Legal Separation and Separation By Agreement

Legal Separation and a Separation by AgreementA judgment of a court granting legal separation declares that you and your spouse are legally separate. The judgment requires that you and your spouse be treated as separate persons. After the judgment of legal separation you can no longer file income taxes as married, you are no longer entitled to share in each other’s earnings or to support each other (unless you have agreed to in a separation agreement). The difference between legal separation and divorce is that in legal separation neither side can re-marry and the right to inherit is not terminated, except by a properly written and signed agreement. Generally, the timing and cost of a legal separation in court is about the same as for a divorce.

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No Losers in Mediation or Collaborative Divorce

There are No Losers in MediationEvery February,  Americans are privileged to celebrate  the birthdays of two of our greatest presidents, George Washington and Abraham Lincoln. Both served during war, but undoubtedly each would have preferred a peaceful resolution to the problem of  his times.

Washington was a soldier who led many battles. Yet, he wrote to a friend, “Unhappy it is, though, to reflect that a brother’s sword has been sheathed in a brother’s breast, and the once happy plains of America are either to be drenched with blood or inhabited by slaves. Sad alternative.”

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What is a QDRO? Dividing Retirement Plans in Divorce

QDRO Dividing Retirement Plans in Divorce

Virtually all property that has been accumulated during the marriage (“marital property”) is subject to be divided between the divorcing husband and wife. Almost everything of value is considered property, including retirement plans and accounts.

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New York Enacts No-Fault Divorce Law

New York Now a No Fault Divorce StateNew York has enacted a no-fault divorce law that took effect this October 12, 2010. Prior to that date, the only grounds for divorce in New York State were Cruel and Inhuman Treatment; Abandonment for at least one year; Imprisonment for more than 3 years; and  Conversion of a  judgment of separation or a written signed separation agreement after living separately for at least one year.

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Telling Your Spouse

telling your spouse you want a separation or divorceThe decision to seek a divorce or separation is a very difficult one for most people. Most often, either the husband or the wife makes the decision to break the news to the other only after thinking about it for a long time.  The decision is accompanied by many negative emotions such as frustration, anger, despair or fear. The term I use for the person who first decides to separate or divorce is the ” initiator”. I call the other spouse the “non-initiator”.

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Selling The House: What About Capital Gains Taxes and Exclusions

Selling the House After DivorceThe term “Capital Gain” means the profit on an asset. If you own a house, that is an asset.  When selling a house, the profit is determined by subtracting the following, from the selling price:

  • Costs of Sale: i.e. brokers commission, attorneys fees, expenses to fix up for the sale;
  • Costs of major improvements such as adding new rooms, major  renoveation of a bathroom or kitchen, adding a deck, etc. It does not include repairs.
  • Cost of Purchase;
  • Original purchase price (or in certain cases adjusted basis from a previous rollover)

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Parent Alienation

Parent AlienationParent Alienation is defined as a deliberate attempt by one parent to distance his or her children from the other parent. The motivation is to break the bond between the child and the other parent. It is very difficult for the alienated parent to overcome parent alienation. Rebuilding a relationship with an alienated child may seem remote or hopeless, but if no effort is made the chance of success is almost non-existent.

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What Do We Do With The House?

What to do about the house“What to do with the house” is often the most difficult issue for separating or divorcing families to resolve. There is no simple answer or formula. The problem is a complicated mixture of financial and emotional issues.

Generally speaking, the following are the four options to consider:

  • Sell now
  • Sell later, and one occupies with the children until sale
  • Transfer ownership from one spouse to the other, with a refinance buy- out, cash payment or trade
  • Rent it to a third party and share the income until sale

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Long Term Divorce

The Divorce ProcessThe 6 day trial lasted more than 5 months. The Family Part decision took more than 10 months more. The appeal was not argued until more than 16 months later. The Appellate Division opinion was not issued until more than 6 months later. Assuming the pre-trial period was only 12 months, this case lasted more than 4 years. “In this intensely contested matrimonial case…[the ] parties presented their respective positions in the course of a six-day trial that commenced on March 28, 2006, and ended August 16, 2006. Judge Cassidy addressed and disposed of all the issues raised by the parties in a memorandum of opinion dated June 29, 2007. After reviewing the record, and in light of prevailing legal standards, we affirm. “Marchev v. Marchev, March 16, 2009.”

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Lawyers Do Not Necessarily Know

Lawyers do not necessarily knowResearch has shown that lawyers routinely overestimate their chances of success in their cases, and the amount of experience they have had does not make much difference. A professor at the University Of California, Elizabeth Loftus, is co-author of a study which examined the accuracy of lawyers’ predictions. The researchers surveyed 481 lawyers in 44 states who handled cases expected to go to trial. They were asked to rate their confidence in achieving a stated minimal goal. The study found that the lawyers were less successful than their predictions in 44% of their cases.

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