Posted by: Dan Cunningham | January 5, 2014

Preliminary Conference

The preliminary conference is the first court appearance in a contested divorce.  At this conference, the lawyers for the parties explain to the judge what issues in the case are unresolved such as child custody, child support, equitable distribution and alimony.  The judge then sets a deadline for discovery, which is the exchange of information by the parties prior to trial.  Very rarely does the case get resolved at the preliminary conference.  The purpose of the preliminary conference is to set a schedule for resolving the case and to let the judge know what issues are in dispute.

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Posted by: Dan Cunningham | November 2, 2013

Attorney’s fees

Attorney’s fees

In 2010, the divorce law changed in that the legislature created a presumption that the monied spouse (the spouse with more money and a higher income) must pay the legal fees of the spouse who pays less.  This means the spouse with more money pays the legal fees of the spouse who pays less unless there is a compelling reason why he shouldn’t.  How much in legal fees the monied spouse is required to pay is up to the judge.  The amount of legal fees depends on a variety of factors including how much money the parties have, how complicated the case is expected to be, how much money each party makes and where the case is litigated (NYC attorneys charged more than attorneys upstate).  The link above is an article explaining how this new law played out in a NYC divorce involving a hedge manager.  The husband was required to pay 1 million in legal fees to the wife before the judge finally ruled that the wife is to pay her own legal fees from that point forward.  This is an extreme example.  In the Albany, New York area, where i practice, the amount of legal fees generally ranges between $2,500 and $10,000.

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Posted by: Dan Cunningham | March 3, 2013

This is a good article on common mistakes people make during divorces:

http://www.divorce360.com/divorce-articles/law/advice/top-10-legal-mistakes-in-divorce.aspx?artid=866

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Posted by: Dan Cunningham | January 13, 2013

How do I change my name after a divorce in New York?

This is a guide for women in New York State who want to change their name back to their maiden name after a divorce.  The first step is that you must be divorced.  You are not going to be able to do this until after the divorce is over.  This not a guide on how to get divorced, which would take far more time and effort than I have set aside today.

In any event, your divorce judgment, which is the piece of paper the judge has signed granting you the divorce, should state that you have the right to use your former or maiden surname.  If you have a lawyer, they should take care of this.  It is standard that this language be in the divorce judgment. If you do not have a lawyer and are preparing the divorce papers yourself, a practice I discourage, make sure whatever forms you are using for the divorce include some language, which allows you to change your name back to your maiden name after the divorce.  The exact language is not important so long as it clearly states that you have the right to change your name back to your maiden name.

Okay, so now the divorce judgment with the proper language has been signed.  The next step is to file the divorce judgment with the county clerk’s office.  In other words, you bring the original divorce papers to the clerk of your county so that it can remain on file.  If you are unsure where the clerk of your county is  do a Google search and it is sure to pop up on the first page.  The reason you must file your divorce is to ensure that your divorce becomes part of the public record.  While at the county clerk’s office filing your original divorce judgment, you should ask for 3 certified copies of your judgment of divorce.  These are copies of your divorce with a large stamp indicating that they are identical copies of the original divorce.  The certified copies cost $5 each for a total of $15.

Now you have everything you need to change your name. The next step is to go to the social security office to change your social security card.  Bring a certified copy of your judgment of divorce as well as your birth certificate.  Tell them you want to change your name because you have just been divorced and they will hand you an application.  Fill it out and hand it to them with the certified copy of your divorce and you will soon get a new social security card

The next place you should go is to the DMV.  Bring one of the certified copies of the judgment of divorce as well as your new social security card.  Bring your birth certificate too just in case but I do not think you will need it. Tell them you want to change the name on your license as you have just been divorced and they will hand you an application.  Fill out the application and give them the second certified copy of your divorce.  The DMV will then issue you a license under your maiden name.

Now you have a new license and social security card.  Think of any other place where you have been issued an id under your married name.  Your new license and social security card should be sufficient proof to change anything else that needs changing, like your passport.  If the new license and social security card are not enough, bring the third certified copy of your judgment of divorce, which should clear up any remaining issues about whether you have the right to change your name.

I hope this helps!

