Many Long Island couples considering divorce are concerned about what happens to the marital residence upon divorce so it is one of the first questions I am asked during their initial consultation with a Long Island Divorce Lawyer. (more…)
To protect my clients during the divorce process from a spouse selling assets, one of the first things I do when I commenced a divorce proceeding as a divorce lawyer practicing in Nassau County and Suffolk County on Long Island, is ensure that the initial divorce papers are filed with an automatic restraining order on finances and property. (more…)
As a divorce lawyer practicing on Long Island, I see many disputes over who gets to keep the engagement ring when couples are going through a divorce.
Engagement rings and wedding rings are given as tokens of love and commitment, and are often a major expenditure. Engagement rings are often given in the spirit of romance and without a second thought about who would keep the rings in the case of a breakup. On Long Island, engagements and marriages are types of legal contracts, and contractual principles of law govern who gets to keep the rings when an engagement or marriage fails and a dispute about ownership arises. (more…)
As a divorce attorney practicing in Nassau County and Suffolk County on Long Island, I’ve seen first-hand that when substantial assets are at stake in divorce, there is increased stress, tension, and risk involved. (more…)
As a divorce lawyer practicing in Nassau County and Suffolk County I have seen first-hand how often divorce and financial distress often go hand on Long Island. While we focus our practice on divorce and family law matters, we have a great deal of prior and current experience with the intricacies of bankruptcy law and cases on Long Island. (more…)
With many years of experience as a divorce lawyer on Long Island, I have seen first-hand, how the division of marital property is perhaps the largest issue in most people Nassau County or Suffolk County divorce. Divorces on Long Island are governed by the laws of the State of New York, which provides guidelines for how marital property is to be divided during the divorce proceedings. These rules are known as Equitable Distribution.
In a New York divorce, marital property is divided by equitable distribution. Simply put, the courts use the equitable distribution doctrine in an attempt to divide marital property as fairly and equitably as possible. This does not always mean that property is divided based upon who owned what during the marriage, or that each party receives 50 percent of the marital assets. Instead, the courts use multiple factors in order to determine the most fair and reasonable distribution of the marital property.
During marriage, each spouse has the right to ownership of his or her own income, and also has the right to any property to which he or she holds sole ownership. However, upon divorce, specific marital property is divided without regard to which spouse held title. In other words, which spouse’s name is on what property is not the main factor that will be considered in determining who gets what after the marriage. Instead, a judge will determine an equitable division of assets, which may or may not be exactly equal. Of course, this doctrine is employed by the courts only when the parties cannot come to a private agreement of their own regarding the marital property. Parties are encouraged to put forth sincere effort in reaching an agreement in order to avoid lengthy and costly distribution proceedings.
Some jurisdictions are what are known as “community property” states. Under this doctrine, property is divided according to whose name was on the title of a given property. Instead, in an equitable distribution state such as New York, the courts consider the contributions of each spouse to the marriage as well as the future needs of each party. For example, a spouse who stayed at home to care for children and maintain the household is considered to have made a significant contribution to the marriage.
In a distribution proceeding, each spouse is subject to mandatory financial disclosure and must disclose all of his or her assets to the Nassau County or Suffolk County court. Generally speaking, property acquired during the marriage is considered to be marital property. Marital property can include, but is not limited to, cash, bank accounts, securities, notes and mortgages held, stocks and stock options, contracts, broker’s accounts, business interests, accounts receivable, interest in trusts, and tangible assets such as real property, household furnishings, antiques and jewelry. Other assets such as professional licenses, disability pensions, judgments held, causes of action at law, as well as patents and trademarks owned will be considered marital property in New York. Attorneys on both sides will seek to uncover all of the marital assets such as new businesses or hidden accounts, of which the other spouse may not be aware.
In order to determine how to calculate the distribution of property, Judges in Nassau County and Suffolk County consider factors such as:
(1) the amount and sources of income at the time of divorce filing;
(2) the property of each spouse at the time of divorce filing;
(3) any pre-nuptial agreements;
(4) duration of the marriage;
(5) the age and health of each spouse;
(6) who will be the custodial parent;
(7) any alimony award;
(8) the potential financial needs of each spouse;
(9) the potential future earnings of each spouse; and
(10) the amounts necessary for support, maintenance, education, and general welfare of the child or children.
This is not an exhaustive list of factors, and every set of circumstances surrounding a divorce may vary. However, Nassau County and Suffolk County courts almost always take into account the needs and future needs of each party to the divorce, including current and future income and expenses. Earning potential of the spouses is given due consideration as well.
