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List of Things (property, assets) You May Keep When Filing Bankruptcy in New York State

Posted on September 19, 2013 by Susan K. Duke, Esq.

Below are lists of what you are entitled to keep following a bankruptcy filing. If you have assets which are not exempt, either because they are worth too much or do not fit with one of the available exemptions listed below, you may still be able to keep the property. You may be able to keep all or most of your assets through either a Chapter 13 filing or buy negotiating a "buy-back" of your property with the bankruptcy trustee. Consult with a local bankruptcy attorney for answers any specific questions you have about asset retention.

The first list shows the property you may keep if you choose to use New York State exemptions when filing bankruptcy. The second list shows available Federal exemptions. You must choose one list of exemptions or the other; you cannot combine or use both New York and Federal exemptions. Note that married debtors filing jointly may double exemptions listed below.

NEW YORK STATE EXEMPTIONS:

1. $10,000 in Personal Property

You may protect up to $10,000 worth of total value in personal property and household items. The assets which may be exempted under this part are stoves and heating equipment for use in your home and fuel for 120 days, sewing machine, religious texts, family photos and portraits, school books, books up to $500 in value, seat or pew used for religious worship, domestic animals up to $1,000 in value, food for you and your family for 120 days, clothing, furniture, refrigerator, radio, TV, computer, cell phone, kitchenwares, prescribed health aids, wedding ring, and watch/jewelry/art up to $1,000 in value. Note that these items are specific, and you cannot exempt items under this part in addition to the list, such as additional televisions, DVD players, washer and dryer, etc. Therefore, most debtors have several personal property items which are considered non-exempt. If you do not use the homestead exemption, and have claimed personal property exemptions under this part less than $10,000 in total, you may use the remaining amount, or up to $5,000, whichever is less, to protect additional cash or the right to receive income tax refunds. For instance, if you do not own a home, and your personal items are valued at $4,000, you may keep cash, funds in bank accounts, or income tax refunds, up to $5,000.

2. Primary Residence

A house, condominium, co-op, or mobile home used as a residence, may be retained up to the following values*, based on the county in which the property is located:

-$150,000 in Kings, Queens, New York, Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester and, Putnam counties

-$125,000 in Dutchess, Albany, Columbia, Orange, Saratoga, and Ulster counties

-$75,000 in all other remaining counties of the state

*Note that "value" means the amount of equity in your home. For instance, if you own a home worth $175,000, with a mortgage of $150,000, you may retain your home as it only has $25,000 equity.

3. $600 on Deposit with a Savings and Loan Association

This exemption does not apply to banks and other financial institutions which are not considered savings and loan associations.

4. Vehicle Up to $4,000 in Value

As with the home exemption, the $4,000 in "value" applies to amount of equity in your vehicle. If your vehicle is worth $15,000, and you owe $13,000 for the vehicle loan, your vehicle is exempt. A vehicle up to $10,000 in value may be retained if equipped for use by a disabled debtor. The motor vehicle exemption does not protect your vehicle from debt owed for domestic support obligations or to the State of New York.

5. Retirement Benefits

An IRA, 401(k), Keogh, or other qualified retirement plan; Social Security, unemployment, disability, public assistance, workers' compensation or veteran's benefits may be retained.

6. Tools Used for Work

Tools necessary for your profession up to $3,000 in value are exempt. Note that "tools" need not mean "tools" in the common sense, and could mean a computer, desk or other items necessary for your employment or business.

7. $1,000 of any personal property or cash (if you don't use the homestead exemption) is exempt.

Other exemptions exist under New York law; however, the above exemptions are more common and the exemptions not listed do not apply to most debtors.

Federal Bankruptcy Exemptions:

1. Home

The home must be the primary residence of the debtor, and up to $22,975 in equity may be retained.

2. Vehicle

A motor vehicle worth $3,675 or up to $3,675 equity is exempt.

3. Household Items (up to $12,250 in total value)

4. Any Other Property (worth up to $1,225 total)

5. Tools Used for Work

Tools of the trade up to $2,300 may be retained. Note that "tools" need not mean "tools" in the common sense, and could mean a computer, desk or other items necessary for your employment or business.

