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The Answering the 3 Critical Questions of the Marital Home in Divorce

Gary Port
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The Answering the 3 Critical Questions of the Marital Home in Divorce

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Introduction To The Marital Home in Divorce

For most married couples, the Marital Home is their most valuable asset. If the home was bought during the marriage, regardless of who is on the deed or mortgage, it may be marital property and subject to equitable distribution. The most frequent questions I hear are:

  1. Who gets the house?
  2. Can I live in the house until the children graduate?
  3. Can I buy out my spouse?

In this article, I will address these 2 main questions and discuss other considerations of the marital home in divorce.

Can I stay in the Marital Home Until the Children Graduate?

Perhaps the most frequent question I hear is “Can I stay in the marital home until the children graduate?” The answer depends on the age of the children. If the child is 16, then most judges will delay the sale of the house until the child graduates High School. There is a preference for the children to graduate with their high school class. Divorce is disruptive enough, and we want to minimize the effect on the children.

However, if the child is in middle school or even elementary school, then the court will probably sell the house sooner rather than later.

If the child is going to a private school, and moving will not affect the child’s attendance, then the marital home will probably be sold before graduation.

Judges generally do not delay the sale for graduation from college.

The parties, however, can agree between themselves to delay the selling of the house for any period.

Selling the Martial Home Before or After Divorce: Weighing the Pros and Cons

When it comes to selling a marital home during a divorce, many couples wonder whether it’s better to sell before or after the divorce is finalized. Each option has its own advantages and disadvantages, and the right choice depends on the unique circumstances of the couple. Let’s take a closer look at both scenarios:

Selling the House Before the Divorce is Finalized

Selling the marital home before the divorce is finalized offers several benefits. First, it allows both parties to move forward and start anew, avoiding potential complications associated with dividing the property later on. Putting the house on the market early maximizes the time it’s available for potential buyers, increasing the chances of receiving favorable offers.

Another advantage of selling the house before the divorce is the potential for tax benefits. If both parties have already moved out of the marital home and its value appreciates during the waiting period for the divorce to be finalized, there could be capital gains tax implications. By selling the house before the divorce is finalized, couples may potentially minimize or avoid these tax consequences. Remember the more the value of the house has gone up from the initial purchase, the more takes may have to be paid.

Remember to consult with your accountant on all tax questions, and do not rely on your lawyer. We are not allowed to give tax advice.

However, selling the marital home before the divorce is finalized also comes with potential challenges. Both parties need to cooperate and agree on the sale, which can be difficult when emotions run high. Effective communication and finding common ground are crucial to ensure a smooth selling process.

Selling the Martial Home After the Divorce is Finalized

Selling the marital home after the divorce is finalized may be a simpler option for some couples. Once the divorce is officially completed, the division of assets, including the house, is legally determined. With a marital settlement, the terms of how and when the house will be sold are clearly set forth in the agreement. It should smooth the path.

If there was a trial, the Judge will provide strict rules for the sale of the house, and may also have appointed a realtor to actually sell the marital home.

Another advantage of selling the house after the divorce is that both parties have a clearer understanding of their individual financial situations. Waiting until after the divorce is finalized allows for better-informed decisions about the sale and division of proceeds.

On the other hand, selling the house after the divorce is finalized may also present challenges. The process of finalizing a divorce can take time, and during this period, the housing market conditions may change. Unfavorable market conditions could result in a lower sale price or a longer time on the market, impacting the overall financial outcome for both parties.

When selling a house during a divorce, it’s crucial to consider the legal aspects and potential implications. Here are some key legal considerations to keep in mind:

Ownership and Division of Proceeds

Determining ownership and the division of proceeds from the sale depends on the specifics of the divorce and any agreements made between the parties. Generally, there are three common scenarios:

  1. One spouse buys out the other’s legal interest in the house and keeps it.
  2. One spouse retains use and occupancy of the house for a specified period, typically until a certain event, such as the youngest child turning eighteen, and then the house is sold.
  3. The house is sold immediately, and the proceeds are divided between the parties according to the agreed-upon terms.

Consulting with a divorce attorney is essential to ensure that the division of proceeds aligns with the divorce settlement and legal requirements.

I personally like the buy-out of the marital home by one of the parties. This involves getting an appraisal from a licensed appraiser, not a realtor. The buying spouse will then refinance the house for the value of the original mortgage, and the amount of money that the other spouse will receive.

For example, assume that the marital home is appraised at $500,000 and the amount remaining on the mortgage is $300,000. The equity left in the house is $200,000. The buying spouse will have to refinance the mortgage for $400,000. This is the original $300,000 plus the $100,000 to buy out the other spouse.

The advantage to the spouse being bought out is that there are no broker’s fees or capital gains taxes. The buying spouse gets to remain in the marital home, and the cost basis for the house may have increased. Again, for all tax questions consult with an accountant as lawyers cannot legally provide tax advice.

Mortgage and Financial Obligations

Addressing any outstanding mortgage payments and financial obligations associated with the property is crucial before selling the house. These may include equity lines of credit, second mortgages, or broker fees. Resolving these obligations properly is vital for a smooth sale process.

Capital Gains Tax

Selling a house during a divorce may have tax implications, particularly in terms of capital gains tax. If the house has appreciated in value since its purchase, there may be capital gains tax consequences upon the sale. Consulting with a tax professional can help understand the potential tax implications and plan accordingly.

Steps to Successfully Sell a House During a Divorce

Selling a house during a divorce can be a complex process. Here are some steps to navigate the sale successfully:

  1. Consult with a Divorce Attorney: Seek guidance from a divorce attorney to understand the legal requirements and implications specific to your situation.
  2. Determine Ownership and Sale Terms: Work with your spouse and attorneys to determine ownership and sale terms, including responsibilities for listing, pricing, and negotiations.
  3. Choose a Real Estate Agent: Select a real estate agent experienced in working with divorcing couples. Their expertise can help minimize conflicts and guide you through the selling process.
  4. Prepare the House for Sale: Ensure the property is in good condition and presentable to potential buyers. Make necessary repairs, declutter, and consider staging the house for optimal appeal.
  5. Set an Asking Price: Collaborate with your real estate agent to determine an appropriate asking price based on market conditions and comparable sales.
  6. Market and Show the House: Your agent will market the property and schedule showings. Maintain open communication with your ex-spouse to coordinate showings and ensure accessibility.
  7. Evaluate Offers and Negotiate: Review offers with your attorney and agent. Negotiate with buyers to secure favorable terms and sale price.
  8. Finalize the Sale: Work with your attorney and agent to complete any legal requirements, settle outstanding obligations, and facilitate a smooth transfer of ownership.
  9. Divide the Proceeds: After the sale, distribute the proceeds according to the agreed-upon terms in the divorce settlement. Consult with your attorney and financial advisors to ensure a fair distribution.
  10. Seek Professional Guidance: Throughout the process, seek guidance from professionals specializing in divorce real estate sales. They can provide expert advice and support for a successful sale.

