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Husband’s Down Payment to Purchase Home Considered Separate Property

family law attorneyIn a recent decision, the Appellate Division of the Third Department, an appeals court, has upheld a Supreme Court decision which found the down payment a husband used to purchase the marital residence was the husband’s separate property.

The Case

The parties to a marriage purchased a home 5 months after they were married. At that time, the husband put $33,000 of his separate property into a joint bank account with his wife. This took place approximately a month before purchasing the home. $25,000 from the account was used as a down payment in the transaction. There was a divorce trial on the issue of equitable distribution of marital assets in the Supreme Court. The judge held in that proceeding the $25,000 in funds were the husband’s separate property and he was given a credit for this amount concerning the distribution of the parties’ assets. The wife, unhappy with this decision, brought an appeal to the Appellate Division of the Third Department.

Separate Property

The Supreme Court judge who heard the equitable distribution portion of the divorce case had found the funds were the husband’s separate property based on the timing of the deposit on the purchase of the home, his ability to trace the source of the funds, and the husband’s testimony they were only placed in the joint account because it was the same bank the parties’ obtained the mortgage from. On appeal, the Appellate Division found no basis to overrule the decision of the Supreme Court judge with regard to the designation of the $25,000 as separate property.

The appellate court did find the Supreme Court judge made a mistake in directing the immediate sale of the marital residence. The appeals court found the law indicated a preference to allow the residential custodial parent to remain in the marital residence until such time as the youngest child reached the age of 18, except in special circumstances which were not present in this case. The court therefore ruled the wife was entitled to exclusive possession and occupancy of the marital home until the youngest child was 18.matrimonial attorney

New York’s Alimony Laws Are Changing

matrimonial attorneysIn 2010, the State Legislature in New York passed laws with regard to temporary spousal maintenance which is more commonly referred to as alimony. Since then, many divorce and family law attorneys as well as Judges have been upset about these new laws. The temporary maintenance formula is intended to provide a greater level of consistency in all awards made by courts, concerning families involved in divorce litigation. The 2010 amendment to the alimony laws in New York was supposed to alleviate concerns high income families had over issues such as one-time bonuses and mortgage payments.

State Legislature Appoints A Commission

After the temporary alimony law was passed in 2010, the State Legislature organized a commission to evaluate the effectiveness of this new law. The commission made a recommendation that the formula for alimony enacted in 2010 should only apply to people earning up to $136,000 per year. In a divorces involving couples with income greater than $136,000, judges would be given discretion to determine what, if any, alimony is to be paid based on a specific set of factors.

The $136,000 threshold was picked by the commission because it works in conjunction with the same threshold amount that is part of the Child Support Standards Act which is enforced in all 50 states.

Uncertainty About Alimony Awards

Divorce lawyers are concerned that changing the law will bring back uncertainty into the process of determining how much, if any, alimony is to be paid in a divorce. Since approximately 85% of all families getting divorced in New York State make under $136,000 the uncertainty will only exist, if it exists, with regard to a small minority of the families involved in divorce litigation.

Equitable Distribution Of Licenses And Degrees

There is a famous Court of Appeals decision in New York in the case of O’Brien vs. O’Brien which basically stated that professional licenses and degrees from universities are property subject to equitable distribution. The manner in which this type of equitable distribution matter is handled today is forensic experts are hired to determine the value of the professional licenses or degrees and the courts give an award of a percentage of said license or degree to the spouse. This principle is called Enhanced Earning Capacity. The commission appointed by the legislature has recommended abolishing this legal precedent. They feel licenses and degrees should not be subject to equitable distribution.

Conclusion

The divorce laws on New York State need to be modified pursuant to the commission’s recommendations. It is now up to the State Legislature to pass these changes to the divorce laws in New York.divorce assistance

Judge Allows Egregious Fault Inquiry in Equitable Distribution Case

matrimonial attorneysJustice Palmieri in the Supreme Court located in Nassau County, New York, has rendered an unusual decision in a divorce case. Divorce Law in New York does not make fault a factor in equitable distribution of assets unless there is “egregious marital fault.” In this case, the wife’s husband of ten years had been convicted of sexually molesting her eight year old granddaughter from another marriage. The attorney for the wife sought to make an inquiry with the husband with regard to his conduct being a potential factor in the equitable distribution of the property. The husband’s attorney brought a protective order application alleging that this conduct is not material to the equitable distribution of assets.