6. Life Insurance (cash value up to $12,250)

7. Jewelry (worth up to $1,550)

8. $11,500

Any assets worth up to $11,500 may be retained up to the amount of the homestead exemption not used. For instance, if you have a home with $10,000 equity, you may retain any additional assets you wish up to $11,500 in value. If you have no home, you may also use the $11,500 exemption. If your home has $20,000 in equity, you may only retain additional assets worth up to $2,975, the difference between the total homestead exemption available of $22,975 and the amount used ($20,000).

Top Reasons Divorce Lawyers Are Hated

Posted on September 13, 2013 by Susan K. Duke, Esq.

The process of divorce is difficult enough without involving attorneys who increase the acrimony. The common perception of the divorce attorney is of an insensitive, aggressive individual who fights like a bulldog no matter what the issue. While you should have a divorce attorney who will protect your rights and fight if necessary, having an attorney who is easy to hate may not be the best idea. If you cannot stand to be around your divorce lawyer, chances are your divorce will be equally uncomfortable. When children are involved, finding an attorney with the right skill and personality is of utmost importance. If either or both parties hire an attorney who fights every issue with aggression and bitterness, the feelings of anger and resentment between the parties will only be increased, making the raising of children civilly after the divorce a near impossibility. While an attorney must advocate their client's position and proceed with litigation if the client insists, the right lawyer will also counsel their client against pursuing an insignificant victory or a claim they cannot win. Often times, a person going through a divorce has so many emotional ties to the situation that they cannot see the value in conceding unimportant issues and putting aside any desire to "win". A good attorney will advise their client to try to settle their custody matter in a reasonable manner, even though it means the attorney earns less money from the case. Divorce attorneys are usually viewed as insensitive to their clients' concerns and particular needs. If your case involves a specific, important issue such as domestic violence, be sure to select an attorney who seems to understand and sympathize with your situation and who has the requisite experience to properly handle the case. You may find both attorneys and judges who treat domestic violence as unrelated to child custody concerns and unrelated to the parties having equal bargaining power through the divorce. Did you know that domestic violence is the only specific factor in child custody cases which family courts are required to consider in New York State? Sometimes that rule is overlooked. It is often difficult to get the court to understand how important it is protect children from being exposed to domestic violence; your attorney should at least understand. Time and money are next on the list of reasons to hate the divorce attorney. The divorce process can be slow and long. You must be prepared for this, and would be rightly frustrated if your attorney promised the matter would end quickly only to have it last over a year. How fast the matter moves depends upon the schedules of the court and attorneys, and how motivated the parties are to settle their case. If either side wants to drag the matter out, unfortunately it is easy for them to do so. In general, the faster the divorce, the lower your attorney's fee. However, in a contentious divorce, whether you have the best attorney or the cheapest one around, you can expect to pay a large bill. If you have an uncontested case, be sure to seek a flat fee so you know upfront how much you will pay for attorney's fees and costs. Most attorneys will offer a flat fee in cases where most or all of the issues are resolved. If you must litigate your case because an settlement cannot be reached with your spouse, do whatever you can on your part to reduce your attorney's fees. Some helpful hints to reduce the bill with your attorney:

  1. Watch the billings closely. Attorneys bill for their time; this is to be expected. However, does your attorney bill you each time you are left a message or each time they call opposing counsel and leave a message? This can run-up a large bill in a short amount of time as you play "phone tag" with your attorney or others on the case do. As long as you are returning your attorney's calls so that your attorney does not have to chase you for a response, you should not be billed for such quick calls. You may want to hire another attorney immediately to avoid unnecessary fees. Again, your attorney is billing for their time; this is how they get paid not unlike the mechanic who bills for time to put the part on your car. The bill should not include such trivial time matters such as calling you to remind you of an appointment, or leaving you a message asking you to return the call.
  2. Do not call your attorney or email them unless important. If you have a small issue which does not require immediate attention, make a note of it and ask it later as part of regular contact with your attorney or once you have several questions notated.
  3. If you have an issue which does not require legal advice, such as the date and place of your court appearance, ask your attorney's secretary for the information rather than asking to speak directly to the attorney.
  4. Concede any issues in your case which really are not that important in the long-run. Perhaps your spouse wants another day with the children, or they took some furniture you would rather keep. Are these issues really worth increasing negative feelings and pay hundreds if not thousands of dollars more in attorney's fees? Probably not.
  5. Avoid an attorney seeking a large retainer. Assume your divorce is going to cost at least the amount of your initial retainer. Does the fact that your attorney charges a $10,000 retainer when most in the area charge $2,000 mean that your attorney is the best? Probably not. They may be the most expensive, but that does not necessarily mean they are the best.
  6. Do a cost-benefit analysis before pursuing any issues. If your attorney tells you a trial will cost you at least $3,000, are the issues you are pursuing worth it? Do not chase assets or issues of small value just to have the "win" and feel good. After all, no matter what you receive in your divorce, the chances that you will feel happy about your divorce are slim. Let's face it; divorce is difficult and it is the not happy ending to a marriage you would like, and nothing about the divorce court process can change that.