Conclusion

Selling a house during a divorce can be challenging, but with careful consideration, open communication, and professional guidance, couples can navigate the process successfully. Understanding the advantages and disadvantages of selling before or after the divorce, addressing legal considerations, and following the necessary steps are crucial for a smooth and fair transaction. By prioritizing cooperation, effective communication, and the best interests of both parties, you can achieve the best outcome when selling a house during a divorce. Call Port and Sava for a Free 15 Minutes telephone consultation.

Gary Port discusses setting up Port and Sava

Gary Port
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Gary Port discusses setting up Port and Sava

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The 4 Critical Divorce and Insurance Considerations

Joseph Finnerty
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The 4 Critical Divorce and Insurance Considerations

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Divorce and Insurance Considerations: Introduction

A Guest Blog from Joe Finnerty of New York Life, discussing divorce and insurance considerations.  Here’s Joe’s linkedIn page: https://www.linkedin.com/in/josephfinnertynyl/

1983 Marcus Ave  Suite 210
Lake Success, NY 11042

(516) 458-5780

Joe discusses the importance of insurance in a divorce. The problem in a divorce is that while people can focus on the house, the pension, child custody, and support, there are other very important issues that also must be considered. Post-divorce insurance is one of them. Divorce and insurance are interrelated and mustn’t be ignored.

Overview of Divorce and Insurance Considerations

As with other major events in life, the divorce process may be one of the most emotionally difficult. Family concerns and sensitive emotional issues come to the forefront and are of primary importance to the parties involved, including the children. The financial issues often are pushed into the background. This is an unfortunate situation because divorce is one of the most common reasons for bankruptcy for one or both of the divorcing spouses. Divorce and insurance must be considered as part of the financial arrangements.

Division of Property

The division of property between the spouses can be one of the most difficult issues to resolve in the divorce process. The ultimate negotiated division of the assets will be documented in detail in the property settlement portion of the divorce decree.

The first step is to identify and value all of the assets. Some assets are easier to value than others, like bank accounts, brokerage accounts, stocks, bonds and mutual funds, since current account statements or current stock, bond, or mutual fund prices are readily obtainable. However, hiring a valuation expert may be necessary for assets that are difficult to value, such as a small business, investment real estate, artwork, or a defined benefit retirement plan.

If an asset is indivisible (e.g., a car, the house, etc.), one spouse may get the entire asset and the other spouse is “compensated” by getting other asset(s) of equal or similar value. The condition of an asset needs to be evaluated when determining value. For example, the house or a car may be in need of major repairs that need to be taken into account in the valuation process.

State divorce laws attempt to split the property both fairly and finally so the ex-spouses can, in theory, go on to live their separate lives and not have to be involved with continued joint ownership of property. Although divorce laws vary from state to state, each state’s divorce laws generally attempt to reach an “equitable” (but not necessarily equal) division of the property. Community property states have somewhat different laws, though commonly divide marital assets (i.e., assets acquired during the marriage) in half. Each spouse’s separate property (e.g., acquired before the marriage, inheritances, or gifts from third parties) is considered that spouse’s property for purposes of the divorce. However, “commingling” rules in a community property state may cause some or all of the separate property assets to be presumed to be community property. Due to the complexity and differences from state to state of the community property and “commingling” rules, details of these are beyond the scope of this article.

Child Custody

The issue of child custody may be one of the most emotional and contested parts of the divorce process. Most states require joint custody based upon the belief it is in the best interest of the children unless there is a compelling reason (e.g., child abuse, drug abuse by one parent) for granting sole custody to one parent over the other. Child custody and visitation schedules will be finalized in the form of a detailed “possession order” that is part of the divorce decree.

The amount of child support to be paid and which parent will be obligated to pay it is part of the divorce decree. The child support amount guidelines vary from state to state. Federal law mandates that child support payments be made by wage assignment. That way, the child support amount is automatically withheld from the wages of the parent responsible for payment. Many states have a program whereby the withheld child support amounts go into a special account, so it is recorded every month and ensures the children get the funds they need.

Post-Divorce Spousal Support (Maintenance)

Today, divorce settlements generally do not provide for spousal support in the form of maintenance. In New York in any divorce started after January 2016, maintenance is awarded on a mathematical calculation.

Retirement Income

If certain employer-sponsored retirement plans are to be divided between the spouses or transferred to the non-participant spouse, a “qualified domestic relations order” (QDRO) will be issued by the court. A QDRO clearly states the amount of the participant spouse’s benefits that the plan administrator must pay to an “alternate payee,” normally the former spouse and/or child. QDROs permit qualified retirement plan benefits to be used to fulfill property division, child support, and alimony obligations associated with the divorce.

  • A QDRO is not needed for the division or transfer of individual retirement accounts between the spouses. These accounts are treated the same as other property under the divorce property division rules that allow for assets to be transferred without the recognition of gain or loss.

Defined benefit pension plans are more difficult to divide because such plans pay out a benefit at a future point in time. If such an asset is subject to the divorce property settlement, a present value calculation of the future benefit stream needs to be calculated. Then, a lump sum will be paid from other assets to the non-participant spouse for the value of the plan benefit to which it is agreed he or she is entitled. The alternative is for the non-participant spouse to receive the benefit payments directly when the participant spouse receives the plan benefit pay-out in the future. However, this is less common than the present value lump sum option previously discussed.

Divorce and Insurance Coverage

Both of the spouses’ life, disability, and health insurance need to be re-evaluated. Divorce and insurance, particularly life insurance necessarily involve a reevaluation. The divorce settlement will specifically address these current insurance policies and what the requirements will be for future coverage. There will be specific provisions in the divorce decree defining who is to maintain such coverage and pay premiums, for how long, and the beneficiaries. Remember to discuss divorce and insurance considerations with your lawyer.

If the divorce settlement requires a spouse to pay spousal support and/or child support, adequate life insurance should be carried on that spouse to secure payment of these court-ordered obligations in the event of the payor spouse’s death. Courts will generally require such insurance coverage. It also may be determined that proper disability insurance on the payor spouse be maintained to secure payment in the event of disability.