Certain property may be considered “separate” property, and will not be subject to equitable distribution. For example, property that was acquired prior to the marriage, property acquired by inheritance and certain gifts given to one spouse may not be included in the equitable distribution of a marital estate. Furthermore, any property specifically agreed to be outside of the marital estate by a pre- or post-nuptial agreement will not be considered marital property for purposes of equitable distribution. However, exceptions may exist if a spouse can show that he or she contributed toward the appreciation of any of these “separate” assets.
Generally speaking, Long Island courts consider the totality of the circumstances in determining the distribution of the marital estate. The courts generally do not consider marital misconduct or fault, and typically not punish or reward either party, so if you thought you would get more of the assets of the marriage because your spouse was unfaithful, that’s not the way it works in Long Island courts. However, if a party has acted in a way to intentionally destroy or depreciate the marital property in an attempt to deprive the other party of some benefit, this will be viewed unfavorably in either Long Island court and will be given consideration when determining the apportionment of property.
A skilled Nassau County or Suffolk County divorce Divorce attorney Lawyer practicing on Long Island can assist you in determining your property rights and negotiating for your best interests during your divorce. Be sure to contact a trusted family law Divorce attorney Attorney in Nassau or Suffolk County. The Law Offices of Robert E. Hornberger, Esq. can provide professional assistance to you with regard to your divorce on Long Island. Contact us for a consultation at any time.
For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.
Our 41-page “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” written by an experienced family law attorney Long Island’s Robert E. Hornberger, Esq., provides you with real information on the divorce process and the laws it rests upon in the state of New York. This book will help give you a solid foundation upon which you can begin the process of making your family’s, life better. Download your Free Guide to New York Divorce here.
Get your complimentary consultation and case evaluation with our experienced attorneys today.
Your attorney will describe the many options available and determine together which is the right solution for you. By the end of this conversation, we’ll all understand how we can best help you to move forward.
There is no cost or obligation for this initial consultation. It is simply an opportunity for us to get to know each other, answer your questions and learn if Hornberger Verbitsky, P.C. is the right law firm for you. Give us a call at 631-923-1910 or fill in the short form below for your free consultation and case evaluation.
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As a divorce lawyer on Long Island, I ask every client to run their … credit report! If you’re going through a divorce and your divorce attorney has not asked you to do this, then … I mean it … run. Making sure that ALL marital debt is accounted for and satisfied as part of the divorce is your divorce attorney’s job. The resolution may be as simple as each spouse will be responsible for paying any debts that exist in their name, however, if this generic clause appears in your divorce agreement, and, there is a debt in your name that you forgot about, or, was the result or fraud, or even worse, your spouse taking out credit in your name of which you were not aware, make no mistake, you will be responsible for it.
There are a number of services that will provide your credit report. I direct all of my clients to www.annualcreditreport.com This site will provide you with a free credit report one-time per year, and, is authorized by the Federal Law. Once you have your credit report, read it. Make sure you understand it. If you don’t, ask your divorce attorney to review it with you. I ask every client to give me their report so I can ensure that all of their debts are accounted for and included on their statement of net worth.
The Statement of Net Worth is a form that each spouse is required to complete with their Long Island divorce attorney and is to be exchanged by the parties. It is an affidavit, meaning that each spouse swears to the accuracy of the information within the statement under the penalties of perjury. The form includes Family Data, Monthly Expenses, Income, Assets, Liabilities, Assets Transferred, Support, Legal Fees and Experts. Each spouse is required to provide at least three (3) years of tax returns, four (4) most recent paystubs and their retainer agreement with their attorney. The credit report is an integral part of completing the form properly.
Why is your credit so important? Most people understand that their credit score is important, but, they are not sure why it is. Here are a few important reasons:
1. A Bad Credit Score Limits Your Opportunities. If your credit score is lousy, no reputable lender will extend you credit. That means you won’t be able to apply for a mortgage, a car loan, a credit card, and, if you want to rent an apartment in a reputable development, you may be refused based on your credit.
2. Your Credit Score Determines Your Interest Rate. If you have bad credit, you may be offered a loan, but the interest rate will be higher than if you have good credit. That means you will pay back more to borrow that money than someone with good credit.
3. Insurance Premiums. Your credit score is used to determine insurance premiums. If you have bad credit, you will pay higher insurance premiums than someone with good credit.