Whatever choices you make as you go through the difficult process of divorce, try to choose an attorney who will fit your needs and goals. Is the attorney someone your friends or relatives recommended? With or without a recommendation, is the attorney someone you feel comfortable speaking to? While you may not end your divorce feeling love for your attorney, your choices in hiring an attorney and the choices you make while you go through a divorce may keep you from hateful feelings.

Divorce and Bankruptcy

Posted on April 26, 2013 by Susan K. Duke, Esq.

Sometimes, life kicks you while you are down. Often times, financial stress causes marital problems contributing to divorce. The financial woes which caused problems in the marriage often get worse during and after the divorce process.

Unfortunately, many couples are left with little more to share than debt when they go through a divorce. The cost of maintaining two separate households is obviously higher than maintaining one, making debt which was difficult to pay during the marriage impossible to pay after the divorce.

Also, in some cases the divorce actually causes a person to go in debt. Suddenly needing to support a household on one income may lead to use of credit cards to pay for basic expenses. Costs of divorce may be paid with credit cards, causing additional debt. If a person is fortunate, during the marriage enough assets have been accumulated to allow these debts to paid once those assets are distributed and child support and/or maintenance are being received.

However, in many situations debts continue to rise after the divorce as there simply is not enough money to cover expenses and the lifestyle enjoyed during the marriage. Eventually, these debts go unpaid or the person realizes that these debts will linger with only minimum payments being made.

In these situations, unfortunately divorce leads to bankruptcy. If a person is already facing financial difficulties while going through their divorce, bankruptcy should be discussed then with a competent attorney. It may be that better options are available, but if you must file bankruptcy, the divorce settlement can limit your options in bankruptcy if you are not careful. For instance, you often cannot discharge a responsibility to pay a joint debt with your ex-spouse. If your divorce agreement or decision says that you must pay part or all of a debt which is in the name of your ex-spouse or held jointly with your ex-spouse, while you may discharge your liability to the original creditor, you may still have to pay your ex-spouse for your share of the liability. Therefore, if you know you may need to file bankruptcy, it is important to negotiate terms in the divorce which allow you to leave the marriage debt-free.

If you are contemplating divorce or bankruptcy, consult with an experienced attorney prior to making any decisions. A little planning may make your life changes a little easier

The Divorce Trial

Posted on April 19, 2013 by Susan K. Duke, Esq.

Most divorce cases, even if they begin as contested matters, are settled prior to trial. Financial issues can usually be resolved once all relevant information is exchanged, appraisals completed, etc. While sometimes property distribution must be decided by trial, usually maintenance (alimony) and child custody are the unresolved issues necessitating trial.

If your divorce case is scheduled for trial, expect your attorney to spend several hours in preparation for your day in court. You must submit proof to support your case, which may include documents, witnesses, and recordings. Your proof is required to be submitted in proper form, in accordance with the rules of evidence, in order to be received by the court. This is one reason why doing a trial without attorney representation is very difficult. For instance, you may have a signed statement from someone supporting the facts of your case, but that signed statement cannot be received as evidence at trial in most circumstances.

Expert witnesses are sometimes retained to give testimony at trial. Typical expert witnesses include appraisers and doctors. If you have an expert witness testify on your behalf, you will need to pay that witness for their time at court. Expert witness fees can range from a few hundred to a few thousand dollars.

