/ Husband’s accumulated assets were valued at approximately $2.5 million to the Defendant/ Wife’s approximately $1.2 million, the Appellate Division still determined that in light of the relevant factors – including the length of the marriage – the Defendant/ Wife was still entitled to an equal split. This is because generally, in the event of a long-term marriage, the Court will only deviate from an equal split of the assets for cause – including when one party has engaged in economic fault. If no cause can be shown, the Court may order an equal split where both spouses can be said to have contributed to the marriage.
This general rule provides a safeguard for lower-earning spouses who may fear that a divorce could leave them financially unable to care for themselves in their later years. Equitable distribution of assets can protect a spouse who didn’t work outside the home or earned substantially less than the other spouse while doing so. Similarly, it has the potential to negatively affect the higher earning spouse in situations where the other spouse did NOT contribute to the marriage, financially or otherwise. These types of inquiries are complex and highly fact-specific.
With over 29 years of legal experience, including later-in-life divorces and complicated splits of financial assets, The Law Office of Lisa Beth Older can help you to better evaluate your likely outcome in the event of the dissolution of your long term marriage.
By: Your Manhattan Divorce Lawyer
Lisa Beth Older
How do I divide our retirement account during a divorce
May 10, 2021
What will happen to my retirement in the event of the dissolution of my marriage?
For a smart financial planner, in a New York divorce action, a retirement account, pension, or 401k can provide a sense of financial security and stability as you approach older age. But a divorce, on the other hand, is not usually something you have planned for – and, if it occurs, the equitable distribution of marital assets could complicate or even de-rail your long-standing plans for the future.
Is my ex-spouse really entitled to part of MY retirement accounts?
Generally, in New York State, all assets accumulated during a marriage are considered “marital property” and are therefore subject to equitable distribution in the event of a divorce. These assets usually include real estate, bank accounts, and personal property, but can often also include equitable distribution of retirement accounts or pensions accrued by one or both parties.
In a divorce, the share that a dependent spouse takes of retirement savings is dependent on his contributions – tangible or intangible – to the acquisition of the assets. This could include such contributions as providing childcare for the parties’ children and/or and caring for and maintaining the home so that the other spouse may freely work outside of the home. These actions by a dependent spouse establish entitlement to a portion of the funds.
In situations where both spouses have retirement assets, especially where the amounts therein are similar, the parties may simply waive each other’s interests in their respective assets. Even in cases like these where an agreement is come to between the parties, a QDRO (Qualified Domestic Relations Order) is required in order to divide the assets without negative tax consequences that would come from liquidating the accounts. A QDRO also outlines guidance for what will be done with any appreciation or depreciation of the funds in the time before it is implemented.
The results in any given situation may vary based on your individual circumstances, but there are several general rules used in New York State when it comes to dividing retirement assets in a divorce.
If you had a pre-existing retirement account or 401k before entering into the marriage, the balance of the account at the time of the marriage remains your separate property and will not be subject to equitable distribution. A dependent spouse may not claim an interest in the fund’s premarital assets.
Questions may arise surrounding a pre-marital retirement account when it comes to appreciation in value of the pre-marital funds that occurred during the marriage. In cases where a premarital contribution has appreciated significantly during the marriage, it is sometimes necessary to engage an expert to calculate the entitlement of the dependent spouse to a portion of the appreciation.
A defined contribution retirement plan is a retirement account that allows an employee to save a portion of their earnings in a way that has tax advantages. Types of defined contribution plans include 401Ks, 403Bs, IRAs, 457s or TSPs. A defined contribution plan’s value is easily ascertained by the account balance and can be divided however the Court sees fit.
In dividing a defined contribution retirement account, the value of the account is generally divided into pre-marital and marital portions. The pre-marital portion will not be subject to equitable distribution, but the marital portion is. Typically, a defined contribution retirement plan is often divided along the same lines as other accounts and assets during equitable distribution.
It should be noted that “equitable distribution” does not mean equal distribution – rather, equitable means fair and taking into account the contributions of both parties. Thus, a spouse who stayed home and performed certain domestic tasks to allow the other to accrue the funds in the 401K is likely entitled to a portion despite not actually physically earning the money therein. Similarly, though, a spouse who did not contribute in any way to the account holder’s ability to accrue the 401k is not likely to receive 50% just by virtue of the funds being marital.
Dividing a pension is a bit more complicated than dividing a defined contribution plan, as it is more difficult to ascertain its value – the value of the pension is not equal to the amount of money in the account. A pension is a regular payment made during retirement from an investment fund to which a plan participant or their employer has contributed during their years of service. A pension, however, is not always
A pension earned during a marriage in New York State is considered marital property. The most commonly used equitable distribution formula for a public pension is the Majauskas formula, which provides an ex-spouse with one-half of that part of a pension plan participant’s pension earned during the marriage. For example, if the plan participant accrued ten years of service during the marriage, but retires with twenty total years of service, the ex-spouse’s share would be 25% of the pension.
