Author Archives: smandb

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CHOOSING THE RIGHT POUGHKEEPSIE DIVORCE ATTORNEYS

CHOOSING THE RIGHT POUGHKEEPSIE DIVORCE ATTORNEY

Category : High Asset Divorce

Having practiced Poughkeepsie divorce law for 23 years choosing the right attorney to handle your Dutchess County divorce is not an easy task.  I routinely take over cases from other Poughkeepsie Divorce attorneys who know the law but are not able to get along with the clients or have handed the case off to a less experienced person in the Dutchess County law firm.  I often refuse to take on a Poughkeepsie divorce case because I feel the expectation of the client is not realistic and I will be unable to meet their expectations and thus result in a poor attorney client relationship.

This leads to RULE #1 in choosing a Poughkeepsie divorce attorney: Meet with the attorney who you are going to work with and ask them questions.  A few of the questions which would seem to be common sense are rarely asked,

 A. How long have you been doing this for?

 B. Have you ever done a trial? 

 C.  Are you the attorney who is going to work on my case?  They may sound good, look and smell good, but is this bait and switch to a less experienced or different associate.  

         You have an absolute right to know who is going to be working on your Poughkeepsie divorce case because in the most difficult time in your life this is the person who you are going to have a relationship with as yours is breaking apart.  If you don’t meet the Dutchess County divorce attorney who is handling your case at the intake you don’t hire that firm!

D.  What are the issues you see in my Poughkeepsie divorce and how can you help me?

         These are just the basic common sense questions that should be asked at all interviews with a Dutchess County divorce attorney.  It all relates back to RULE #1: Meet with the Poughkeepsie divorce attorney who is going to handle your case and see if he or she is right for you.

CHOOSING THE RIGHT POUGHKEEPSIE DIVORCE ATTORNEYS


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Dutchess County divorce lawyers

Dutchess County divorce

Category : High Asset Divorce

 

Dutchess County divorce clients often start out a consultation wanting sole custody and control of the visitation schedule. This is a common misconception of the term and what it means. There are essentially two types of custodial arrangements in a New York divorce, not to be confused with parental access schedules or visitation. They are Joint Custody and Sole Custody. The difference between the two is who will be making the major decisions for the child or children. In a sole custodial arrangement the parent who has sole custody will have the right to make all decisions relating to health, religion and education that relate to the children. In a joint custodial arrangement both parents work together to make the decisions in this area.
 Parental visitation schedules in Dutchess County divorce are as varied as the lives of different parents. They can be alternating weekends, one weekend a month, equal time often called shared custody (not to be confused with either joint or sole) and any other combination of access times the parties can work out in the best interest of their children and family.  The parent of a sole custody order does not get the right to alter a court ordered parental access or visitation schedule in Dutchess County divorce.
 Physical custody and shared custody are also terms you will often hear in a Dutchess County divorce. Neither are a joint or sole custody order but rather  are terms which relate to the time each parent has with the child or children. The Physical Custodial parent in a New York divorce is the parent who has the child or children more than 50% of the time and will be entitled to child support. A shared custodial arrangement is where each parent has the children 50% of the time. Even in a shared custodial arrangement one parent will be labeled the physical custodial parent for the purpose of child support, with the other being able to possibly seek a reduction in their child support obligation called by the Courts a “deviation”
 Custody is complex and emotions are often high in Dutchess County divorce. A poorly written or understood order can lead to loss of trust between the parents, fights and never benefits the children. Please contact Serino, MacKay, and Berube for a free consultation and more detailed analysis of your custodial issue.

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New York divorce law

Good to Know: New York divorce law

Category : High Asset Divorce

New York divorce law changed on August 15, 2010, when Governor David Paterson authorized no-fault divorce into law in Nyc state. Till 2010, New York recognized divorces only upon fault-based standards or upon separation. The Senate had approved the No-Fault Divorce process bill in June 2010, and the State Assembly passed the bill on 1st of July.

New York is really a mixed state that allows to both no-fault and at-fault divorce. In the United States, about one-third of the states, most of them inside the West and Midwest, are merely no-fault, having abolished at-fault divorce.