Evidence regarding property is generally limited to official documents, account statements, appraisals, and testimony of the parties. For example, both parties may wish to retain the marital residence, and will then testify as to why they should be allowed to keep the home, and their plan to refinance the mortgage and pay their spouse a share of the equity in the home. If the parties have not agreed on the value of the marital residence, generally an appraiser will testify , and one or both of the parties will present an original statement showing the mortgage balance remaining on the home. In most cases, all marital assets (those acquired during the marriage, with few exceptions) will be divided equally or nearly equally after trial. It usually does not matter in whose name an asset is titled, and all marital assets, whether titled individually or jointly, are subject to division by the court. The court may award certain assets to a party, and order that party to pay the other one-half the value of those assets, or the court may order that each party retain assets roughly equal in value.

If child custody is in dispute, usually the parties will have several lay witnesses testify regarding the parties' relevant fitness as parents. Teachers and pediatricians may also be called as witnesses. Sometimes, one or both of the parties pay a psychologist to evaluate the parties and children and give testimony about which parent may be more capable or mentally fit to be the custodial parent. See my prior posting regarding child custody in divorce actions for more information about custody disputes.

Often times maintenance (alimony) cannot be resolved short of a trial. This is because maintenance, after trial, is decided upon a number of factors, and therefore the parties and attorneys may be uncertain as to the amount that will be ordered after trial. While there is a statute giving a formula for determining maintenance on a temporary basis, that law does not apply to final determinations, and after trial the judge must decide the amount and length of maintenance to be paid based upon the facts and circumstances of the case. The judge will consider, along with other factors, the length of the marriage, the employment history of the parties, age of the parties, the standard of living enjoyed during the marriage, employment opportunities foregone for the benefit of the marriage, future employment prospects for the parties, and the current incomes of the parties. If a spouse is permanently disabled and a disparity in income between the parties exists, the non-disabled spouse may be ordered to pay maintenance for life. Otherwise, generally the maintenance obligation is set for a specific period of time designed to allow the receiving spouse to either reach retirement or obtain additional employment skills. In addition to financial documents, either party may present testimony of an accountant and/ or career expert to prove the need for maintenance, ability to pay maintenance, and the employment potential of the spouse seeking maintenance.

In addition to maintenance, if the parties have a disparity in income, the party earning more will often be ordered to contribute to the attorney's fees and expert fees of the other. However, if the court believes the property distribution, maintenance, and child support ordered is sufficient to place the parties in a similar financial position, the court may not award either party attorney's fees and costs.

Once all evidence is received by the judge, the judge will make the final decision as to property distribution, maintenance, child custody, and any other issues related to the marriage which may be at issue. The judge may make the decision quickly or may take several weeks to deliver their findings. The decision will delineate each party's rights and obligations as to property, custody, maintenance, and support. The court may order certain assets sold and/ or order one or both of the parties to make certain payments to the other. Whether the parties agree with the decision or not, the decision must be followed or the parties run the risk of being found in contempt of court.

As the trial process is quite complex, one should not attempt to represent themselves. If a party does represent themself, they will be expected to act as an attorney does, questioning witnesses properly and presenting evidence in proper form. Therefore, even if you have been representing yourself in the early stages of the proceedings, it is advisable to retain an attorney well prior to trial to allow your case to be properly prepared.

Child Custody In Divorce Cases

Posted on March 26, 2013 by Susan K. Duke, Esq.

A child custody case may be filed in Family Court, or it may be litigated as part of a divorce case in Supreme Court. What should you expect if custody is an issue in your divorce?

First, if you and your spouse cannot reach an agreement as to custody and visitation, the court is likely to appoint an Attorney for the Child (AFC). The AFC used to be known as the "Law Guardian" and many still use this title to refer to the attorney who will represent your child(ren). The AFC's only duty is to represent the desires and interests of their child client. Unless the AFC has good cause to believe the child is at risk of serious harm should the child's desires be followed, the AFC should advocate for the child's stated wishes. When the child is too young to communicate their desires or chooses not to take a position in the custody and visitation litigation, the AFC may advocate a position they believe is in the best interest's of the child or may choose not to take an active position on behalf of the child at all. While the AFC may often meet with both parents at some point in the case, the AFC has no duty to discuss the case with either parent and the only person the AFC must meet is their child client.

In most divorce cases, the parties will be expected to pay the AFC's fees in addition to their own attorney's fees. This is different than family court where the State of New York pays the AFC's fees. In most instances, the divorce court will award the AFC an initial retainer of $1,500-$2,000. The parties will share this expense pro rata, meaning that if you earn less than your spouse you will pay a smaller portion of this retainer. The AFC will bill the parties according to the AFC's usual hourly rate, and if the AFC's charges exceed the initial retainer, the parties will be responsible for the additional amount owed, also payable pro rata.

