by Robert E. Hornberger, Esq | May 13, 2014
Divorces, which have become more common on Long Island, are rarely simple and can be very complicated. The idea of an Uncontested Divorce may have crossed your mind, and you may be wondering what exactly it is, and if your situation would fall neatly into this category.
Uncontested divorces are a special breed, and while the following will attempt to explain what must be done to qualify, the category is narrow.
Contested Divorce Is Common on Long Island, NY
Many American couples are faced with a divorce go through a Contested Divorce. In this instance, either only one partner wants the divorce, or both want the divorce but cannot agree on the major issues such as child support and custody, division of property, or finances. In these cases, both partners require their own divorce attorneys who will attempt to assist the couple in reaching a mutual agreement, and if that cannot be done, the couple will need to resort to the court system.
Contested = Nassau County or Suffolk County Court
Because a contested divorce tends to end in the court system, it has the tendency to be lengthy, and at times expensive. These negative factors may push couples toward agreement simply because they do not want to go court, and if they agree, they will be able to partake in an uncontested divorce, and simply sign the agreement and be done with it.
Major Life Decisions Have Long-Lasting Implications
However, we advise you not to not rush into any major life decisions to save time or money in the short term; the decisions you make in this divorce are binding and will affect the rest of your life, and the life of your children. While it may seem like instant gratification to simply agree to something to avoid the process, you may wind up wishing you had thought about it more carefully three years down the road.
Advantages of Uncontested Divorce
An uncontested divorce on the other hand, is available to those couples that find that while they may love each other, they just simply do not get along and cannot live together as a couple. In an uncontested divorce, the couple must agree upon why they are seeking a divorce, child custody and support, and the division of property. Generally, because both parties agree as to why they are divorcing, the ground for divorce is simply irretrievable breakdown of the marriage, which was added to New York’s Domestic Relations statute in 2010.
Equitable Distribution of Property in Your Divorce
You and your partner will have to agree on how your marital property will be divided. If you cannot reach an agreement and your case goes to court, property division in New York is governed by the Law of Equitable Distribution. While you may believe that this guarantees you an equal share of any marital property (any property acquired during the marriage unless by gift, inheritance, the compensation or in exchange for otherwise separate property) that is an incorrect assumption. Equal is not the same as Equitable. Rather, equitable distribution requires a fair distribution of the property, taking into consideration the specific facts and circumstances of both you and your partner.
Child Support and Custody Issues
An uncontested divorce is only possible if all issues regarding child custody and support are mutually agreed upon. This may be one of the most difficult topics for any couple facing a divorce, and needs to be discussed both thoroughly and thoughtfully with your partner.
Uncontested Divorce Doesn’t Work for You? Don’t Panic
If you or your partner desire an uncontested divorce but after further consideration and a brief reading of this article you realize that this may not be practical for your and your spouse, do not panic. Lack of agreement between you and your partner may require a contested divorce, which is naturally a more challenging experience, but does not have to be more emotionally charged than it already is.
Divorce is Only As Complicated as You and Your Partner Make It
A divorce is only as complicated as the relationship between the parties. You are in the best position to know how emotionally or financially difficult your divorce will be for you and your partner. While you may have anger toward your spouse and find yourself demanding things in the agreement out of spite, stop thinking about your spouse and start thinking about yourself. You and your children are the most important parties involved, and throughout what may be one of the most difficult times of your life, it is important not to lose sight of what truly matters.
Need Help with Your Contested or Uncontested Divorce?
The experienced Long Island divorce attorneys and divorce mediators at Hornberger Verbitsky, P.C. are thoroughly familiar with all the options available to you for both Contested and Uncontested Divorces. From traditional litigation in Nassau County or Suffolk County court, to Divorce Mediation in our calm and comfortable offices in Melville, NY, to all other aspects of conflict resolution related to divorce, we have the successful track record to ensure your divorce is as economical and low-stress as possible. To learn more about the options available to you for your contested or uncontested divorce, give us a call at 631-923-1910 for a complimentary consultation to discuss the specifics of your case. You’ll be glad you did.
by Robert E. Hornberger, Esq | May 6, 2014
If you’re considering a divorce on Long Island, be careful what you post on any social media channel. Actions you take on such social media properties as Facebook, Twitter, Google+, Instagram, or any other social media accounts you may have (including dating websites!) can have important consequences in divorce court in Nassau or Suffolk County.