Wedding rings and moneyDespite being generally considered the liberal state, New York has a history of being conservative with issues regarding marriage; it was the last state in USA to allow no-fault divorce whilst still being maintains a (seldom enforced) law against adultery.  Until 1966, adultery was the sole ground of divorce; cruelty, a ground that had always been available in most other declares, was not available in Nyc

At fault divorce
The state of New York is amongst the states which allow the prospects for an at fault divorce. In cases like this, one party accuses the other of the wrongdoing (the “fault”). The other party may or may not contest. In practice, the parties might use the at fault grounds to acquire a mutually desired and agreed after divorce: they can agree to the uncontested divorce as long as one of the parties is willing to allege on the list of fault based grounds and another party accepts the “fault” without having contesting it (this was common inside the past).

An at fault divorce can be had due to the following:

  • Terrible and inhuman treatment (Domestic Associations Law §170. 1)
    Abandonment for the continuous period of one year or even more (DRL §170. 2)
    Imprisonment for in excess of three years subsequent to the actual marriage (DRL §170. 3)
    Adultery (DRL §170. 4)

Cruel and inhuman treatment need to be behavior by the defendant that rises to the level such that it causes it to be improper for the plaintiff to stay to reside with the defendant as wife and husband. Allegations under this ground include things like allegations of domestic violence in addition to repeated, extreme mental cruelty.

Abandonment might be actual or constructive. Actual abandonment is normally one spouse leaving the marital residence with no consent of the other spouse without intention to go back. One spouse may also lock out another spouse from the marital property. Constructive abandonment is the refusal of “basic obligation arising from the marital contract, ” which includes a cessation of sexual relations; establishing such a prior helpful abandonment may render the loved one who leaves, or locks out another, as the innocent spouse.

Adultery is difficult to prove the way it requires corroborating evidence from an unauthorised; thus a statement by the defendant that he or she had sexual relations with an unauthorised is not legally admissible to allow for the court to grant a divorce to the plaintiff. Furthermore, if the adultery ended up being “condoned”, i. e. the cheated-on party knew concerning the extra-marital sexual relationship but continued to stay in a marital, conjugal relationship because of their spouse, the adultery cannot serve like a cause for divorce.

Separation while ground of divorce

  • Separation will also be a ground of divorce. Common sense of Separation: “Decree of Separation” or “Judgment of Separation”, given with the court, for at least one year
  • Separation Agreement: Spouses have not lived together for a minimum of one year, and have signed the “Agreement of Separation”

Irretrievable malfunction (no fault)

Since 2010, a brand new ground has been added, effectively permitting no-fault divorce in Nyc state:

  • The relationship between wife and husband has broken down irretrievably for the period of at least a few months (DRL §170. 7)
    Even in a case of mutual consent, the parties may also disagree over child support, custody, alimony, division of joint assets or who will probably pay legal fees. These are referred to as “ancillary relief” (see below) which might be requested by one or both from the parties.

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Poughkeepsie Divorce spousal maintenance

Poughkeepsie Divorce spousal maintenance

Category : High Asset Divorce

When dealing with Poughkeepsie Divorce spousal maintenance of support formerly called alimony is one of the more litigated areas of matrimonial law concerns spousal maintenance, spousal support, this area of law requires either by agreement, court order, one spouse to pay the other spouse income. This income can be treated as taxable or can be negotiated that payer assumes tax liability. The NYS legislation in the past 3 years has made efforts to institute a formula that can be applied to all matrimonial cases to determine how much maintenance should be paid and for how long. Poughkeepsie Divorce today they have only instituted legislation to provide a formula for spousal maintenance while in litigation. Currently a list of 20 factors under the statue that leave a broad discretion with the courts as to how much, if any money a spouse can receive as well as how long.  The Poughkeepsie divorce matrimonial attorney needs to address each factor relevant to clients case because failure to do so can cost a client tens of thousands of dollars.  If you have any questions regarding spousal maintenance please schedule a free consultation with Kevin MacKay (845)462 0001Poughkeepsie Divorce spousal maintenance


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Custody is complex and emotions are often high in Poughkeepsie divorce

