1. property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;
2. compensation for personal injuries;
3. property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
4. property described as separate property by written agreement of the parties pursuant to subdivision three of this part.

Martial property, only, is distributed during equitable distribution.  It is presumed that assets are marital, unless they fall into one of the four exceptions above.  To overcome this rebuttable presumption is a substantial task because if you are proposing that an asset is separate property, you must be able to adequately trace the asset in order to prove it is separate.  If you successfully meet this burden of proof, the asset will be considered separate property and, thus, not subject to equitable distribution.

If you are unable to trace your assets to a separate property source, courts will treat the property as marital and the asset will be subject to equitable distribution.  Two ways you can show an asset is separate property are:

1. Keeping the asset in sole name and not mixing it with any marital assets
2. by tracing the history of the asset to separate property; and
3. by showing that there were no alternatives other than the funds to acquire the asset being separate. 

In Sarafian v. Sarafian, the Husband sufficiently rebutted the presumption that treasury bonds were marital property when he could show that there was no other possible source of money for the purchase of treasury bonds besides his separate funds.  On the other hand, where the Husband’s testimony as to the source of funds of four bank accounts was “vague, evasive and inconsistent,” the  Sarafian court was reluctant to determine that the assets were separate.  In Cerretani v. Cerretani, the Husband lacked documentary evidence tracing the source of funds for an investment into a corporation he had made during the marriage, even though he said he invested separate funds.  Therefore, these funds were deemed marital.  

To complicate matters, when separate property is commingled with marital assets, it sometimes converts to marital property.  One simple example of comingling funds is when money from a pre-marital separate account is transferred into a marital joint account.  When assets are commingled, the burden is on the person claiming separate property to prove the asset was commingled for convenience only.  For example, in McGarrity v. McGarrity, the Husband was able to trace the funds for a joint account to separate property (his inheritance) and, therefore, that account was deemed his separate property not subject to equitable distribution.  On the contrary, in McSparron v. McSparron, the wife’s mother contributed funds to the parties’ joint account which was held to be marital property because it evidenced the mother’s intention for the parties to share it equally.

It is clear from the above cases that the Courts’ determinations are very fact-specific.   it is prudent to carefully and diligently track separate assets before and throughout the marriage.  Maintaining adequate and updated account statements, valuations, and the like, can assist parties should a divorce arise.  Potential divorce parties should carefully consider maintaining sole title on all pre-marital assets so they are not converted into marital property.  If you have any questions on protecting or tracking separate property and the conversion from separate property to joint property, please call Danziger and Mangold today and ask to speak to one of our divorce lawyers.

In the Westchester Matrimonial Part, Referees oversee conferences that Judges usually reside over in other jurisdictions.  As a general rule, all parties and counsel must personally appear for each court conference.  The Preliminary Conference is usually the first court conference as the name implies.  At the Preliminary Conference, the Referee will attempt to resolve grounds, determine the complexity of the case, outline the issues that need to be resolved, and set a timeline for various aspects of the case such as serving and filing pleadings and completion of the disclosure process.  Usually, the Referee will also determine whether custody is contested and if it is, then the Referee will ask the Judge to assign an attorney for the children.  The Referee will also determine whether experts, such as mental health experts in a custody case or accounting experts to value marital property, will be assigned to the case.  In Westchester, the parties or their attorneys are required to jointly prepare a Preliminary Conference Order and submit same to the Court at the Preliminary Conference.  At the end of the Preliminary Conference, the referee will set a date for a Compliance Conference.

Compliance Conferences are status conferences so the Court can determine how the case is progressing and make sure the case is moving towards trial.  In Westchester County, the Referee determines whether each party is complying with disclosure, determine the status of any expert reports, and try and resolve any other issues that arise while the case is pending. 

When a Referee determines the case is ready for trial, the Referee will recommend that the Judge issue a Trial Ready Order, which schedules the Pre-Motion Conference and the Trial.  The Pre-Motion Conference and trial take place before a Supreme Court Judge.

