General Blog

The New Maintenance Laws have greatly effected the way alimony (termed “maintenance” in NY) is handled in New York State. The new law, which went into effect on 01/25/2016 throws out the former way the Courts determined alimony or maintenance and had done so for decades. The Courts used to weigh a number of factors and make a discretionary determination concerning the amount and duration of alimony payments that was appropriate for the case at hand. The determination considered multiple factors (about 20) including the length of marriage and the amount of time the recipient of maintenance would need to become self-supportive. The new maintenance law in New York has replaced this discretionary analysis with a mathematical formula that is similar to the child support calculations utilized in New York in the sense that each formula is based on the two parties’ respective incomes and…Read More

The short answer is: NO… However, as with most legal issues, there is no black and white. The NY Courts have stated that without a marriage – there will be no recognition of an implied contract. This is a huge impediment to someone seeking any sort of support or a share of property based on a romantic relationship that is not consummated by marriage. The highest court in New York – the Court of Appeals – stated in Morone v. Morone (1980) that it is not reasonable to infer an agreement to pay for services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously. The Court further stated that it is hard for Courts to sort out intentions of parties and provide awards based on conduct carried out within private and non-contractual relationship. Contrast that with marriage, which…Read More

What is the Mortgage Contingency Clause? The mortgage commitment contingency is a clause in standard residential real estate contract used in the greater New York City area that makes the purchaser’s obligation to purchase contingent upon being able to obtain a mortgage commitment from a lender. This clause affords protection in that the purchaser has the right to cancel a real estate contract and obtain the return of the down payment if the buyer is unable to obtain the commitment within a certain amount of time.  The purchaser must, however, comply with the notice requirements in the contract of sale.  The standard mortgage contingency clause also affords the seller the right to cancel the contract if a commitment has not been accepted by the purchaser by the commitment date specified in the contract. While this seems simple enough, the rights and obligations of the purchaser…Read More

[Please note that local customs and practices vary location to location within New York. For the NYC and surrounding areas, including Westchester County, the following summation should be useful:] So you have listed your home for sale and you have an accepted offer! Now what? The next step is for you or your attorney to draft a Contract of Sale to make the buyer’s intention of purchasing your home official. Your real estate agent will gather the critical information and terms and send your attorney a brief document referred to as a “Deal Sheet” or “Memorandum of Agreement”. This will enable your real estate attorney to draft the Contract of Sale and provide the Contract to the buyers’ attorney. Other documents you should send to your attorney at the outset include: The previous Deed of Sale showing how title to the property is held; Any…Read More

What are those confusing numbers that take place before the closing and at the closing that lawyers and title companies refer to as “adjustments” or “closing adjustments”? They are really not as complicated as they first appear. The main adjustments in your average home sale is for taxes. Depending on the town, village, or city that you live in, you may pay a number of different taxes during the course of the year. They are generally referred to as “real estate taxes” because the amount you pay is tied back to your property and its assessed value. However, these real estate taxes often consist of sub-sets of taxes such as School Taxes, Town/Village Taxes, County Tax, Sewer Tax, etc. And sometimes a few of these taxes are lumped together – again, it really depends upon the municipality in which you live. To make matters a…Read More

That is a good question to ask yourself before you walk down the aisle… “Prenups” are not for everyone and they certainly are not the most romantic subject to bring up with your fiancé. However, they can be a powerful and useful planning tool before you get married. In fact, prenups can be utilized for spouses to be who do not have any significant assets at this time but expect to acquire assets in the future. In a prenuptial agreement, you can “carve out” certain current or future assets as separate property. For example, a prenup can say that any property held or titled in his/her separate name will be considered separate property and will not be subject to equitable distribution (will not be divided at trial) and that any property held or titled in joint name will be considered marital property subject to equitable…Read More

Equitable distribution is the division of marital property in a divorce. Equitable distribution law is premised upon a marriage being an economic partnership. Marital assets are broadly construed, while separate assets are narrowly construed, as exceptions. An asset is considered separate property, under New York Domestic Relations Law Section § 236 Part B(1)(d) if it is: property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; compensation for personal injuries; property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; property described as separate property by written agreement of the parties pursuant to subdivision three of this part. Martial property, only, is distributed during equitable distribution. It is presumed that assets…Read More

If you are getting divorced in Westchester County, it is important to hire a matrimonial attorney who is familiar with the unique practice of the Westchester County Supreme Court Matrimonial Part. In Westchester County, there are Matrimonial Part Operational Rules that set forth rules specific to Westchester County divorce cases. One significant aspect of matrimonial practice in Westchester County is the Court’s use of Court Attorney Referees. Court Attorney Referees handle most Court conferences in Westchester including the preliminary conference, compliance conferences, and pre-motion conferences. Referees do not conduct hearings or trials and they do not have the power to issue Orders. These powers are reserved for Supreme Court Judges. However, Referees do make recommendations to the Judges and the Judges are permitted to consider these recommendations when issuing orders. See Parts (D)(6) and (E)(12) of the Westchester Supreme Court Matrimonial Part Operational Rules. In the Westchester Matrimonial…Read More

People are sometimes inclined to spoil their children and grandparents are especially fond of spoiling their grandchildren. This often results in children living a better lifestyle than their parents could provide because monetary contributions from a party’s parents. However, a grandparents’ generosity may become a negative for their adult child in the event of a divorce. During and after a divorce, one parent will typically receive child support from the other. In determining income for child support, a court looks at the gross income of each parent (as stated on their tax return) less FICA and medicare taxes along with other possible deductions permitted by statute. However, on top of a party’s income, Courts may impute income based on gifts made to the parents from relatives. See Domestic Relations Law § 240 (1-b)(b)(5)(iv)(D). Section (iv) specifically states: At the discretion of the court, the court may attribute…Read More

Many times a lawyer is the first person you talk to about your decision to pursue a divorce. For this reason, it is important to choose a lawyer you feel comfortable with and can trust. When you first arrive at your lawyer’s office, you will have to sign a “Statement of Client’s Rights and Responsibilities.” This will outline what you should expect of your attorney and what would be expected of you and the execution of this document is required by the Office of Court Administration. This is a document you keep whether or not you retain the attorney, but does not obligate you to retain the attorney. The first topic the attorney should discuss with you is whether you can file for divorce in New York State. To file for divorce, you must fulfill the residency requirement and also have one of the 7…Read More