Since you’ve come to this blog, I’m guessing that you’re grappling with a tough decision between divorce mediation and divorce litigation. It’s a difficult choice, and I’m here to help you understand each path’s differences, advantages, and potential pitfalls. Let’s dive in together and uncover the roles of divorce mediators, the court system, the costs you might face, and the real benefits of mediation in divorce cases. By the end of our chat, I hope you’ll feel more confident about what mediation involves and if it’s the right fit for your circumstances.
So, what exactly is divorce mediation?
Well, it’s a process where instead of butting heads, you work together with the help of a neutral third-party, a mediator or a divorce mediation lawyer. This person helps you and your partner reach a settlement that suits you both. This can be a great option when sorting through issues like child custody, spousal support, dividing up property, or splitting debt.
Divorce mediation is one form of uncontested divorce. You can have an uncontested divorce with a Mediator or with an attorney who represents you.
This person is like your guide. They’ll help you navigate the negotiations without favoring one side. Their job is to lead you both toward a mutual agreement by offering suggestions, asking the right questions, and clarifying any misunderstandings. However, it’s crucial to know they won’t make decisions for you or impose a settlement.
The Mediator is NOT your lawyer. The Mediator will not and cannot advise you on the best course of action solely for you. Instead, they will explain the law, and possible outcomes of litigation.
If you want to have a lawyer advising you on your rights, you can hire one. Many times people will hire a lawyer to assist them in the mediation process. Sometimes, they just ask the lawyer to look over the paperwork at the end.
The Cost of Divorce Mediation
One of the key advantages of divorce mediation is that it’s generally more cost effective than traditional divorce litigation. This is mainly because it usually takes less time and involves fewer trips to court. With the right level of cooperation, many couples can wrap up the mediation process within a few months.
But What if You’re Considering Divorce Litigation?
Well, unlike divorce mediation, litigation is a formal process where you and your spouse have your own attorneys in court. This process involves filing a complaint, serving divorce papers, gathering information, attending pre-trial conferences, and possibly going to trial. In this scenario, a judge will make the final call on disputed issues.
I should note that even in divorce litigation, the vast majority of cases settle before trial.
Litigation generally occurs when the parties cannot initially agree on the terms of the divorce. Most times, however, the lawyers, representing their client’s interests can broker and negotiate a deal avoiding a costly trial.
I’ve noticed that there are times when the parties say that they want to mediate but are so far from agreement, that litigation maybe the only choice. A desire to settle cannot become a settlement unless both parties agree. I’ve often had a client complaining that they can’t understand why the divorce won’t settle. The answer, which is hard to hear, is that your spouse simply does not agree.
The Role of the Courts
The court system has a significant role in divorce litigation. Judges make the final decisions and ensure the divorce process is fair. Additionally, court staff may provide resources to help you resolve disputes outside of court.
While the Judge legally cannot decide the issues of your divorce without a trial, they can be very useful in helping the parties real a settlement.
Where a party may not fully trust a mediator or believe that they have a greater entitlement than what is provided in the law, the Judge is viewed as an honest broker. Many times, I’ve seen divorces that I was sure would end in trial, but would be settled with the assistance of the judge.
Weighing the Pros and Cons of each.
So, the pros of divorce mediation are: it’s cost-effective, time-efficient, allows for flexible solutions, offers confidentiality, and gives couples more control.
But it’s not without its cons: lack of discovery can make it challenging to obtain necessary financial info, potential power imbalances could cause issues, and there’s no guaranteed outcome. This one is very important. If you think that your spouse is hiding money or assets, then mediation is NOT the right choice.
On the flip side, divorce litigation pros include formal discovery allowing for accurate financial assessments, court oversight ensuring fairness, and enforceable decisions. However, litigation can be costly, time-consuming, and adversarial.
Pros of Divorce Mediation
Cost-effective: Divorce mediation is cheaper than litigation.
Time-efficient: Mediation is faster than litigation, so you can move on sooner.
Flexible: You and your spouse decide how to solve the divorce, not a stranger wearing black robes.
Confidential: The mediation process is private and confidential. It’s no one’s business.
Cons of Divorce Mediation
Lack of discovery: No formal discovery process. If your spouse is hiding money or assets then you will never know.
Potential power imbalances: This only works if the power balance is equal. If there is domestic abuse, whether physical or mental, then mediation is a very poor choice.
No guaranteed outcome: Mediation doesn’t always work. Sometimes the parties are too far apart and even the best mediator can’t bring you together.
Pros of Divorce Litigation
Formal discovery: When you litigate you can get discovery of financial information and assets, ensuring a more accurate assessment of each party’s financial situation.
Court oversight: Judges provide oversight and ensure that the divorce process is fair and equitable.
Enforceable decisions: Court orders and decisions made by a judge during litigation are legally binding and enforceable.
Cons of Divorce Litigation
Costly: Divorce litigation can be expensive, with legal fees and court costs often adding up quickly.
Time-consuming: The litigation process can take a year or longer, depending on the complexity of the case and court backlog.
Adversarial: Litigation can be emotionally draining and may result in increased animosity between spouses, making co-parenting more challenging.
Conclusion
The key to choosing the right process for your divorce depends on your personal preference, financial resources, the complexity of the case, and any safety concerns. It’s crucial that you chat with a divorce mediation lawyer or family law attorney to determine which process suits your needs best.
Working with family law mediators can be very helpful. They’re trained professionals who help couples navigate the mediation process. When looking for a mediator, consider their qualifications, if you feel comfortable with them, and their fees.
And remember, you don’t have to go through this alone. If you’re considering divorce mediation or litigation, reach out to professionals who can guide and support you. Don’t hesitate to contact Port and Sava for a Free 15 Minute Consultation at (516) 352-2999. They can discuss your options and help you determine the best path for your unique situation. We’re here to help you get on with the rest of your life.
As someone who has been through the challenges of navigating the legal system, I understand how daunting it can be to seek legal protection in the wake of domestic violence or other forms of abuse. Orders of Protection (also known as restraining orders) are a crucial resource to safeguard your physical and emotional well-being, and it’s essential to understand how they work in the New York Family Court. In this comprehensive guide, I’ll walk you through the ins and outs of the process from the types of orders available to the process of obtaining one, and what to do if the order is violated. So, let’s jump in and take control of your safety and peace of mind.
What is an Order of Protection (“Restraining Order”)?
An Order of Protection, also known as a restraining order, is a legal document issued by a judge to protect one person from another who is causing harm, abuse, harassment, or intimidation. It sets boundaries and restrictions on the behavior of the person causing harm, ensuring the safety and well-being of the victim.
Types of Orders
There are three main types of Orders available in New York:
Family Court Order of Protection: This type of order is issued as part of a civil proceeding to stop violence within a family or intimate relationship (domestic partner, dating, or formerly dating). Eligibility for this type of order requires a specific relationship with the respondent, such as being current or former spouses, having a child in common, being related by blood or marriage, or having an intimate relationship.
Criminal Court Order of Protection: This type of order is requested by an Assistant District Attorney on your behalf during criminal proceedings. You don’t need to have an intimate or personal relationship with the person charged with the offense. The judge decides whether to issue an order of protection, as well as the terms and conditions.
Supreme Court Order of Protection: A Supreme Court order can be issued as part of an ongoing divorce or criminal proceedings.
Orders can be either temporary or final, and may be full or limited:
Temporary Order of Protection: Issued on the day you file for an order of protection and lasts until the next court date, at which point it may be extended.
Final Order of Protection: Issued at the end of the case, after the judge finds that a family offense was committed or the respondent agrees. A final order typically lasts for two or five years.
Full Order of Protection: Requires the subject of the order to stay completely away from you, your home, job, and school, and not to abuse, harass, or threaten you.
Limited Order of Protection: Allows the subject of the order to maintain contact with you, but prohibits abuse, harassment, or threats.
To obtain an Order from the Family Court, you must file a family offense petition with the Family Court clerk. A lawyer can guide you through this process, or you can file alone. You need to be specific as to the type of conduct and the date that it occurred. You cannot merely say that your spouse was mean or yelled.
You will need to include specific examples, such as “On June 1, 2023, my spouse screamed in my face, in front of the children, call me a useless b*t*h.” If your spouse cursed at you, please use the specific curse (I can’t put the curses in this blog, or the search engines will flag this website.) Or “On May 30, 2023, my spouse slapped me across the face.” Even damage to property can be considered: “My spouse in a rage at me, punched a hole in the wall.”