Health insurance coverage is another critical issue that needs to be addressed in the divorce settlement and will be detailed in the provisions of the divorce decree. No matter which parent they live with, the children’s health insurance coverage can be continued under either spouse’s coverage until they are adults. A “qualified medical child support order” (QMCSO) is a court order that requires health insurance for the children of the noncustodial parent under that parent’s group health plan. If the former spouse has no coverage at work, he or she may continue coverage through the ex-spouse’s health insurance plan for up to 36 months under the federal COBRA law. This would allow the former spouse time to obtain an individual health insurance policy.

Estate Planning

Both spouses should consider consulting an estate planning attorney during the divorce planning process to revise their respective estate planning documents to reflect their soon-to-be changed marital status.

Tax Implications

As part of the property division in the divorce, the transfer of property from one spouse to the other is tax-free (i.e., no gain or loss is recognized) if the transfer is “incident to a divorce.” This holds true even if the divorce decree is final and the parties are legally ex-spouses – as long as the transfer is “incident to the divorce,” the non-recognition rule will apply. The transfer of property must occur within one year from the date the marriage ceases, or the transfer must be related to the cessation of the marriage. Internal Revenue Code section 1041.

Where a QDRO has been used to meet the property division and/or alimony obligations of the retirement plan participant spouse, the alternate payee (i.e., the ex-spouse) is allowed to treat the payments the same as the plan participant spouse would treat them. The alternate payee will pay tax on the distribution as if it were his or her income. However, they are not subject to the 10% penalty even if they are less than age 591/2 if they roll over the distribution to an IRA.

Where a QDRO has been used to meet the child support obligations of the retirement plan participant spouse, the amounts paid to the alternate payee child are not taxed to the child but are taxed to the plan participant. Although these payments are not subject to the 10% penalty for early withdrawal, they cannot be rolled over to an IRA.

Child support is not tax deductible by the payer spouse and is not taxable to the recipient spouse. On the other hand, alimony is tax deductible by the payer spouse and is taxable to the recipient spouse.

Child custody may result in significant tax benefits for the custodial parent. The taxpayer must have custody of the child for a greater portion of the year to qualify as the “custodial parent.4” In addition, if the custodial parent taxpayer pays greater than half of the cost of maintaining the home, he/she can file his/her tax return as “head of household” (lower tax liability than “single” filing status), claim the exemption deduction for the child, and may be able to claim the dependent care credit.

The custodial parent is normally entitled to claim the exemption deduction for the child which also allows them to claim other tax credits related to the child. However, the custodial parent can allow the noncustodial parent to claim the exemption deduction for the child by executing IRS Form 8332 “Release/Revocation of Release of Claim to Exemption for Child by Custodial Parent.5”

Marital status as of the last day of the tax year determines the couple’s tax filing status for that tax year. If there is no final divorce decree or separate maintenance agreement obtained by the last day of the tax year, the couple must file as a married couple. In other words, they can file as either “married filing jointly” or “married filing separately.”

Where the divorcing couple is considered still married for tax filing purposes and they file a joint tax return, both husband and wife are jointly and severally liable for any taxes, interest, and penalties due on the joint tax return even if they should later divorce.6 This is the case even if the divorce decree should provide otherwise. It is possible to avoid this liability exposure by filing separately or by qualifying for “innocent spouse relief.” See IRS Form 8857, “Request for Innocent Spouse Relief,” and the accompanying instructions (Inst 8857) for more information.

IRS Publication 504, “Divorced or Separated Individuals,” and IRS Publication 555, “Community Property,” are other good sources of tax information on divorce issues.

The Social Security Administration’s booklet, “What Every Woman Should Know,” is a source of further information which, along with other information on divorce and Social Security benefits, can be found at the Social Security Administration’s web-site at www.socialsecurity.gov/.

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About Joe:

I am an Agent licensed to sell insurance through New York Life Insurance Company and may be licensed with various other independent unaffiliated insurance companies. Additionally, I am a Registered Representative of and offer securities products & services through NYLIFE Securities LLC, (Member FINRA/SIPC), A Licensed Insurance Agency. Any testimonial on this site is based on an individual’s experience and may not be representative of the experience of other customers. These testimonials are no guarantee of future performance or success. Neither New York Life Insurance Company, nor its agents, provide tax, legal, or accounting advice. Please consult your own tax, legal, or accounting professionals before making any decisions. I am not licensed in all jurisdictions.

Disclaimers

This material includes a discussion of one or more tax-related topics prepared to assist in the promotion or marketing of the transactions or matters addressed. It is not intended (and cannot be used by any taxpayer) for the purpose of avoiding any IRS penalties that may be imposed upon the taxpayer. New York Life Insurance Company, its affiliates and subsidiaries, and agents and employees thereof, may not provide legal, tax or accounting advice. Individuals should consult with their own professional advisors before implementing any planning strategies.

© 2015 New York Life Insurance Company. All rights reserved. SMRU 1832889 (exp. 11.30.2021)

 
 

The 4 Critical Reasons A Judge Will Deny Relocation or Grant It.

Gary Port
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The 4 Critical Reasons A Judge Will Deny Relocation or Grant It.

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Introduction to Relocation and Child Custody

Let’s address the reasons a judge will deny relocation of the child to the custodial parent. The rules of Child Custody can be found in this article. Today we’re diving into the often tricky world of child custody and what happens when one parent decides to pack up and move to a different state. This might sound like an episode straight out of a daytime TV drama, but it’s a real challenge that many folks face. We’re here to break down some of the legal mumbo-jumbo and bring you the basics.

Moving Out of State

First off, let’s chat about what relocation means in the context of child custody. Imagine you’re the parent who spends most of the time with the kiddo (the custodial parent), and for one reason or another—maybe a new job, better financial prospects, or personal reasons—you decide to move. That move might throw a wrench in the plans for the other parent’s (non-custodial parent) visitation schedule. And it could mean less access to the child for the non-custodial parent. So, to avoid any fuss, most child custody agreements have clauses that talk about relocation.

Often, the court or the parents agree that the custodial parent should stay within a certain geographical area—say, the same city, county or even within a few miles, for example. If the custody agreement doesn’t mention anything about moving, it’s up to the custodial parent to ask the court for permission.

If the non-custodial parent finds out that the custodial is moving, they should run, not walk to the Family Court to get an order to stop it. We’ll discuss below some the timetables. But, the sooner you go to court the better. If you go before the move, the court may block the move until a hearing is held. If you go after the move, depending on how soon you go to court, the judge could force the custodial parent to come back pending a hearing.

BIG POINT FOR DADS:

Moms do not have greater rights than you, and CANNOT on their own decide to move. Too many dads seem to think that moms have the right to move, even out of state, and they do not have any rights or a say. This is dead wrong.