4. Income Opportunities. Your credit score may come into play when applying for a job. If you will be handling your employer’s money, your employer may want to see your credit report as part of a background check. Bad credit could mean no job.
Resolution of the parties’ marital debt is part of the equitable distribution equation in New York divorces. It’s not only your Long Island divorce attorney’s job to make sure that you receive your fair share of the assets; it is his or her job to make sure that the marital debts are satisfied. You may have forgotten about that store credit card you took out to buy a new washer or dryer that is staying in the house your spouse is buying from you. Why would you wholly responsible for the washer and dryer your spouse is keeping?
Another reason it is important to run your credit report is that you may have joint credit cards with your spouse. advise all of my clients to cancel these cards immediately. A joint card means joint and several liability. That means, if your spouse incurs a debt on this type of account, you can be held 100 percent liable by the lender.
It is also important to run your credit to make sure that your spouse didn’t include you on any online credit applications. Sometimes it happens innocently, or not so innocently, but, you probably file joint tax returns with your spouse. That means your spouse has access to your Social Security number. Your spouse knows your birthday and your address, therefore, your spouse has all the information he or she needs to take out credit in your name online.
So, I conclude where I started. Resolving the outstanding debts of the marriage is an important part of your divorce attorney’s job, and, if your divorce attorney did not ask you to run your credit report, I implore you to consider switching divorce attorneys right away. Trust me, you will be glad you did.
Robert E. Hornberger is a Long Island Divorce Lawyer with 15 years of legal experience working in Nassau County and Suffolk County courts. If you wish to schedule a free confidential divorce consultation please call 631-923-1910 or fill out the short form on this page and we’ll get right back to you.
As a Divorce lawyer on Long Island, I see many clients enter my office and express the belief that their spouse is hiding or otherwise failing to disclose all of their assets. This feeling may be the result of something their spouse did or said or the simple fact that my client was aware of their spouse’s financial situation during the marriage and realize that what he or she is claiming now does not coincide. While this is an unsettling feeling for most individuals, the court system offers numerous remedies to help combat your spouse’s attempts to hide or otherwise fail to disclose assets.
Statement of Net Worth. In all Contested Divorces in Nassau County and Suffolk County, each party is required to fill out and submit to the court a Statement of Net Worth. If you are involved in an uncontested divorce, this form is not required, but it is certainly suggested. From a professional standpoint, I require every single divorce client o complete a Statement of Net Worth, whether or not their divorce is contested. The Statement of Net Worth will detail your finances, including your monthly expenses and monthly income, as well as your assets and liabilities. I am sure you are wondering what stops your spouse from lying on this form and therefore continuing to hide his or her assets. Well, the Statement of Net Worth is a sworn legal document, executed under oath before a notary public. Therefore, any individual who lies on their Statement of Net Worth is committing perjury, which is a crime in the State of New York. Misstatements of fact (lies) can be uncovered with the other tools in our arsenal, Discovery and Subpoena Duces Tecum.
Discovery. At times, a party’s Statement of Net Worth does not provide a clear enough picture of his or her finances. In these instances, the discovery tools permissible under New York’s Civil Practice Law and Rules are extremely useful. A Notice for Discovery and Inspection is the most valuable and tends to provide the most information. This request seeks copies of the opposing party’s banking records, credit card statements, mortgage documents, loan documents and any other financial information of which you may think. Most Notices for Discovery and Inspection request documentation dating back at least five (5) years from the date of commencement of the proceeding. If your matter is complicated financially, your attorney has the ability to request documents from a date of your choosing.
Subpoena Duces Tecum. Perhaps the most useful tool for determining the full extent of your spouse’s financial assets is the subpoena duces tecum. As an officer of the court, your Nassau County or Suffolk County divorce attorney has the authority to issue a subpoena to any banking or financial institution where your spouse may maintain a checking account, savings account, IRA, 401k or any other asset. Additionally, your Long Island divorce lawyer can subpoena your spouse’s current or previous employer to determine if he or she is entitled to receive any benefits as a result of said employment. Upon receipt of the subpoenaed records, your divorce attorney will have a complete picture of your spouse’s financial situation. Furthermore, your Long Island divorce attorney can compare the records received pursuant to any subpoena he or she may have served in your matter to your spouse’s Statement of Net Worth to ensure each and every bank account has been disclosed by your spouse.