For many people, social media puts all the details of your life within a mouse click of the rest of the world, and if you are not careful, you may be exposing more than you think or desire. Consider anything you do online, even if a “private message”, as public. If you’re doing something using the Internet, there’s a record somewhere of nearly every keystroke you make from behind your computer screen.
A recent case out of the Appellate Division, Third Department, Matter of Melody M. v. Robert M., highlighted just how dangerous social media can be while in the midst of a divorce.
A separation agreement provided that the father would have primary physical custody of the couple’s three young children, while the mother was permitted one weekday evening visit and visitation on weekends. Eventually, the mother sought a modification of the custody agreement, which the court rejected and awarded the father sole physical custody of the three children.
One of the provisions of the new court order, was a restraining order was issued against the mother, intending to prevent her from posting anything to or from her children on social media sites. Of great importance to the court’s determination to award the father sole physical custody of the children was the mother’s previous negative use of her Facebook profile.
Rather than use the site to keep in touch with and communicate with friends, she used the site as an outlet for her anger toward her oldest child, who also suffered from a mental illness. More specifically, she posted on Facebook that her child was an “asshole.” The court ruled that this use of Facebook was sufficient evidence “to justify the court’s issuance of the order of protection” and prevent the modification of the custody agreement.
This ruling out of the Third Department, should serve as a warning to anyone considering a divorce of the dangers of what may be a seemingly innocent Facebook post.
While the child’s mother likely posted the statement out of anger and frustration at her child, to post such comments to the mass public paints her in a negative light and calls her character into question. In acting in the best interests of the child, Nassau and Suffolk County courts will hesitate to grant physical custody of children to a parent that they feel have displayed questionable activities and morals.
Social media posts aren’t only important in child custody cases. Any aspect of your divorce, from property division to child support could be impacted by something you unwittingly posted on a social media channel. Consider how posting a picture of your new Mercedes might be perceived by the courts when trying to claim you need more child support or claim you can’t afford to pay more child support.
Important tips you should be aware of while using the Internet throughout your divorce:
- First and foremost, the safest option would be to delete all of your social media accounts. While you can control what statuses or pictures you post, you cannot control those of your friends or family and what they can post about you. As a pilot once told me as my plane landed in Las Vegas, “What happens in Vegas ends up on Facebook.”
- If you do not wish to delete your social media accounts, then you should look into the various privacy settings offered through each network. Facebook enables you to approve things others post before they appear on your page, and Instagram has the option of making your account completely private, so your pictures are only viewable to those you accept as “friends.”
- Only accept “friend requests” from people you know personally and, most importantly, trust unconditionally. While Facebook has the “People You May Know” feature, if you are going through something personal it is important to keep your life just that – personal. Just because your next-door-neighbor knows Sally Jane who is now requesting you to be her “friend” does not mean she wouldn’t be the reason you lose physical custody of your children.
- And finally, be smart about the use of these networks. Once something enters the Internet, it is there forever. You may post something out of anger, sadness, or rage, and delete it a few minutes later, but you do not know how many individuals saw that post within the 120 seconds of its existence.
While this may seem like a common sense list of tips, you would be surprised at how many individuals are tricked by what they perceive to be the “safeness” of the Internet. You can be anything you want online, whether it is something good or bad, and at times people get carried away with the belief that the Internet is a separate realm from “the real world”. Try Googling yourself one day and you may be surprised at the personal information that pops up so quickly. While going through your divorce on Long Island, NY, you want to make sure that personal information is nothing that can potentially be used against you in Nassau or Suffolk County Court.
Have Questions About Social Media and Divorce in Nassau or Suffolk on Long Island, NY?
The divorce attorneys and divorce mediators at Hornberger Verbitsky, P.C. are very familiar with the latest decisions by the courts in Nassau and Suffolk counties on Long Island, NY. We can help you navigate the sometimes murky waters of divorce law and ensure your interests are protected to the fullest. If you have questions about your divorce, feel free to contact us at 631-923-1910 for a complementary consultation in our comfortable offices in Melville, NY or fill out the short form on this page and we’ll get right back to you.
by Robert E. Hornberger, Esq | Mar 18, 2014
How Much Will I / My Spouse Get In My Divorce?