Category : High Asset Divorce

  Poughkeepsie divorce clients often start out a consultation wanting sole custody and control of the visitation schedule. This is a common misconception of the term and what it means. There are essentially two types of custodial arrangements in Poughkeepsie divorce, not to be confused with parental access schedules or visitation. They are Joint Custody and Sole Custody. The difference between the two is who will be making the major decisions for the child or children. In a sole custodial arrangement the parent who has sole custody will have the right to make all decisions relating to health, religion and education that relate to the children. In a joint custodial arrangement both parents work together to make the decisions in this area.
 Parental visitation schedules in Poughkeepsie divorce are as varied as the lives of different parents. They can be alternating weekends, one weekend a month, equal time often called shared custody (not to be confused with either joint or sole) and any other combination of access times the parties can work out in the best interest of their children and family.  The parent of a sole custody order does not get the right to alter a court ordered parental access or visitation schedule in Poughkeepsie divorce.
 Physical custody and shared custody are also terms you will often hear in Poughkeepsie divorce. Neither are a joint or sole custody order but rather  are terms which relate to the time each parent has with the child or children. The Physical Custodial parent in Poughkeepsie divorce is the parent who has the child or children more than 50% of the time and will be entitled to child support. A shared custodial arrangement is where each parent has the children 50% of the time. Even in a shared custodial arrangement one parent will be labeled the physical custodial parent for the purpose of child support, with the other being able to possibly seek a reduction in their child support obligation called by the Courts a “deviation”
 Custody is complex and emotions are often high in Poughkeepsie divorce. A poorly written or understood order can lead to loss of trust between the parents, fights and never benefits the children. Please contact Serino, MacKay, and Berube for a free consultation and more detailed analysis of your custodial issue.
Poughkeepsie-divorce-LAWYERS

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Financial tips for New York men facing alimony, child support

Category : Child Support

Divorce can be a challenge, and many spouses who feel that their marriage is coming to an end search for advice on how to manage the process and to know what to expect. A great deal of the information available in print and online, however, focused on advising women on how to navigate divorce. Very little is geared explicitly toward men and their divorce concerns, leaving many New York husbands feeling out of the loop and unsure what to expect when it comes to alimony and child support.

In many ways, divorce advice is gender-neutral. However, men and women do have different interests when it comes to certain aspects of a divorce. Alimony is one area that serves as an example. While many men struggle with the concept of making long term payments to a former spouse, it is possible to reframe the manner in which one considers spousal support. Alimony payments are tax-deductible, and in many cases can provide solid tax benefits when handled correctly.

A related issue involves men who might be eligible to collect, rather than pay, alimony. While spousal support was once considered solely the realm of wives, many husbands are entitled to these payments based on their own efforts to support the career of their spouse or set their own career aside to care for shared children. When a father is going to assume the primary care for those children, then child support becomes another issue that will buck the “normal” path of a divorce. If there is any question whether a husband is eligible to receive these payments, it is important to meet with an attorney to investigate the matter further.

Times have changed, and along with those changes have come shifts in the way that divorce is perceived. Men who are facing the end of a marriage should make every effort to determine their rights under New York law, as well as what to expect from the divorce process. Having this information will help spouses make the best choices possible as they work toward a favorable settlement in regard to alimony and/or child support.

Source: The Week, 8 financial tips for men getting a divorce, Hayley Krischer, Sept. 30, 2013


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Take care when claiming alimony deductions

Category : High Asset Divorce

One of the few silver linings of having to pay spousal support is the ability to deduct those payments from one’s Adjusted Gross Income, or AGI. In some cases, this tax deduction can make a big difference in one’s overall tax outlook. However, for those in New York who are planning to make use of the alimony deduction, it is important to understand how doing so can raise a red flag with the Internal Revenue Service.

Claiming alimony payments as a deduction requires that the filer submit a social security number or tax identification number for his or her former spouse. This allows the IRS to match the amount claimed as a deduction, with the amount that the recipient claims as income. However, if those two numbers do not match, both returns could be flagged for further review.

In 2010, over half a million tax returns were filed in which alimony was claimed as a deduction. Of those, nearly half did not list the same amount as that claimed by the recipient. From the perspective of the IRS, this may represent a significant loss, as well as a great deal of potential fines. While audits concerning these discrepancies are still relatively uncommon, it would not be surprising if the IRS decides to turn additional focus toward these discrepancies.

For those in New York who are preparing to divorce, it is important to understand how alimony will play into one’s tax planning in the years to come. It can be difficult to control whether one’s spouse files a proper tax return. However, knowing that a discrepancy could trigger an audit should underscore the importance of ensuring that one’s own return is accurate.

