All I Want for Christmas is … a Divorce

by Robert E. Hornberger, Esq | Dec 19, 2012

Should I Get My Spouse a Divorce for Christmas?

As a Long Island divorce lawyer, one of the first questions I ask in an initial consultation with a prospective divorce client is, “Does your spouse know you are here?”.  When the answer is “yes”, I usually take that to mean that there is some level of communication between the spouses, and possibly, they may be able to reach a resolution without too much trouble.  However, when the answer is “no”, I know that the other spouse will likely feel blindsided by the divorce, and, that resolution may be difficult because the other spouse has yet to come to grips with the divorce.

It’s Never a Good Time, Emotionally

When one spouse wants a divorce to the chagrin of the other, there is never a good time to tell that spouse. To do so around the holidays may make the divorce extremely difficult to resolve.  Let me say this, if there are no pressing issues, it is probably best to wait until after the holidays, however, as I just hinted, there are some equally compelling reasons not to wait.

Timing is Critical for Spousal Support

If the spouse seeking the divorce is the “monied” spouse with a pension, prolonging the initiation of the divorce is never a good idea. The longer the marriage, the greater the entitlement the non-titled spouse will have to the participating spouse’s pension and retirement benefits. In a situation where the monied spouse earns substantially greater income than the lesser monied or non-income generating spouse, the longer the marriage, the longer the monied spouse may have to pay spousal support. As I suggested in earlier articles, prolonging the marriage can have catastrophic results in the event that your spouse becomes injured, ill or disabled during the marriage. In such scenarios, lifetime maintenance is a real possibility.

The Holidays Make Things More Complicated

Where one spouse has made up their mind that the marriage is over, telling the other spouse is never pleasant; adding the stress of the holidays, makes the situation even more difficult. Each case is different, and, the decision to file around the holidays or after is best made after consulting with a knowledge divorce and family law attorney.

Seek Legal Help Now Even if You’re Going to Wait

Just because you feel you will wait to speak to your spouse is no reason to wait to see your divorce attorney. The attorney’s counsel may be critical in the timing of your decision and announcement. Contact us at 631.923.1910 to arrange a free private consultation to discuss your options.

To Leave or Not to Leave? That is the Question

by Robert E. Hornberger, Esq | Dec 11, 2012

What are the consequences of leaving the home prior to divorce?

As a divorce lawyer and family law attorney on Long Island, one common question I am asked by potential matrimonial clients is: Can I leave the house?  While a number of issues come into play, the answer largely depends on two (2) issues

1. Grounds for divorce
2. Payment of support and/or carrying charges

Grounds for Divorce in New York

In New York, there are seven (7) grounds for divorce:

1. Cruel and inhuman treatment
2. Abandonment
3. Imprisonment
4. Adultery
5. Living separate and apart pursuant to a separation judgment or decree
6. Living separate and apart pursuant to a separation agreement
7. Irretrievable breakdown in the marital relationship for a period of at least six months (commonly referred to as “no-fault divorce”).

Abandonment

The question, “Can I leave the house?” involves an Abandonment issue. Abandonment must be for at least one (1) year and typically occurs in one of three (3) ways:

1. A spouse actually leaves the marital home and does not return
2. A spouse locks the other spouse out of the marital home
3. A spouse refuses to have sexual relations with the other spouse.

Time & Timing of Leaving is Important

Accordingly, if the spouse were to leave the marital home, they would be deemed to be “abandoning” the other spouse if their absence from the home were to last for at least one or more years.  Of course, the easiest way to avoid creating a ground for divorce of abandonment when leaving the home is to simultaneously file for divorce. In New York, the ground for divorce must have occurred prior to filing for divorce, therefore, if you leave the home and file simultaneously for let’s say, a “no-fault” divorce, then, you will not be deemed to have “abandoned” the other spouse.

Leaving has Support Ramifications

However, if you leave the marital home and you are the “monied” spouse, that is, the spouse who earns a higher income, then, you may become responsible for support to your spouse, children, or both, as well as for the carrying charges of the home, such as the mortgage, taxes, insurance, or rent, etc. If you are the less affluent spouse, then, upon leaving, you may actually be entitled to support from the monied spouse.

Every Case is Unique; Seek Attorney Counsel

The answer to the “Can I leave the house?” question is never as simple as yes or no. Each case is different and carries its own implications. Sometimes, the spouse can simply leave; other times, the spouse is better off staying in the home. To protect your interests, if you are contemplating leaving your spouse you need to meet with a qualified divorce attorney before taking any actions such as leaving the home.

The attorneys at Hornberger Verbitsky, P.C. are here to answer your questions at any time. For a free private consultation about your needs, 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.

To Divorce or Separate, That is the Question

by Robert E. Hornberger, Esq | Nov 21, 2012

Long Island Divorce Attorney Answers the Common ‘Should I divorce or separate’ Question

As a divorce attorney on Long Island, I am often asked by clients; “should I get separated or just go straight for a divorce?”

The answer of course depends upon the individual client’s situation.  For instance, a relatively younger client who has only been married for a few years and has no children may want to proceed straight to a divorce. While I acknowledge that a separation may allow that couple the opportunity to explore whether or not they could work out their issues and stay together or cannot and need to get divorced, as a divorce lawyer, I am obligated to let the client know that continuing the marriage could expose them to some risk. For example, the client may be held responsible to pay the uncovered medical expenses of his or her spouse. Additionally, if that spouse incurs debts for “necessaries,” the client can be held responsible. In a worst case scenario, the client could become liable to support the spouse should the spouse become disabled while prolonging the marriage.

Benefits of Legal Separation

However, there are obvious benefits to a legal separation in lieu of, or prior to formal divorce proceedings. Married, but legally separated persons are entitled to be covered by their spouse’s family medical insurance if their employer provides such coverage. Married persons can also take advantage of certain tax deductions that singles cannot. Also, if the couple is not quite sure whether or not they want to actually divorce, the separation can alleviate certain pressures in the marriage and allow the couple the opportunity to explore counseling and other avenues to save the marriage while resolving matters such as child custody, child visitation and support of the children as well as property distribution and spousal support in the event of a divorce.

Consult with an experienced Divorce Attorney

A potential client considering divorce or separation should have a consultation with a qualified divorce lawyer and family law attorney.  At Hornberger Verbitsky, P.C., we handle divorce and separation issues for couples in Nassau County and Suffolk County every day. We are familiar with the ins and outs of the legal process and work hard to protect the rights of our Long Island clients. You can find more information about our divorce and family law practice at https://divorce-longisland.com. Feel free to contact us at 631.923.1910 or by Email at [email protected], will be more than happy to answer your questions.