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Husband’s Personal Injury Award Converted Into Marital Assets And Subject to Equitable Distribution

divorce lawyer New YorkIn a case before Justice Stacy Bennett sitting in a Divorce Part in Nassau County, a wife brought a divorce lawsuit against her husband. They had been married in 2001. Issues involving parental access, grounds, custody, and all other issues had been decided by the court. The issue presented to Justice Stacy Bennett was whether a personal injury settlement of $1,638,348.90, which had been initiated prior to the marriage was converted from separate property into marital property. And then, if it was marital property, what portion of the marital property would the wife be entitled to?

The wife in this case alleged the personal injury settlement award to the husband was converted and transmuted into marital assets and were no longer separate property. The husband alleged that since the assets involved were all the proceeds of a personal injury award, and personal injury awards are not subject to equitable distribution, all of said assets belonged to him.

Assets Converted Into Marital Property

Justice Stacy Bennett held a trial with regard to this matter. After reviewing the evidence, she found the husband had converted the separate assets into marital assets and therefore these assets were subject to a distributive award.

The usual manner in which separate property assets are converted into marital assets is by putting one’s spouse on an account where those assets are located. Another way of converting them would be to spend them on improving a marital asset, such as the marital residence which is in both parties’ names.

Conclusion

If you want to maintain separate assets, separate and not have them become marital property, you should maintain them in a separate bank account or investment account and not put your spouse’s name on the account.divorce attorney

The Grounds For Divorce in New York

The Grounds For Divorce in New YorkIrretrievable Breakdown of the Marriage

The newest ground for divorce is a no fault ground. This no fault ground is used in the large majority of divorce cases today. It simplifies the divorce process because it is a ground which does not usually have an available defense to it. The ground specifically states the relationship between the spouses has been irretrievably broken down for a period of at least six months. You do not have to specifically allege any details or information as to why the parties aren’t getting along. Although the irretrievable breakdown between the parties establishes a no fault ground for divorce, the issues of child custody, visitation, equitable distribution of property, child support, spousal maintenance, and other financial and custody related issues need to be resolved before the court actually grants a divorce.

Living Separate and Apart Under A Separation Agreement
or Court Judgment for Separation for One Year

This ground is not often used anymore. It had been used often in the past, but when the new ground, irretrievable breakdown of the marriage, came into existence a number of years ago, this ground for divorce fell largely into disuse. However, it is still a valid reason to get divorced. If the parties to the marriage enter into a validly executed separation agreement and live separate and apart pursuant to the terms of this agreement and comply with the terms of this agreement, this becomes a ground for obtaining a divorce. This also applies to judgments of separation issued by courts for a period of one year. It should be noted the grounds for bringing a proceeding for judgment for separation are exactly the same as the grounds used to obtain a divorce and therefore it is usually cheaper to go straight for the divorce and not for a judgment of separation.

Cruel and Inhuman Treatment

This ground for divorce involves physical or mental cruelty which puts the victimized spouse at risk. The allegations of physical or mental cruelty have to be specifically stated with regard to time, place, location and specificity regarding what took place to utilize this grounds for divorce.

Adultery

Adultery is the most difficult grounds of divorce to prove. In addition to being difficult to prove, there are defenses to adultery. Some of these defenses are that you forgave your spouse for having sexual relations with him or her after discovering the adultery. If the person alleging their spouse committed adultery also committed adultery, this can be a defense to the action for adultery.

Abandonment

Abandonment involves leaving your spouse for a period of one year.

Sexual Abandonment: Sexual abandonment involves refusing to have sexual relations with your spouse for a period of one year.

