Maggie Kaminer quoted by Liz Brody on the use of Facebook and divorce on shine.yahoo.com

These days, most people don’t think twice before they post something on the social networking website of their choosing, be it Facebook, Twitter, or something else.  However, if you foresee divorce on your horizon, or you are in the process of divorcing, or you are embroiled in a family court litigation involving either custody or support, you would be wise to think twice before you hit ‘enter’ on any of your entries.  I like to tell my clients, even when they send e-mails to their spouses or ex-significant others, that they should pretend as if a judge will see everything they write.  For example, it won’t do you any good to claim in court that you are desperately poor, but then brag on Facebook about a new Porsche you are leasing (or purchased).  Likewise, you don’t want to claim to be the more appropriate/fit parent in a custody dispute, only to have your Facebook entry, about how you passed out drunk at a strange person’s apartment at 3 am without having called the babysitter to say you’d be late, show up as exhibit “A” of your spouse’s motion for a change of custody.

Status updates, posts on “walls,” changed profile information, and photos from Facebook have all been used in cases I’ve seen.  So have Internet dating site profiles.
Be careful what you post – even if you think you have removed your ex as a ‘friend,’ you can be sure that someone you are friends with may give that person information you did not intend for them to have.

For a more in-depth read on the issue, check out this article in the Philadelphia Inquirer.

http://www.philly.com/philly/living/20100712_Divorce__Facebook_style.html

Maggie Kaminer quoted by Liz Brody on prenups at Shine.Yahoo.com

Aside from the obvious emotional and psychological (and some would add physiological) costs of divorce, two big questions prospective clients love to ask a divorce attorney with whom they are consulting is, “How much is this going to cost me?” and “How long will this take?”

 The answer to both is: “It depends.”

 Issue Number One: Your Spouse and the Attorney Your Spouse Hires

Unless you have already been served with divorce papers (and perhaps with it an Order to Show Cause seeking all kinds of interim relief) and the lawyer with whom you are consulting knows the lawyer your spouse has hired, it is nearly impossible to predict whether it is a case that will be settled in a reasonable period of time or a case in which every issue will be litigated.  It’s also impossible to predict the financial cost if you are the one initiating the divorce, because you have no way of knowing who your spouse will go out and hire once you begin the divorce process.  Because the soon-to-be-ex is an “x-factor,” it becomes extremely difficult for a lawyer to gage how much a divorce will cost.  If your spouse is vindictive and would prefer to pay his or her lawyer rather than you, you are likely in for a costly and drawn out battle.  If your spouse is pragmatic and has hired a like-minded attorney, and you believe yourself to be pragmatic as well, and have hired a like-minded attorney, it may get settled quickly and with minimal expense.

Issue Number Two: You

Another thing to consider is you.  Do you need your attorney to be a hand-holder?  Do you need to discuss, in-depth, every single issue that arises, no matter if it is large or small?  If you do, that is okay, but understand that you may be the reason that your divorce becomes expensive.  At times, some clients also mistake their divorce attorneys for their therapists.  If you have a therapist that is covered by your insurance (or you can get one), it is often less expensive to raise certain issues with your therapist instead of your lawyer.  While at times it is important to share sensitive or personal information with your attorney – particularly when grounds or child custody is at issue – sometimes clients forget that their attorneys bill for telephone conversations (or reading lengthy e-mails).  They are then shocked at the bill when they see 7 or 8 hour-long telephone conversations over the course of a month that cost them in the thousands of dollars with nothing to show for it.  If cost-cutting is important for you, it’s often better – barring any emergencies of course – to collect your thoughts in a concise fashion and to send your attorney an e-mail.  You may even want to work on the email over the course of several days – again, unless there are pressing issues – to put as much into the email as you can.  It will take your attorney much less time to read your well-written thoughts than it will to have a long telephone conversation.  

 Issue Number Three: Knowing What You Want

If you are concerned about the financial cost of divorce, work closely with the attorney you hire to make sure you understand the risks and rewards of litigating over certain issues.  For example, if your spouse is being stubborn over one small issue that might entitle you to $5,000, but it would likely cost you $10,000 or more to engage in motion practice over that issue, speak to your attorney about whether you think it’s worth cutting your losses.  In that scenario, even a “win” in court would still be a net loss to you of $5,000.   If the principle is more important than the money, then you may feel fine about spending $5,000 just to prove a point.  Make sure you communicate with your attorney frequently to ensure that you are on the same page.

Client’s often ask what rights a grandparent has following divorce or in the event of an untimely death.  As with many issues, a Separation Agreement between the parties can address such a question.  However, if the issue is left open after a divorce is finalized, grandparents may find themselves in the unfortunate situation of having to seek the court’s assistance in maintaining a relationship with their grandchild. 

In New York a grandparent’s “legal” right to visitation is set forth in Domestic Relations Law Section 72.   Although this law recognizes the bond that exists between a child and their grandparent, it does not guarantee a grandparent the right to see their grandchildren following a divorce or a death.

Instead, when a grandparent seeks access to a grandchild under Domestic Relations Law Section 72, the grandparent must first prove to the court that they have “standing” or the right to seek the visitation.   This proof is established when one of the parents has died or where there are equitable circumstances, such as a custodial parent’s refusal to provide access between a child and a grandparent.  Once the court establishes a grandparent’s right to be heard, then it must determine if the visitation is in the best interest of the child.