Sexual Abuse Is Egregious Fault

Judge Palmieri, in his decision, stated “it cannot be seriously argued that this could never be a sufficient basis…for finding ‘outrageous’ or ‘conscious shocking’ conduct no matter what disclosure of the underlying facts might reveal.” He therefore, allowed the discovery of material to develop the facts in this situation.

Mrs. G stated that after her husband was convicted she had a nervous breakdown. She was forced to take medication which prevented her from functioning properly. She needed therapy, but could not continue with the therapy because her husband refused to pay for the treatment.

Judge Palmieri in his decision stated “notwithstanding the plea, no trial Court can fairly determine whether the defendant’s conduct was sufficiently outrageous or conscious shocking to affect equitable distribution on a conviction alone.” This is due to the fact plea bargains are often the result of negotiations in which various factors come into play. The judge went on further to say “the issue is his conduct and the effect on the plaintiff and his alleged victims cannot be used as shields.”

Conclusion

Judge Palmieri has deviated from the established law with regard to allowing fault to be taken into consideration in the equitable distribution of assets. I presume this case will be appealed. It is my expectation that it will be reversed by the Appellate Division.

New York Fathers Rights’ Lawyers

Sometimes when fathers come into Court, they find the playing field is not level. The Family Court is often referred to as “mommy’s court.” However, there is a way to level the playing field and that is to hire the most experienced, most competent aggressive fathers’ rights lawyers available.

family law and divorce on Long IslandThe attorneys of the Law Offices of Schlissel DeCorpo are recognized throughout the metropolitan New York area as the premiere father’s rights lawyers. We litigate issues involving divorces, child custody, visitation, changing child custody, child support, child abuse, child neglect, annulments, parental alienation cases, as well as orders of protections. Call us for a free consultation at 1-800-344-6431, 516-561-6645, 718-350-2802.

Divorce and College Tuition Expenses for Children (Part 1)

college.bmpThere are many issues that come up in divorces. Who gets custody, child support, visitation (parenting schedules), equitable distribution of property and the payment of debts from the marriage. These issues can cause divorces to be contentious. Litigants in divorce cases spend large sums of money fighting to protect their rights concerning these problems.

College Expenses

If the parties to a marriage have children, how is the issue of college expenses dealt with? To start with, most litigants in a divorce will tell their attorney that their children are young and they don’t want to deal with the college expense issue now, that they’d prefer to wait until a later time. In those situations, the attorney should ask his clients how much they have saved up for college so far. The answer to that question is often either zero or a very small amount.

During settlement discussions on divorce issues, the parties often get together at one of the attorney’s offices and have a four party meeting. At this meeting, both spouses and their respective attorneys face each other across a conference room table and discuss, in a mature, intelligent, reasonable manner the issues involved in their divorce.

The purpose of these discussions is to try to work out an amicable settlement without the need for expensive litigation. When the issue of college tuition comes up, both of the spouses sometimes say they agree that we should pay for the college expenses for their children. Often the Attorney will inform them of something along the lines of: “well, your children are eight and ten, as of this point. You have saved very little towards their college expenses. Even though you seek to pay for your childrens’ college expenses, and this is admirable, since you haven’t saved money up until this point, it is unlikely that you will be able to save enough money to pay for the tuition in the future”

Divorce and Family Court Lawyers

I have been representing men and women concerning issues involving divorce, divorce grounds and family law problems for more than 33 years. I have been involved in hundreds of cases dealing with issues concerning orders of protection, child custody, child abuse, child neglect, division of marital property and regarding negotiation and separation agreements. My law office protects mothers’ rights and fathers’ rights in divorce and family court situations. Should you have questions or seek a free consultation, call me at 1-800-344-6431, 516-561-6645 or 718-350-2802.