Conclusion

Although there are a variety of grounds for divorce in New York, today almost all divorce lawyers in New York recommend to their clients to use the no fault ground of irretrievable breakdown of the marriage. It is less expensive, less difficult to prove, and to a large extent fool proof.divorce attorney

Dealing With Parental Alienation Problems – Part II

custody attorney in New YorkFighting Parental Alienation

The best way to deal with a situation involving parental alienation is for the alienated parent to take immediate legal action to ask for either a change in custody, an order enforcing visitation, an order of protection, and/or other legal remedies. The longer the parental alienation is allowed to go unrestrained, the harder it is to stop the programming of the children against the alienated parent. When parental alienation exists for a substantial period of time, it is often necessary to reestablish the relationship with the alienated parent through a family therapist or psychologist helping de-program the children with regard to the negative feelings and attitudes they have against the alienated parent.

Parental Alienation and Child Abuse

Parental alienation is a form of child abuse. The long term effects of parental alienation upon children are still being determined by psychologists and therapists. However, I have personally been involved in numerous cases representing individuals who have been alienated from their children. A common factor in many of these cases is, once undergoing therapy, the children come to realize they really don’t understand why they dislike or don’t want to spend time with one of their parents. Through therapy the children can be made to realize the alienated parent really loves them, and has done nothing wrong. In these situations the alienation can be overcome and this parent can re-establish his or her loving relationship with the child. The problem with the therapeutic approach is it can be a long drawn out process. For it to succeed, the alienation by the alienating parent must stop and there is no guarantee that it will work.family law attorney

Dealing With Parental Alienation Problems – Part I

divorce and custody attorneyIn divorce and Family Court litigation involving custody and spending parenting time with children, sometimes one parent seeks to alienate the children from the other. God gives each child two parents. A parent who estranges the children from the other parent for selfish, inappropriate and/or vindictive purposes, doesn’t understand the damage they are doing to their children. Unfortunately, family law attorneys see parental alienation situations all too often.

Parental alienation usually occurs when one parent tries to isolate the other parent from the children by engaging in conduct or saying things to the children which causes an estrangement between the children and the other parent. The alienation can be subtle and inadvertent or it can be very straight forward. In these cases, both the parent who is the object of the parental alienation and the children are victimized. The victimization can cause an estrangement between the alienated parent and the children and, sometimes, a total breakdown in that relationship.

The development of the parental alienation can be either a subtle or an overt series of actions which manipulates children into believing a parent who loves them is evil, dangerous, or really doesn’t love them.

Custody and Parental Alienation

Sometimes the parental alienation by one parent against the other is a tactic used in divorces and/or Family Court custody proceedings to try to guarantee the success of the alienating parent to obtain custody of the children.family law attorney

Child Custody Litigation

Watch today’s video blog on the topic of Child Custody Litigation:

Elliot S. Schlissel is a divorce attorney representing clients for more than 35 years. He and his associates handle all aspects of family law child custody proceedings, and divorce litigation in both the Supreme Court and the Family Court. Elliot can be reached for consultation by calling 516-561-6645, 718-350-2802 or sending an email to schlissel.law@att.net.

Ashley Madison Data Going Public Causing Rising Divorce Rates

divorce attorney in New YorkHackers recently posted the names, addresses, partial credit card numbers and email addresses of the large majority of almost 40 million users of the Ashley Madison website. The Ashley Madison website acts as a center for individuals seeking to cheat on their spouses to meet other individuals who seek to cheat on their spouses through the internet. The Ashley Madison website was hacked by a group called the Impact Team. They claim to publish personal information on the “cheating dirtbags” who use Ashley Madison and “deserve no such discretion.” The Ashely Madison website states “life is short, have an affair.” It invites new users to join its millions of “anonymous members.” There is an airbrushed image of a woman on its website whose eyes are hidden and finger is pressed to her lips indicating that no one will find out your information. The woman has a gold wedding ring on her finger. The website claims the material on their website is 100% discreet.

AshleyMadison.com is owned by Avid Life Media. They have recently put out a statement stating “the criminal, or criminals, involved in this act have appointed themselves as the moral judge, juror and executioner, seeing fit to impose a personal notion of virtue on all of society. We will not sit idly by and allow these thieves to force their personal ideology on citizens around the world.”