In many cases, especially when the children are older, custody matters can be resolved soon after the AFC has interviewed their clients. If the children take a strong position, and are of sufficient age to make an intelligent decision, the court will give great weight to the children's desires. Therefore, many times attorneys will speak to their clients after hearing from the AFC and recommend that they agree to a custodial arrangement which is close to the children's stated desires.

When the parties still cannot reach an agreement after involvement by the AFC, usually the matter is scheduled for trial. If there are other unresolved issues in the divorce (property distribution, support, etc.), most often these issues will be tried along with the custody matter. However, sometimes people cannot make decisions about all the other issues until custody is decided (i.e., parent only wants to keep the home if they are awarded custody), and therefore custody is tried prior to any of the other issues.

At trial, both parties present whatever proof they have regarding who is better suited to be the primary custodian of the children, or proof regarding what visitation is appropriate if custody is not in dispute. Usually, the proof comes in the form of witness testimony. Both parents will certainly testify, and usually other witnesses are called such as family members, friends, neighbors, or teachers. Sometimes, documentary evidence is presented such as report cards, medical reports, or written communications between the parties. Psychological experts may be hired to evaluate the parties and/ or the children, and may testify as to who is best suited to parent the children.

Once all proof is received from the parties, generally the judge hearing the case will meet with the children prior to rendering a decision. This meeting is usually referred to as an "In Camera" meeting. This means that parties' children will meet individually with the judge, and the only other persons who will be present at this "private" meeting will be the court reporter and the AFC (and on occasion the judge's clerk/ court attorney). While a transcript of the In Camera meeting is available in case of future appeal, neither parent is told exactly what was said during the meeting. However, with the children's permission, the judge or AFC may reveal some details to the parties, including what the children said they wanted in terms of custody and visitation.

After the trial and In Camera meeting, the judge will issue either a written or oral decision. Written decisions are more common, but the judge may sometimes tell the parties of the decision in court. Where the judge believes the decision is clear or where circumstances demand a quick end to the custody litigation, the judge may tell the parties of the decision immediately following the end of trial. In other cases, the parties may have to wait weeks or even months to receive the decision.

The court is required to base their decision upon the "best interests" of the child. Because "best interests" is a very general term which can be interpreted differently from judge to judge, the final decision is sometimes a surprise to the parties and very often involves terms which both parties believe are negative. A custody decision, because the judge has great leeway as to their determination, is very difficult to overturn on appeal.

As there is always risk to both parties in litigation, and rarely does either party get exactly what they want after trial, it is best to resolve custody disputes before trial whenever possible. Custody trials can also be very expensive and emotionally exhausting. Children are usually caught in the middle of the turmoil. Custody trials always increase animosity between the parents. Therefore, it is in everyone's best interests to make every attempt to reach a solution rather than have a custody trial.

If a trial is necessary, you need to be prepared not only with evidence for trial, but also emotionally and financially. As mentioned above, appeals of custody decisions are difficult, and you must be prepared for the fight now as you may not get another chance to achieve what you believe is best for your children.

Divorce from A to Z, Beginning to End- The Discovery Process

Posted by Susan Duke

The discovery process can be both the most useful and most frustrating part of the divorce process. Discovery allows you to receive any information relevant to the divorce action. In order to have the right to discovery, demands must be timely made. Usually, at your initial court date, the court will set deadlines for discovery. If these deadlines are not met, you may lose your right to make demands or, if you fail to timely respond, you may have certain issues decided against you.

Discovery demands may be served prior to the first court date. As the discovery process can be expensive, often it makes sense to wait to serve these demands until it is determined whether a voluntary exchange of necessary information can be obtained. Discovery demands are not always necessary; every party to a divorce is required to file a verified Statement of Net Worth setting forth all assets, debts, expenses, and income, and sometimes this document alone will provide information sufficient to prepare for settlement or trial. Also, some attorneys and parties are cooperative and will provide any additional needed information with a simple verbal or letter request.