‘Genius’ Not Taken Into Account in Equitable Distribution

divorce-150x150Judge Dregger, sitting in Manhattan Supreme Court, denied a very successful private equity firm executive from presenting evidence in a divorce case that he had “unique personality traits” prior to the marriage that allowed him to accumulate 450 million dollars in business assets during the thirty year term of his marriage. Justice Dregger, in her decision, stated that “in purporting to prove that the success of the business is solely attributable to his innate genius, the expert opinion evidence offered by the husband provides no assistance to the finder of fact in fashioning an equitable distribution of the estate based on the contributions of each party to the marital partnership.” Mr. and Mrs. Silverman were married for more than thirty years prior to a divorce lawsuit being brought. They had married in January of 1978.

Innate Talents

Mr. Silverman claimed that he had unique innate talents that allowed him to be successful in this business. Mr. Silverman argued that his talents in business should be considered in determining equitable distribution. Justice Dregger stated that intangible assets may be considered as marital property, referring to the enhanced earning capacity of an investment banker, someone with celebrity status or someone involved in a political career. However, she stated the question is “to what degree the spouse not possessed of the intangible asset was entitled to a distributive aware arising from the enhanced earning capacity of the career developed during the marriage and not the degree of fame, skill or political acumen possessed at the time of the marriage.”

Henry Silverman is out of luck. The 450 million dollars he amassed is subject to equitable distribution with his wife. I’m sure he’ll end up with enough money to prevent himself from starving.

New York and Long Island Divorce Lawyer

The Law Offices of Schlissel DeCorpo have been handling divorces in the Metropolitan New York area for over thirty-three years. We litigate all aspects of divorce related proceedings in the Supreme Court and Family Court. These proceedings involve divorce grounds, no fault divorce, child custody, mothers’ rights, fathers’ rights, child support, downward modification of child support, spousal maintenance (alimony) and domestic violence issues. In addition, we negotiate separation agreements, prenuptial agreementsand post-nuptial agreements for our clients. We litigate equitable distribution issues involving doctor, dentist and lawyer licenses. Call us for a free consultation.

Getting Divorced During an Economic Downturn

divorce-150x1502The financial crisis in the United States is causing tension within families. Financial problems can be the cause of a divorce. In most marriages the family home is the largest asset. The decline in home values over the past three or four years has resulted in many homes being worth less than the mortgages on them.

Postponing Divorce

Recent studies have shown that nearly a third of all couples who considered divorce have postponed their divorce plans due to financial problems.

Divorce and Real Estate Issues

What do you do with the house in the divorce? Who stays in the house? Who is responsible for paying the bills on the house? These are significant issues that must be dealt with.

Living Together Until Financial Problems Can Be Dealt With

One choice for couples who don’t get along is to continue living together, but not as man and wife. These couples live together with the hope that their financial situation will improve and they will be able to sell their home and get their equity out of it. However, there is no sign the real estate market is improving throughout the majority of the United States. Furthermore, there is always a question as to whether living with someone you don’t get along with creates a negative environment for the children or will result in domestic violence.

Are the Mortgage Payments Behind?

If the mortgage payments are behind, the unhappy couple will eventually be receiving a foreclosure notice. Is it better to sell the house now or wait until it’s sold in foreclosure?

Modern Divorce

Divorce can be a contentious issue or it can be negotiated. The best solution for couples that don’t get along is for them to sit down with attorneys and negotiate in a mature, amicable manner, in either a divorce settlement or separation agreement. This will help avoid the acrimony and high cost of litigation.

New York and Long Island Divorce Lawyer

The Law Offices of Schlissel DeCorpo have been handling divorces in the Metropolitan New York area for over 33 years. We litigate all aspects of divorce related proceedings in the Supreme Court and Family Court. These proceedings involve divorce grounds, no fault divorce, child custody, mothers’ rights, fathers’ rights, child support, downward modification of child support, spousal maintenance (alimony)and domestic violence issues. In addition, we negotiate separation agreements, prenuptial agreementsand post-nuptial agreements for our clients. We litigate equitable distribution issues involving doctor, dentist and lawyer licenses. Call us for a free consultation.

Suspects In Abuse Cases – Phone Calls are Taped

New York City jails tape all phone calls made by prisoners with the exception of calls to doctors and lawyers. Prosecutors have been using these tapes against these prisoners. More than 8,200 calls were taped last year in New York City jails. The largest use of these taped calls comes in domestic violence cases.