One of the most difficult issues that arise in a Long Island, NY divorce, aside from those regarding child custody, are how to divide your property with your soon to be ex-spouse, including the marital home, but also your other material assets. Because of the difficulty of this situation, you and your partner may not be able to reach an agreement regarding the division of property on your own. If that is the case, the court will be authorized to settle the division of the property. However, if you wish to avoid adding another litigated issue to your divorce, it is important to discuss with your divorce attorney how you and your partner can reach a mutual agreement on property division issues.
What is the Law in New York Regarding Property Distribution?
New York is an equitable distribution jurisdiction, which means that all marital property will be divided equitably among you and your soon to be ex-spouse. Keep in mind – equitable distribution does not automatically entitle you to an equal distribution of property. Rather, , to ensure distribution is fair and just, each distribution is made on a case-by-case basis depending on the specific individual circumstances involved.
What is Marital Property?
Marital property includes all property earned by either you or your partner during the marriage. Naturally, separate property includes that which was acquired before the marriage. Separate property also includes any gifts or inheritances received by one spouse and personal injury or other similar settlements, regardless of whether or not they were acquired during the marriage. Furthermore, you and your partner are free to make any agreement regarding separate and marital property, so if you did enter into a pre-nuptial agreement, that agreement will govern what constitutes marital property and what constitutes separate property. A point that may serve to surprise you is the fact that New York considers business degrees and professional licenses obtained during the marriage as marital property. Therefore, if you received one of these degrees during your marital relationship, your partner is entitled to share in the increase in earnings due to the degree, even if he or she was unemployed during the marriage.
What Other Factors Are Taken Into Consideration?
- Income. One factor taken into consideration is the income of you and your partner: both during the marriage and at the time the action for divorce is commenced. Therefore, it is important to keep close account of your finances and to inform your divorce attorney of any changes in income from the time of the marriage to the commencement of the proceeding.
- Health. Additionally, the health and age of both you and your soon-to-be ex-spouse are important. If you are facing the possibility of losing health insurance due to the divorce, it is important to inform your divorce attorney of this fact, especially if you are suffering from an illness. The purpose of equitable distribution is to ensure that the distribution of the marital assets is fair and just, therefore, if you are ill and set to lose insurance, you may be awarded a greater share of the assets than your healthy spouse.
- Pension. You may also face the loss of pension benefits after your divorce. If your spouse is the holder of a pension plan, a divorce serves as an automatic revocation of your rights under this plan (so long as this is not inconsistent with standing federal law, so be sure to check with your divorce attorney).
- Waste of Assets. Further, any extreme disregard for finances during the marriage (such as excessive gambling, etc.) will also be taken into consideration in making the equal distribution determination.
- Fault or Misconduct. Important to note is the fact that any fault or misconduct on behalf of you or your partner is not taken into consideration unless it is egregious (generally, egregious is considered an attempted homicide of a spouse). Therefore, if either of you feel the other is “at fault” for the dissolution of your marriage, it is helpful to be aware that that is not used to determine what is fair and equitable.
What About the Marital Home?
Aside from child custody issues, what to do with the marital home is often one of the most pressing issues that arise during a divorce. Rather than have the court decide who retains possession, or whether your home will be sold to a stranger, it may be beneficial if you and your partner take the time to decide this issue between yourselves. If you and your partner cannot reach an agreement, the court will mostly consider which spouse has custody of the children.
Need More Help With Your Property Division In Your Long Island Divorce?
The compassionate divorce lawyers at the law firm of Hornberger Verbitsky, P.C. have helped hundreds of Long Island couples like you divide their property fairly and equitably. We represented and protect your issues to ensure you receive what’s fair and ensure you are not taken advantage of by your ex-spouse. If you have more questions about how to divide your property with your former spouse, give us a call at 631-923-1910 for a confidential and complimentary consultation in our comfortable and convenient offices in Melville, right off Route 110, just south of the LIE. Don’t let your spouse get more than he or she is entitled to. Call us today or fill out the short form on this page and we’ll get right back to you.