Even if they have the green light to move, it’s a good idea to work out a new visitation schedule with the other parent or get a court order just to keep everything on the up and up.

What Does the Court Look at?

The big question for the court is whether moving is in the best interest of the child. To figure this out, the court considers a few different things:

  • Why each parent either wants to or doesn’t want to move
  • The relationship between the child and each parent
  • The impact of the move on the child’s relationship with the non-custodial parent and siblings
  • Any benefits the move might bring to the child
  • Whether a good relationship can be maintained between the child and the non-custodial parent after the move

Getting It in Writing

Whenever a move is involved, it’s a smart move (pun intended!) for the custodial parent to get a written agreement from the other parent, saying they’re okay with the move. Or better yet, get a court order that gives the thumbs-up to the move.

It is always a good idea to get the agreement in a written form, which is notarized. However, I’ve seen judges accept email communications between the parties, if, the emails clearly show that the noncustodial parent agreed to the move. The agreement must be clear and unequivocal.

What’s This about Jurisdiction?

Now, you might be wondering, what happens when kids move to another state? Who gets to decide what happens next, the old state or the new one? This can get a bit complicated, especially if there’s no court order in place. Let’s take New York as an example.

If the kids move out of New York, it still keeps jurisdiction, or the power to make decisions, for six months after the move. If the non-moving parent doesn’t do anything in that time, the new state takes over. So, the minute the custodial parent moves, a six-month clock starts ticking. It is never a good idea to wait until the last minute, as the judge may look upon that as you agreeing to move. The sooner the noncustodial parent runs to court, the better it looks for them.

Enter: The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA)

But wait, there’s more! The Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA) is a law that all states in the U.S. follow. This law was created to avoid conflicts between states when deciding which one gets jurisdiction over child custody cases. Under the UCCJEA, the child’s “home state” has priority when deciding custody cases. The “home state” is typically where the child has lived with a parent for at least six consecutive months prior to the legal action. This can help create consistency and prevent conflicting orders from different states.

The purpose of this law is to prevent one parent from running to another state and filing a custody petition. This would force the non-custodial parent to travel to another state to enforce their parental rights.

The UCCJEA gets rid of that type of forum shopping. The noncustodial parent can bring their action in the original state – But remember the 6 month clock. Tick, tick, tick.

But What if There’s Already a Court Order?

If there’s already a court order saying that a state like New York keeps jurisdiction, that usually stands—unless there’s a big exception. If important info about the child’s care, protection, schooling, and relationships isn’t available in New York anymore—like if the custodial parent and the child have lived outside New York for a while and the non-custodial parent hasn’t been in touch—the new state could take over jurisdiction. Or if both parents and the child have moved out of New York, then the child’s new state has a greater interest.

Kidnapping?

We get asked this question a lot: If my spouse relocates without my consent, isn’t that kidnapping? Maybe.

This is a bit complex, but let’s start with a Federal Law:

Think back to 1980 (or, if you’re a millennial just imagine it). Back then, lawmakers put together this groundbreaking act to lay out some clear rules about child custody cases. The key idea? Home is where the heart is. The PKPA says that, in the case of any disputes, the kid’s “home state” should have the final say. That’s typically the place where the child has been living for the last six months. Which is where the UCCJEA picked up the 6 month clock.

Why does this matter? It stops a sneaky parent from starting legal proceedings in a different state just to get a better court outcome – a loophole known as “forum shopping”. Not cool, right?

The PKPA also makes sure one state can’t just change another state’s child custody decision without sticking to the rules of the PKPA. If a state does make changes without following those guidelines, the rest of the states can choose to ignore the new order.

Now, let’s touch on a hot topic – the PKPA and same-sex marriage.

In 1996, a law called the Defense of Marriage Act (DOMA) came into play and stirred the pot a bit. This created some tension when it came to the kids of legally married same-sex couples. Here’s the thing: even if a state doesn’t recognize same-sex marriage, according to the PKPA, it still has to enforce child custody orders from a state that does. But the DOMA allows states to refuse to recognize such marriages. Yeah, it’s a bit complicated. While DOMA is gone, we are seeing a number of states restricting the rights of the LGBTQ+ community.

And finally, what’s all this talk about the Hague Abduction Convention?

Well, this is an international agreement that creates a system to return kids who have been wrongfully taken or kept away from their usual country of residence. Kind of like an international version of the PKPA, if you will.

PKPA and Criminal Law

There are several criminal laws related to child custody and kidnapping:

  • The Fugitive Felon Act allows for federal prosecution if a person is accused under state law of felony parental kidnapping and flees the jurisdiction.
  • The International Parental Kidnapping Crime Act of 1993 makes it a federal crime to remove a child younger than 16 from the United States, attempt to do so, or retain a child outside the United States to obstruct lawful exercise of parental rights.
  • The Extradition Treaties Interpretation Act of 1998 authorizes the U.S. to interpret “kidnapping” to include international parental kidnapping for purposes of any extradition treaty to which the United States is a party.

Here’s some useful links:

Military Divorces and Custody Issues

Military folks and spouses have special issues. Primarily because the state where the divorce is occurring may not be where the parties will ultimately live. Or maybe one of the parties will be PCSing to another state, or has had an EROD.

We’re a veteran-owned business and Gary Port and George Sava were JAG lawyers. We understand the military and the additional issues military service can create in a custody case.

Bringing It All Together

Wrapping it up, moving and child custody issues can get pretty complex. If you’re in this situation, remember that every case is unique, and it’s always a good idea to talk with a lawyer before making any moves. While a relocation can bring new opportunities, it’s crucial to think about its impact on your child and the other parent’s rights. Take a deep breath, and remember: you’ve got this!

If you have questions, call us at Port and Sava, (516) 352-2999 for a free telephone consultation.

LGBTQ Parent’s Rights – 4 Important Protections In The Child-Parent Security Act

Gary Port
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LGBTQ Parent’s Rights – 4 Important Protections In The Child-Parent Security Act

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Summary:
LQBTQ Parental rights in New York have come a long way—but the journey has been anything but straightforward. We’ve moved from a legal system that ignored the reality of LGBTQ families to one that increasingly recognizes that love, intention, and commitment—not just DNA—make a family. This guide offers a lawyer’s view of how the law has evolved, what protections are in place, and practical steps LGBTQ parents can take to secure their parental rights.

Introduction   

As someone who has walked beside clients through the legal maze of parenthood in same-sex relationships, I’ve seen firsthand how the law has lagged behind love. It’s one thing to finally have the right to marry—it’s quite another to feel secure that your role as a parent won’t be erased because you didn’t give birth or share genetics.