Also, excessive phone calls or text messages can be a basis for seeking an order. For example, abusive texts, or calls. Or even excessive calls or text messages.
After filing the petition, a judge will review your case and determine whether there is good cause to issue a temporary order. A future court date will be scheduled to determine if the order of protection should be made permanent.
Process of Serving Family Court Orders
Once the order is issued, it must be served to the respondent by someone other than yourself. The Sheriff’s Office, the NYPD, or an individual over 18 years old, who is not a party to the case, can serve the order. The order of protection is not in effect until it has been served.
A Violation of an Order of Protection
If the respondent violates the order of protection, it is crucial to report the violation to the police. A violation of an order of protection is taken very seriously by the police and the courts. If it’s an emergency, call 911, and the respondent will be arrested. In a non-emergency, you may file a violation of the order of protection by going to a police precinct or returning to Family Court. A violation can be both a criminal violation and a civil violation. In other words, the respondent can be arrested and prosecuted, and a Family Court petition for a violation can be filed as well. The respondent would then have to answer in two different courts.
When to Seek a Criminal Court Order
If you have been threatened or harmed by another person, you can report the crime to the police, who may charge the offender with a crime. During any court appearances in Criminal Court, the judge can issue an Order of Protection. The District Attorney prosecutes the defendant, and you may participate in the case as a witness.
Obtaining a Supreme Court Order
A Supreme Court Order of Protection can be issued as part of a divorce or criminal proceeding. To request an order of protection during an ongoing divorce case, you must make a written or oral request to the judge. If an attorney is representing you, they can make the request on your behalf.
Duration and Modification of Orders of Protection
Temporary Orders of Protection are issued while the case is open and can be renewed as the case continues. At the end of the case, a permanent Order of Protection is typically issued for one to five years. Either party can request that the court modify the order, and the court may make changes based on the circumstances.
Legal Assistance and Resources
Both petitioners and respondents in family offense cases are entitled to court-appointed attorneys if they cannot afford one. Only the judge can decide if you qualify for an attorney. Additionally, numerous resources are available to help you navigate the process of obtaining an Order of Protection, such as the New York Office of Court Administration website.
Conclusion
Obtaining an Order of Protection in the New York Family Court can be a critical step in ensuring your safety and well-being. Understanding the types of orders available, the process of obtaining one, and what to do if the order is violated is essential for taking control of your situation. Call Port and Sava for a free 15 Minute Telephone Consultation (516) 352-2999
One of the most significant assets in a divorce is generally the pension, 401(k), 403(b), IRA, or other retirement plan. It may be subject to division during a New York divorce. A Qualified Domestic Relations Order (QDRO) is a crucial legal instrument used in these situations to allocate retirement benefits between the parties. I apologize at the outset, this is a complex area of law, and many good attorneys have made some really bad mistakes. So, I’m going to take it slow and try to break it down.
Before we go any further, we have to address the difference between a pension and a 401(k) or other form of deferred compensation.
A Pension is what is known as a “defined benefit plan.” This means that if you work for a minimum period of time some employers, mainly the government, agree that when you retire, it will pay you a monthly amount until you die. The main pensions are FERS, Military Retired Pay, New York State and Local Pension, NYPD Pension Fund, FDNY Pension Fund, NYCERS and similar programs.
Almost all private employers have switched to some form of deferred compensation system, like a 401(k) or 403(b). These are known as “defined contribution plans.” Here the employer contributes money to the retirement account.
Unlike the pension, the defined contribution plan is an actual account where money (or stock) is maintained. What this means is that upon divorce, the other spouse can remove their share in a lump sum from the account and deposit it into a retirement account of their choice. However, as explained in this article a special court order is needed to accomplish that.
Key Components
The Order must contain certain essential elements, including:
The name and mailing address of the participant (the spouse who earned the retirement benefits) and the alternate payee (the spouse receiving a portion of the retirement benefits).
The name of each retirement plan involved in the divorce.
The dollar amount or percentage of the benefits to be distributed to the alternate payee.
The method used to calculate the alternate payee’s share, such as the marital coverture fraction or a specific formula.
The duration (length of time) or number of payments to be made to the alternate payee.
New York State Lawand Pensions
New York State law governs the division of retirement assets and their implementation in divorce cases. The State Court of Appeals determined that retirement benefits acquired during a marriage, such as those under the New York State and Local Retirement System (NYSLRS), NYPD and FDNY Pensions (to include the Variable Supplemental Fund), for example, are marital property and subject to equitable distribution upon divorce (The Majauskas formula). Consequently, a New York court may decide that an ex-spouse is entitled to a portion of a member’s retirement benefits and issue a QDRO accordingly.
The way a pension, the defined benefit plan, is divided is a simple formula. The court divides the years of participation in the pension plan by the overlapping years of the marriage, (“the marital share”). For example, 10 years of marriage and 20 years in the plan, give us 50%. The spouse gets half of that or 25%. If there were 20 overlapping years of marriage and 20 years of in the plan, then the percentage is 100% and the spouse gets 50%. Again, the court could award less than 50% of this martial share, see this article for rules governing the distribution of assets.
Deferred Compensation
Private retirement plans, such as 401(k)s and IRAs, are subject to division in a New York divorce. A QDRO is necessary to divide these retirement benefits between the spouses.
The division of these are a bit more tricky and we have seen mistake made. The Majauska formula is often mistakenly used for these. Never, never use the Majauska formula for these time of retirement plans.
If the entire retirement account was earned during marriage, then the entire amount is subject to division. That often is a 50/50 split. Though not always. Here’s some articles where I discuss how assets are divided.
The tricky part is when the account was started before marriage. In this situation we need to know the value of the account on the day of the marriage. Then, we hire a specialist to trace that money, and that money alone to determine its present value.
Let me break it down with an example. Suppose that on the day of the marriage, the account has $100,000. Then 15 years later there is $500,000 in the account. A common mistake would be to deduct the $100,000 and give that to the owner spouse, and then divided the remaining $400,000 in half. The owner spouse would get $300,000 and the other spouse would get $200,000. Again, this is wrong.
The proper way is to hire that specialist I referred to, and they will trace that $100,000 for the next 15 years, as if no other money had been added to the account. Suppose, that $100,000 grew to $300,000. That would mean that only $200,000 in the account was marital money. In this case, the owner spouse would get that $300,000 and split the remaining $200,000, for a total of $400,000. The non-owner spouse would only receive $100,000.
There is one problem, we need all the account statements from the date of marriage to the filing of the divorce. While that may see simple, it is not. Many employers change plans over time. Your plan may start with Fidelity, go to JP Morgan, and end up at Schwab. Unfortunately, your historical records were not kept.
I have had cases where because the records were not kept, we simply cannot work out the proper calculation. In that case, the parties will just have to compromise and made the best guess.
Social Security Benefits
Social Security benefits are not subject to division in a New York divorce. Whether a former spouse is entitled to social security based upon the other spouse cannot be determined in a divorce. The Divorce judge has not power or authority to make any determination about social security benefits. However, social security benefits can be considered income when determining child support.
The Process of Obtaining the Order
Obtaining the order in a New York divorce involves several steps, which are outlined below:
Step 1: Drafting
The first step is to draft the order, which must include all the necessary information and adhere to the specific requirements of the retirement plan. It is crucial to work with an attorney experienced as any errors or omissions may lead to delays or denial of the order. Most times, attorneys will hire or the court will order the parties to hire an outside expert to draft the order.
Step 2: Pre-Approval by the Plan Administrator
Before submitting it to the court for approval, the courts require that we send the draft to the retirement plan administrator for pre-approval. Only after we get the approval letter from the plan can it be submitted to the court for signature.
Step 3: Court Approval
Once the retirement plan administrator has pre-approved must be submitted to the court for final approval. Upon approval, the court will issue a signed it and then it must be forwarded to the plan administrator. Unfortunately, this stage can take a while. It can take many months for the court to sign the order. In the case of a pension, the defined benefit plan, the owner spouse must make out-of-pocket payments until the plan states making the payments. If the spouse does not make the payment then they will owe the money to the other spouse.
Step 4: Implementation by the Plan Administrator
Upon receipt of the signed order, the retirement plan administrator will implement the order, dividing the retirement benefits.
Common Mistakes to Avoid
Mistakes can lead to delays or denial of the order. Below are some common mistakes to avoid:
Failing to include all necessary information.