See this page for Your Guide to Preparing for a Contested Divorce.
by Robert E. Hornberger, Esq | Jan 9, 2014
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by Robert E. Hornberger, Esq | Jan 9, 2014
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by Robert E. Hornberger, Esq | Dec 5, 2013
Same-sex marriage has been a highly publicized, widely debated, hot topic recently in Nassau and Suffolk County court on Long Island, NY and throughout the United States. The Supreme Court decided to strike down a portion of the Defense of Marriage Act (DOMA), and in effect, upheld a lower court decision requiring California to recognize same sex marriages. While marriage itself is at the forefront of many individuals’ minds, there is an aspect of same sex marriage that is often overlooked: divorce. If a gay marriage is not legally recognized in a state, a same-sex couple has no access to the rights afforded in a legal divorce proceeding.
Why Is Divorce Important for Same Sex Couples?
But why is access to divorce so important for same sex couples? Divorce proceedings provide structure in a situation that can be extremely difficult, unpredictable, and often, problematic. A legal divorce provides procedures and structure for the distribution of property, the awarding of spousal support, and resolution of child custody and child support disputes. These practices and procedures come from statutes and case law developed over time. Judges do have some discretion in determining some divorce issues, especially child custody issues, but for the most part, the process is orderly and consistent.
Divorce Provides Closure & Protection for Each Spouse
Further, a legal divorce provides some finality for couples; it is a way to truly end a tumultuous and unproductive relationship. The divorce process also mitigates financial problems for both spouses. It is designed to protect the spouse that earns less money, especially if the spouse has contributed greatly to a marriage in a less than tangible way. For example, a mother who quits her job to stay home and take care of her children to allow for her husband to work full time, is making a sacrifice that isn’t easily quantifiable. A legal divorce provides a method of quantifying that contribution to the family. The structure of divorce proceedings may allow a mother to receive support, because she is the financially weaker spouse.
Supreme Court Decision Does Not Protect All Same-Sex Couples in All States
Using these criteria, it is simple to see the advantages of access to divorce for a couple seeking to end their relationship. Unfortunately, even with the Supreme Court’s recent decisions, it may be difficult for some same-sex couples to become divorced. The recent Supreme Court decision did not make same-sex marriage legal in all states, the result of which is that there are now “Recognition”, and “Non-recognition” states. These terms mean exactly what they seem: a state that recognizes same-sex marriage is a Recognition state, and a state that doesn’t recognize same-sex marriage is a Non-recognition state. But this is not the only distinction between states. For example, some states will only recognize same-sex marriages if couples were not previously married in another state. This is just one example of a multitude of technicalities that vary in same-sex marriage laws from state to state. All these technicalities result in a situation where same-sex couples cannot be legally married in a state that does not recognize same-sex marriages and therefore prohibits the couple from the rights and protections of a legal divorce proceeding.
Lack of Uniformity Between States Adds Complexity, Cost to Same Sex Marriage Divorce
This creates a problem due to a lack of uniformity in predicting whether a couple can legally divorce. The law is very confusing, and difficult to predict. This difference between states causes immense strain on same-sex couples, and additional burdens in determining whether they can be legally divorced or not. In the example above, a state that has a law that only recognizes same-sex marriage if it is the couple’s first, would therefore require the couple to provide a full relationship history to the court to determine the validity of a marriage. The couple may even be required to provide relationship history further back from previous relationships with other parties. This added complexity will likely result in higher legal fees for same-sex couples seeking marriage or divorce protections.
Non-Conformity Among Government Agencies Adds Complexity & Confusion
Another complex issue is the fact that different government agencies and departments have different ways of determining the validity of a same-sex marriage. For example, the Social Security Administration determines validity of marriage based on the residency of the married couple, while the Department of Homeland Security determines the validity of marriage based on the state where it occurred, or the state of celebration. Therefore, if a couple was married in a non-recognition state, but currently resides in a recognition state, the Social Security Administration would view the couple’s marriage as valid, while the Department of Homeland Security would view the couple’s marriage as invalid. The inconsistencies in the law make it confusing for couples to know what rights and obligations each spouse has in a divorce proceeding, if they can even access divorce rights in the first place.
