What is a Separation Agreement?

This is one of the most commonly asked questions from both Mediation and Divorce clients.  It is also one of the most misunderstood areas of the law.  Here is some basic information:

• A Separation Agreement is a Contract between two married people ("spouses" is the term I will use, since a marriage can be between same sex couples in the State of New York).
• A Separation Agreement is NOT granted by the Court.  You can stop looking on the court website for the application because there is none.  
• Like any contract, there must be a meeting of the minds, and both parties must voluntarily agree to all the terms contained therein.
• There is an additional requirement under New York State law (Christian v. Christian, et. al.), that the terms of the Separation Agreement be fair to both spouses.  In other words, in a commercial setting, if your lawyer knows the law and the other lawyer is an idiot, great, you can get over on the other party.  Not so in NYS Separation Agreements, the contract must be inherently fair.  
• The basic terms that would be covered in a divorce trial must be addressed in the Separation Agreement, these include:  living separate and apart, who is responsible for paying what bills, custody, child support and child support add ons, visitation, health insurance, maintenance, equitable distribution of marital property and liabilities, tax exemptions and tax filings, etc.
• To comply with NYS law, you will need to have the Separation Agreement prepared by an attorney or a very experienced non-attorney Mediator.  If improperly prepared, the Agreement may be rendered invalid.
• If it is your intention that the Separation Agreement be incorporated but not merged into an uncontested Judgment of Divorce, make sure it is prepared by an attorney who knows what they are doing.  
• The spouses must both agree and execute the entire Separation Agreement, with the signatures properly acknowledged in the form that would entitle a deed to be recorded.
• A Separation Agreement becomes legal and binding when executed.
• The Separation Agreement may filed with the County Clerk's Office in the county where one spouse resides.  There is a filing fee of $5.00.
• The effective date of the Separation Agreement -- the day you are legall separated -- is the date of execution.  That is the date that both parties, or the second party if signing in counterpart, signs before a notary public.   
• Conversion Divorce:  living separate and apart pursuant to a Separation Agreement is a ground for Divorce.  Therefore, one year after signing and notarizing the Agreement, you or your spouse may file for a divorce based on your Separation Agreement. This is called a “conversion” divorce (Domestic Relations Law§170[6]).   Note:  this used to be a very popular ground for divorce but since NYS enacted DRL Section 170(7), Irretrievable Breakdown of the marriage for a period in excess of 6 months (commonly known as Irreconcilable Differences), there has been less of a need for Section 170(6) as grounds for divorce.  
• The $5.00 fee paid to file the Agreement will be credited to the divorce filing fees if you file in the same county where your Agreement was filed. You must file the Agreement at the time you file for the divorce, if you have not already done so. 
• The main difference between being Separated pursuant to a separation agreement and Divorced pursuant to a Judgment of Divorce is that one is a contract and the other is a court order.  If a spouse doesn't comply with a term in the separation agreement, the remedy is a suit for breach of contract.  If a party violates the terms of a judgment of divorce, the other party has a panoply of remedies, potentially including contempt, if the violation was willful and other criteria are met.  
•  Juliana LoBiondo has been a Mediator for 25 years and a New York State duly licensed attorney for 23 years.  For more information visit www.LoBiondoLaw.com.  To set up a free mediation information session, call (845) 569-7600.  
• Photo credit:  eonlinenews.com

JUST SAY “NO” - THE DIVORCE COURT AND FAMILY COURT SYSTEM IS BROKEN

I have been a Family Court Attorney for 24 years, a Divorce Attorney for 21 years, and a Mediator for 25 years.  My average fee on a successful Mediation, resulting in a written, binding Separation Agreement is $1,200.00.  The highest fee I have seen in a divorce case was over $100,000.00, charged by a divorce attorney in a firm I worked for many years ago in another county.  In the end, the client ended up not getting the custodial arrangement he wanted, kidnapped the children, was arrested in California after their photos were seen on a milk carton, charged with multiple felonies, and did State prison time.  And the attorney, in that firm ended up reaping over $100,000.00 in legal fees, after he sued the mother for legal fees.  Yes, that’s right the mother, who had her children kidnapped from her and spent all her money on private investigators trying to locate the children.  The attorney even tried to attach the mother’s pension (he wasn’t successful).  After all she had gone through, there was not even one drop of human kindness in that attorney, who was my co-worker, and cared only about getting his legal fees.  Let’s all say it together, I’ll go first:  “EWWWWWW!”