Not adhering to the specific requirements of the retirement plan.
Not obtaining pre-approval from the plan administrator before submitting it to the court.
Not promptly forwarding the court-approved it to the plan administrator for implementation.
Potential Tax Implications of QDROs
The division of retirement benefits through a QDRO may have tax implications for both parties. Generally, the distribution of retirement assets to the alternate payee is treated as a taxable event, and the recipient may be responsible for paying any associated taxes. However, there are exceptions and strategies to minimize or defer tax liabilities, such as rolling over the funds into an IRA or other qualified retirement plan. It is essential to consult with a financial advisor or tax professional to understand the potential tax implications and develop a strategy that aligns with your financial goals.
To be clear, the owner spouse will not be liable to the tax man for monies taken out through a QDRO. The receiving spouse should roll the money over as soon as possible into another tax-deferred account otherwise they may have to pay taxes and penalties. When we represent the receiving spouse we always recommend consulting with an investment advisor before receiving the money.
The Impact of QDRO on Death Benefits and Survivor Benefits
A QDRO may also impact the distribution of death benefits and survivor benefits associated with a retirement plan. In some cases, a QDRO may require the member spouse to designate the alternate payee as the beneficiary of pre-retirement or post-retirement death benefits. It is crucial to ensure that the QDRO explicitly addresses these issues to avoid any confusion or disputes in the future.
This is more of an issue for the defined benefit plan. With the deferred compensation account, there is an account with money, so the death of the owner spouse will not affect the receiving spouse. However, with a defined benefit plan, payments end on the death of the owner. Most pensions have a survivor benefit option. It is important to get that option placed in the Divorce agreement and judgment of divorce. If the survivor benefit is not chosen, then upon the death of the owner the receiving spouse’s payments will end.
Conclusion
In a New York divorce, retirement benefits are a significant asset that may be subject to division between the spouses. A QDRO is a vital legal instrument that ensures the proper allocation of these benefits. Understanding the concept of a QDRO, its significance in a New York divorce, and the intricacies of pensions and retirement benefits is crucial for anyone involved in a divorce proceeding. Call Port and Sava at (516) 352-2999 for a free 15-minute telephone consultation.
Understanding New York City Fire Department (FDNY) Pension is an important step when going through a divorce. If you are a firefighter in NYC and a member of the Fire Pension Fund, your benefits and retirement depend on when you became a member. If you joined between July 1, 1973, and June 30, 2009, you are a Tier II member. If you joined after July 1, 1981, you are covered by the Improved Benefits Plan (IBP).
There are three tiers of pension, depending on when you joined. First, it’s important to note that firefighters who became members of the Fund between July 1, 1973, and June 30, 2009, are Tier II members. Anyone who joined the FDNY Penison after June 30, 2009, is in Tier III and that will be discussed below.
All firefighters who become members of the NYC Fire Pension Fund on or after July 1, 1981, are covered only by the “Improved Benefits Plan” (IBP). Unless specifically stated otherwise, all information in this summary refers to members of the IBP only.
FDNY Pension: The Contributions
Both Tier I and Tier II members contribute a percentage of all earnings through payroll deductions to a 20-year plan. The contribution rate is based on age at appointment. Member contributions earn interest, currently 8 1/4% per year. Contributions are required for the first twenty (20) years of allowable fire service. After 20 years, contributions will continue unless the member submits a written request to the Pension Fund to discontinue the contributions.
Contributions and any interest earned are referred to as “accumulated deductions.” The amount of accumulated deductions required to be in the member’s account at any given time is referred to as the “minimum required contribution.” The total minimum required contribution is determined on the member’s 20th anniversary. Contributions made above the minimum required are referred to as “excess” contributions.
In addition to the required contributions, members may make additional contributions equal to 50% of their required employee contributions on a voluntary basis. These additional contributions are not covered by section 414(h) of the Internal Revenue Code, so they are subject to immediate federal, state, and city income taxation. However, they can provide an additional annuity or may be withdrawn as a lump sum at retirement.
Increased Take-Home Pay
Employer contributions are also made by the City of New York to the Fund. The City of New York also pays a portion of employee contributions, known as “Increased-Take-Home-Pay” (ITHP), which currently equals 5% of gross salary. Members may waive the ITHP and contribute at the full employee rate. These additional contributions are covered by section 414(h) of the Internal Revenue Code and are therefore federally tax-deferred.
To increase take-home pay, required employee contributions may be reduced up to the amount of Social Security (FICA) contributions. If required contributions are less than FICA contributions, the member will not be making any pension contributions, thereby creating a deficit in their retirement account. Members must keep this in mind when making contributions to the Fund.
Service and Accidental Disability Retirees
At retirement, Service and Accidental Disability retirees can choose to take any excess contributions as either a lump-sum payment or as an additional annuity. Members retiring for Ordinary Disability are required to take a lump-sum payment of any excess.
Potential Tax Consequences and Rollovers
Members should note that a withdrawal of 414(h) contributions and interest is subject to federal tax in the year withdrawn. In addition, members who are under age 50 at retirement may also be subject to an additional 10% federal tax penalty and should consult a tax advisor prior to withdrawal.
Retiring members may request a direct rollover of any taxable excess into a qualified plan such as the NYC Deferred Compensation/401K plans or an IRA, in order to defer payment of federal tax.
The Twenty-Year Rule for Regular Retirement
Twenty (20) years of allowable fire service are required for Service Retirement. This service includes all member service rendered as a uniformed member of the New York City Fire Department in the competitive class of the civil service, credit for service rendered in the uniformed force of the New York City Police Department immediately preceding service in the uniformed force of the New York City Fire Department, and
In summary, the New York City Fire Pension Fund offers retirement benefits to firefighters who have completed 20 years of allowable fire service, which includes uniformed service in the New York City Fire Department, the New York City Police Department, the New York City Employees’ Retirement System, and other uniformed forces. The retirement allowance is calculated based on factors such as final salary, total earnings after the 20th anniversary, average annual earnings of the last five years, and excess contributions, among others.
Contribution Rates
It is important for firefighters to understand the contribution rates, minimum required contributions, and excess contributions to their pension accounts. Members are required to contribute a percentage of all earnings through payroll deductions to a 20-year plan, and the contribution rate is based on their age at appointment. Contributions earn interest, and any accumulated deductions required to be in the member’s account at any given time is referred to as the “minimum required contribution.”
Furthermore, the City of New York makes employer contributions to the Fund and also pays a portion of employee contributions. Members may choose to waive the Increased-Take-Home-Pay (ITHP) and contribute at the full employee rate, which is covered by section 414(h) of the Internal Revenue Code and is therefore federally tax deferred. Members may also make additional contributions equal to 50% of their required employee contributions on a voluntary basis, which are not covered by section 414(h) of the Internal Revenue Code and are subject to immediate federal, state, and city income taxation.
FDNY Pension Buy Back Credits
Chapter 646, also known as Tier Reinstatement, allows a member who was previously a member of any New York public retirement system to be deemed a member of the current retirement system as of the original date of such previous ceased membership. This may allow for a tier change or tier reinstatement, which can have a significant impact on pension benefits.
Meanwhile, Chapter 552 of the Laws of 2000 – Prior Service Credit – allows a member who was eligible for membership in any New York State or New York City retirement systems but did not become a member of such system to purchase pension credit for the period of time they were eligible for membership. This program also allows a member to purchase pension credit for membership service in any New York City or State retirement system that may have been lost or withdrawn. The service purchased pursuant to Chapter 552 can either be non-uniformed service, which increases the pension’s value but does not change the retirement date, or uniformed service, which changes the retirement date.
The Military Service program, RSSL §1000, allows a member to purchase credited service for up to three years of military service rendered prior to the commencement of public employment. A member must have at least five years of pension credit to be eligible to receive credit under this law.
Overall, buyback credit programs can provide valuable opportunities for public retirement system members in New York City to increase their pension benefits. If you’re considering taking advantage of these programs, it’s important to understand the eligibility requirements and potential impacts on your pension benefits. Consult with a financial advisor or a retirement specialist for more information.
FDNY Buy Back Credits Maybe Marital or Separate Property
FDNY Buyback credit may be marital or separate property. If the service happened before marriage, then that credit will be separate property. If it is separate property, then this percentage will not be subject to marital distribution. A pension appraisal will need to be performed to figure out these numbers. Here’s a link to an article on equitable distribution and here’s a link to an article on pensions in a divorce.