A Divorce on Long Island is stressful enough without having to worry about whether or not your spouse is being truthful about his or her asset disclosure. Many couples that have been married for twenty (20) years or more have joint finances, so these issues may not seem prevalent if you fall into that category. If you maintain joint banking accounts, you both have access to the same, and naturally, are aware of the extent of your assets. However, the trend among newlyweds is to keep finances separate, and each agree to be responsible for certain marital bills and expenses. In these instances, you may not be fully aware of the extent of your spouse’s wealth and he or she may not be fully aware of yours. If your spouse’s lifestyle is inconsistent with his or her financial disclosure on the Statement of Net Worth, it is time to ask your Long Island divorce attorney to take the next step for you.
For more information about how to protect your assets during your divorce in Nassau County of Suffolk County, contact an experienced Long Island divorce attorney. Long Island’s Hornberger Verbitsky, PC and his compassionate and experienced divorce lawyers can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.
Get your complimentary consultation and case evaluation with our experienced attorneys today.
Your attorney will describe the many options available and determine together which is the right solution for you. By the end of this conversation, we’ll all understand how we can best help you to move forward.
There is no cost or obligation for this initial consultation. It is simply an opportunity for us to get to know each other, answer your questions and learn if Hornberger Verbitsky, P.C. is the right law firm for you. Give us a call at 631-923-1910 or fill in the short form below for your free consultation and case evaluation.
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As a Divorce Lawyer in Long Island, this headline is not as shocking to me as it may seem to you. Believe it or not, the argument over vital organs donated during the course of a parties’ marriage is not foreign to a divorce attorney from Long Island.
Perhaps the most well-known story in Nassau and Suffolk counties of a divorcing couple stuck between a rock and a hard place over a donated organ is that of Richard and Dawnell Batista. The pair married sometime in 1990 and had three (3) children. Dawnell was experiencing a seemingly endless battle with kidney failure and her illness was taking a toll on the couple’s relationship. After Dawnell experienced two (2) unsuccessful kidney transplants, Richard decided to donate one of his kidneys, and luckily he was a match.
Dawnell underwent her third and final kidney transplant in 2001, during which she received Richard’s kidney. While to the outside world Richard’s act of organ donation to his wife may seem selfless, he admitted to numerous reporters that while his main goal was to save Dawnell’s life, he also hoped she would feel indebted to him and be willing to work on their marriage.
Dawnell filed for divorce on Long Island, and an unhappy Richard argued that the kidney he donated to her during the course of their marriage was worth approximately $1.5 million. And he intended to receive a credit from her for every penny of its value.
Seems like a soap opera right? Well this case was argued in front of the Nassau County Supreme Court in 2009.
Richard Batista’s strongest argument was that “interspousal gifts made during the tenure of a marriage are marital assets subject to equitable distribution.” Batista v. Batista (2009). If that principle was controlling, Dawnell would be required to give Richard his kidney back. However, the Court looked more favorably upon New York Public Health Law Section 4307, which states that no person can acquire, for valuable consideration, any human organ for use in a human transplantation. Therefore, and luckily for Dawnell, the Court permitted her to keep her kidney, and denied Richard’s request to receive the value thereof.
If you are searching for a Nassau County or Suffolk County, Long Island Divorce Attorney, it is unlikely one of your top concerns is whether or not you will get your kidney back. However, you may wonder if you are entitled to the $10,000 platinum and diamond ring you gave your wife or the Rolex you gave your husband. As stated previously, the law in New York states that “interspousal gifts made during the marriage constitute martial property subject to equitable distribution.” Ferina v. Ferina, 286 A.D.2d 472, 474 (2d Dep’t 2001). That means that upon establishing the value of all gifts you gave your spouse during the marriage, you will receive one-half, or fifty percent, of the value thereof. Because New York is an equitable distribution jurisdiction, you may receive this sum in either a distributive award or in marital property equivalent to the amount you are owed. You are not entitled to receive the actual item back.
To obtain the most precise monetary value of gifts you gave your spouse during your marriage you may obtain an appraisal of those items. In most cases the cost of an appraisal is split between you and your spouse on an even basis, but you should discuss this point with your Long Island Divorce Attorney. In the event you do not wish to obtain an appraisal on the items, you and your spouse can stipulate, or agree, as to their value. If your matter proceeds to a trial, the testimony of both parties will be relevant to establish the value of any interspousal gifts.
During your Long Island Divorce you may not consider all the gifts you gave to your spouse, especially if you were in a long term marriage. But ignoring the value of all those items may mean you walk away from your Nassau or Suffolk County Divorce without taking into consideration a large value of the marital estate.