            I do everything I can to encourage parties who are properly positioned for mediation to engage in the mediation process.  As I have written in previous Blogs, one of our top matrimonial Judges in New York State, Appellate Division Justice David B. Saxe, wrote an article for the New York Law Journal in 2011 entitled, "Encourage Divorce Clients to Mediate."   As Justice Saxe noted in his article, mediation clients have more control over their process, and ultimately it is the parties who craft the resolution in the end, not a judge who presides over them.  Moreover, Justice Saxe pointed out that mediation clients tend to be more satisfied with their results than litigation clients.  As Justice Saxe wrote, "if matrimonial lawyers focus on the larger picture, they might recognize that they stand to gain more in the long run from the good will and recommendations of satisfied clients than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce."

I let mediation clients have complete control over the process, with me guiding them to a resolution.  Sometimes I take a bath on the fees, giving them additional time without charge, for instance, because I really want them to get to a resolution.  I do not take an advance retainer, as I do with divorce cases.  Mediation clients pay per session.  If they don’t want to schedule another session right away, that is their choice.  When the parties see that they are close to a resolution, they will often go into what I call super-collaboration mode, working together to resolve the matters because they know they will minimize their fees.  Unfortunately, there is no such incentive in litigation (court-initiated) matters.

Not everyone is a mediation candidate.  An obvious example would be where there is domestic violence in the household.  Or where one party has stolen money.  Those parties are not on a level playing field, which is the main requirement for mediation.  But even where we start out with litigation, there is almost always the possibility of settling before a full blown trial is necessary.

For those who are in the Family Court or in Supreme Court for divorce matters, there is no governing organization trying to help you through, no incentive to finish the matter quickly and inexpensively.  The average divorce attorney locally takes a $5,000.00 to $10,000.00 advance retainer, and bills against that retainer, which evaporates quickly when there are motions, discovery, depositions, and court appearances.  There are many cases in the Hudson Valley with 6-figure legal fees, and some are still going on.

It’s time to end the suffering.  The current divorce court system and family court system is humiliating to the parties, destructive to families, and soul-sucking.  The attorneys who either intentionally keep the cases going to earn legal fees or just don’t care enough to end it quickly or to mediate the cases are the only ones who are profiting.  Someone told me they heard an attorney advertisement on the radio telling people they shouldn’t mediate divorce cases.  Wow.  I do not know who it was, but I would love to put them in a room with Justice Saxe and let them tell him that. 

I don’t have any solutions for the divorce or family court system, sorry.  I can tell you that if you or someone else is in a situation requiring legal intervention, if the two parties can sit down in a room, then try mediation.  If you are successful, you will be heroes.  To yourselves, your children if you have them, and to a new generation who just says NO to divorce court and family court.

Juliana LoBiondo

www.LoBiondoLaw.com

juliana@lobiondolaw.com

Juliana LoBiondo

juliana@lobiondolaw.com

www.LoBiondoLaw.com

Divorce, Alimony and Taxes - 2015 ANNUAL ROUNDUP

It's tax time again.  And that means it's time for the Annual Divorce, Alimony, and Taxes Roundup.  

Alimony, properly defined, is tax deductible to the payor, and taxable to the payee.  Child support has no tax consequences.

Alimony ("maintenance" under NYS Domestic Relations Law) is the payment of money by one spouse to the other after separation or a divorce.