The good news? New York has made significant strides. The better news? If you’re proactive, the law is now on your side more than ever. But, be smart, be prepared and get educated. Laws can change, and there are people who claim they are for freedom, just not for yours.

Let’s take a stroll down memory lane—don’t worry, it gets better. Before 2016, the legal landscape was downright grim for nonbiological LGBTQ parents. If you weren’t married or hadn’t adopted the child, you could be shut out of their life entirely, even if you had been there from day one, doing the midnight feedings, reading the bedtime stories, and stepping on Legos like a champ.

Then came the game-changer: the 2016 Court of Appeals decision in Brooke S.B. v. Elizabeth A.C.C. That case broke through the rigid biological/adoptive parent definition and finally recognized that a person could be a legal parent if there was clear agreement to raise the child together—even without biology or adoption. It was a huge sigh of relief for many families.

In 2021, the Child-Parent Security Act (CPSA) took things even further, bringing parentage law into the 21st century with protections for families using assisted reproduction and gestational surrogacy. Finally, a law that recognized modern families in all their glorious forms.

The Child-Parent Security Act: Finally, Common Sense

The CPSA is a bit like that one friend who always brings order to chaos. It straightened out a lot of the mess:

  • Sperm and egg donors? Not parents unless you intended them to be.

  • If you’re using assisted reproduction, and you and your partner intended to be parents, congratulations—you are.

  • Gestational surrogacy is now legal and regulated, with protections for surrogates and intended parents.

  • Adoption isn’t always necessary, though still recommended in some cases.

Now, same-sex couples can focus more on raising their kids and less on legal gymnastics.

The Nonbiological Parent’s Roadmap

If you’re not the biological parent, don’t panic—but do prepare. There are a few paths to solidify your parental rights:

  • Second-Parent Adoption: The gold standard. It gives you ironclad recognition across all 50 states (and helpful for international travel too)

  • Birth Certificate + Acknowledgment of Parentage: Thanks to the CPSA, this combo works well for those who used assisted reproduction and clearly intended to co-parent.

  • Brooke S.B. Standing: If you didn’t do the paperwork, all hope isn’t lost. You’ll need “clear and convincing evidence” that you intended to parent the child together from the start. Emails, texts, fertility clinic paperwork, baby name brainstorming notes on napkins—gather it all.

What Happens When Things Fall Apart?

Breakups are hard. Breakups with children involved? Even harder. Same-sex couples often face additional legal hurdles during custody battles, especially if they didn’t lock down parentage.

One especially poignant case involved a couple who had a wedding ceremony in 2005—back when same-sex marriage wasn’t legal in New York—and got legally married in 2011. During divorce, they disagreed on the “start date” of their marriage. The court sided with 2005, recognizing their intent and honoring the reality of their commitment.

In custody disputes, courts now have the tools to do what they couldn’t before: consider the child’s best interests—even if the parent isn’t biological. But make no mistake, it’s a fight that’s easier when the paperwork is in place.

How to Protect Your Family

If you’re in a same-sex relationship and raising kids, here’s your action plan:

  1. Adopt, if possible. It may seem redundant, but it offers the strongest legal protection.

  2. Document your intent. Paper trails matter—especially if you’re not married.

  3. Sign an Acknowledgment of Parentage. It’s fast, easy, and powerful.

  4. Update your estate plan. Wills, guardianships, healthcare proxies—get it all in writing.

  5. Keep receipts—figuratively and literally. From daycare to doctor visits, your active role helps demonstrate parenthood.

For unmarried couples, the burden is higher. The law gives married folks the benefit of the doubt. If you’re not married, the best defense is good documentation.

Looking Ahead

New York is miles ahead of many other states, but we still have work to do. The courts are still refining how to apply these rules in edge cases. Recognition outside New York can be a gamble. That’s why even with favorable laws, a second-parent adoption remains your best shield.

The bottom line? Parenthood isn’t just about biology—it’s about being there. New York law is finally catching up to that truth, and it’s our job to make sure our families are protected in every way possible.

Call Us

If you have questions, call Port and Sava at (516) 352-2999 for a free consultation. We’re a veteran owned law firm. We believe in protecting everyone’s freedoms, not a just chosen few.

FAQ: Parental Rights in Same-Sex Families

Do I need to adopt my own child if I’m on the birth certificate?
Yes, especially if you travel or move. The birth certificate is helpful, but a court order of adoption is stronger.

Can I be recognized as a parent if I’m not married to my partner?
Yes, but it’s trickier. You need to prove there was a mutual intent to parent from the beginning.

We used a sperm donor. Can he claim rights?
Not if he was a donor in the legal sense (i.e., no intent to parent and assisted reproduction was used). CPSA protects you.

What if we break up before the child is born?
That’s a gray area. If you can show the intention to co-parent existed before conception, you may have rights—but it’s a tougher fight.

Do we need lawyers if everything is going well?
Yes! A good family law attorney can help make sure things stay that way by putting the right protections in place.

The Powerful Tool of Awarding Attorney’s Fees in Divorce: The 6 Factors

Gary Port
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The Powerful Tool of Awarding Attorney’s Fees in Divorce: The 6 Factors

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Navigating the Financial Waters of Divorce: Understanding Attorney’s Fees in New York

A party in a divorce might be entitled to attorney’s fees from the other party. This is because divorce is more than just an end to a marriage; it’s a legal process that can have profound financial implications for both parties involved. Going into a divorce without a lawyer is like scuba diving with an empty oxygen tank.

Recognizing this, New York law has specific provisions regarding the payment of attorney’s fees—or counsel fees—in divorce cases. These laws are designed to balance the scales and ensure that both parties have fair representation, regardless of their individual financial circumstances.

For those not versed in legalese, let’s break down what this really means.

The Legal Landscape of Divorce Costs and Attorneys Fees

In New York, there’s an underlying principle that, ideally, both spouses should stand on equal footing during a divorce. This principle is reflected in the Domestic Relations Law, which contains a rather clear-cut directive: if there’s a significant disparity in earnings, the “less monied” spouse is entitled to have their legal fees paid by the other. This is not about favoritism but fairness.

Imagine a scenario where one spouse has been the primary breadwinner, while the other may have taken time away from a career to raise a family or simply earns less. In the midst of a divorce, the financial strain of hiring a good lawyer could be substantial, potentially impacting the ability to negotiate effectively. This is where the law steps in.

A Closer Look at Attorney’s Fees

The statute in question contains a key phrase: “There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” This means that the default assumption is that the higher-earning spouse will cover the lower-earner’s attorney’s fees. However, this presumption can be challenged and isn’t written in stone.