By John E. Johansen, CPA, CFP, MBA

The financial issues inherent to every divorce case are often the ones that are most overlooked. However, once a divorce settlement has been signed, it is too late to change it.

Do you know the answers to the following questions?  Or, do you believe that you might benefit from hiring a financial professional trained and experienced in the financial matters of a divorce to advise you?

1. How much do you really know about your spouse’s income, compensation package and business dealings?
2.  Does your spouse own his or her own business? If yes, how much is the business worth? Do you own a business? If yes, how much is it worth? How will business interests be offset in the settlement? If your spouse owns a business interest, could he or she manipulate the earnings of the business during the divorce process? Could your spouse not disclose cash income?
3. What was your net worth before you were married? Did you have any substantial assets prior to the marriage? Did you receive any inheritances during the marriage? Do you know the difference between marital property and separate property?
4. Did you or your spouse obtain any professional licenses or designations during the marriage? How will these be valued?
5. What is your lifestyle going to look like post-divorce? How much will it cost you on a monthly basis to maintain your pre-divorce lifestyle? Will you receive alimony and/or child support (if there are minor children)? If yes, how long will these payments be paid to you? What events will cause these payments to decrease or stop? What are the different options available to structure these payments?
6. What happens to your settlement if your spouse declares bankruptcy?
7. If you are covered on your spouse’s benefits plan, what will happen to your benefits? Will you have health insurance post-divorce; what is the value of these benefits? 
8. How will you determine if your settlement is a good deal? If you receive 50% of all marital assets, is that a good deal?  If your 50% had a lower tax basis than your spouse’s 50%, your 50% could in actuality be 25% after tax. The tax issues surrounding a divorce are complex and are not dealt with on a regular basis by a CPA who lacks experience in the area of divorce.
9. What about your spouse’s 401K, pension plan, deferred compensation plan, stock option plan and various other types of compensation? How will you value your spouse’s pension, which he or she will not start receiving until some point in the future?
10. How will you value their stock options which will not vest until some post-divorce date?
11. Last but not least, the granddaddy of all questions; will you be able to financially survive and thrive with the final settlement post-divorce?

John E. Johansen, CPA, CFP, MBA specializes in the financial issues of divorce and helps clients and their attorneys work toward an optimal settlement agreement. John also helps clients plan to reach their post-divorce financial goals.  He can be reached at john@rhinonyc.com or 917-842-8768.

If this is your first marriage (and you do not have any children from prior relationships), you probably do not need a prenuptial agreement.  Many people contemplating marriage think, that because they own real property or have other significant assets coming into a marriage, they need a written contract to protect those assets.  Under New York law, however, if something is your premarital, separate property, it remains your separate property unless you do something to commingle it after the marriage.  Of course there are exceptions to this rule, so it’s best to contact an attorney to discuss your specific situation.

Solid reasons to consider a prenuptial agreement for your first marriage are if you are part of a family or other business or believe that you and your intended spouse have very disparate views on finances.  If you are the future spouse on the receiving end of a prenuptial agreement, you may want to suggest or insist upon a “sunset clause,” which essentially voids the prenuptial agreement after a certain period of time.

If you have children from a previous marriage and want to preserve your assets and estate for your children, and not your new spouse, a prenuptial agreement is a very good idea.  In this situation, both parties will gain an understanding of what assets and liabilities their future spouse is bringing into the marriage, and there are no surprises upon either the dissolution of a marriage or the death of one spouse.  A prenuptial agreement may also be comforting to a person entering into a second or third marriage in order to prevent the expense and/or discomfort they may have experienced in a prior divorce.

No matter what the scenario, recognize that both parties entering into a prenuptial agreement should have legal counsel.  When one party does not have counsel, the agreement may be more susceptible to a successful legal challenge.  Often, where there is a significant disparity in the financial situation of both parties, the party with greater resources will be asked to cover the counsel fees for his or her intended spouse.

     Prior to the state law that went into effect on September 1, 2009, judges would issue financial restraining orders only if requested to do so by one of the parties in a divorce action.
     The newly amended statute, section 236(B)(2)(b) of the New York State Domestic Relations Law, makes restraining orders automatic in New York divorce actions. The automatic restraining order prevents both of the parties in a divorce action from performing certain financial acts such as incurring unreasonable debts, changing insurance beneficiaries, or disposing of any property.
     An automatic restraining order must be attached to the summons served by the plaintiff on the defendant. A summons, in simple terms, is a notification that an action has been filed against a party and requires that party, or their attorney, to respond to the summons within 20 days if they were served in New York or 30 days if they were served outside the state of New York.
     In a New York divorce action, the defendant must be served the summons and the automatic restraining order personally. The automatic restraining order goes into effect against the plaintiff the moment the action is filed, while the defendant is bound only once he/she is served with the summons and attached order.
      The automatic orders prevent a spouse from removing the other spouse from health insurance coverage, raiding investment, bank retirement or other accounts, and avert other similar behaviors that were commonplace in divorces before the statute’s amendment.
      The automatic restraining orders remain in effect throughout the duration of the divorce action. However, the order can be terminated or modified by court order or by a written agreement between the parties. If either the plaintiff or defendant violates the automatic restraining order, he/she may be held in contempt of court, jailed, or face financial penalties.
      For a full list of what is categorized as protected under an automatic restraining order please visit www.courts.state.ny.us/rules/trialcourts/236.pdf