Notice, I said "Alimony, properly defined" is tax deductible.  Be aware that the IRS imposes the following requirements on parties seeking to deduct alimony payments:

1. Make payments in cash or by check. You must pay alimony by cash or check for the benefit of a spouse or former spouse. The value of in-kind alimony—for example, giving your spouse your car—isn’t deductible.

2. Follow the documents and designate payments as tax-deductible. Make payments in accordance with a divorce document, such as a marital settlement agreement, separation agreement, court order, or divorce judgment. Payments made under to a temporary support order also qualify. (Section 71 of the Internal Revenue Code.) 

3. NEVER characterize payments as child support or a part of Equitable Distribution.  Child support has no tax consequences!  One must be sure that alimony payments are not tied in any way to supporting the children. The most common error is an agreement that ties a purported alimony payment to the date of the children's emancipation.  The IRS has the right to reclassify past alimony as nondeductible child support. Your past alimony deductions would be disallowed, and you would owe back taxes. Similarly, if a payment is seen as part of your division of marital property, it’s not tax deductible.

4. Specify that payments end at the recipient’s death. The marital settlement agreement or judgment must provide that alimony payments terminate when the recipient dies. (The document can also provide that the alimony obligation ends when the payor dies.) Most payors also have the right to terminate alimony if the recipient remarries.

5. Live apart. If you are still living with your spouse or former spouse, alimony payments are not tax deductible. Payments must be made after a physical separation.

6. Don’t file a joint tax return. If you and your spouse file a joint income tax return, you can’t deduct alimony payments.

7. DO NOT, REPEAT, DO NOT FRONT LOAD!  Make sure to follow IRS rules against front-loading—the advance payment of alimony that’s due later. Alimony should not be excessively high or front-loaded in the first three post-separation years. Excessive payments are subject to recapture or being taxed to the payor in the third post-separation year.

Make sure you have qualified attorney drafting your settlement agreement.

Juliana LoBiondo ("Mrs. Lo")

juliana@lobiondolaw.com

Miller v. McKenna: When NEITHER Parent Deserves Custody

"There's no hope for that kid."  Unfortunately, that is a phrase used amongst divorce and family law professionals, from lawyers to social workers to Attorneys for the Child.  It means that there is such bitter and selfish infighting between the parents that the child is going to grow up in a custody maelstrom.

Having read the decision from the New York Court of Appeals and the New York Times article, about the child of U.S. Olympic skiier Bode Miller and U.S. Marine and firefighter Sara McKenna, I can only say:  unless these parents change their behavior in a drastic way, I don't have high hopes for the stability which will be provided for this child.  He was the subject of a major Court of Appeals decision (NY's highest court) when he was in utero.  The parents can't decide what his name should be.  The father and his new wife (he and McKenna never married) parade the child around on the social media like he's Boo the Pomeranian.

I don't think either parent deserves custody and I hope there are grandparents or siblings in the picture who can step in and provide some stability for the child.

The New York Times' headline about this case was "Custody Battle Raises Questions about the Rights of Women."  Does it?  Or does it raise questions about whether there are cases where two people are so selfish that neither one of them should be parenting this child.  The two had been living in California and McKenna moved to New York, while 7 months pregnant, to start school at Columbia on the G.I. Bill.  Miller started a family court action and the Court held that McKenna had improperly moved with her fetus to New York.  A California court granted custody of the fetus to the father, setting off a whole chain reaction as to what this means for women's rights.

Meanwhile, the baby was born into a Family Court action which recently went up to our highest State Court.  On November 14th, the Court of Appeals held that McKenna's rights had been violated and that "putative fathers have neither the right nor the ability to restrict a pregnant woman from her constitutionally protected liberty."

What about the child's rights?  After all, if a child is born addicted to drugs, Social Services will step in and remove the child for his/her own protection.  Trust me, Family Court petitions can be as harmful to a child's health as drug addiction, maybe even more so.  At least there is rehab for drugs, there is no rehab for Family Court litigation.  And people get as addicted to Family Court litigation as they do to drugs.  They just can't stop themselves.