It should be noted that the Majauskas formula, though the most common, is not required to be used, and the Court may determine a different computation in unusual or extraordinary circumstances.
It should be noted that money withdrawn from a retirement account is viewed by the Court as income, potentially affecting the maintenance calculation – thus, if one’s retirement assets alone would allow him to continue living a comparable lifestyle to that enjoyed during the marriage on their own, his spousal maintenance award may be reduced or considered unnecessary by the Court.
If you are concerned about your retirement plans, consider entering into a pre-nuptial agreement prior to the marriage. A pre-nuptial agreement can spell out exactly what will occur with your retirement assets in the event of dissolution, avoiding potential complications that can arise in equitable distribution of the accounts later.
Your New York Divorce Lawyer Lisa Beth Older
 50% × years of service credit accrued during marriage (numerator)÷ total service credit at time of retirement (denominator)
How does COVID-19 impact deadlines to serve and respond to New York divorce papers
November 3, 2020
How does COVID-19 impact deadlines to serve and respond to New York divorce papers
On March 7, 2020 the Governor of the State of New York issued a state disaster emergency Order which basically suspended the rules of civil procedure to the extent of tolling certain deadlines. However, on October 5, 2020 the governor stated that as of November 4, 2020 all suspension of civil procedure deadlines would be lifted, and that compliance would be necessary. That means, if you were served with a divorce action, subpoena or divorce motion, or if you must serve a divorce action, now is the time to attend to it. For more information contact us at www.nycdivorcelawyer.net.
You might ask, how does Covid 19 and the subsequent emergency Governor’s orders affect your divorce case?
It is important to follow the New York State website www.nygov.com in order to learn more about how the state is dealing with divorce cases in New York. Because the situation of Covid 19 is very fluid, the rule of law changes almost on a weekly basis depending on the status of the pandemic.
For instance, if you were served with a Summons with Notice for an action for Divorce, or if you were served with a summons and verified complaint on April 1, 2020, then normally (pre-Covid 19) you would have had to file a Notice of Appearance or Verified Answer within twenty days.
However, the Governor, recognizing the impediments and challenges that people faced during COVID-19, extended the times in which client had to file and serve legal documents. The statute of limitations was also tolled for other kinds of civil actions. Similarly, if you filed a summons with notice normally you would have 120 days to serve the summons with notice for divorce but because of the Governors order that time was extended and the Plaintiff had more time to serve it onto the other party. In fact, the time was extended indefinitely. That said, on October 5, 2020 the governor stated that the suspension would be lifted on November 3, 2020. That means that if you were served with anything, including a subpoena or a motion, now is the time to attend to it. You cannot delay responses to noticed pleadings or motions beyond November 3, 2020 and you should consult with an attorney to ascertain the actual deadlines for the filing or service of any divorce documents you might have concerns about as they are in a better position to ascertain the particular deadlines attributable to your case.
However, with winter coming, and with predictions of higher numbers of COVID-19 cases, the governor could issue new rules spending time deadlines for the filing of litigation in your divorce case so it is important that you check the New York government website to see and stay up-to-date on the governors executive orders.
Because the court system was on hold for an exceptionally long time, the courts are working hard to catch up. However, do not expect a trial date anytime soon. The courts are still struggling with handling backlog. If you have a deadline and you have missed that deadline be sure to contact the court or the other attorney and let them know that you need more time to answer. In A NY divorce case, dates are important so do not ignore any legal paper that you are served with that requires you to respond by a date certain.
To conclude, client compliance with court orders has been made very difficult during COVID-19 and the Governor of the State of New York has taken note of this in several of his executive orders. That is why it is important to stay abreast of the latest executive orders as said Orders may again in the future impact your New York divorce case. There is no doubt that the winter will bring record cases of Covid-19 and unemployment rates will likely soar. It was the high unemployment rates that caused such great financial difficulties that it interrupted the flow of cases now pending in Supreme Court as it prohibited many clients from complying with such court orders that may require them to pay for such things as forensic psychological experts, forensic expert accountant and real estate appraisers. More urgently, the pandemic had a terrible effect on child support cases and child custody cases. However, you can expect that pursuant to the Governor’s latest executive Order, that after November 3, 2020 the courts will likely start requiring clients to comply more stringently with that expected of them under the New York Rules of Civil Procedure, at least as to extending time for clients to adhere to filing and service deadlines.
Lisa Beth Older
Your Manhattan Divorce Lawyer