Steps for Same Sex Couples to Take to Protect Their Rights
In light of these concerns, there are some steps same-sex couples can take to make the dissolution of their relationship more concrete. Same-sex couples should create a pre-marital or pre-cohabitation agreement. This agreement will provide ease and clarity in the event that the couple decides to split, regardless of whether that couple can access a legal divorce. These agreements will provide structure that can spare them the emotional and legal costs of divorce. Even more-importantly, these agreements can make decisions that courts will not, should the couple’s marriage is deemed invalid for various reasons. Although divorce is a desirable, structured way to end a relationship, these agreements create a structured alternative in case divorce is not an option for the couple. Same-sex couples may also choose to use an alternative dispute resolution technique, like Divorce Mediation which can provide structured and legal documents that outline each parties’ rights and responsibilities outside of the structure of a legal divorce. Through divorce mediation, a couple can negotiate and settle their dispute, without ever going into court.
Questions About Same Sex Marriage & Divorce in Nassau & Suffolk on Long Island, NY?
The divorce law firm of Hornberger Verbitsky, P.C. remains vigilant in its efforts to know and understand every aspect and new development in the field of divorce for both same-sex and opposing-sex couples. Divorce is our business and protecting the rights of couples is our responsibility and our pleasure. If you have questions about your rights and responsibilities in your divorce, please give us a call at 631-923-1910 or fill out the short form on this page for a free one-on-one consultation where we can discuss your options and determine a course of action that will be best for you and your family.
by Robert E. Hornberger, Esq | Oct 24, 2013
With a steady rise divorce rates in Nassau County and Suffolk County, NY, has come an increase in the number of people who decided to represent themselves in their divorce proceedings on Long Island. This is known in legal parlance as proceeding pro se in their divorce, or, without the representation of legal counsel. Of course, as a divorce lawyer practicing on Long Island, you will expect me to rail against such a trend, but for the purposes of this article I will stick to the published facts and draw no conclusions one way or the other.
There are actually two primary issues that must be addressed in assessing the relatively recent development of increased pro se divorce proceedings.
- Given the complexity of the law and the potential long-lasting negative legal and financial ramifications, why would an individual choose not to hire a divorce attorney?
- Are there statistically relevant data points describing the relative success of pro se divorce litigants successful in relation to individuals who obtain legal counsel in their divorce actions?
Why the Rise in Divorce Rates in New York?
With the adoption of No-Fault Divorce legislation in many states in the 1970s, divorce rates steadily increased in New York over the following decades. No-Fault Divorce laws make it possible for one party to obtain a divorce, even without the consent or cooperation of another and by 2001, all 50 states in the U.S. had added No-Fault Divorce provisions to their divorce laws. The adoption of No-Fault Divorce statutes has ultimately led to an increase in divorce rates not only on Long Island and in New York state, but nationwide.
Studies of Pro Se Divorce Cases in the U.S.
Shorter Marriages, Low-Income, Younger, Well-Educated, Childless, without Real Estate or Personal Property More Likely to Proceed in Pro Se Divorce
In a 1994 publication, the American Bar Association Standing Committee on the Delivery of Legal Services cited several studies which documented a steady increase in pro se divorce cases from the 1970s through the 1990s. This report noted that those who were turning to self-representation generally had low to moderate incomes. The Standing Committee further identified that pro se litigants tended to be fairly well-educated, and were on average, younger than those who were represented by counsel. Litigants were also more likely to proceed pro se if they regarded their cases as being relatively “simple.” Specifically, those with no minor children, no real estate, or substantial personal property, and who had been married less than 10 years were much more likely to represent themselves in divorce proceedings.
Pitfalls of Divorce Pro Se
Missing Court Forms, Documentation, Marital Counseling, Alternative Dispute Resolution, Tax Ramifications, Maintenance or Spousal Support
Although the Standing Committee report did not evaluate the desirability of proceeding pro se in divorce proceedings, it did note some potential limitations to doing so. In particular, pro se litigants were less likely to fill out necessary court forms and documentation, obtain information regarding marital counseling and alternative dispute resolution services, receive important information pertaining to tax related issues, and were also much less likely to request maintenance in their divorce cases.
