We Practice Law for Your Peace of Mind

What’s More Romantic Than a Divorce for Valentine’s Day????

Author: Robin Friedman

February 10th, 2015

Most people think of Valentine’s Day as a romantic time in which happy couples get to spend quality time together.  Believe it or not, the weeks leading up to Valentine’s Day are also a very popular time for divorces.

January and February are especially busy times for dissolutions and this period of time is typically known to family law attorneys as “divorce season”.  This is largely because many people wait until after the busy and stressful holiday season in December to follow through with their divorce plans.

As stressful and emotional as the dissolution process can be, for many couples separating from an unhappy marriage is the opportunity for a fresh start.  In this way, a Valentine’s Day divorce can give someone a chance to move forward, while allowing both partners the chance to reflect on what is best for themselves and their children. Allowing yourself the chance to admit that things are not working out and being honest if with your spouse is at least something to be proud of.  While separation can be extremely hard when you are going through the motions, it can end up being a blessing in disguise. Perhaps when the dissolution process is finally over and you are ready to date again you can redefine what Valentine’s Day means to you.

If you are looking for a compassionate, experienced family law attorney in the Western New York area, contact our office for a consultation with one of our highly experienced attorneys.

Divorce, property division can impart powerful lessons

Author: Robin Friedman

January 14th, 2015

Any large-scale life event brings with it a chance to learn a range of lessons.  In fact, a great deal of our knowledge and understanding comes from having gone through difficult experiences.  We learn from good choices that we make, as well as from decisions we would like to forget.  Divorce and property division are no exception, and savvy spouses will take advantage of the opportunity to learn and grow from the experience of moving beyond an untenable marriage.

The division of marital property is one of the most difficult aspects of any divorce.  This can be especially true for spouses who played a minor role in managing the family’s financial matters.  It can be intimidating to delve deeply into the assessment of family income, assets and debt.  However, doing so can lead to a far greater understanding of what one’s financial future will look like moving forward.

Many parents worry that they will not be able to provide their children with the same level of support and attention after a divorce has taken place.  By focusing on the property division portion of a divorce, it is possible to gain a clear estimation of what one’s budget will be in the months and years to come.  If that budget seems insufficient to meet the needs of the divided family, adjustments can be made during the property division process.

Most parents find that they are more than able to provide the love and care that their children need, even after divorce has altered the family structure.  The property division process can ease many of the fears that accompany a divorce, as it gives spouses the chance to fully understand their available resources and the need to create a budget for future expenses.  Often, financial education is one of the most powerful lessons that can come with the end of a marriage.

You can begin to put your difficult legal matters behind you by scheduling a consultation with one of our experienced Family Law attorneys.  We can be reached at  636-7600-we welcome your call.

The Gray Divorce A New Marital Trend

Author: Robin Friedman

December 1st, 2014

The house is much too quiet.  The last child has been dropped off at college and now you are finally free.  Free to indulge in all the things you were putting off as part of your job as a full time parent.  The laundry is now drastically reduced.  The refrigerator doesn’t need to be replenished nearly as often as before.  And you get your spouse all to yourself.

On the ride home from dropping your child at school, the car is quiet from lack of conversation.  Maybe you told yourself that emotions were too raw, this alone time with your spouse too new.  But maybe you just couldn’t think of anything to say.

Gray divorces have become a trend among marital issues.  The divorce rate among people 50 and older has doubled in the last twenty years.  So many couple have woken up in their empty nests with the realization that their children have been both the buffers and the glue that has preserved a longstanding marriage that no longer serves either spouse.

It might be that two people who have raised a family together find, when they are finally alone, that they have little in common anymore.  It could be with healthy lifestyles, people can look forward to long and fulfilling lives after fifty and are committed to living out those lives free from  an unsatisfying marriage.

Perhaps the focus on raising the children has been a way to deny the issues in the marriage. Once you are alone in the house, there is no mistaking that the prospect of spending your golden years in a lifeless marriage seems like a poor decision.

The gray divorce is something quite new to this generation. If parents did not divorce in their early years, then they just stayed together whether they were happy or not.   Laws protecting the financial well being of both spouses and easy access to information over the Internet have made possible what many had never considered before. Freedom when the children have left the nest.  And freedom from a marriage you have outgrown.