Motion practice is another significant aspect of matrimonial law which has specific rules in Westchester County.  In most jurisdictions, a party in a divorce case can file a motion at any point during the case.  However, in Westchester, except in the case of an emergency, the moving party must request a pre-motion conference before making a motion.  Parties cannot submit a non-emergency motion without permission from the Referee.  Many attorneys not familiar with Westchester matrimonial practice file motions that the Court rejects.  In the case where the moving party and his or her attorney think that their motion is an emergency and requires immediate attention, the attorney for that party can submit an Order to Show Cause directly to the Judge assigned in the case.

After every conference with the Referee, the Referee will have both parties sign a Stipulation as to any issues agreed to during the Conference.  The Stipulation will then be “So Ordered” by a Judge and filed with the Westchester County Clerk’s office.  This gives the Stipulation the force of a Court Order.  The Referee will issue a Referee’s Report at the conclusion of each conference, which outlines the issues and progress of thee case and often makes recommendations to the Judge concerning specific issues.  Occasionally, the Referee will bring the Judge into a conference so that the Judge can hear the issues and conference with the parties and their attorneys. 

As you can see, practicing matrimonial law in Westchester County is a specialty.  If you are getting divorced in Westchester, it is a disadvantage to hire a lawyer who is not familiar with the specific rules of the Westchester Supreme Court Matrimonial Part.  If you have any other questions about Westchester County Matrimonial Practice, please contact Danziger & Mangold and ask to speak to one of our knowledgeable attorneys.

During and after a divorce, one parent will typically receive child support from the other.  In determining income for child support, a court looks at the gross income of each parent (as stated on their tax return) less FICA and medicare taxes along with other possible deductions permitted by statute. 

However, on top of a party’s income, Courts may impute income based on gifts made to the parents from relatives.  See Domestic Relations Law § 240 (1-b)(b)(5)(iv)(D).  Section (iv) specifically states:

At the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:

(A) non-income producing assets,

(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly confer personal economic benefits,

(C) fringe benefits provided as part of compensation for employment, and

(D) money, goods, or services provided by relatives and friends;”

Moreover, where combined parental income exceeds $136,000 a court must determine what amount of income over that threshold, if any, that will be included in payor’s child support obligation.  Courts look at the following factors set forth in DRL §240(1-b)(f):

1. The financial resources of the child and the parents;
2. The standard of living the child would have enjoyed if the marriage had not been dissolved;
3. the physical and emotional health of the child and any special needs or aptitudes of the child;
4. the tax consequences to each parent;
5. the non-monetary contributions that the parents will make towards the care and well-being of the child;
6. the educational needs of either parent;
7. whether one parent’s income is substantially less than the other parent’s;
8. the needs of other children of the non-custodial parent;
9. if the child does not receive public aid, any extraordinary expenses required for the non-custodial parent to exercise visitation rights; and
10. any other relevant factors.

 A paramount concern when determining child support is the lifestyle the child experienced prior to the parents’ divorce or separation.  In an attempt to keep the child’s lifestyle consistent, a court may impute income of a gift or loan to a parent based on factors 1, 2, and 10, above.  In an Appellate Division Second Department case, the Court stated that “[i]n fashioning a child support award, the court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives.” Mosso v. Mosso, 84 A.D.3d 757 (2nd Dept. 2011).  When a parent’s expenses (as listed on his/her Statement of Net Worth) exceed the parent’s income, it is likely that the money is coming from somewhere else and “the court may impute a true or potential income higher than alleged.” Mosso v. Mosso at 759.  Thus, courts sometimes impute income as a result of gifts or loans made by the grandparents to the parent.

A common argument made by parents is that it is unfair to impute income of gifts or loans because they are gifts from third parties which are voluntarily made and, thus, are not guaranteed to continue in the future.  However, most sources of income are uncertain and not guaranteed, especially in this difficult economy.  Jobs can be lost and investments can crumble in a day.  Notwithstanding, courts pay special attention when gifts and/or loans are made on a fairly consistent basis, as this is stronger evidence for imputing income.  When imputing income, courts will also concentrate on the years immediately preceding the divorce action to get a feel for the parties’ recent financial circumstances.