The Court also ruled that New York had jurisdiction, so now there will be a custody hearing about change of custody, in Family Court for this 9-month-old child.  Shame on the parents, shame on the lawyers, shame on everyone involved.  I hate to say it but, unless there is a sea change with both parents:  there is no hope for this kid, and in Mrs. Lo's opinion, NEITHER parent deserves custody.

Juliana LoBiondo
www.LoBiondolaw.com

PROMISES, PROMISES ... Why You have to be Married to get Divorce Relief

One of the main legal benefits of marriage is the protection afforded to a spouse should the marriage end either because of death or divorce.

Without a Will, an unmarried person has no rights in the Estate of another person.  Not so for a married person. Even with no Will in place (absent a valid prenuptial agreement), a Widow or Widower will take 1/3 of the Decedent's testamentary estate.

If a marriage ends by divorce, a Spouse will receive an equitable share of the marital estate, and has the potential for alimony.  However, without the benefit of marriage, Courts will not enforce "equitable distribution" on a breakup, even if there is a writing and payments made based on the writing.  Public policy in New York State is to encourage marriage, as was made clear in a recent case, which Mrs. Lo likes to call "Promises, Promises."

The case is out of Rockland County, where Acting Supreme Court Justice Alfieri ruled in favor of the Plaintiff (we'll call him BF), who had promised to pay his "special friend" (GF) $500,000.00 after "relationship" ended.

The Court ruled that the writing in question was not a valid contract, and also ordered the GF to pay the BF's attorney's fees.  In the ultimate slap in the face, the Court ordered the GF's lawyer to pay $2,500.00 in Sanctions for bringing on a frivolous claim.  

The BF had written a letter to GF, apologizing for hurting her and promising to pay her $500,000.00 in the future, according to the Decision, Wu v. Xu, 031636/2013.  BF actually made two payments totaling $47,020.00 to GF.  Then he went to see a lawyer and things changed.

He brought a lawsuit to declare the letter to be null and void, and not enforceable since they were never married.  GF then hired a lawyer to enforce the writing.  

The Court cited a 1906 New York Court of Appeals decision: Platt v. Elias, which stated:  

"Generally, contracts tending to impair familial relationships are found to be against public policy," 

Justice Alfieri's 2013 decision stated: "Although the August 2012 letter is not an express agreement to marry or to encourage a divorce, it does involve the institution of marriage and the well-being of the familiar relationship of Plaintiff and his wife to the extent that this Court finds is against public policy ... as such," Alfieri added, "the Court finds that the letter is not a valid, enforceable contract."  This is especially true where the BF was already married.

Thus, written in between the lines of the deicison is the fact that the Court is protecting the Wife of the BF and preserving the marital estate.  BF is married with a grown child and GF is single.  GF said BF had promised that he would divorce his wife, leave his family and marry her.

BF was not seeking to get back the $47K he had already paid GF, just to get out of having to pay another $450K.   

Incidentally, that 1906 case was the source of a great scandal back in the day.  In that case, BF was a millionaire glass manufacturer.  He sued to have his GF, Hannah Elias, repay him the $685,385.00 he said he spent on her between 1896 and 1904. BF, age 86 in 1906, claimed Elias had threatened extortion or blackmail by revealing their long-time affair unless he continued to maintain her affluent lifestyle.  Did I mention BF was married and Hannah was African American?  Hence, the scandal in 1906.

Thus, the title of the blog, "Promises, Promises" could alternately be "Take the Money and Run."  In any event, no marriage, no divorce protection.

Juliana LoBiondo

www.LoBiondoLaw.com

October is Domestic Violence Awareness Month: What Everyone Should Know

October is Domestic Violence Awareness Month.  New York State defines Domestic Violence as a pattern of coercive tactics, which can include physical, psychological, sexual, economic and emotional abuse, perpetrated by one person against an adult intimate partner, with the goal of establishing and maintaining power and control over the victim.