Lump Sum Buy-Outs
Finally, retiring members may choose to take any excess contributions as either a lump-sum payment or as an additional annuity. However, members who are under age 50 at retirement may also be subject to an additional 10% federal tax penalty and should consult a tax advisor prior to withdrawal. Retiring members may request a direct rollover of any taxable excess into a qualified plan such as the NYC Deferred Compensation/401K plans or an IRA, in order to defer payment of federal tax.
However, if you have divorced then any withdrawal may be affected by the Judgment of Divorce. If you are involved in an active divorce, then you will be prohibited from removing this money until the action is resolved.
FDNY Pensions: Disability Retirement
Up to now, we’ve been discussing regular retirement. Disability retirement is different in both the calculation and its impact on divorce.
One type of disability retirement allowance is an ordinary disability retirement, which is available to members who have been found disabled by the Subchapter II 1-B Medical Board and the Fire Pension Fund Board of Trustees. This retirement allowance is calculated based on the member’s credited service.
If a member has less than ten years of credited service, their pension will be equal to 33 1/3% of their final average salary, plus an annuity based on their Annuity Savings Fund (ASF) balance in excess of the required amount, minus the annuity value of any shortage. For members with ten or more years of credited service, their pension will be equal to 50% of their final average salary, plus an annuity based on their ASF balance in excess of the required amount, minus the annuity value of any shortage.
For members with twenty or more years of credited service, their pension will be equal to 1/40th of their final average salary multiplied by the number of years of city-service, plus an annuity based on their ASF balance in excess of the required amount, minus the annuity value of any shortage.
Accidental Disability Retirement
Another type of FDNY Pension is accidental disability retirement, which has no minimum service requirement. To be eligible for this type of retirement, the member must have been found physically or mentally unable to perform their regular job duties due to an accidental injury received in the line of duty. The disability cannot be the result of the member’s own willful negligence.
The pension for an accidental disability retirement allowance is calculated based on a member’s final salary, earnings after their 20th anniversary, the actuarial value of the ITHP reserve account, and the actuarial value of accumulated deductions. However, there is a deduction for the annuity value of any outstanding loans at the time of retirement.
It’s important to note that for members retiring on or after January 1, 2009, accidental disability pensions are federally taxed on a portion of their earnings. However, the entire accidental disability retirement allowance is exempt from New York State and New York City income tax. Additionally, there is no credit for prior non-uniformed City service for Improved Benefits Plan members granted an accidental disability pension.
Accidental Disability Retirement and Divorce
The FDNY Accidental Disability Retirement might be the separate property of the Firefighter. It also might not be. This is a complex area of the law. Also, a mistake in drafting a settlement agreement could ensure that the Accidental Disability Retirement becomes marital property.
If the Accidental Disability Retirement is calculated based on time in service, the courts will find it to be marital property. Also, if the divorce agreement does not specifically identify the Accidental Disability Retirement, then it will find that it is marital property.
FDNY Survivor Annuities – The Death Gamble.
As retirement nears, many members of the FDNY Pension Fund are faced with the decision of selecting a retirement allowance option. The maximum retirement allowance is the largest benefit that can be received, but it does not provide any survivor benefits. However, options are available that can provide continued pension benefits or lump-sum payments to a beneficiary, albeit with a reduced retirement allowance during the retiree’s lifetime.
For Tier 1 members appointed prior to July 1, 1973, Option 1 is available. This option sets up an initial pension reserve, with any unused portion awarded to the beneficiary upon the retiree’s death. Options 2, 3, and 4 offer joint and survivor benefits or lump-sum payments to a beneficiary, with varying percentages of the reduced pension allowance to be received by the beneficiary after the retiree’s death.
Five-Year or Ten-Year Certain Options are available only to Tier 2 members appointed after July 1, 1973. These options provide a reduced monthly lifetime allowance, with the option for a lump sum or monthly payments for the remainder of the five or ten years should the retiree die within that timeframe.
It’s important to note that any option selected cannot be changed once the member receives their first full pension check. Additionally, 50% of any cost-of-living adjustments (COLAs) are paid to a spouse under certain options.
In the unfortunate event of a member’s death before retirement, there are two types of death benefits available: the Death Gamble Benefit and the Accidental (Line-of-Duty) Death Benefit. Eligible beneficiaries for the latter are dictated by statute and payable in a specific hierarchy, with any COLA received on the 50% pension payable from the NYC Fire Pension Fund and any Social Security benefits received by the beneficiary subtracted from the State’s portion of the benefit.
Divorce and the Lure of the Death Gamble
Often when facing an imminent divorce or when actively involved in a divorce, there is a strong impulse to take the Death Gamble. Don’t. Judges can and will punish a firefighter who does so.
The problem is that FDNY pension is marital property. The spouse has an ownership interest in their share whether they remarry or the firefighter dies. If the Firefighter takes the Death Gamble and dies first, the spouse will lose their share of the pension.
The divorce judge can force the firefighter to take out an insurance policy and pay the entire premium. Or the judge can give the other spouse more of the marital property. For example, the spouse might be award 75% of the house instead of 50%.
If the firefighter takes the Death Gamble after the divorce has started they maybe held in contempt of court.
FDNY Pension Tier III Benefits
The FDNY Pension Tier III is mandatory for all firefighters hired on and after July 1, 2009. Here are the key Points:
Enhanced Plan members are required to contribute 3% of their pensionable salary plus an additional 2.1% for the first 25 years of credited service.
The rate of additional contributions may vary depending on future cost calculations, and the maximum total contribution is currently limited to 6%.
Contributions for Enhanced Plan members who were mandated into the plan are federally tax-deferred, while contributions for members who opted to join the plan before September 8, 2016, are taxable.
To be eligible for retirement benefits, a member must have the minimum required amount of accumulated contributions, which includes the required contributions and the interest earned.
ITHP (Increased-Take-Home-Pay) applies to certain members and refers to the City paying a portion or the entire required rate by making the contribution on the member’s behalf.
A deficit occurs when a member’s pension account balance falls below the minimum required. Members are responsible for any account shortages and can make a lump sum payment or bi-weekly payroll deductions to reduce and eliminate any deficit.
A member may withdraw excess funds within six months of appointment or at the time of retirement.
Loans are not allowed under Tier 3.
Credited service refers to allowable Uniformed service, which includes service as a Uniformed member of the New York City Fire Department, credit for service rendered in the Uniformed force of the New York City Police Department, credit for service as a Police Officer or Firefighter in the New York State and Local Police and Fire Retirement System, and credit for military service acquired pursuant to applicable law.
Prior service credit laws allow members to purchase credited service for prior military or public service.
Members may transfer to the NYC Fire Pension Fund from another public retirement system within the State of New York, and former EMS employees who joined NYCERS prior to July 1, 2009, may transfer to become Tier 2 members.
Military service with the federal government may be credited, and active members with five years of credited service are eligible to purchase up to three years of military service for pension credit.
FDNY Pension versus Deferred Compensation
Up until now, we’re been addressing the pension. A pension is money a worker receives on a monthly basis after they retire.
A deferred compensation account, whether it is a 401(k) or a 403(b) is money that is placed in an account that can be drawn upon after the retiree reaches a certain age.
Deferred compensation, if earned during the marriage is subject to division. Money that was added to the account before the marriage or after the divorce is not part of the divorce. Calculating the value of the premarital money is complex and special outside experts are hired by the court (and paid for by the parties) to figure it out.
FDNY Pension and Equitable Distribution
The FDNY Pension may be subject to being divided in a divorce. Division of the regular pension is very simple. The court divides the years on the job with the years of marriage. That resulting number is the marital share. The spouse gets half of that number. For example, assume that the firefighter was on the job for 20 years and married with 10 overlapping years. The martial share is 50%. The spouse gets 25%. If the marriage was 20 years overlapping the job, the marital share of the FDNY Pension is 100% and the spouse gets 50%.
The Variable Supplemental Fund
The Variable Supplemental Fund (VSF) is a part of the FDNY Pension. A firefighter who gets a regular retirement will be entitled to receive $12,000 at the end of every year. The VSF is marital property and is subject to equitable distribution in the same manner as the pension. To determine the ex-spouse’s share the courts will divide the years marriage with the years on the job.
When a firefighter has a disability retirement, they will not get the VSF.