If you have questions about the your marital property and how it will be divided in your Long Island Divorce, you should consult an experienced Long Island divorce. Long Island’s Hornberger Verbitsky PC’s compassionate and experienced divorce attorneys can help. Call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
For more information about Property Division in your divorce, visit our Complete Guide to Dividing Property in Divorce.
Get your complimentary consultation and case evaluation with our experienced attorneys today.
Your attorney will describe the many options available and determine together which is the right solution for you. By the end of this conversation, we’ll all understand how we can best help you to move forward.
There is no cost or obligation for this initial consultation. It is simply an opportunity for us to get to know each other, answer your questions and learn if Hornberger Verbitsky, P.C. is the right law firm for you. Give us a call at 631-923-1910 or fill in the short form below for your free consultation and case evaluation.
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As a Divorce Attorney on Long Island, certain clients stand out as examples of the stress and misinformation many people have about divorce in Nassau and Suffolk counties
One client that remains at the forefront on my mind is an individual whose first words upon entering my office were this, “My spouse is NOT getting half of my motorcycle.”
This sentiment is near and dear to me, as I am an avid motorcycle enthusiast myself. I asked this individual where he got this idea from, and he calmly stated his wife had been using his beloved motorcycle as a bargaining chip throughout the course of their marriage.
Many clients have that certain item of personal property which they would never be willing to part with, and their spouse is often well aware of what it is and how much it means to them. This provides them with the opportunity for emotional “blackmail” during a Nassau County or Suffolk County Divorce. Fortunately, Section 236(B) of New York’s Domestic Relations Law clearly provides that the State of New York is an equitable distribution jurisdiction, which does not mean that assets are divided straight down the middle.
What is Equitable Distribution in Nassau County, Suffolk County, Long Island?
Equitable distribution is the process through which marital assets and debts are distributed during Long Island divorce proceedings. Rather than simply splitting the debts and assets on an equal (50/50) basis, the Court will take into consideration the totality of the circumstances as they may pertain to each party.
What Property is Subject to Equitable Distribution in New York?
As stated above, equitable distribution is the process by which marital debts and assets are distributed during your Long Island divorce. As it is “Equitable”, not “Equal”, certain property will not be subject to this type distribution scheme. Marital property is defined under Section 236(B)(1)(c) of the Domestic Relations law as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.”
You likely want to know what separate property is. Again, as defined in the Domestic Relations Law, separate property is “(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and (4) property described as separate property by written agreement of the parties pursuant to [Domestic Relations Law §236(B)(3)].”
Suppose either party purchased real estate or a plot of vacant land prior to the marriage. That house in Florida or vacant land in California remains the sole property of the person who purchased it prior to the marriage and is not “marital property”.
What Factors are considered in Equitable Distribution and How Does it Work?
Nassau County and Suffolk County courts will look at a variety of factors as further set forth in Section 236(B). These factors include, amongst other things:
Let us tie in the motorcycle example. Say the parties obtain an appraisal on Mr. Smith’s Harley Davidson motorcycle, and it is valued at $13,000. Mr. Smith does not have to sell his motorcycle and give Mrs. Smith $6,500, or one-half of the proceeds of the sale. Rather, Mr. Smith can retain the motorcycle as his sole, exclusive and separate property, and Mrs. Smith will be awarded assets approximately equal in value. Therefore, Mr. Smith retains the beloved motorcycle, and Mrs. Smith retains assets which equal the approximate monetary value of the Harley Davidson.
Are my Spouse and I Bound by New York’s Equitable Distribution Statute?
The simple answer to this question is No. As always, equitable distribution, and entering the court system, is a last resort. Many divorce attorneys on Long Island, including myself, will first attempt to settle a matter amicably, through 4-way settlement conferences and negotiation, rather than immediately requesting a court date. If the parties’ matter is not before a court, they are free to agree upon whatever property distribution settlement they may desire. However, if the parties are unable to reach a fair resolution of their matter, the only way to proceed with a Nassau County or Suffolk County divorce is to utilize the court system, and therefore, equitable distribution.
If you have questions about property division during your Long Island divorce, you should immediately consult an experienced local divorce attorney. Long Island’s Robert E. Hornberger, Esq., PC’s compassionate and experienced divorce attorneys can help. Interested in learning more about our divorce attorney? Long Island residents are encouraged to call us at 631-923-1910 for a complimentary, confidential consultation or fill out the short form on this page and we’ll get right back to you