For instance, courts will look at the specifics of each case. If awarding attorney’s fees would leave the monied spouse unable to secure their own representation, then the court might not order them to pay. Simply put, a spouse earning $50,000 a year might not be on the hook for the other’s legal costs, but a spouse earning $250,000 likely would.

The Factors for Awarding Attorney’s Fees

  1. Disparity in income and assets between the spouses
  2. Necessity and nature of the legal services rendered
  3. Value of services rendered and reasonableness of the amount requested
  4. Good faith in the case
  5. The complexity of the case and the results achieved
  6. Whether either party’s actions delayed the case

The Process and Provisions

It’s important to note that requests for attorney’s fees aren’t a one-time thing. Throughout the divorce proceedings, the less monied spouse can apply multiple times for these fees, right up until the judgment of divorce is finalized. This flexible system recognizes that financial situations can change and legal needs evolve over the course of what can be a lengthy process.

Should the spouse who pays challenge the fees as being unreasonable, the court will examine the case. If the argument holds water, they might receive a credit on the equitable distribution—the division of assets and debts. This is part of the checks and balances to ensure fees are fair and just.

Equal Access to Justice

The fundamental idea is to ensure all individuals have equal access to justice. Wealth should not give one spouse an undue advantage in divorce proceedings. The statutes, including DRL § 237 and CPLR 5519(a)(2) and (3), aim to prevent such an imbalance.

DRL § 237(a), specifically, is a powerful tool. It reflects the wisdom of the Court of Appeals in cases like O’Shea v. O’Shea, asserting that the wealthier spouse’s financial power should not tip the matrimonial scales. By empowering judges to award interim counsel fees, the law seeks to equalize the playing field from the start of the proceedings.

In Conclusion

Navigating the complexities of divorce and understanding the implications of New York’s laws on attorney’s fees can be daunting. The take-home message is clear: the legal system strives for fairness and balance. The law acknowledges that divorce can be a costly affair and that the financial muscle should not dictate the outcome.

For anyone going through this tumultuous time, it’s important to know that the system has measures in place to prevent a financial power play. By potentially granting attorney’s fees to the less monied spouse, New York law fosters a more equitable process.

As a non-lawyer diving into these matters, remember that this overview is a starting point. Each case has its own nuances and complexities, so seeking the advice of a knowledgeable attorney is always the best course of action. They can help you understand how these laws apply to your specific situation and guide you through the process with your rights and interests firmly in mind.

If you have questions call Port and Sava, (516) 352-2999 for a free 15 Minute Consultation.

Divorce and Selling the House

Anna Beigelman
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Divorce and Selling the House

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House
Dividing properties after divorce. White background.

Here’s a guest blog by Anna Beigelman from Exit Realty. Anna, a seasoned, dedicated and compassionate realtor discusses the emotional issue of the marital home in the divorce. Visit Anna on her Facebook Page https://www.facebook.com/anna.beigelman

     When faced with the transition process of divorce, there are many important decisions to be made.  While there are many assets to divide, real estate tends to be one of the most sensitive.  Whether it is the home that a family was raised in or investments which were purchased together, division is rarely an easy numbers game.
     Step one is to contact a trusted realtor, in conjunction with your matrimonial attorney, to set up an appraisal.  Although the value to you and your partner may seem innumerable, that will not be the case to consumers on the market.
     If you don’t work with your spouse on this be aware that a judge could take choice of a realtor or appraiser away from you and do the hiring. Then you will have no choice as to the person or their fees.
     Once the home and other joint properties have been accurately appraised, a decision can be made on when and if to sell. Again, if you and your spouse can’t agree, the judge will make those decisions for you. Since you and your spouse have the financial stake, and the judge doesn’t we advise trying to work with your spouse.
     In many cases, a property may still have a mortgage attached to it.  It is important to assess the real value of the home versus the price it was purchased for.  If the mortgage exceeds the appraised price you may need to work with the bank to sell the house without owing any money back to them afterwards.
     In some cases, it may make sense for one spouse to continue to live in the property until a higher season in the market, to receive top dollar.  This is often the case in suburban communities and can be reviewed with your realtor and counsel to ensure that both parties will receive the most favorable outcome.
     However, in this time, there may be small tweaks which you can make to the home to allow for a larger sale price, such as staging and small repairs. Many people believe that large repairs or renovations can greatly improve the value of the house.  However, for a dollar for dollar return, small things such as painting and landscaping can yield very positive results.
Anna Beigelman
Your lifetime realtor
EXIT Realty Premier
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Changes to the Military’s Former Spouse’s Protection Act 2017

Gary Port
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Changes to the Military’s Former Spouse’s Protection Act 2017

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Congress made a big change to the Former Spouse’s Protection Act in 2017. And let me repeat that this is a big one. Basically, in a divorce, military retired pay is to be calculated as if the military member retired when the divorce started. Under the old law, if the divorce happened when the service member was an E-5, but retired as an E-9, the former spouse could get a share of the retired pay at the E-9 rate. To many this was unfair. The question was “Why should my ex get a share of my E-9 pension? When we divorced I was only an E-5.” Now, the law addresses it. Ok, this was the basics. We are going to dive a bit deeper and I’ll provide some examples.

“The Former Spouses Protection Act,” had been amended by the National Defense Authorization Act of 2017 (NDAA). Under the prior law, state courts were given jurisdiction to divided military retired pay in accordance with the laws of that particular state. So that in New York the military retired pay would be divided in accordance with DRL 236 B and the Court of Appeals decision in Majauskas v. Majauskas, 61 NY2d 481 (1984).

Military retired pay is calculated by first determining the total number of years of service. Each year of service translates into 2.5% of the base pay. This number is the retired pay percentage. Twenty years of service (20 * 2.5%) yields a retired pay percentage of 50%. Therefore, a person who serves 20 years would receive 50% of his/her base pay. While a person who served 25 years would receive 62.5% of the base pay (25*0.025=0.625). A person who served only ten years would only be entitled to 25% of his/her base pay (10*0.025=0.25) . Since a person cannot normally retire with less than 20 years of service, the Defense Finance and Accounting Service (DFAS) refers to any time less than 20 years as the “hypothetical retirement.”

Finally, to calculate retired pay, the retired pay percentage is applied to the pay chart under what is call “HIGH 36.” Assume for example that the service member retired after 20 years of service as a lieutenant colonel. Assume that according to the pay charts that his/her average base pay over the last 36 months of service was $8000 per month. His/her retired pay percentage is 50% (20 years multiplied by 2.5%). The monthly retired pay would be $8000 multiplied by 50% which yields $4,000 per month as his/her retired pay.