Questions About FDNY Pensions and Divorce?
Call Port and Sava, a veteran-owned law firm for a free 15 Minute Consultation to discuss the FDNY Pension and its impact on your divorce. (516) 352-2999.
You’ve been served with divorce papers. Take a breath and don’t panic. Being served with divorce papers can be very emotional. The papers say that you have 20 days to respond, and you don’t even know what that means. All you know is that your life has been upended and you don’t know what your future will be. Or if you even have a future.
As a divorce lawyer in New York, I have worked with numerous clients who have been served with divorce papers. It can be a daunting experience, especially if you are not familiar with the divorce process in New York. In this blog post, I will explain what divorce papers are, what they mean, and what you should do next. I will also discuss both uncontested divorce and contested divorce, as well as the basic steps involved in the process.
If I am Served Divorce Papers do I Have to Sign Them?
When being served with Divorce Papers, you don’t have to sign anything. Service is completed when the process server hands you the papers or even drops them at your feet. Don’t sign anything without first talking to a lawyer.
Introduction to Divorce in NY
Before we dive into the specifics of service of divorce papers and uncontested divorces and contested divorces, let’s take a brief look at the divorce process in NY. In New York, there are two types of divorce: fault-based and no-fault.
Fault-based divorce requires one party to prove that the other party was at fault for the breakdown of the marriage. No-fault divorce, on the other hand, does not require any fault to be proven. Instead, it only requires that the marriage has broken down irretrievably for at least six months.
Since New York adopted No-Fault Divorce, we don’t use Fault anymore. I get a number of clients who are upset about this. They want to prove that their spouse cheated on them or that their spouses were mean and miserable human beings. The problem with alleging fault is that you now have to spend time and, yes, money, trying to prove that. And, and this is really important, adultery will not affect child custody, child support, post-divorce spousal support, or property distribution. So, no, if your spouse is cheating on you, you do not get the house. There are special rules regarding domestic violence. I’ve posted an article here on that.
What Does Being Served with Divorce Papers Mean and What Are These Papers?
The whole process starts when you are served with divorce papers. To be served means that a third party, not your spouse, handed you the papers. Papers received in the mail is not service of divorce papers. Papers handed to you by your spouse is not service of divorce papers. If you refuse to accept the papers and they are dropped at your feet, you have been served.
Don’t be afraid of being served with divorce papers. Service is inevitable and it starts the process. The sooner the process is started the sooner it can be over and you can get on with the rest of your life.
Divorce papers, also known as a Summons and Complaint, are legal documents that initiate a divorce case. The papers are usually served by a process server. Once you are served with divorce papers, you become a defendant in the divorce case. The papers will state the grounds for the divorce, the relief sought by the plaintiff, and the deadline for responding.
When you are first served with the divorce papers and read the complaint you will no doubt be very angry with all the laundry list of things your spouse is demanding. The complaint is literally a fill-in-the-blanks form. Your spouse’s lawyer filled in the blanks and then had a process server serve you with these divorce papers.
When you get served with divorce papers the immediate reaction is anger or fear at being named “the defendant.” Don’t worry about it. It literally means nothing in divorce. All it means is that your spouse paid $210 to start the action and hire a process server for about $75. In other words, being the defendant means you saved $285.
It is important to note that being served with divorce papers does not mean that the divorce is final. It simply means that the divorce process has begun, and you need to respond to the papers within the deadline set by the court.
How Do You Respond to Being Served Divorce Papers?
When you are served with divorce papers, you will see in bold type the scary words that you have “TWENTY DAYS TO RESPOND.” I’ve spoken to a number of people who anxiously believe that they must race to the court on the twentieth day and defend themself. Nope. Not at all.
In New York State, you have 20 days to respond after being served with divorce papers. If you fail to respond, your spouse can obtain a default judgment against you, which means that the court may grant the divorce on the terms that your spouse has requested.
Responding means filing a written answer and counterclaim.
Your response to the divorce papers should address all of the issues raised in the papers, such as custody of children, child support, spousal support, and division of property. You may also file a counterclaim, which is a claim against your spouse for divorce or other relief.
The answer is a formal document, just like the complaint. In fact, like the complaint, it is also a fill-in-the-blank form. I generally can draft a complaint or answer in under 15 minutes.
Understanding Uncontested Divorces
An uncontested divorce is a type of divorce where both parties agree to the terms of the divorce. This means that there are no disputes over issues such as property division, child custody, and support. An uncontested divorce is usually faster and less expensive than a contested divorce.
It means that you agree with your spouse on everything. It does not mean that you agree with yourself, and your spouse disagrees. I have had a number of cases when people walk in thinking that the case is uncontested but never got the agreement with their spouse.
Remember, just because you think it is reasonable, doesn’t mean that your spouse will agree as well.
Benefits of Uncontested Divorce
There are several benefits to an uncontested divorce. First, it is usually faster than a contested divorce. This is because there are no disputes to be resolved, and both parties agree to the terms of the divorce. Second, it is less expensive than a contested divorce. Since there are no disputes to be resolved, there is no need for lengthy court proceedings. Finally, an uncontested divorce is less stressful than a contested divorce. When both parties agree to the terms of the divorce, there is less animosity and bitterness.
As an example. I recently settled a divorce literally on the first day of trial. It had been 3 years since my client was served with divorce papers. We settled on the conditions which I first proposed, and the wife rejected, three years ago. The only difference was that 3 years had passed, with increased acrimony between the parties, and they each spent over $100,000 on legal fees.
Steps in the Uncontested Divorce Process in NY
The uncontested divorce process in New York involves several steps. The first step is to prepare and sign a separation agreement. This agreement will outline the terms of the divorce, including property division, child custody, and support. Once the agreement is signed, it must be submitted to the court for approval.
This agreement is a very formal document. It is not written on the kitchen table on a scrap of paper. It must contain a number of mandatory clauses, terms, and language. It must be signed with a very special form of a notary. If an important step is missed the court will reject the agreement.
The next step is to file a summons and complaint with the court. This will start the divorce case. Once the papers are filed, the defendant is served with divorce papers. Since this is uncontested and all are in agreement, the attorneys will accept service, and no process server is needed.
The Plaintiff’s attorney prepares the divorce packet and the paperwork is filed with the court. Unfortunately, as of this blog, the courts are still experiencing COVID-related backlogs. It is taking about 8 to 10 months from filing of the papers to receipt of the Judgment of Divorce.
However, once the agreement is signed all the conditions of the deal are in place and enforceable. The only thing you can’t do is get remarried until you get the Judgement of Divorce.
Filing for Divorce in NY: What You Need to Know
To file for divorce in New York, you must meet certain requirements. First, you or your spouse must have lived in NY for at least two years. If you or your spouse have not lived in NY for at least two years, you can still file for divorce if you were married in NY, lived in NY as a married couple, or the grounds for the divorce occurred in NY. That is a one-year requirement.
Filing a divorce cost $210 in filing fees. There is no cost for filing an answer.
You cannot serve the papers by yourself. The law mandates that the papers must be served by a third party.
What Happens After Divorce Papers Are Served in NY?
I’ve addressed the friendly uncontested divorce. However, when service is a surprise and there is no agreement in place, the rules are different. After you have been served with divorce papers in NY, you only have 20 days to respond to the papers. If you fail to respond, the case will proceed as an uncontested divorce but as default. Your spouse may get their wishlist granted.
It is important that after being served with divorce papers to immediately consult with an attorney. Don’t wait until the 19th day.
Working with a Divorce Lawyer in NY
If you are facing divorce in NY, it is important to work with a divorce lawyer. A divorce lawyer can help you understand your rights and options and can guide you through the divorce process. They can also help you negotiate a fair settlement and represent you in court if necessary.
Conclusion and Resources for Divorce in NY
Divorce can be a difficult and emotional process, but it is important to remember that you are not alone. There are resources available to help you navigate the divorce process in NY. If you are facing divorce, it is important to work with a divorce lawyer who can help you understand your rights and options.
If you need more information on divorce in NY, you can visit the New York State Unified Court System website or contact Port and Sava, (516) 352-2999 for a free telephone consultation. Remember, knowledge is power, and the more you know about the divorce process, the better equipped you will be to make informed decisions.
While this new contract is welcome for both current and new officers, it can raise some issues for those currently going through a divorce, or have a current support order in place.
It also presents opportunities for spouses of police officers to increase support awards for children, or for themselves.