If this sounds familiar, or if you have questions or want more information about a gray divorce for yourself, a parent, or someone you know, please call the family law attorneys at HoganWillig at 636-7600.

My spouse and I would like to divorce on friendly terms. What are we allowed to agree to?

Author: Brett Tokarczyk

November 25th, 2014

While some divorces can be contentious and high-conflict, many couples have simply grown apart and desire to leave their marriage as amicably as possible. However, even where spouses are in agreement on most or all of the terms of their post-marriage life, they are often left with the uncertainty of whether their intended agreement is permitted under New York State law. Therefore, one of the most common questions in an uncontested divorce is, “Are we allowed to agree to this?”

Most often, the answer to the question is, “Yes!” Separation, Support, and Property Settlement Agreements are the cornerstone document of uncontested divorces, and provide a wide range of latitude for parties to fashion the terms of their own divorce. So long as an agreement is not contrary to public policy, or otherwise illegal, spouses are able to provide for custody, child support and spousal maintenance, the sale of the family home, division of retirement accounts, and even how the family pet will be cared for.

There are exceptions to the general rule. For example, upon a divorce or separation, an individual may not be allowed to receive health insurance coverage under his or her former spouse’s health insurance plan. Likewise, a party may not be able to waive spousal maintenance where it would leave them dependent on government assistance.

Even where a term of an agreement may be permitted by law, it may not be advisable. Experienced matrimonial attorneys are able to provide insight as to common pitfalls of divorce, and raise issues which may never have been considered by their client.

Once a separating couple has reached an agreement in principle, an experienced matrimonial attorney is invaluable for transferring intentions into a binding agreement that will protect their client’s interests for years to come. A thorough and well-drafted agreement provides spouses with a degree of certainty and comfort about their future, and can ensure that an amicable divorce remains amicable.

Retirement Plan Divison in Divorce

Author: Steven Wiseman

November 23rd, 2014

In many divorces, the most significant assets – even more so than the parties’ residence – are their pension and retirement accounts.  It is not unusual in longer marriages that the parties may have 401K or similar plans totaling hundreds of thousands of dollars or a pension plan that will pay a significant monthly benefit upon retirement.

It’s been said that a little knowledge is a dangerous thing.  Many attorneys who represent clients in divorces have a passing familiarity with how retirement plans and pensions are divided, but the laws in this area – a combination of federal and state laws – are complex and require a depth of knowledge and experience to make certain your rights are protected.

There are two main types of retirement plans and accounts.  One is where the employee (and usually the employer as well) make regular contributions to an account that with sound investment decisions over time can grow to a significant amount which, upon retirement, is paid to the employee.  A 401K is such a plan.  The other type of plan is the traditional pension plan where a monthly benefit is paid upon retirement based upon a formula that takes into consideration how long the employee worked for the company or union sponsoring the pension plan.

There is a significant difference in how each of these two types of plans are treated in a divorce.  A factor to be considered in the first type is how much money was contributed to the retirement account while the parties were married, whereas in the second type the important factor is how much of the time the employee worked for the company he or she was married.

Here’s an example based upon a recently decided case in New York.  John began employment with Acme Inc. when he was 28 years old and not yet married.  By the time he married Alice, when he was 36 years old, he and his employer had made contributions to a 401K account which, together with earnings, had a value of $20,000.00.  John had the good fortune to work for a company that also had a pension plan in which he participated for the 8 years he worked there before he married Alice, then while he was married, and then after he and Alice were divorce after 20 years of marriage.  Assuming he retires at age 60, he will have worked at Acme for 32 years, of which he was married 20 years.  His monthly benefit from the pension plan at age 60 will be $1,800.00.

The established formula for deciding how much Alice should receive of this amount is based on a ratio of John’s years of employment while married (20) divided by his total years of employment at Acme (32) times a factor, usually but not always 50%, times the monthly benefit.  So Mary will receive $562.50 per month (20/32 x 50% x $1,800.00) and John will receive $1,237.50 per month.

John continued contributing to his 401K, and Acme matched the contributions, while he was married.  When he and Alice were divorced the account was worth $85,000.00.   Remember that he already had $25,000.00 in it when he married Alice, which over the 20 years of marriage he is able to prove would have grown to $35,000.00 even if no additional contributions had actually been made by him and Acme to the account.  The established formula for deciding how much Alice should receive from John’s 401K plan would first subtract $35,000.00 from $85,000.00, leaving $50,000.00 x 50%.  Thus she would get $25,000.00 and John would keep $60,000.00.