Source: Forbes, “Alimony Deduction Requires Good Substantiation“, Peter J. Reilly, Aug. 13, 2014


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Witness protection program stalls divorce process

Category : High Asset Divorce

When a New York spouse has made the decision to end his or her marriage, one of the early steps within that divorce process involves serving the other party with the required paperwork. In most cases, this step is completed in a relatively simple and straightforward manner, and the divorce moves forward. However, when one party is unwilling or unable to be served, delays can occur.

witness-protection-programA prime example lies in the divorce between Scott and Kim Rothstein. The Rothsteins are now both inmates within the federal prison system. Scott Rothstein is serving a 50-year sentence for his involvement in a Ponzi scheme that defrauded investors of nearly $1.4 billion. His wife is serving just 18 months for attempting to hide jewelry and additional assets during the investigation and subsequent bankruptcy.

Mrs. Rothstein has decided to initiate divorce proceedings, and she has made efforts to serve her husband with divorce papers. This process has become complicated, however, due to the fact that Mr. Rothstein is being housed within the federal prison witness protection program. The program provides security for inmates who assist in the identification and prosecution of members of organized crime. Because of his inclusion within the program, Mrs. Rothstein has been unable to serve him. She has asked the court to grant an extension of the service deadline, and officials are looking into how Mr. Rothstein may be safely and properly served.

For most New York spouses, any service issues that may occur will be on a far smaller scale than the ones mentioned here. However, if one spouse takes actions to avoid service, difficulties may arise. In such cases, one’s divorce attorney can assist by providing referrals to process servers or private investigators who can track down the individual’s location and complete the service of legal paperwork as needed.

Source: The Sun Sentinel, “Where’s Rothstein? Divorce hits delay because fraudster is in secret prison“, Paula McMahon, June 2, 2014


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Tips to help those in a New York divorce protect their finances

Category : High Asset Divorce

Just as financial disagreements can cause a rift between two married people and eventually lead to adivorce, it can make the divorce process challenging to get through. This can be particularly concerning for a New York couple with significant assets. A few tips can help them to protect themselves financially during and after the divorce.

First, it’s typically ise to immediately close all accounts that one has opened jointly with an ex-spouse. This is important because if the ex decides to go on a shopping spree and rack up huge amounts of debt on a joint credit card, or drain a bank checking account, the other party could be held responsible for the credit card debt or for the resulting bank account overdraft fees. It’s helpful to suspend a joint account and confirm that it can’t be reversed of the account otherwise reopened.

In addition, it is normally essential to change the beneficiaries applicable accounts. Failure to do so may mean that an ex gets access to one’s assets, including a 401(k) or IRA, even after a divorce is final. The individual may also want to update his or her umbrella liability or homeowner’s insurance coverage. This may keep the person from paying to financially cover assets that he or she may no longer own.

If two people have a prenuptial or postnuptial agreement that dictates how high-value assets will be split during a divorce, this can be immensely helpful for the parties. If such an agreement doesn’t exist, the two can still strive to find common ground and reach a settlement together. Both parties have the right to fight for their individual wishes to be taken into consideration when making tough financial decisions during a New York divorce proceeding.

Source: dailyfinance.com, “22 Tips to Transform Your Financial Life After a Divorce“, Robert Pagliarini, July 28, 2014


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Discussing divorce and visitation with one’s children

Category : Child Custody

The best way to let kids know that their parents are preparing to divorce is in a “family meeting” type of setting. Whenever possible, both parents should be present. The meeting should take place in a familiar and comfortable environment, without scheduling pressures on the back-end. This is not a talk that should be rushed by a softball practice or scout meeting. Leaving it open-ended also gives kids a chance to formulate questions at their own pace, without feeling rushed.

When discussing the reasons for the divorce, parents should strike a balance between being open and honest with their kids and avoiding burdening them with information that they do not have the ability to process. It is perfectly acceptable to express sadness about the change in family structure, because this allows children to see that it is OK for them to be sad, as well. It goes without saying that parents should be absolutely sure that reconciliation is not possible before breaking the news to their kids.

When preparing for this meeting, parents in New York should not feel as though they have to cover every aspect of the divorce and resulting visitation schedule in one sitting. It takes a number of discussions to fully prepare kids for the changes ahead, and it is important that parents are able and willing to revisit the matter whenever necessary. By remaining available and accessible to their children, parents are providing the love and support that kids need to adjust to the transition as it occurs.

Source: The Huffington Post, “9 Things To Consider Before Telling Your Kids About The Divorce“, Armin Brott, July 26, 2014


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Serino, MacKay & Berube PLLC

12 Walker Rd.

Poughkeepsie, NY 12603

Phone: 845-462-0001

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