The first topic the attorney should discuss with you is whether you can file for divorce in New York State.  To file for divorce, you must fulfill the residency requirement and also have one of the 7 grounds for divorce.  To establish residency, you must show that:

1. You were married in New York State, and either you or your spouse lived in New York State for at least one year prior to filing for divorce; or
2. You and your spouse have resided in New York State as husband and wife, and either of you have lived in New York for one year or more prior to filing for divorce; or
3. The cause of action (“grounds for divorce”) has occurred in New York State, and either you or your spouse has lived in New York State for one year or more prior to filing for divorce; or
4. The cause of action (“grounds for divorce”) occurred in New York State, and both you and your spouse live in New York State at the time of filing for divorce; or
5. Either you or your spouse has lived in New York State for two years or more prior to filing for divorce.

Once you have established the residency requirements, you must have a cause of action (or “grounds for divorce”) to attempt to receive a divorce.  There are 7 grounds for divorce in New York State:

1. Cruel and inhuman treatment;
2. Abandonment by the defendant for one year or more;
3. Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of the plaintiff and the defendant;
4. Adultery;
5. Living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
6. Living separate and apart pursuant to a written agreement of separation; and
7. The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.  (This is referred to as a “no-fault” divorce in New York.)

The lawyer should discuss the divorce process, the potential length and cost of the process, your assets and liabilities, custody, visitation and support or your children (if any), spousal support, any other material issues, and answer any questions you may have related to a divorce. 

The divorce litigation process is initiated by filing a Summons with Notice or Summons and Verified Complaint upon the Defendant.  The Defendant then has 20 days to serve a Verified Answer (and sometimes a Verified Counterclaim, as well).  The Plaintiff then has 20 days to serve a Verified Reply, if needed.  These are referred to as “Pleadings”.  The next phase of divorce litigation is “Discovery”.  This includes exchanging Statements of Net Worth, obtaining material and necessary documents, appraising pensions, real estate, business interests, etc., and taking depositions.  During the pendency of the divorce, written requests, called “motions”, may be filed to ask the court to address certain issues (most likely temporary spousal and child support, payment of household bills, and temporary custody and access schedules) that cannot wait to be decided if and when a trial occurs.  The last stage would be settlement or a trial.  After the case is concluded, there may be post-judgment issues too (usually dealing with modification of child support or child custody). 

The divorce process can take, on average, from 12-15 months depending on resolution of on-going negotiations, the complexity of the financial issues, the number and types of assets involved, and issues relating to minor children of the marriage.  It is best to outline household income, assets, debts and all questions you may have before meeting with an attorney so that the attorney can get a full picture of the issues. 

After consulting with a lawyer, if you want to pursue a divorce with that attorney, you will enter into a retainer agreement and pay a retainer to the attorney.  This formalizes the attorney-client relationship and is required under the ethical rules of Professional Conduct.

• Which parent was traditionally the primary caregiver to the children
• The availability of each parent to spend time and care for the children
• The willingness of each parent to co-parent and share information with the other parent
• The willingness of each parent to foster the children’s relationship withe the other parent
• The ability of each parent to provide for the intellectual and emotional needs of the children
• The nature and quality of each parent’s home environment
• The children’s preference (usually only considered when a child is old enough to make a rational determination)
• The quality of care each parent provides the children
• The stability of the home life of each parent
• Abuse, neglect, and domestic violence history for each parent
• Alienation of the other parent and/or interference with the other parent’s visitation
• Alcohol and drug abuse
• Age and health of the parents
• Mental and emotional stability of the parents
• Ability of parent to NOT involve the children in the marital conflict and custody case
• Courts favor children continuing to reside with their siblings

These are some of the main factors that a Court looks at when making a custody determination but the list is not inclusive.  The Court has discretion to decide which factors should be given more weight in a particular case.   As the NY Court of Appeals (NY’s highest Court) stated in the landmark case of Eschbach v. Eschback, “The weighing of these various factors requires an evaluation of the testimony, character and sincerity of all the parties involved in this type of dispute. Generally, such an evaluation can best be made by the trial courtwhich has direct access to the parties and can supplement that information with whatever professionally prepared reports are necessary.”