Spouses today can go on the internet and find out if their partner’s name and information was listed on the Ashley Madison website seeking to cheat. This has caused an increase of calls to divorce lawyers. Spouses now can simply go online and see if their spouse has been seeking to cheat on them. This has caused an increase in inquiries to divorce law firms and it is expected to cause many divorces.

Conclusion

The largest cheaters website has now had its lid blown open and almost 40 million people may be subject to difficult questions and discussions with their spouses. Most people assume the material they place on the internet is secure. Obviously this is not true!family law attorney

Father Denied Sole Custody But Should Be Allowed Parenting Time With The Children

family law attorney on long islandA father had brought an application to the Family Court seeking a modification of a custody order. Father and mother had initially stipulated the mother would have sole legal custody of the children and the father would have parenting time. Father thereafter brought a proceeding to change physical custody of the children from the mother to him. He claimed the mother had prevented him from having parenting time with the children. He also argued the mother’s lifestyle was unstable and had a negative influence on the children. Unfortunately for the father, the Family Court dismissed his application. The father thereafter appealed.

The Appeal

The appeal was heard by the Appellate Division for the Third Department, an appeals court. The appeals court found the record supported the lower court’s finding the father did not meet his burden of proof to show a modification of the prior custody order was in the children’s best interest. The court took into consideration the fact the father had not utilized his parenting time with his children for the years 2006 through 2011. It should be noted the parties reconciled in 2011, but during this reconciliation it was found the father engaged in “fits of domestic violence” in the presence of the children. The appeals court therefore found no reason to change the sole custody from the mother to the father. However, the appeals court found the Family Court should have looked into the issue of providing the father with an appropriate mechanism for contacting or communicating with his children. The appeals court stated there had been a change of circumstances since the original 2006 court order and therefore the father’s right to have parenting time with his children needed to be reevaluated. The case was therefore sent back to the Family Court to establish an appropriate parenting time arrangement for the father.matrimonial attorney

VIDEO: A Billion Dollar Divorce

Watch today’s video blog where we are discussing a Billion Dollar Divorce:

Elliot S. Schlissel is a divorce attorney with more than 35 years experience representing clients in all aspects of matrimonial law. He prepares prenuptial and post nuptial agreements. Elliot can be reached for consultation at 516-561-6645, 718-350-2802 or by email to elliot@sdny.com.

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

An Historical Perspective of Mother’s Custody Rights Concerning Their Children – Part I

parental rights attorneyHistorically, courts favored giving custody of young children to mothers. There were several doctrines which were utilized as the basis to support giving mothers custody of young children. This doctrine was known as either the “tender years doctrine” or the “maternal preference doctrine”. The basis for this legal theory favored giving mothers custody of young children because it was in the children’s best interests to be raised by their mother. Research eventually showed children benefited by having both parents involved in raising them.

Gender Neutral Custody Laws

The “maternal preference” and “tender years doctrine” theories were eventually replaced by laws which provided no gender preference with regard to who would raise the children. Father’s rights lawyers have maintained, however, even though the laws have changed and there is no longer a preference for mothers to have custody of young children, the laws are not fairly enforced by the courts. They claim the courts still favor mothers with regard to custody matters, and the statistics as to who gets custody of young children supports these claims.

Children’s Best Interests

The courts in New York decide who receives custody of children based on what is in the children’s best interests. The courts look into each of the parent’s interactions with the children. Parents who nurture children and who are involved in their children’s lives on a regular basis are viewed more favorably by courts than parents who are only sporadically involved in their children’s lives. Mothers seeking custody of their children should be involved in their children’s lives on a day to day basis. The best way for mothers to prepare for custody legal battles is to consult with attorneys who are experienced in litigating cases involving mother’s rights and have had a successful track record of obtaining custody for mothers.mother's rights attorney

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