But John’s lawyer made the mistake of agreeing to the division of John’s 401K plan using the formula for the other type of plan.  Thus, at the time of the divorce John and Acme had been contributing to the plan for 28 years of which he was married 20 years.  So:  20/28 x 50% x $85,000.00 equals = $33, 393.00 (rounded), so Mary received $8,393.00 more, and John was left with $51,607.00, which is $8,393.00 less than he would have kept if his attorney had known what he was doing!

The scary part is that the difference between the two main types of plans and how they are divided in a divorce is about as basic at it gets.  There are numerous other issues – qualified joint and survivor annuities, qualified preretirement survivor annuities, plan loans, and disability retirements to name a few – that are more complicated.  If your attorney is not knowledgeable and experienced in this area your rights may not be adequately protected.

Residency and Jurisdictional Requirements for Filing in New York

November 21st, 2014

In order to maintain an action for divorce in New York, the plaintiff must meet New York’s residency requirements for filing. And if the plaintiff is seeking any “ancillary relief” (i.e. support, division of marital property, etc.), the court must also have personal jurisdiction over the defendant spouse.

Residency is satisfied where one of the following conditions is met:

  • One of the parties has resided in New York for a continuous period of at least two years;
  • One of the parties has resided in New York for a continuous period of at least one year and: (i) the ground for divorce arose in New York; (ii) the parties were married in New York; or (iii) the parties previously resided in New York as husband and wife; or
  • Both parties reside in New York and the ground for divorce arose in New York.

Assuming New York’s residency requirements are met, the plaintiff is entitled to file for divorce in New York against the defendant spouse. If the only relief the plaintiff is seeking is the dissolution of the marriage, it is not necessary that the court have personal jurisdiction over the defendant spouse. However, if the plaintiff is seeking any ancillary relief (support, division of marital property, etc.), personal jurisdiction over the defendant is required.

Personal jurisdiction over the defendant is acquired where the defendant either resides in New York or is personally served with notice of the divorce action while physically present in the state. Personal jurisdiction is also acquired over the defendant where New York was the “matrimonial domicile” of the parties before their separation (i.e. the parties previously resided as husband and wife in the state), or the defendant abandoned the plaintiff in this state, or the claim for ancillary relief accrued under the laws of this state or under an agreement executed in this state.

Regardless of whether or not the plaintiff is seeking ancillary relief, the defendant must also be properly served with notice of the divorce action in the form of a “summons.” New York State law requires that the divorce summons be personally delivered to the defendant by someone over the age of 18 who is not a party to the action within 120 days of the date of filing.

In the event it is not possible to personally deliver the summons to the defendant, either because the defendant is avoiding service, or because his or her exact whereabouts are unknown, the plaintiff can request permission from the court to serve the defendant in some other manner.  Common examples of “substitute service” include service by mail to the defendant’s last known address, employer or post office box; personal service upon a known relative, acquaintance or associate of the defendant; or service by publication in a newspaper.

In order to obtain an order for substitute service, the plaintiff and/or his or her attorney must submit a sworn affidavit to the court detailing the reasons why personal delivery is not possible and proposing an alternative means of service that is reasonably calculated, under all the circumstances, to apprise the defendant of the pendency of the divorce action and afford him or her an opportunity to appear and be heard.  Where the court grants the plaintiff’s application, completion of service in the manner prescribed by the order is deemed the equivalent of personal delivery and will entitle the plaintiff to proceed against the defendant by default where he or she fails to respond to the summons.

If you are a resident of New York seeking a divorce against a spouse who lives in another state, or foreign jurisdiction, whose exact whereabouts are unknown, the experienced matrimonial attorneys at HoganWillig may be able to assist you in commencing an action for divorce in New York and taking whatever steps may be necessary to locate and/or serve the absent spouse.

Getting From Point A to Point B in a Divorce

Author: Kevin Mahoney

November 19th, 2014

Having a lot of options can be both a blessing and a curse.  Often people who are at a difficult stage in their life due to an unhealthy or broken relationship prefer not to have many choices in order to try to simplify things.  On the other hand, due to individual circumstances and needs, having flexibility can many times be an important factor as well.