Domestic Violence

Men charged with assaulting and beating their wives and girlfriends seem to blabber mouths. “I need you to prepare the kids to start lying” was stated by one man to his girlfriend on these taped conversations. In another case the prisoner told his girlfriend “whatever you do, do not speak to the District Attorney.”

Scott Kesler, the Bureau Chief in the Queens District Attorney’s office stated the recording “revolutionized the way we were able to proceed against men in domestic violence cases. Mr. Kesler stated that we now have to ability “to prove what we’ve always suspected which is that defendants in domestic violence cases are in constant contact with their victims and they utilize the phone system to intimidate their victims and refuse to cooperate in their prosecution.

Orders of Protection

In virtually all domestic violence cases the abused individuals are given orders of protection preventing the abuser from having contact with them. These jail house calls are violation of the court ordered orders of protection and constitutes a crime in and of themselves.

In one case in Kings County the abuser called the victim 1,200 times while he was incarcerated. Sometimes the victims are so traumatized by these phone calls they refuse
to cooperate with the prosecutors. In these situations the District Attorneys office utilized the recordings to explain why the victims are refusing to testify.

In a case involving Mohammd Khan, who was charged with stabbing his wife in the head and shoulders with a meat cleaver. The wife testified she did not remember who her attacker was. The recordings showed that Mr. Khan had engaged in a campaign of coercion against his spouse. They were able to introduce her statements made in the hospital during the course of the proceedings against Mr. Khan. Mr. Khan was convicted and eventually sentenced to 7 to 10 years in prison.

Fathers’ Rights Lawyers

If you were arrested it is generally not in your interest to speak about the alleged crime you have committed. The father’s rights lawyers at the Law Offices of Schlissel DeCorpo in addition we represent fathers concerning the following matters related to divorces and family court proceedings: orders of protection; child custody; child visitation; child support; spousal maintenance (alimony); child abuse & child neglect; CPS and ACS cases; paternity and equitable distribution; negotiating separation agreements and pre-nuptial and postnuptial agreements. Feel free to call us for a free consultation. We can protect your rights.

Pet Torturer Sentenced

handcuff-150x150Sharon McDonough may permanently lose custody of her children! Sharon McDonough has been found guilty in Suffolk County, New York, of torturing and killing pets. She raised her children in what has been referred to as horrid conditions. Judge C. Randall Hinrich’s sentenced Ms. McDonough to two years in jail. He stated that her crimes were absolutely horrific. Her behavior has been referred to as sinister and evil.

Children Sleeping in Filth

The investigation concerning Ms. McDonough’s household found that her daughter slept in what can be only described as filthy conditions. Her children were forced to watch her torturing and abusing animals. Ms. McDonough choked a maltese dog to death. She did this in front of her ten year old daughter in June of 2006.

Son Turns in His Mother

Sharon McDonough had a son named Douglas. When he moved out of the home, he turned her into Rescue Inc., an animal rescue organization. He advised the animal rescue organization that he was concerned for the safety and well being of his sisters. Sharon McDonough is an embarrassment. Hopefully, she will receive counseling in prison to deal with her violent, abusive, sadistic behavior.

Family Law Attorneys

The Law Offices of Schlissel DeCorpo has been representing individuals in family related matters for more than thirty years. We represent our clients concerning separation agreements, annulments, pre-nuptial and post-nuptial agreements, child abuse and child neglect cases, as well as child custody matters. We litigate orders or protection in the family court. We represent clients in all aspects of divorce proceedings including, but not limited to, divorce grounds, equitable distribution and high net worth issues. Call us at 1-800-3446431, 516-561-6645 or 718-350-2802 if you need a matrimonial or family law attorney in the Metropolitan New York area.

Mother’s Request to Relocate Her Child Denied

This past summer, Justice Falanga, a Supreme Court Judge sitting in Nassau County, made a ruling that despite a child’s wishes, the relocation of the child with the mother to Michigan was denied. The wife decided to relocate from New York to Michigan. She had residential custody of the parties’ children. The father brought a proceeding for custody of the parties youngest child. He took this action in spite of the fact that the child had specifically expressed her desire to move to Michigan with her mother.