Under the previous version of the statute, the court could issue an award based upon the service member’s final years of service and his/her final rank. Thus, if the service member was a captain with 10 years of service at the time of divorce, with 10 years of marital overlap but then retired after 20 years of service as a lieutenant colonel, under Majauskas the marital coveture would be calculated as 10 divided by 20 or 50%. The spouse would receive half, or in this example, 25% of the base pay that the service member would receive on retirement. In this example, the spouse would receive 25% of the $4,000 per month calculated above. This number is $1000 per month.

Under the 2017 amendments, this is no longer the case. Now, the court must calculate the retired pay as if service member retired on the date the judgment of divorce was issued. This is the hypothetical retirement.

Using the above example again, the amount of the service member’s retired pay would be capped. The parties divorced after 10 years of marriage and service. The service member later retires after 20 years. Under the Majauskas formula, the marital coveture would still be 50% and the spouses share would still be 25%.

However, assume that as a captain with 10 years of service his monthly base pay is only $5,000. First, we have to determine the retired pay percentage. Ten years multiplied by 2.5% is 25%. Next, we take the retired pay multiplier and apply it to the base pay of $5,000. When $5,000 is multiplied by 25% the number yielded is $1,250. Under Majauskas the spouse will receive 25% of the $1,250 or $312.50 per month.

Further, under the prior law, if the service member remained longer in the military then final retired pay would increase resulting in the spouse’s share increasing. However, under the new law with the base pay remaining static, as the Majauskas percentage increases the spouse’s share decreases. Again, using the above example, 20 years of service yields a marital coveture of 50%. While 25 years of marriage years of a marital coveture of only 40% and 30 years yields a marital coveture of 33.34%. Yet, those figures are all assessed against the same $1,250.

Years of Service at time of divorce 10
Retirement pay percentage per year 0.025 For each of service 2.5% is added
Retired pay percent 0.25 10 years multiplied by 2.5%
Member’s hypothetical base pay at time of court order $5,000.00
Member’s hypothetical retirement pay at time of court order $1,250.00 Hypothetical base pay multiplied by retired pay percentage
Majauskas  formula for 20 years 0.5 10 years of marriage divided by 20 years of service
Majauskas  formula for 25 years 0.40 10 years of marriage divided by 25 years of service
Spouse’s percentage 20 years of service 0.25 One half of the marital coveture 20 year of service
Spouse’s percentage 25 years of service 0.20 One half of the marital coveture 25 year of service
Spouse share of retired pay 20 year of service $312.50 Spouse’s percentage multiplied by hypothetical retirement 20 years
Spouse share of retired pay 25 year of service $250.00 Spouse’s percentage multiplied by hypothetical retirement 25 years

I would note that the American Academy of Matrimonial Lawyers Board of Governors adopted a resolution opposing this new law. They stated, “that [the change] would alter state divorce law in the majority of states by requiring the states to divide military retirements – as opposed to every other kind of defined benefit pension plan – in accordance with rank and grade at the moment of divorce rather than in accordance with the Time Rule [basing the division on rank and years of service at retirement.]”

My friend and mentor, Mark Sullivan, a retired Army colonel in the Judge Advocate General’s Corps who is a family law attorney in Raleigh, North Carolina, and specializes in military divorces, and is a member of the ABA Matrimonial Section’s Military RoundTable described the proposed change as a “radical rewrite” of the Uniformed Services Former Spouse Protection Act. He noted that the old system allowed division of the retirement pay based on state law, and that now there is no federal formula, giving states more latitude to deal with individual divorce cases.

He has pointed out that by freezing the benefit to be divided at divorce, rather than the actual retired pay of the service member, this new law would cause great harm to spouses and former spouses going through separation and divorce, people that have sacrificed their careers and their own retirement, with the hope of sharing the military member’s final retired pay — or, upon divorce — of getting a fair share of that actual retired pay, not a benefit frozen in time for years before.

The bottom line is that the military service member, whether Army, Navy, Air Force or Marine will benefit from this change in the law.

5 Critical Factors for College Tuition And Child Support

Gary Port
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5 Critical Factors for College Tuition And Child Support

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Introduction to College Tuition and Child Support

College Tuition and Child Support are related but not the same thing. The child support law is mandatory, but payment of college tuition is discretionary. The court could order it or the parties can agree to it in a settlement.

The starting point is the Child Support Standards Act (CSSA), which helps figure out how much child support should be paid. What’s interesting, though, is that it doesn’t specifically say anything about college tuition. The statute allows for the court to order payment of college tuition, but it does not require it in all cases.

While New York law does recognize that parents have a responsibility to help with their child’s college education expenses, it’s not as cut and dry as saying parents must pay for college. Instead, it gives us a way to work through whether college expenses should be shared. The court looks into whether the child is actually planning to go to college, alongside other factors like how much money the parents have, how well the kid is doing in school, whether the kid can chip in, and what the parents’ views on higher education were before they split up.

For children of divorced parents, college costs are often tackled using what’s known as the “SUNY Cap.” This isn’t a law, but a handy method lawyers use to limit how much each parent has to pay, based on the cost of attending a state university in New York. If parents can’t agree on who pays what for college, the custodial parent can take the issue to Family or Supreme Court to ask for help with the tuition from the noncustodial parent. The court can also make sure the noncustodial parent helps out with the FAFSA.

Understanding College Tuition and Child Support Cases

Child support in New York is all about the Child Support Standards Act, which takes into account how much money the parents make, how many kids they have, and how much time they spend with their kids. Child support is generally not waivable.

While the state understands that parents should help with their child’s college costs, it’s not mandatory. The requirements to pay college tuition and child support are not the same.

When deciding if a parent needs to contribute towards college, the court looks at lots of things like both parents’ finances, the kid’s school performance and college plans, and what the family thought about higher education before the parents split. The court could then decide that the child is probably not going to college and will not order payments.

But, if the court decides college costs should be part of child support, it’ll figure out how much each parent should pay based on what they can afford. The idea is not to make parents cover the full cost of college but to set a reasonable limit. College expenses can include tuition, room and board, fees, transport, books, healthcare, and other living costs. Child support orders can be changed if there’s a big shift in circumstances, and not following them can lead to serious consequences.

Factors Influencing College Contributions Decisions

In New York, when it comes to deciding on college expenses, courts consider a bunch of important factors:

  1. Parents’ Finances: The court looks at each parent’s ability to contribute, based on their income and assets.
  2. The Kid’s School Performance and Needs: The court checks out the child’s education goals and resources like financial aid.
  3. Family Expectations: The court thinks about the parents’ education levels and what the family expected about college before splitting up.
  4. Relationship with the Noncustodial Parent: The court might consider how the child and the noncustodial parent get along.
  5. Cost of College Tuition: The actual cost of tuition plays a role in the court’s decision.