If discovery is necessary, a number of devices can be utilized. The Demand for Discovery is quite common, this document allowing a party to ask for certain documents relevant to the divorce to be produced for copying and inspection. The demand must be specific enough to show which exact documents are requested and the relevance of those documents. For instance, a demand for "all banking statements" without reference to a time period may not be answered as bank statements prior to the marriage are probably irrelevant and the demand may be seen as overbroad.

A Demand for Disclosure may also be served. The Demand for Disclosure asks for answers and information. For instance, this demand may be used to ask what witnesses the other party intends to call, the location of property, etc. It is good practice to at least ask for the names of expert witnesses, their expected testimony and qualifications as you may need to hire your own expert to dispute the findings of the other party's expert. If you do not make the demand, you are unlikely to learn of the expert until it is too late to hire your own. Parties often hire experts to value property, and may hire experts relevant to custody issues, such as mental health professionals.

Additionally, a demand for an Examination Before Trial may be made. This can be the most expensive part of the discovery process and should be avoided if possible. This demand allows a party to take the deposition of the adversary party, and possibly witnesses, prior to trial. The deposition takes several hours, or even days, and in addition to paying your attorney for their time at the deposition, you must pay a court reporter to attend and prepare a transcript of the examination. At deposition, almost anything can be asked even if the question could be objected to at trial. This can allow a party wishing to abuse the process to spend hours asking irrelevant or unimportant questions.

A party may wish to consider utilizing Interrogatories if there are important questions to be asked prior to trial. Interrogatories allow relevant questions to be asked, and sworn answers must be provided to interrogatories properly made. While the time needed to draft or answer interrogatories can be significant, the time is usually less than that expended in deposition, and the cost of the reporter is avoided.

If discovery demands are not timely answered, a party (or their attorney) must remind the other party that their responses are overdue. A party may file motion seeking relief as a result of the failure to timely respond to demands, but must show that a good faith effort has been made to resolve discovery issues prior to filing motion. If motion is necessary, relief may be given by the court including giving an extension of time to answer the demands, awarding attorney's fees to the filing party, and precluding the violating party from disputing any issues related to the information not provided.

Many parties are frustrated by the discovery process as it sometimes leads to great expense without any reward. A party wishing to cause the other party aggravation and costs can legally serve voluminous discovery demands. Unless such demands are obviously frivolous, no harm will come to the party serving demands. Also, if a party fails to respond to reasonable demands in a timely fashion, it may take some time to gain compliance, and the court may only "punish" the other party for their non-compliance after the parties have spent hundreds, if not thousands, of dollars in attorney's fees related to discovery. The offending party is usually given many chances to comply which is especially frustrating to the party following the rules.

In my next post, I will discuss custody disputes as part of the divorce action.

Steps in Divorce Action- The Court Date

Posted by Susan Duke

You have your first court date scheduled in your divorce action. What can you expect on this date?

If neither party has filed motions seeking any immediate and temporary relief, then likely not much will happen on the first date, especially if there are no children of the marriage. Most counties have what is referred to a matrimonial screening, or some version of this process. Matrimonial screening is designed to move your case along towards settlement or trial. The matrimonial referee will meet with your attorneys, or the parties if they do not have attorneys, and review the case to see what issues are resolved, and what matters remain to be decided. Most often, when attorneys are involved, the referee will meet with the attorneys alone, then speak with the parties when necessary or appropriate. The referee will review the case file and make suggestions as to how the undecided issues may be settled. Both parties are required to submit a financial affidavit, called a Statement of Net Worth, to the court and each other at least 10 days prior to the court date. The referee reviews the Statements to determine what child support, maintenance (alimony), attorney's fees award, and property and debt distribution may be appropriate. The referee can enter temporary orders of child support, maintenance, and attorney's fees based upon the Statements of Net Worth, but most often a motion will be required in order to receive an award of temporary maintenance and/or attorney's fees. If it is clear where the children primarily reside, a temporary order of child support will be made, with or without motion.