Dad Asks For Custody

Dad argued that the custody change was not in the child’s best interest. Justice Falanga decided that this was not a typical relocation case. Instead, he felt it was an application for change of custody resulting in the relocation of the child to another state.

The judge stated in his decision that the wife had the burden of demonstrating that the child’s best interest would be served by this relocation to Michigan, and by the changing of the residential custody from the father to the mother. The court noted that under child modification principles, the wife had established that she believed the child would be happier if she was allowed to reside with her in Michigan. However, she did not prove such change in circumstances would be in the child’s best interest.

The court also took into consideration the fact that the father had made diligent sustained efforts to develop the child’s relationship with his wife. The court ruled that he was the parent best able to provide for the child’s emotional, intellectual and social development. The judge further stated in his opinion that he could provide a more secure standard of living and financial future for the child.

In this case, a father’s rights were protected by the court. Thank you, Judge Falanga!

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New York Fathers’ Rights Lawyer

Fathers need to have their rights protected. Important issues in matrimonial law involving divorce, fathers’ rights, orders of protection, child custody, child visitation, child support, spousal maintenance (alimony), child abuse, child neglect, paternity, equitable distribution and relocation problems require experienced, dedicated fathers’ rights attorneys. We also represent fathers concerning issues involving parental alienation, parental alienation syndrome and paternity. Should you be presented with one of these issues, please feel free to call us.

Orders of Protection

When one party to a relationship appears in the Family Court and requests an order of protection, there is a tendency for judges to grant these requests. The initial order of protection, given on an ex parte basis (without the other party having his or her day in court), is called a temporary order of protection. Unfortunately for the fathers, a large majority of temporary orders of protection are given to mothers. This can cause the father to be completely cut off from his family. This means he may not communicate, see, or visit with his children. This can also result in the father being immediately thrown out of his home or apartment. To obtain his clothing and personal possessions, he needs a police escort and he can only take on that occasion what he can carry with him. Imagine, one day, being part of a warm and loving family and, the next day, being on the street with no communication with your wife or your children. What’s more is that you cannot return to your home. Although there are many valid situations for granting an order or protection, my experience is that if a woman comes into court and sheds a few tears and claims she’s afraid of her husband, most family court judges will grant an order of protection. Often no hearing of any type is held. A woman makes a series of general allegations, she receives a temporary order of protection and the father’s world is rocked!

Orders of Protection Affecting Children

Children have two parents, a father and a mother. They want to love both of their parents. In cases where they have relationships with both parents and one parent is abruptly removed from their life, it causes the children to be confused and upset.

Sometimes after the father is removed from the home the mother engages in parental alienation syndrome (bad-mouthing of the father to the children). When one parent bad mouths the other to the children and that parent is out of the children’s lives, the children are subject to what is referred to as parental alienation syndrome. This causes the loss of respect, love, admiration and feelings for the other parent. It turns the children against the other parent.

Family Court Judges

Family Court Judges are placed in a difficult positions. When they are unsure as to whether a woman truly needs an order of protection, they generally err on the side of caution and grant a temporary order of protection. Men should receive a hearing within a short period of time upon being thrown out of their homes. Unfortunately, due to the large number of cases pending before the Family Courts, the quick hearing doesn’t take place for many months. The man is removed from his home and then returns months later when it’s found out there was no real basis for the order of protection. This has an extremely negative effect on the man’s life. Men need to be protected in these situations!

New York Fathers’ Rights Attorneys

We are the fathers’ rights lawyers at the Law Offices of Schlissel DeCorpo. We have represented fathers in all types of litigation, before the Family Court and Supreme Court, for well over thirty years. We represent fathers in divorce proceedings. We litigate child support issues, child custody matters, spousal maintenance issues and downward modifications of child support proceedings.

We represent fathers in relocation proceedings, child abuse and child neglect proceedings. We negociate separation agreements on behalf of our clients. We defend fathers when there are allegations of child abuse and child neglect by either Administration for Children’s Services (ACS) or Child Protective Services (CPS). We also assist fathers in high net worth cases and with regard to the equitable distribution of assets in divorces. Feel free to call us for a free consultation a 1-800-344-6431, 516- 561-6645 and 718-350-2802.

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