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Posted by: Dan Cunningham | December 25, 2012

The Importance of Holiday Schedules

If you are going through a divorce and if you have children, it is important you think about a holiday schedule.  When people divorce, they typically know that they must come up with a schedule for the children.  But, when thinking of a schedule people usually think of their everyday lives, i.e. when they have work and the children have school or daycare.  However, people also need to think about holidays and special occasions. 

There should be two separate schedules – a regular schedule for everyday life and a separate schedule for holidays and vacations.  The holiday and vacation schedule should trump the regular schedule.  In other words, if the holiday and the regular schedule conflict, the holiday schedule wins.  Otherwise, luck will govern who has the children on important holidays like Christmas and Thanksgiving.  So, if you are getting divorced, try to work out a separate schedule for holidays.  It could be as simple as listing the holidays that are important to you and your soon to be ex and stating that each parent will have parenting time every other year. 

Another approach is that each holiday is divided even (maybe 9-2 and 2-8).  This only works if both parties’ families are close to each other geographically.  The schedule will of course have to be suited to your needs and the needs of the children. 

In sum, if you are getting divorced, do not forget holidays!

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Posted by: Dan Cunningham | December 1, 2012

What is a qualified domestic relations order (QDRO)?

In many New York divorces, retirement accounts are divided.  In other words, one spouse will receive a portion of the other spouse’s retirement account or plan.  This sounds simple, but many times it is not.   Some retirement accounts, such as 401ks, will not let you simply transfer money to your spouse.  The division of the account will require a Court order.  The court order is known as a Qualified Domestic Relations Order, or QDRO for short. 

Because of potential tax and other issues regarding complicated Federal laws, it is not advisable that you do this yourself.   You will need to hire an attorney to do this.  So, when considering a proposal to resolve your divorce, be sure to ask your attorney exactly how long it will take and what it will cost for you to receive money from your spouse’s retirement account.  In other words, ask if a QDRO will be necessary and what it will cost.  In some cases, it does not  make sense, from a dollars and sense perspective, to divide a retirement account.  For example, if your spouse has a 401k with a balance of $3,000.  Under the law, you may well be entitled to half of that account, or $1,500.  However, if the division requires a Court order, which will cost you $2,0oo, obviously it makes no sense for you to sign an agreement which will give you half of that 401k.  You will wind up losing $500. Now, if the QDRO will cost $500, the deal would make sense because you would profit by $1,000.   So, again, it is important that you ask your lawyer if a QDRO will be necessary to divide the retirement and how much that QDRO will cost you.

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Posted by: Dan Cunningham | November 10, 2012

What do I do if my ex is violating my custody agreement in New York?

Well, the first step is to talk to your ex to see if there is a way to resolve the issue without having to go to court.  If this fails, then you can suggest involving a third party to resolve the dispute.  If your ex is willing to spend an hour with a mediator or therapist, this could help resolve the problem.  Sometimes a neutral party can resolve these disputes.  If your spouse refuses that option, then your only option is to file a violation petition in family court. 

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Posted by: Dan Cunningham | October 4, 2012

What is a statement of net worth and why do I have to fill one out?

In every contested divorce in New York State, each spouse has to fill out a form known as a statement of net worth.  This form is a detail list of your assets, debts, expenses and income.  While this may seem like a cumbersome task, it is a necessary evil.  The form is necesssary as it ensures that you know what your spouses income and expenses are.  You should not be forced to make an important life decision, such as how your assets will be divided, without knowing what assets and debts your spouse has.

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Posted by: Dan Cunningham | August 26, 2012

Tips for Keeping Your New York Divorce Civil

http://newyorkdivorcenews.com/divorce-detox-7-tips-for-keeping-it-civil/331710/ 

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Posted by: Dan Cunningham | June 19, 2012

What happens to cars in a New York divorce?

The most common approach to dealing with cars in a New York divorce is that each party will keep the car they are driving at the time of the divorce.   Under this approach, each party will generally pay the expenses for the car he/she receives after the divorce is over. 

From time to time, divorcing spouses will want to ensure that each side gets the exact same value regarding the division of cars.  In these cases, the parties will determine the value of each car to ensure that one person doesn’t get the better end of the deal.  If, for example, one car is worth $20,000 and the other is worth $10,000 then the person who receives the $20,000 car will owe the other person $5,000 to make it entirely even.  Most couples don’t put this much effort into the issue of cars and go with the approach outlined in the first paragraph.

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