Did you know:

• One in every four women will experience domestic violence in her lifetime.
• An estimated 1.3 million women are victims of physical assault by an intimate partner each year.
• 85% of domestic violence victims are women.
• Historically, females have been most often victimized by someone they knew.
• Females who are 20-24 years of age are at the greatest risk of nonfatal intimate partner violence.
  
• Most cases of domestic violence are never reported to the police.

Source: National Coalition Against Domestic Violence.

Did you know that children who witness domestic violence:

• are the most at risk of transmitting violent behavior from one generation to the next.
• Boys who witness domestic violence are twice as likely to abuse their own partners and children when they become adults.
• 30% to 60% of perpetrators of intimate partner violence also abuse children in the household   

While the justice and family court system are far from perfect, New York State laws are designed to help victims of domestic violence.  Victims may seek an order of protection on behalf of themselves/ and or their children from either Family Court, or the criminal court, or both.  Resources are available in English and Spanish as well as other languages from New York State.  The law has been amended to include people in domestic partnerships and intimate relationships.

It is now mandatory that a judge hearing a custody case take into consideration any prior adjudication or finding of domestic violence in a determination of custody and visitation.

Most importantly, if you see something, say something.  Here are some resources in New York State.  Remember, you are not alone:

• Order of Protection:
  FAQ's| HelpCentersCourtHelp
• New! NYS Address Confidentiality Program
• NYS Office for the Prevention of Domestic Violence (OPDV)
• NYS Coalition Against Domestic Violence (CADV) 
  (maintains list of available resources by county)
• National Office on Violence Against Women
• NYC Gay and Lesbian Anti-Violence Project 
  212-714-1141 (24-hour English and Spanish Hotline)
• NYS Domestic and Sexual Violence Hotline Numbers
  English: 1-800-942-6906
  TTY: 1-800-818-0656 
  Spanish: 1-800-942-6908
  TTY: 1-800-780-7660
  In NYC: 1-800-621-HOPE (4673) or dial 311
  TTY: 1-866-604-5350

Juliana LoBiondo
www.LoBiondoLaw.com

Why Divorce Lawyers Should Encourage Mediation

The esteemed Appellate Division Justice, the Honorable David B. Saxe, wrote an article for the New York Law Journal in 2011 entitled, "Encourage Divorce Clients to Mediate."  As someone who is both a Mediator and a Divorce/Family Law Attorney with 23 years experience, I could not agree more.  Of course, not everyone is a "mediation candidate."  I have always said that Mediation works best where there is a level playing field, so to speak.  Where one spouse greatly "overpowers" the other spouse, beats their chest and won't let the other person get a word in edgewise, there is not a "level playing field," and only the most skilled of mediators will be able to level the playing field and achieve a mediated resolution.  In other cases, such as domestic violence, there is inherently an imbalance of power and mediation is not appropriate.  However, in many cases that come before me, I recognize that the parties are 'mediation candidates" and I try to present Mediation as a viable option.  Mediation is virtually always less expensive for the parties and therefore less "lucrative" for the attorney but it would be a shame to not mediate, simply because a divorce attorney failed to present the option.  Litigation, or going to court, should be a last resort for most folks, not the opening salvo.

As Justice Saxe noted in his article, mediation clients have more control over their process, and ultimately it is the parties who craft the resolution in the end, not a judge who presides over them.  Moreover, Justice Saxe pointed out that mediation clients tend to be more satisfied with their results than litigation clients.  As Justice Saxe wrote, "if matrimonial lawyers focus om the larger picture, they might recognize that they stand to gain more in the long run from the good will and recommendations of satisfied clients than from the backlash of dissatisfaction in the wake of a typical unpleasant divorce."

And of course, there is the decreased expense of litigation with an experienced Attorney-Mediator.  After all, as my longtime mentor, Phil Shatz always used to say:  "Why use your money to put your attorneys' kids through college when you get use it to put your own kids through college."

Juliana LoBiondo
juliana@lobiondolaw.com
www.LoBiondoLaw.com