Income of Husband & Minor Children Main Factors in Pro Se Divorce
In 2010, Judith G. McMullen and Debra Oswald sought to explore this issue further by conducting a case study on pro se divorce litigants in Waukesha County, Wisconsin. 12 J. L. & Fam. Stud. 57. The data revealed that in 46.4% of the divorce cases studied, both parties had counsel and in 27.7% of the cases, both individuals proceeded pro se. Their research also revealed that the strongest factors indicating whether an individual would proceed pro se were the income of the husband and whether the parties had minor children. The data further demonstrated that in cases where parties chose to retain legal counsel, the husbands involved in the actions earned significantly more money than those involved in the pro se cases. Similarly, the presence of young children within a marriage increased the likelihood by 60 percent that an individual party would hire legal representation in a divorce action, likely because of Child Support and Child Custody issues.
The researchers additionally focused on whether the presence of a divorce attorney improved and expedited the divorce process. The data revealed that divorce proceedings were significantly lengthier in cases where both the husband and wife were represented by counsel, compared to situations when only one party retained counsel. Moreover, the average length of a divorce case was statistically shorter when both parties were pro se than in all other situations. However, it is unclear whether this correlation was based upon the presence of counsel or the complexity of the cases in which the parties chose to retain legal counsel.
Protection of Rights & Assets Main Factors in Hiring Divorce Attorney
In addressing the question as to why people choose to proceed pro se in divorce actions, one notion is that the decision is often based on financial considerations. As previously mentioned, in the case study, the husband’s income was one financial indicator of a party’s choice to retain counsel. Those who hired counsel were older and had been married longer at the time of divorce. In turn, age and length of marriage both suggest higher levels of education, making one more receptive to seeking the advice of an attorney. People who have been married longer might also feel that they have more to lose, so they are willing to pay for the cost of an attorney to protect their rights and assets. The decision of parties to retain counsel when minor children are involved can be traced to a parent’s desire to have custody or otherwise shape the future of their children.
Pro Se Initially More Cost Effective
While it may be more cost-effective to proceed pro se in divorce cases, those considering this approach to litigation should fully understand all of the potential ramifications that go along with representing oneself in a lawsuit. It is important to be informed of all of your rights in any legal proceeding, especially one that will weigh heavily on your and your family’s future.
Free Consultation to See if Pro Se is Right for Your Nassau, Suffolk, Long Island Divorce
If you are considering filing for divorce pro se in Nassau County or Suffolk County court, I would encourage you to seek the advice of an experienced divorce attorney. While you may save money in attorney fees initially, you should fully understand the rights and property you may forfeit long-term, which could be significantly more expensive than an attorney’s fees. The firm of Hornberger Verbitsky, P.C. is pleased to offer a complimentary initial divorce consultation at which we can discuss the viability of representing yourself in your divorce case. If your case is simple and you have no children, property and relatively low income, pro se might be the way to go for you. You have nothing to lose and everything to gain by finding out before you file – the initial consultation is free and you may learn something that will help you represent yourself. Call us at 631-923-1910 for your free consultation at our offices convenient to Nassau and Suffolk counties.
For more information about Divorce on Long Island, visit this page: Divorce Lawyers Answer Questions about Long Island Divorce
by Robert E. Hornberger, Esq | Jul 2, 2013
HOME ABOUT US OUR FIRM FIRM YOUR LEGAL TEAM ATTORNEYS YOUR ATTORNEYS ROBERT E HORNBERGER CHRISTINE M VERBITSKY ANNEMARIE LANNI LAWRENCE M. MARINO BRENDA LYNCH (Of Counsel) PRACTICE AREAS AREAS OF EXPERTISE What’s Involved In Divorce DIVORCE DIVORCE COLLABORATIVE...
by Robert E. Hornberger, Esq | Jun 13, 2013
Dividing Assets in Long Island Divorce is Complex
As a Long Island, NY divorce attorney, I see that many couples contemplating divorce in Nassau and Suffolk have many difficult issues that must be sorted out including, equitable distribution of property, assets and debts, child support, and alimony, spousal support or spousal maintenance.
Owning a Business Makes Long Island Divorce More Complicated
When the divorcing couple owns a business, this often becomes the most difficult and most controversial marital asset, causing additional valuation and distribution issues to consider.
What is ‘Double-Dipping’?
In divorce cases on Long Island, attorneys refer to situations where one spouse receives double payment for a single asset as “Double Dipping” or “Double Counting”. These terms are also applied to pension funds as well as business interests.