In this article, we will discuss these two important issues and how the new collective bargaining agreement may have an impact.
Retroactive Pay and the New Contract
Under the new contract, police officers will receive retroactive pay.
2.25% from 2017
2.5% from 2018
3% from 2019
3.25% from 2020 and 2021
3.5% from 2022
Two Family Law Pitfalls: Child Support and Spousal Support
This means that if an NYPD officer who is responsible for paying support receives a pay raise as a result of this new contract, their order may also increase. This could have significant financial implications for the officer, who may need to budget more carefully in order to make their payments.
It’s important to note that child support orders are not set in stone, and they can be modified if there is a significant change in circumstances. If an NYPD officer’s order increases as a result of their pay raise, the custodial parent may be able to petition the court for a modification based on the new income level. So it’s important for officers to be aware of the potential impact of their pay raise on their support obligations.
If there is a final order of spousal support, or a final agreement on such support, then this pay raise will not increase that amount.
However, if the divorce has not been resolved, then this pay raise will be added to the income to calculate support.
Retroactive Pay
Another important consideration when it comes to the new contract and its impact on support orders is retroactive pay. This retroactive pay could be considered income for the current year and could be used to artificially inflate the income for child support purposes.
When determining support orders, the court takes into account the income of the spouse. This includes any income that the officer receives, whether it is from their regular salary, overtime pay, or bonuses. Retroactive pay is no exception, and it can be considered income for the purposes of calculating support.
If an officer receives retroactive pay their income for the current year may be significantly higher than it was in previous years. This could lead to a higher support order, as the court may assume that the officer’s income will remain at this level in the future.
However, it’s important to note that retroactive pay is not treated the same way as regular income for support purposes. In some cases, the court may be willing to consider the retroactive pay as a one-time windfall and may not use it to determine child support. This decision will depend on the specific circumstances of the case and the discretion of the judge. Furthermore, it must be explained to the court, but it would be a good idea to produce the collective bargaining agreement (CBA).
Conclusion
While the pay raise is an overall good thing for officers, those who are paying support will have to be wary.
Having an attorney who understands NYPD compensation is essential in this situation. An experienced attorney can help an NYPD officer or family member navigate the complex rules surrounding support and retroactive pay.
Port and Sava is a veteran owed law practice and we handle and provide discounted rates to officers and family members involved in divorce or family law matters.
Call Port and Sava for a free 15 minute telephone consultation at (516) 352-2999
As a family law attorney, I have seen firsthand the devastating impact that alcoholism and drug abuse can have on children and child custody cases. Alcoholism and Addiction not only affect the addicted parent but will also harm the children involved. In this article, I will discuss the legal criteria for an unfit parent in New York State and how to prove substance abuse in court.
I will also provide information on Child Protective Services (CPS), visitation with drug-addicted parents, co-parenting with a drug addict, and recreational drug use and child custody. By the end of this article, you will have a better understanding of how addiction can impact child custody cases and what steps you can take to protect your children.
If you are suffering from alcoholism, you have a responsibility to your children to get well. Click here for a link to AA to learn more about AA recommended programs or here for NA
To the Spouse of an Alcoholic or Drug Abuser: You Are Not The Problem
Living with an alcoholic or drug abuser can be an incredibly challenging and emotionally draining experience. Alcoholism and drug addiction are diseases but it’s not uncommon for spouses to feel guilty or responsible for their partner’s addiction.
However, it’s important to understand that addiction is a complex disease that is caused by a variety of factors, including genetics, environment, and personal choices. You should no more feel the guilt of their addiction than you would if they had cancer.
As the spouse of an alcoholic or drug abuser, it’s natural to want to help your partner overcome their addiction. However, it’s important to recognize that you cannot control their behavior or force them to change. Addiction is a personal struggle that your partner must confront and overcome on their own. Alcoholism is an alcohol use disorder and not your fault.
Feeling guilty or responsible for your partner’s addiction is not only unnecessary but can also be harmful to your own mental and emotional well-being. It’s important to remember that addiction is not caused by anything you did or didn’t do. You are not to blame for your partner’s choices or behavior.
Instead of blaming yourself, focus on taking care of yourself and seeking support. Consider reaching out to a therapist, support group, or trusted friend to help you navigate your emotions and cope with the challenges of living with addiction. Remember that you deserve love, respect, and support, regardless of your partner’s struggles.
Understanding the Legal Criteria for an Unfit Parent in New York State
In New York State, the legal criteria for an unfit parent are outlined in the Family Court Act. The procedures are found in Article 10 and are called either “Article 10 proceedings” or “Neglect Proceedings.”
A parent can be deemed unfit, or to have neglected a child, if they have engaged in conduct that has endangered the child’s physical or emotional well-being. This can include drug abuse or alcoholism, neglect, or abuse.
To prove a parent is unfit, you must provide evidence that shows the parent’s behavior is detrimental to the child’s well-being. It is important to note that the court will always prioritize the best interests of the child when making custody decisions.
Proof of drug cause can cause a judge to immediately remove the child from the home. This can be either temporary or permanent.
How to Prove Alcoholism or Drug Addiction in Court
Proving alcoholism or drug addiction in court can be challenging, but it is not impossible. The most effective way to prove substance abuse is through documentation and witnesses. Keep a record of any incidents or behaviors that suggest substance abuse. This can include admissions to treatment programs, arrests, DUIs, drug paraphernalia, or drug-related expenses.
The court also has the authority to order random drug testing and hair follicle testing. A hair follicle test and look back to the last six months.
Witnesses can also provide valuable testimony, such as friends or family who have seen the parent under the influence. It is important to note that hearsay is not admissible in court, so any witnesses must have firsthand knowledge of the parent’s behavior.
The Role of Child Protective Services (CPS) in New York
The Administration of Child Services (ACS) is a New York City government agency that investigates reports of child abuse or neglect. Outside of New York City, Child Protective Services (CPS) does the same job.
In New York, ACS or CPS is responsible for investigating allegations of child abuse or neglect and determining whether the child is in danger. If ACS or CPS determines that a child is in danger, they may remove the child from the home or take legal action to protect the child. However, ACS or CPS does not have the authority to remove a child from a parent’s custody unless a court order is obtained.
Alcoholism or drug addiction by a parent can result in an ACS or CPS invesitgation.
Often ACS or CPS will pressure the suspected parent to voluntarily sign over child custody. Never sign over child custody to ACS or CPS without first talking to a lawyer. Often ACS or CPS will strongly imply that they have the power to remove the child without the need of going to the judge. They do not. Talk to a lawyer first.
Visitation with an Alcoholic or Drug-Addicted Parent: What You Need to Know
Alcoholism or drug addiction should cause serious safety concerns. Visitation with an alcoholic or drug-addicted parent can be a challenging situation. It is important to prioritize the best interests of the child when determining visitation.
If the parent is actively using drugs or drinking it may be necessary to suspend visitation until the parent seeks treatment. If the parent is in recovery, supervised visitation may be appropriate. It is important to work with a family law attorney to determine the best course of action for your situation.
Going to Family Court
When faced with a parent suffering from alcoholism or drug addiction, the Family Court is the best place to go to protect your children.
The New York Family Court is a specialized court system that handles a variety of family-related legal matters, including child custody and visitation disputes. When it comes to cases involving parents suffering from alcoholism or drug addiction, the Family Court is often the best venue for a parent seeking to protect their children. Here are a few reasons why:
Expertise in Family Law Matters
The Family Court is a specialized court system that has extensive experience in handling family law matters, including custody disputes. The judges and court staff are well-versed in the legal principles and procedures involved in these types of cases, which can be complex and emotionally charged.
Focus on the Best Interests of the Child
The Family Court is mandated to make decisions based on the best interests of the child. When a parent is suffering from alcoholism or drug addiction, this can have a significant impact on the child’s safety and well-being. The Family Court has the legal authority to make decisions that prioritize the child’s safety and well-being, even if that means limiting or restricting the other parent’s access to the child.
Access to Resources
The Family Court has access to a wide range of resources that can be helpful in addressing issues related to alcoholism or drug addiction. For example, the court can order drug or alcohol testing, require the parent to participate in substance abuse treatment, or appoint a guardian ad litem to represent the child’s interests. These resources can be critical in ensuring the safety and well-being of the child.