The court tries to balance the child’s needs with what the parents can afford. If a parent can’t afford it, they won’t be forced to pay. But the court is flexible and understands that life can be unpredictable, like during the COVID-19 pandemic.

The SUNY Cap and Its Implications

The SUNY Cap is a practical tool lawyers use to settle how much each parent should contribute towards a child’s college education. It bases the amount on what it would cost at a state university in New York. This doesn’t mean a child can’t go to a private or out-of-state college; it just caps the parents’ contribution at the SUNY rate. The actual amount a parent might have to pay could be less, depending on the child’s financial resources and scholarships. The details of the SUNY Cap agreement should be clear, including what it covers and how it’s calculated.

It’s important to note that the SUNY Cap has limitations and pitfalls  and it might be beneficial only if both parties agree to it. Divorcing couples should consider seeking legal advice regarding the SUNY Cap and college payment responsibilities.

If the parties don’t agree to it, the Court cannot impose a SUNY Cap, and the parties may end up being ordered to pay far over the SUNY CAP.

In New York, parents can ask the court to change the child support order, including college expenses, if there’s a big change in their situation. The steps include filing a petition, providing evidence, and going to a hearing. It’s important to follow the court’s orders to avoid legal trouble.

New York offers a College Tuition Credit or Deduction for residents who pay college tuition. This can help with the costs, but it’s important to get advice from an accountant, as divorce attorneys can’t give tax advice.

How to Seek College Expense Contributions in Divorce and Child Support Cases

In New York, even if parents were never married, a court can order a noncustodial parent to help with college tuition. The steps involve completing the FAFSA, figuring out basic child support, and possibly adding support for college costs. The court will look at the child’s and family’s financial situation and academic plans before deciding.

College Tuition and Child Support: 21 Is the Limit

Child Support ends when the child turns 21. The Court is without power to order a parent to pay college Tuition and Child Support after 21.

BUT—– If the parties agree to extend the time, the court does have the power to enforce that agreement. Many times parties will agree to extend the noncustodial parent’s obligation to pay for college tuition and child support until 22 or then the child graduates a 4 year program. In this situation the court can enforce support after 21.

However, if the noncustodial parent refuses to agree to extend his/her obligation past 21, the Court is without the power to force it. By law, absent an agreement to contrary, the Court’s power over support ends at 21. Period.

Dollar for Dollar Credit for Room and Board

If a noncustodial parent pays for room and board, s/he may get dollar-for-dollar credit on the child support. There are limitations. If the parties have only one child under the age of 21 in college, the noncustodial parent might be able to claim full dollar-for-dollar credit. However, if there are other children under 21, then there is a more complex calculation. The bottom line is that in that circumstance the noncustodial parent may be able to claim full dollar-for-dollar credit.

Also, the noncustodial parent needs to be aware of what constitutes “room and board.” It is only rent and food. It is not gas money, tolls, cell phones or other incidentals. I had a client who made those claims and was found in contempt of court for violating the support order.

Never, never take the dollar-for-dollar credit before consulting with a lawyer.

Conclusion

Dealing with college expenses in divorce and child support cases can be tricky, but knowing how New York handles it can make things clearer. Courts consider the finances and academic needs of both parents and the child, aiming for a fair balance. Call Port and Sava at (516) 352-2999 for a free 15 Minute Consultation.

Should You Hire a Mediator for an Uncontested Divorce?

Gary Port
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Should You Hire a Mediator for an Uncontested Divorce?

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One of the biggest misconception is that when doing an uncontested divorce the parties only need one lawyer. The main driver for this belief is a desire to save money. Look, I get it, you think that the two of you are in agreement, so why should you waste money hiring two lawyers?

Well, first we need to explain the difference between a lawyer and a mediator. Your lawyer is just that: your lawyer. S/he represents you and only you. Your attorney makes sure that the deal is the best one for you, not the best solution for both.

A mediator stands between and in the middle. The mediator does not favor, or at least should not favor, one party over the other. The mediator is trying to get both parties to the middle, with little or no advantage to either one.

When you hire a lawyer, s/he is required by law to only represent one person. If a lawyer does advise both spouses then the deal can be thrown out by a judge.

It is simply impossible for one person to represent two people with conflicting interests. One party will always suffer. Only when each of you has a lawyer will your rights be protected.

For example, lets’ say the couple are fighting over money. The mediator is looking to reach a compromise without advising the parties on their full legal rights and remedies. The lawyer, fighting for the individual client might come up with various legal arguments to maximize the amount of money to be received.

So,  when one person hires a lawyer, and the other believes that the attorney represents both, the agreement is flawed and will be thrown out.

Let’s look at a 2016 court case, which while somewhat extreme, really underscores this point. In 2000, the couple signed a separation agreement, but for whatever reason continued to live together until things finally went south in 2015. Seeking, I’m sure, to save time and money, they decided to use a mediator. This is where things got hairy. After a ten minute mediation it was decided to proceed to a divorce, with the mediator now representing the wife as her lawyer. Already, you can see that this is a recipe for disaster.

He got the parties to waive any conflict of interest and a new agreement was drafted, signed and notarized.

The husband later went to court and got the agreement thrown out. He argued, and the court agreed, that he thought that the lawyer/mediator was representing both of them. He had not been advised as to his right of counsel. He was never told  that the 2000 agreement was still valid until the 2015 agreement superseded it. Finally, the new agreement was far more favorable to the wife than the 2000 agreement.

If the husband had retained his own attorney, I’m sure he would have been told that the original 2000 agreement was still valid. From there, the attorney could have used that position of strength to negotiate a more favorable deal, tweak the old deal, or dug his feet in  and enforced the original agreement. However, the mediator by changing hats to that of a lawyer muddied the waters. Whenever an attorney meets with the other spouse there is always a danger of that spouse claiming that he thought that the lawyer was representing both parties.

That’s why we never meet with or even talk to both parties in an uncontested divorce. Whenever, the lawyer talks to the unrepresented spouse there is always a danger that the courts will throw out the deal, claiming that the spouse “reasonably” thought that the attorney was representing both parties.

We handle all communications by email or letter. In each correspondence we state that we do not represent that spouse, and that he/she should confer with a lawyer. When the final agreement is done, we don’t even notarize it for them.

The key is that a mediator does not represent anyone. They are neutral. If you want your interests completely looked after, you need to hire an attorney. And don’t go cheap and think you can get by with hiring only one. An attorney who does that is legally a crook and if caught will be disciplined.

 

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