Nassau & Suffolk Exclude Pension & Alimony
Generally speaking, during a divorce proceeding, Nassau County and Suffolk County Courts do not allow a spouse to receive both an equitable distribution of pension assets and alimony based on that same pension income. However, this is less clear when it is applied to business interests.
Different States, Different Laws
Depending on the state in which the divorcing spouses live and are seeking their divorce, when the non-monied spouse receives alimony or maintenance, some or all of the company’s goodwill may be excluded from the marital estate when dividing the assets.
No Double-Dipping in Nassau County or Suffolk County Courts
In New York, this issue became explained when the Court of Appeals in Grunfeld v. Grunfeld (94 N.Y.2d 696 [2000]) recognized the inequity of double-counting income, at least when awarding spousal maintenance after the asset value of a license or degree has been divided. Therefore, in Nassau County and Suffolk County Courts, double dipping is not allowed.
Seek an Experienced Long Island Divorce Attorney
Dividing marital assets in a Long Island divorce can be very complex and requires an experienced divorce attorney familiar with the Nassau County and Suffolk County court system. The attorneys at Robert E. Hornberger, P.C., have received extensive training and have a great deal of experience in these areas and are ready to answer your questions. For a free private consultation about this or any other divorce matter, contact the experienced attorneys at Robert E. Hornberger, PC at 631-923-1910 or fill out the form on this page and we’ll get right back to you.
Questions About Contested Divorce on Long Island?
To learn more about what you need to know about Contested Divorce on Long Island and how to get help to protect yourself and your future to ensure you have the freedom and resources to live a full and happy post-divorce life, visit this page: Contested Divorce Attorney Protects Your Rights & Assets. For more information on Contested Divorce, read What You Need to Know About Contested Divorce.
by Robert E. Hornberger, Esq | Apr 18, 2013
What You Need to Know About Qualified Domestic Relation Orders During Your Divorce
As a divorce attorney practicing primarily in the Nassau County and Suffolk County Supreme and Family Courts in NY, I work with many couples who have complex financial matters to divide in their divorce settlement. While some property and assets are relatively simple to split up, one of the most complex aspects of a divorce settlement can be the division of retirement or pension plans. These plans fall under the terms of a Qualified Domestic Relations Order or QDRO.
QDRO and ERISA
A Qualified Domestic Relations Order (QDRO) is a legal order subsequent to a divorce or legal separation that splits and changes ownerships of a retirement plan to give the divorced spouse their share of the asset or pension plan. QDRO’s are only subject to employee benefit or pension plans subject to the Employee Retirement Income Security Act (ERISA), which is the law that governs private sector pensions. These orders provide for marital or community property division between the participant and the alternate payee. A QDRO also qualifies for the payment of alimony or child support to the alternate payee.
The QDRO must meet the following requirements:
1. Contain the names and mailing addresses of the Participant and Alternate Payee
2. Clearly set forth the amount or percentage of the Participant’s benefits
3. Set forth the number of payments or period to which the Order applies
4. Refer to each Plan to which the Order applies
5. NOT require a Plan to pay any type or form of benefit, or any option not otherwise provided under the Plan
6. NOT require the Plan to provide increased benefits determined on the basis of actuarial value
7. NOT require a Plan to pay benefits to an Alternate Payee that are required to be paid to another Alternate Payee under another Order previously determined to be a QDRO.
Orders relating to these non-ERISA Plans are not “Qualified” and are simply called “Domestic Relations Orders” or DROs. They may be subject to state law or agency policy prior to acceptance and approval by the governmental plan.
QDROs can be difficult to properly utilize because every Plan is different and may contain different benefits, survivorship options, terms and procedures for administration and are constantly changing.
Contact Us for More Information
If you have any questions regarding how a pension or retirement account should be divided in your divorce or separation agreement, give us a call at 631-923-1910. The divorce law office of Robert E. Hornberger, P.C. will be pleased to offer you a free complimentary consultation to discuss your options.
Divorces, which have become more common on Long Island, are rarely simple and can be very complicated. The idea of an Uncontested Divorce may have crossed your mind, and you may be wondering what exactly it is, and if your situation would fall neatly into this category.