At the first appearance, if child custody or visitation is in dispute, an attorney for your child(ren) should be appointed. Be aware that in most circumstances the parties must pay for this attorney's fees. Most courts will order the parties to pay a retainer to the attorney for the child within 30 days of your first court appearance. The amount of that retainer is usually between $1,500-$2,000. Generally each party will pay a portion of that retainer based upon their relative incomes. For instance, if you make $60,000 annually and your spouse makes $40,000 annually, you will pay 60% of the attorney for the child's initial retainer and future fees. The attorney for the children has a duty only to their clients (the children). Do not expect to have control over how the attorney for the children does their job, who the attorney meets with, or where, when, or how often they meet with the children just because you pay their fees. The attorney for the children is required to advocate their clients' stated desires unless they have evidence that doing so would place their clients at imminent risk of physical harm. Some attorneys for the children will do a lot of investigation to understand the situation, including interviewing teachers, doctors, third parties, etc., while others will only interview their clients. While most attorneys for the children will meet with both parents, some will not and you have no right to demand that they meet with you even if they have met with your spouse.

The matrimonial referee may ask you to sign a form consenting to the referee hearing and deciding all issues in your case. You may decline to sign this; however, if you do not sign, this does not necessarily mean someone else will hear your divorce case. Most often, this will mean that the matrimonial referee will still handle your divorce proceedings, but will have to report their recommendations to a judge who will make the ultimate decision. Therefore, you can expect the result to be the same whether you agree to the referee deciding your case or not as the judge will likely approve the recommendations of the referee as the referee will have a better understanding of the facts of your case. I do not recommend declining to sign the consent as you risk alienating the referee and receive no benefit.

You should be prepared for a possible award of attorney's fees. Courts are now required to award attorney's fees to be paid by the party who is considered the "moneyed" spouse. Most courts take this to mean that where there is more than a minor difference in incomes, they must award attorney's fees to the spouse whose earnings are lower. However, a court need not order the moneyed spouse to pay all of the other's fees. You may earn less than your spouse and have paid your attorney $2,500, but the court may only order the other party to contribute to part of your fees ($500, $1,000, or another amount). If you earn more than your spouse, be prepared for the possibility of needing to pay attorney's fees following your first court appearance.

At the conclusion of your first court date, you should have deadlines in place in order to keep your case moving. These deadlines may be for discovery (exchange of information related to divorce issues), appraisals of property, exchange of settlement proposals, or motions to be filed. Another court date should also be set (unless your case is settled at the first appearance).

It is possible to settle all issues at the first court appearance. If you reach a settlement, you may enter into a stipulation on the record. This means that your agreement will be verbally set forth in court and will be recorded, and the referee will ask you to confirm your understanding of the agreement and your understanding that this agreement will be permanent. Should you settle every issue and put the settlement on the record, you will not need to appear in court again.

Most cases are not resolved on the first appearance. In my next post, I will discuss the discovery process following the initial appearance.

Steps in Divorce Process and Divorce Procedure

Posted by Susan Duke

PART THREE

In my last article, I discussed what happens when the defendant fails to respond to the Summons with Notice or Summons and Complaint. We now turn to what happens with the defendant responds by filing a Notice of Appearance or Answer.

If the defendant files a Notice of Appearance in response to a Summons with Notice, the plaintiff has twenty days to serve the defendant (or the attorney for the defendant if defendant is represented) with a Complaint. The Complaint may be served by mail when the Summons with Notice has already been personally served. The defendant must then file an Answer to the Complaint within 20 days of service (more time is given to respond when the Complaint is served by mail).

Once the defendant serves the Answer, the next step depends on the nature of the divorce action. In many cases, the divorce may be resolved out-of-court with a settlement agreement. Therefore, in many situations a settlement agreement is drafted at this point or even earlier in the divorce proceedings. If a settlement agreement is signed by both parties, in most cases no one will need to physically appear in court.

If the parties cannot reach an agreement on all terms of the divorce (property and debt distribution, custody, child support, spousal maintenance/ alimony), then the matter should be scheduled for a court appearance. This is accomplished by filing of an RJI (Request For Judicial Intervention).

In my next article, I will discuss the next step- the court date.

Divorce Process, After the Summons Is Served

Posted by Susan Duke

Once the summons is served, what happens next? First, if the summons is personally served within the State of New York, the defendant has 20 days to respond. If the defendant is served outside the State of New York, the time to respond is 30 days.

The response comes in the form of a Notice of Appearance when only a Summons with Notice is served, or a Notice of Appearance and Answer if a Summons and Complaint are served. If you are the defendant, you will want to be sure you file the appropriate papers within 20 days of service by filing the document(s) with the county clerk's office and sending a copy to the plaintiff or their attorney if the plaintiff is represented. Failure to do so may cause you to lose any right to contest relief sought in the divorce. You could lose custody of your children, your property, be ordered to pay support, etc., if you do not respond.

