Category Archives: High Asset Divorce

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smandb lawyer in Dutchess county - divorce and the right of election

Divorce and The Right of Election

I have come across more divorces that have involved couples who have lived apart for decades. Many of these individuals come to me and ask what happens if I do not file for divorce, can I will my children everything I have?

Under New York state law, whether a spouse dies with or without a will, a spouse is entitled to the elective share of his or her spouse’s estate. This elective is one-third of the spouse’s assets!

The assets included in the elective share are all items that pass through a will. It also includes, pursuant to New York Estates Power and Trust Law Section 5-1.1.d, “testamentary substitutes…which include gifts causa mortis or within one year of death, Totten trusts, joint accounts, revocable transfers, or transfers with a retained income interest, many retirement accounts and property owned by a decedent and payable on his death to someone other than the surviving spouse for his estate.”

The right of election gives the surviving spouse the choice between accepting what he or she received in a will or under intestacy, or the greater of $50,000 or one-third of the estate. Needless to say, if you are a spouse who has been living separate from your husband or wife and have assets sitting back and doing nothing can be harmful to your intentions for your estate after you pass.

A divorce in New York will terminate the right of election and protect your right to transfer your estate the way you wish.

If you are in the Poughkeepsie, NY are and are seeking a divorce lawyer in Dutchess county. Please contact Serino, MacKay, and Berube law for your free consultation.


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Handling Poughkeepsie divorce and matrimonial cases for 24 years

The practice of law is an ever changing landscape in the Hudson Valley

I have been handling Poughkeepsie divorce and matrimonial cases for 24 years and both the laws and how the bar handles Poughkeepsie divorces have drastically changed in just two decades. When I first started practice it was rare that a father would ever be granted custody. There was a preference for the mother to be granted primary custody based on old beliefs that it was in the best interest of a child to be nurtured by their mother. These beliefs had evaporated in psychology over twenty years ago and it was understood that substantial contact with both parents was in the best interest of a child’s development and not just substantial contact with the mother.

Courts are creatures of precedent and it has taken time for the Courts to evolve and catch up with the psychology of today and let go of the erroneous advice of the past. It is important for a Poughkeepsie matrimonial attorney not only to understand the Courts but to read  and understand the psychology of children in divorces and divided families. This understanding can be used to assist Poughkeepsie families in making the best choices for their children. How does an infant bond with a mother and father? What is the importance of breast feeding? When is it best to transition to an overnight schedule? Not all Courts will see the answer to these questions in the same way and reading and understanding the most updated advice from doctors in this area is crucial knowledge for a Poughkeepsie attorney in assisting clients.

Practicing law is more than just reading the law and appearing in Court. It is having the knowledge and life experience to assist the client and bring intelligent knowledge based arguments to support your client’s position in the Court room. Experience and knowledge matters and will make a difference in any case.

Handling Poughkeepsie divorce and matrimonial cases

Handling Poughkeepsie divorce and matrimonial cases for 24 years


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dutchess county high-asset divorce

The importance of a post-nup within high-asset divorce

The importance of a post-nup within high-asset divorce

For New York couples who enjoy a high level of wealth, protecting that wealth becomes a priority. In the case of divorce, both sides seek to retain a level of financial security. One of the best ways to ensure that a divorce proceeds fairly and with few surprises is to draft a post-nuptial agreement. These contracts can outline the manner in which assets would be divided in the event of a divorce.

dutchess county high-asset divorceOne high-profile example of the need for a post-nuptial agreement lies in the recently settled divorce between former governor Eliot Spitzer and his wife, Silda. The couple was the center of a great deal of media attention in 2008, when it was revealed that Spitzer was a client within a high-dollar prostitution ring. At that time, Silda stood by his side as he announced his resignation as governor. Despite that show of support, the couple filed for divorce in early 2014.

Details released state that Silda will receive a payment of $7.5 million within the divorce settlement. In addition, she will be paid spousal support in the amount of $240,000 per year, to continue unless she remarries or predeceases her husband. She will also retain the family home, and will be given $100,000 per year to support the charitable organizations of her choosing.

The couple had a postnuptial agreement in place, which likely guided much of the settlement details. There is no information available as to the specifics of that agreement. It is also unknown if the postnup was drafted prior to the governor’s indiscretions in 2008. However, these legal contracts can be drafted in such a way as to spell out various property division strategies for different scenarios. For example, spouses can agree to one amount if the marriage ends by mutual agreement, and another if infidelity is the cause of the split.