It is important at the outset to consider how the lawyer can assist and what role he/she will play in the process.  From the attorney perspective, there are three basic paths that people can choose to get from point A (considering a divorce) to point B (being divorced).  In no particular order, a brief description of each follows:

  1. Mediation. A mediator is a neutral third party who assists couples in constructively discussing issues that need to be resolved and then preparing a written agreement to give legal effect to those terms.  As a result of this last component, it is highly recommended that the mediator be a family law attorney so that there is knowledge as to what issues should be addressed but also so the written agreement is drafted properly and can be legally enforceable and accepted by a court.  Although it is very common for mediating  parties together to meet with the mediator to work through these issues, it is also possible for each party to have the involvement of his/her own independent attorney either for consultations along the way or less commonly to assist during the mediation sessions.  The reason for this is because the mediator is neutral and cannot give legal advice to one party to the detriment of the other party. As a result, the attorney mediator is technically not representing either party in the context of the mediation.   Most mediators will highly recommend, if not require, that the parties consult with an independent attorney prior to the mediated agreement being signed in order to make sure that the parties have had the opportunity to receive independent legal advice.  The mediator is permitted to give legal information but cannot offer independent advice.  For many people, mediation represents the most cost-efficient manner in which to move from point A to point B.  However, it is ultimately agreement-based and, to the extent that the parties are not able to reach an agreement, that process will not be successful.
  2. Traditional Approach. The more traditional approach of a client hiring an attorney to represent him/her who then will deal with the other spouse who may or may not then be represented by his/her own lawyer allows the parties a great deal of flexibility as they can work cooperatively toward an agreement or they can utilize the court system to help them move their case forward in a litigated posture. Our courts first attempt to assist people in reaching an agreement (or partial agreement) to the maximum extent possible; however, ultimately, that system is set up so that the court will ultimately make decisions for the parties to resolve outstanding issues.  As a result, this process does not require the parties to come to an agreement as mediation does but it is also sometimes faulted for being time consuming, increasing animosity between the parties and potentially removing the parties from making important decisions that impact their lives as the potential exists for those decisions to be made by a third party who does not know their situation as well.
  3. Collaborative Law has been gaining increasing popularity over recent years. This is an agreement-based process; however, both parties are represented by their own respective attorneys from beginning to end.  The lawyers need to be trained in the collaborative process which is overtly non-confrontational and instead specifically geared towards cooperative problem solving.  At the outset, the parties agree with their lawyers that, to the extent that either party withdraws from the collaborative process, the collaborative counsel will not be able to continue to represent them in any traditional litigation, thus providing an incentive for all the parties to work through difficult times within that process.  Very often there is not the use of a neutral mediator because the training that the collaborative attorneys have is geared toward facilitating communication in a manner similar to a mediator and, in fact, many collaboratively trained lawyers are also trained mediators as well.  It has become increasingly common for people to involve a “coach” in the process which is someone trained in the counseling profession that  works with the parties to assist in the emotional aspects of the process which can be very beneficial for the success of that process when things become difficult.  This is especially so when the parties are dealing with custodial aspects of their parenting relationship with their children.  As a result, the collaborative process gives the parties the benefit of having their own respective attorney who can offer independent advice but also has many of the features that mediation does.  Ultimately, it is agreement based and specifically prohibits the use of the court system and litigation, although, by agreement, the parties can be creative in terms of how they come to a resolution of disputed issues.

Only a court can change the legal status in New York from “married” to “divorced”.   However, parties are not limited to the traditional role of the lawyer to obtain a Judgment of Divorce.  To the extent that the mediation or collaborative process results in a signed agreement, it is very common for one of the lawyers that were involved in that process to assist in the necessary paperwork for obtaining a divorce where the terms of the divorce are the terms of the agreement.   To the extent that a legal separation is the desired result, any process discussed above will work.

If you or someone you know is considering a divorce or separation, hopefully this information is helpful.  HoganWillig’s Family and Matrimonial Department consists of a number of lawyers trained and experienced with assisting clients navigate whichever path their clients ultimately decide is best for them.  If you are considering one of these routes and have further questions, we would be glad to assist you.


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