What if you are the plaintiff, and the defendant fails to respond? You may apply for a default judgment of divorce. What this means is applying to the court to grant you the divorce and any relief you are seeking on the basis of defendant's default and failure to respond. Please note that the 20-day period is not a "drop-dead" deadline, and that the court regularly allows defendants to respond beyond the 20-day period.

Once you apply for a default judgment of divorce, the court may either grant you the judgment, or schedule the matter for a court appearance to give the defendant a chance to respond. The matter is often scheduled for a court appearance if you are seeking anything beyond the divorce itself (i.e., you want custody of the children, to keep the home, etc.).

In the next posting, I will discuss what happens when the divorce is not taken in default (when the defendant responds).

Steps In Divorce Process, From Beginning to End

Posted by Susan Duke

This is the first in a number of posts I will be making regarding the divorce process. Unless you have been through it before, the divorce process can be confusing. Many do not know what needs to happen when, or what will happen next in their divorce.

The commencement of a divorce is rather simple. Either a Summons with Notice or a Summons and Complaint is filed with the county clerk's office. Currently, a fee of $210.00 is charged for purchase of the index number necessary to commence the action and assign a number to your case.

Once the Summons with Notice is filed, it must be personally served upon the defendant. A party to the action may not serve the defendant. In other words, the plaintiff may not personally serve the defendant. However, if the defendant is cooperating in the divorce process, the defendant may sign an admission of service agreeing that the Summons has been received, and then the defendant need not be personally served. Either an Affidavit of Service form from the personal service or an Admission of Service form signed by the defendant will need to be filed with the county clerk's office.

The defendant has 20 days to serve what is called a "Notice of Appearance" after being personally served or admitting service of the Summons.

In the next post, I will discuss what happens after the Notice of Appearance is served or what happens if the defendant fails to file the Notice.

Considering Divorce or Separation

Posted by Susan Duke

For most individuals, the decision to leave their marriage is not an easy, quick decision. Instead, it is something carefully considered over a long period of time.

If you have been contemplating a divorce or separation, and have not done so already, see a marriage counselor. My clients often ask for referrals to marriage counselors, but as I unfortunately see people when their marriage has failed, I am not the best resource for a referral to a good counselor. The best source is your married friends. Although your friends may seem to have wonderful marriages from the outside, many marriages have faced adversity and couples have sought marital counseling as a result. Ask your married friends whether they have ever seen a marriage counselor, and who they would recommend.

If you are fearful your relationship is headed to divorce or separation, or your spouse is insistent they want a divorce or separation, then you should also consult with an experienced matrimonial attorney. Consulting with an attorney does not mean you have decided you want a divorce; it just allows you to be informed of what you are facing should you or your spouse make that decision. An experienced family law attorney can answer your questions as to what to expect regarding property and debt division, child custody, child and spousal support, whether you should move out of the marital residence, whether you can make your spouse leave if you wish, and expected fees related to the process. Many attorneys will allow you a free consultation so you know what you are facing if your marriage deteriorates.

An attorney cannot make a decision for you about whether or not to leave your marriage; that is a personal decision to be made by you and your spouse. Unless you or your children are in physical danger as a result of your marriage, an attorney should never tell you that you must leave your spouse.

For a list of suggested questions to ask yourself before deciding upon a divorce, see this helpful article.

Stupid Criminal News: Crime Does Not Pay, Especially If You're Not Very Bright

Posted by Susan Duke

Fleeing Suspects Get Lost, Accidentally Return To Crime Scene

www.huffingtonpost.com

Sometimes, you should just let things come to you.

Police in Florida arrested two alleged burglars on Sunday after the suspects got lost during their escape and unintentionally returned to the scene of the crime, according to the Manatee County Sheriff's Office.

Investigators were surveying the surroundings of a burglarized Bradenton home when Darien Caruso and James Hardy, both 19, found themselves exactly where they did not want to be.

"They were lost in the neighborhood and trying to find their way out," the report said, according to the Bradenton Herald.

Authorities promptly arrested the two teenagers, identified by the burglary victims' neighbor. A search of their vehicle revealed items belonging to the victims, the Miami Herald reports.

Caruso and Hardy are each charged with burglary.