Confidentiality
The Family Court proceedings are confidential, which can be important in cases involving alcoholism or addiction. The court can protect the privacy of the parties involved and prevent sensitive information from being disclosed to the public. This can be especially important in cases where the addiction is not yet public knowledge, as it can prevent the child from being stigmatized or ostracized.
Can a Parent Lose Custody for Alcoholism or Drug Use?
In some cases, a parent can lose custody for alcoholism or drug use. The court will always prioritize the best interests of the child when making custody decisions. If alcoholism or drug use is deemed to be detrimental to the child’s well-being, the court may order the parent to seek treatment or remove custody altogether. It is important to work with a family law attorney to determine the best course of action for your situation.
Co-Parenting with an Alcoholic or Drug Addict: Tips and Strategies
Co-parenting with an alcoholic or drug addict can be a challenging situation. It is important to prioritize the best interests of the child when determining co-parenting arrangements. Communication is key when co-parenting. It is important to establish clear boundaries and expectations and maintain consistent communication. It is also important to prioritize the child’s safety and well-being when making decisions.
Recreational Drug Use and Child Custody: What You Need to Know
Recreational drug use can also impact child custody cases. If the parent’s drug use is deemed to be detrimental to the child’s well-being, the court may order the parent to seek treatment or remove custody altogether. It is important to work with a family law attorney to determine the best course of action for your situation.
While Marijuana is now legal in New York, that doesn’t mean you can smoke around your children. It could hurt your chances of custody when doing many legal actions around the children. Drinking and smoking tobacco, both legal are viewed negatively in custody actions.
Alcoholism and Child Custody: How It Can Impact Your Case
Alcohol, while legal, can also significantly impact child custody cases. If the parent’s alcohol use is deemed to be detrimental to the child’s well-being, the court may order the parent to attend treatment or remove custody altogether. It is important to work with a family law attorney to determine the best course of action for your situation.
Supervised Visitation in New York: What to Expect
Supervised visitation may be ordered by the court if the parent’s behavior is deemed to be detrimental to the child’s well-being. During supervised visitation, a neutral third party will be present to supervise the visitation and ensure the child’s safety. It is important to work with a family law attorney to determine the best course of action for your situation.
Orders of Protection When Alcoholism or Drug Addiction is Suspected.
Judges have to power to issue orders of protection when they suspect alcoholism or drug addiction. At the bare minimum, the judge can order a parent not to drink, be drunk or use drugs around a child. A judge can also order the parent cannot drive a car with the child.
Seeking Professional Help: Social Services and Addiction Treatment Programs
If you or your co-parent is struggling with alcoholism or addiction, it is important to seek professional help. Social services and addiction treatment programs can provide valuable resources and support. It is important to work with a family law attorney to determine the best course of action for your situation.
Conclusion and Final Thoughts for Parents Dealing with Substance Abuse in Child Custody Cases
Alcoholism and substance abuse can have a devastating impact on child custody cases. It is important to prioritize the best interests of the child when making custody decisions. If you or your co-parent is struggling with addiction, it is important to seek professional help. Work with a family law attorney to determine the best course of action for your situation. Remember, the well-being and safety of your children should always be the top priority.
Conclusion
Alcoholism and substance abuse are serious issues that can have a profound impact on child custody cases. If you are dealing with substance abuse in a child custody case, it is important to understand the legal criteria for an unfit parent in New York State and how to prove substance abuse in court.
By documenting incidents and behaviors and working with a family law attorney, you can protect your children and prioritize their well-being. Remember, seeking professional help is always a viable option, and there are resources available to help you and your family.
Call Port and Sava at (516) 352-2999 for a free telephone consultation.
Pet Custody in New York – The Evolving State of the Laws
In New York, Courts can award pet custody to one of the parties in a divorce or breakup. In a prior post, we discussed a new law that addressed how courts now have the power to consider the best interests of the pet in a divorce. There is no doubt that pet custody disputes can be as contentious as that of one over children.
Recently, a judge was faced with a break-up and not a divorce. This judge applied the newly evolving common laws and looked to this new statute for guidance. The judge concluded that the pet cannot be treated solely like a piece of furniture, but rather the pet and that pet’s relationship to the parties must be taken into consideration.
Unmarried couples with pet custody disputes can’t go to the Family Court but must go to the Supreme Court. Unlike children issues, the Supreme Court has jurisdiction over pet custody issues, whether the parties were married or not.
When making a decision about pet custody in New York, the court will consider a variety of factors, including:
Who adopted/purchased the pet: If one party purchased the pet before the relationship began, that party may have a stronger claim to the pet.
Who has been the primary caregiver: The court will consider who has been the primary caregiver for the pet, including who has been responsible for feeding, walking, and taking the pet to the vet.
The pet’s well-being: The court will consider what is in the best interests of the pet, including which party has the resources and ability to care for the pet.
The best interest of all parties considered
Who Gets to Keep the Pet After a Break-Up
If you are going through a break-up and want to get custody of your pet there are a few things you can do. Again, understand that Pet Custody in New York is an evolving area of law.
First, try to work out an agreement with your ex-partner outside of court. If you can come to an agreement, you can submit it to the court for approval. It is always better to work out your life than have a stranger in black robes do it for you.
If you cannot come to an agreement, you may need to go to court. When making a decision about pet custody, the court will consider the factors listed above. Therefore, it is important to be able to demonstrate that you have been the primary caregiver for the pet and that you have the resources and ability to care for the pet.
You may also want to consider hiring an attorney who has experience with pet custody cases. An attorney can help you navigate the legal system and make a strong case for why you should be awarded custody of the pet.
Pet Custody in New York: A Case Study
Recently, New York State Justice Lourdes M. Ventura examined Pet Custody in New York, where the couple had never been married. When they broke up, the boyfriend took the dog.
The Court took evidence about the parties’ relationship and acquisition of the dog “Waffles.” Each party presented evidence as to why they should get custody of Waffles.
The court recognizes that pets, particularly companion animals, have a special status in society and should be treated with care and consideration in legal proceedings.
The court noted that prior to the new divorce statute regarding pets, judges applied the “best for all concerned standard” but that the statute changed it to the “best interest of the pet standard.”
Based on the evidence presented, the court awarded sole possession of Waffles to the ex-boyfriend, as it is in the best interest of the animal and all parties involved. Plaintiff’s request for possession of Waffles is denied, but her request for a monetary judgment in the amount of one thousand dollars is granted. So, in effect, the court ordered the ex-boyfriend to buy Waffles from the ex-girlfriend.
Pet Custody Agreements
Just like when couples with children breaks up, it is a good idea for a couple with a pet to get a custody agreement. The pet custodial agreement can prevent a lengthy and expensive lawsuit. It can also provide balance to the parties allowing each of them to maintain loving relationship with the pet
Conclusion
Pet custody in New York can be a complex issue, particularly in cases where a couple is going through a break-up. While pets are considered property in non-divorce cases, they are often much more than that to their owners. If you are going through a break-up and are concerned about pet custody, it is important to understand your legal rights and seek legal advice if necessary.
Remember that the court will consider a variety of factors when making a decision about pet custody, including who has been the primary caregiver for the pet and what is in the best interests of the pet. With the help of an attorney and a strong case, you may be able to get custody of your dog or other pet.
Call Port and Sava for a Free 15-minute Telephone Consultation (516) 352-2999
New York is an Equitable Distribution law state. As a resident of New York, it is essential to have a clear understanding of the state’s marital property laws. In a divorce, property division is often one of the most contentious issues, and it is important to have a solid grasp of what is considered marital property and how it will be divided. In this comprehensive guide, I will provide an overview of New York’s marital property laws, including equitable distribution, factors considered in property division, and tips for protecting your assets during a divorce.
Introduction to Marital Property Law in New York
In New York, marital property is defined as property acquired by either spouse during the marriage, regardless of how it is titled. This includes real estate, personal property, and financial assets such as bank accounts, retirement accounts, and investments. Marital property does not include property acquired before the marriage, inherited property, or gifts given to one spouse during the marriage.
Is New York a Community Property State?
No, New York is not a community property state. In community property states, all property acquired during the marriage is considered equally owned by both spouses and is divided equally in a divorce. In New York, property division is based on the principle of equitable distribution.
What is Considered Marital Property in New York?
As previously mentioned, marital property in New York includes property acquired by either spouse during the marriage, regardless of how it is titled. This can include real estate, interests in business, stock accounts, jewelry, other personal property, and financial assets such as bank accounts, retirement accounts, and investments. It is important to note that any increase in the value of the separate property during the marriage may be considered marital property.