A post-nuptial agreement is a powerful tool for high-asset families. It can give a spouse who holds a lower earning capacity the ability to retain financial stability if a divorce takes place. It can also serve to protect the primary breadwinner from unfair financial losses due to the property division process. New York spouses who wish to learn more should research the matter in detail to discover if a postnup is a good fit for their financial planning needs.

Source: The Huffington Post, “Eliot Spitzer To Pay Ex-Wife Silda Millions In Divorce Settlement“, Brittany Wong, April 28, 2014


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collaborative divorce dutchess county

Can collaboration solve both divorce and business woes?

When a New York business owner is preparing to divorce, there are a wide range of financial considerations that must be made. Dividing marital wealth is a difficult enough process, but add in the need to divide the value of a business and the task can seem monumental. For those who are able to work together with their soon-to-be-ex spouse, a collaborative divorce may offer an easier road to the end of the marriage and the division of the business.

collaborative divorce dutchess countyCouples who use collaboration begin with the shared goal of hammering out the details of their divorce outside of a court of law. This does not mean that they forfeit the right to have their own individual legal counsel; collaboration usually involves the use of individual divorce attorneys for each spouse. The focus, however, is on reaching solutions, not on battling out each and every line item within the divorce.

For couples who own a business, collaboration helps both spouses remain focused on the shared goal of dividing the company while retaining as much wealth and value as possible. This is even more true in cases in which one party will retain the business and buy out the other. Causing serious damage to the operations of that company during the divorce process can leave the retaining spouse at a serious disadvantage in the years to come.

Collaboration is not the right fit for every couple. However, for those who are able and willing to work together to process the end of their marriage, it is a tool that can be used to preserve wealth for both parties. Collaboration is often a kinder, gentler and less expensive path to divorce, and one that many in New York could benefit from.


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School District and Dutchess County Divorce

School District and Dutchess County Divorce

In today’s age of tight budgets schools look very closely at whether a student is in fact enrolled in the district and school which they are attending.

Education Law 3202(1) provides “a person over five and under 21 years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.”

In a Poughkeepsie divorce, parents who lived together with the children are now often living apart and living apart in separate school districts.  The question is what district must the children attend?

 

In a shared residential custodial case the parents can choose the district that they wish the children to reside.  This should be clearly delineated in the parties Dutchess County divorce agreement.  THE MAJORITY OF TIMES IT IS NOT!!! .(see http://www.counsel.nysed.gov    decision no. 15,288.) In a joint custody arrangement the answer is more complicated. “Residence” for purposes of Education Law 3202 is established by one’s physical presence as an inhabitant within the district and intent to reside in the district. Longwood Cent. School District. V. Springs Union Free School Dist. 1 NY3d 385; Appeal of Sigsby, 44 Ed Dept Rep 97, Decision N. 15,109.

Most Poughkeepsie divorce settlement agreements will list a parent as the physical custodial parent for affixing child support obligations and this can often be misconstrued as picking a school district.  Your agreement should spell out what school district the children will be attending and list why the parties believe they meet the test below.

The test in a joint custodial arrangement as to which school district the children must attend was spelled out in Appeal of Forde, 29 Ed Dept Rep 359 and Appeal of Cortes, Decision No. 13,818. http://www.counsel.nysed.gov .

“In those cases where the child’s time is essentially divided between two separate households and the parents both assume day to day responsibility for the child, the determination of the child’s residence must rest ultimately with the family.  In such cases, the custodial parent may designate the child’s residence for purposes of Education Law 3202.”

There is no requirement that the time be equal, but rather that both parents be involved in the day to day responsibility and that the time be essentially divided between the parties.  Your Dutchess county divorce agreement should spell out how each parent is participating in the day to day responsibility of the children and define how while the time is not equally split that the custodial access time is essentially divided between the parents. 

School District and Dutchess County Divorce


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CHOOSING THE RIGHT POUGHKEEPSIE DIVORCE ATTORNEYS

Choosing the Right Poughkeepsie Family Attorney

Having practiced Poughkeepsie divorce law for 23 years choosing the right attorney to handle your Dutchess County case 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 separation 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 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 family attorney.  It all relates back to RULE #1: Meet with the Poughkeepsie family 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.
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Office Location

Serino, MacKay & Berube PLLC

12 Walker Rd.

Poughkeepsie, NY 12603

Phone: 845-462-0001

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