Equitable Distribution in New York
In New York, property division in a divorce is based on the principle of equitable distribution. This means that property is divided fairly, but not necessarily equally, between the spouses. This a complex topic and is determined on a case-by-case basis.
The court will consider various factors in determining what is a fair distribution of property, including the length of the marriage, each spouse’s income and earning potential, the age and health of each spouse, and the contributions of each spouse to the marriage.
Factors Considered in Equitable Distribution
When dividing property in a divorce, the court will consider several factors, including the income and property of each spouse, the duration of the marriage, the age and health of each spouse, and the present and future earning capacity of each spouse. The court will also consider the contributions of each spouse to the marriage, including homemaking and child-rearing, as well as the wasteful dissipation of assets by either spouse.
Dissipation is another one of those complex topics which have to be determined based on individual cases.
Marital dissipation can take many forms, such as spending large sums of money on frivolous or unnecessary expenses, gambling, drug or alcohol abuse, or infidelity. Essentially, any behavior that wastes marital assets and reduces the value of the marital estate can be considered marital dissipation. Please note, merely wasting money is generally not enough to prove dissipation.
To prove marital dissipation in New York, the spouse who believes their partner has wasted marital assets must demonstrate that the expenses were not for a legitimate purpose, and that the spending was excessive given the couple’s income and standard of living. It is not enough to simply show that the spouse spent money on something the other spouse disagrees with.
If marital dissipation is proven, the court may award a larger share of the remaining marital assets to the non-dissipating spouse. Alternatively, the court may order the dissipating spouse to reimburse the marital estate for the amount that was wasted.
The 16 Factors Considered in Equitable Distribution
How much money and property each person had when they got married, and how much they have now.
How long the marriage lasted and the age and health of both people.
Whether one person needs to keep the family home or other belongings for the sake of the children.
Whether one person will lose inheritance or pension benefits because of the divorce.
Whether one person will lose health insurance because of the divorce.
Whether one person will get spousal support (alimony) payments from the other.
Whether one person contributed to the acquisition of property even if they don’t have their name on it (like by being a stay-at-home parent).
Whether the property is easy to sell (liquid) or harder to sell (non-liquid).
What the financial situation will be for each person after the divorce?
Whether it is difficult to put a value on some assets like a business or a professional license.
How taxes will affect each person’s financial situation.
Whether either person wasted (spent or lost) assets on purpose during the marriage.
Whether either person gave away or sold the property for less than it was worth to try to keep it away from the other person in the divorce.
Whether there was any domestic violence between the two people.
If the couple has a pet, the court will consider what is best for the pet.
Any other factors that the court decides are fair and reasonable to consider.
How is Property Divided in a Divorce in New York?
In New York, the property is divided in a divorce through a process called equitable distribution. The court will first identify and classify all property as either marital or separate property. Marital property will then be divided equitably, taking into account the factors previously mentioned. Separate property will be awarded to the spouse who owns it.
Separating Marital Property from Separate Property
When dividing property in a divorce, it is important to separate marital property from separate property. Separate property includes property acquired before the marriage, inherited property, and gifts given to one spouse during the marriage. Marital property, on the other hand, includes property acquired by either spouse during the marriage, regardless of how it is titled.
Under the Equitable Distribution Law, separate property is:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
(2) compensation for personal injuries;
(3) 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;
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
Protecting Your Assets During Divorce
If you are going through a divorce, it is important to take steps to protect your assets. One way to do this is to keep accurate records of all of your assets and in particular your separate assets, including bank accounts, investments, and real estate.
If you commingle separate property assets with marital assets you could risk turning it into marital property.
It is also important to avoid making any major financial decisions during the divorce process, as this can impact the division of property.
Conclusion: Understanding New York’s Equitable Distribution Law
In conclusion, understanding New York’s equitable distribution law is essential if you are going through a divorce or considering divorce in the future. Marital property includes property acquired by either spouse during the marriage, and property is divided equitably based on several factors. It is important to take steps to protect your assets during a divorce, and hiring a lawyer can help ensure a fair division of property. By understanding New York’s marital property laws, you can be better prepared for the divorce process and can work towards a successful resolution of your case.
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If the noncustodial parent is not paying support in New York there are many avenues available to enforce a child support order. Child support laws in New York are in place to protect the best interests of children and ensure that both parents share the responsibility of raising their children. In this article, we will discuss child support in New York, your rights as a parent, the laws governing child support, and how to enforce child support orders.
Introduction to child support in New York and Tools to Enforce a Child Support Order
Child support is a legal obligation that a non-custodial parent must pay to the custodial parent to support their child’s needs. It is based on the principle that both parents share the responsibility of raising their children. Once that order is issued by a court, the court has many tools available to enforce the child support order.
Understanding your rights as a parent
If you are the custodial parent, you have the right to receive child support payments from the non-custodial parent. If you are the non-custodial parent, you have the right to request a modification of the child support order if there has been a significant change in circumstances, such as a loss of income or a change in custody arrangements.
However, if the non-custodial parent fails to pay child support, they may face legal consequences. The custodial parent has the right to petition the court to enforce a child support order.
In New York, child support orders can be modified if there has been a significant change in circumstances, such as a change in custody or a loss of income. The state also has a Child Support Collection Unit (CSCU) that can help enforce child support orders. The right of the custodial parent to seek to enforce a child support order through the support collection unit is absolute.
Child Support Collection Unit (SCU) in New York
The Child Support Collection Unit (SCU) in New York is responsible for enforcing child support orders. The SCU can help locate non-custodial parents, establish paternity, and collect child support payments. If a non-custodial parent fails to pay child support, the SCU can take legal action to enforce the order.
The SCU has several enforcement options available, including wage garnishment, seizing assets, and suspending driver’s licenses or professional licenses. The unit can also take legal action against the non-custodial parent, which can result in fines or even jail time. The SCU was set up and specifically tasked to enforce child support orders.
Enforcing a child support order in New York
If a non-custodial parent fails to pay child support, the custodial parent can take legal action to enforce the order. The first step is to contact the SCU to report the non-payment. The SCU will then take action to enforce the order, which may include wage garnishment or legal action.
If the non-custodial parent continues to fail to pay child support, the custodial parent can file a petition with the court to hold them in contempt. If the court finds the non-custodial parent in contempt, they may face fines or even jail time.
Consequences of violating a child support order
Violating a child support order in New York can have serious consequences. The non-custodial parent may face legal action, fines, and even jail time. They may also have their driver’s license or professional license suspended. In addition, their credit rating may suffer, making it difficult to obtain loans or credit in the future.
Child support enforcement options available
There are 5 important tools that can be used to enforce a child support order.
Income Withholding: the most common method to enforce a child support order in New York is income withholding or garnishment. Income withholding involves deducting child support payments directly from the non-custodial parent’s paycheck. The employer is required to withhold a certain amount of money from each paycheck and send it to the child support agency, which then distributes the funds to the custodial parent.
Financial Institution Data Match: This enforcement measure involves matching the non-custodial parent’s name with financial institution records to locate any bank accounts or other assets. Once the assets are identified, the child support agency can seize the funds and apply them to the child support arrears.
Driver’s License Suspension: In New York, a driver’s license can be suspended if a parent falls behind on child support payments. The suspension is effective until the parent pays the arrears or enters into a payment plan.
Passport Denial: The federal government can deny a parent’s passport application or renewal if the parent owes more than $2500 in child support arrears.
Incarceration: A support magistrate or judge can order a non-paying parent to jail for up to 90 days.
Contempt of Court for Violating a Child Support Order
Sometimes none of the other 4 tools work. Then in order to enforce a child support order, contempt of court must be used. A contempt of court order is a court order that requires the non-custodial parent to comply with the child support order or face serious consequences, including fines and imprisonment.
To obtain a contempt of court order, the custodial parent must file a petition with the court, stating that the non-custodial parent has violated the child support order. The court will then hold a hearing.
If the court finds that the non-custodial parent is in contempt of court, the parent can be fined, imprisoned, or both. If imprisoned the parent will still have to pay the arrears.
It is important to note that a contempt of court order is a serious matter and can have significant consequences.
Conclusion
If you are facing a child support issue, it is important to understand your rights and obligations. At Port and Sava we are experienced in seeking to enforce a child support order, and representing parents facing contempt. Call us at 516-352-2999 for a free telephone consultation.