If you have a New York Child Custody Matter and need to discuss with an attorney, please call Danziger & Mangold today and ask to speak to one of our attorneys.

Recently, in October of 2010, the legislature amended the law and included a mandate that creates a rebuttable presumption that counsel fees will be awarded to the “less monied” spouse.  Generally speaking, the Court considers the spouse with the greater income, earning power, and assets as the monied spouse.  Prior to the amendment, the burden was on the less monied spouse to prove to the Court why the monied spouse should pay their expenses and fees.  Now, however, the burden is on the monied spouse to prove why he or she should not have to pay for the other party’s fees.  The statute states that the Court “must seek to assure that each party will be adequately represented.”  A major goal of this amendment is to assure that that the unequal financial circumstances of parties don’t determine the outcome of cases.  For example, it is not fair for a party who makes significantly more money than their spouse to prolong a divorce case until the other spouse cannot afford to be represented by counsel anymore.   With this in mind, the New York legislature also gave Courts the ability to award counsel fees and expenses to the “less monied” spouse at any time, even at the beginning of a case.

If you have any questions regarding legal fees and expert expenses call Danziger & Mangold LLP and ask to speak to one of our attorneys.

Courts generally afford less weight to an agreed-upon custody arrangement as opposed to one ordered by a Court.  Great deference is given to a Court that made a previous finding on custody, and therefore, you may have a more difficult time modifying a custody order rendered by a Court after an actual custody hearing.

When you petition the Court to modify a custody order, you bear the burden of proving that

1. There has been a “sufficient change of circumstances” since the custody order or stipulation was entered; and
2. That modifying the custody order is necessary for the continued “best interests of the child.” 

In short, you must show that there is a pressing need to modify a custody order because Courts don’t like to disrupt children’s lives when doing so is unnecessary.  In general, if the Court finds there has been a “substantial change in circumstances” the Court will then look to whether it is in the child’s best interest for the custody arrangement to be modified.  The Court then makes a determination based on the emotional, intellectual, physical, and social needs of the child, as well as the child’s preferences.  As a general rule, the older a child is, the more likely that the Court will factor the desires of the child.

A “sufficient change in circumstances” may be found when a parent refuses to communicate, when a parent precipitates arguments when exchanging the child, when the child exhibits poor personal appearance and hygiene after returning from visits with a parent, and when a parent continually demonstrates inflexibility to co-parent.  A “sufficient change in circumstances” can also be found when a parent fails to facilitate phone contact with the children and other parent, participate in family counseling, or creates an unstable environment for the children as a result of ongoing altercations with neighbors.  Moreover, a “sufficient change in circumstances” can be found when a parent engages in behavior alienating the child from the other parent by making negative comments about him or her in presence of the child and refusing to obtain counseling.  These are only a few examples for illustration.

As with any custody decision, the Court’s guiding principle is the best interests of the child.  If you have any question concerning modification of a custody order contact Danziger & Mangold LLP and ask to speak with one of our family law attorneys.

Many people are confused about the term “separation” and exactly what that means.  Many people refer to the word separation in an every-day context.  For example, they consider a married couple to be separated if they live in separate bedrooms, live at separate residences, or agree to see other people romantically.  However, legally, New York considers a married couple to be married until the marriage is nullified through annulment, separation, or divorce.

There are two ways for a couple to become legally separated in New York State.  One way is to start a legal action and ask the Court to grant an Order, declaring the separation.  This is uncommon.  The most common method for a couple to separate is through a Separation Agreement.

Why get Separated and not Divorced?

With New York’s recent no-fault divorce statute, it is arguably just as easy to get a divorce as to get legally separated.  Yet, it is very common still for married couples to choose separation over divorce.  This can be for a number of reasons, which include:

• Religious beliefs
• The couple is not yet ready to dissolve their marriage and get a divorce
• The couple wants to avoid the stigma of divorce
• Various Financial benefits, which include:
  • Staying on a spouse’s health insurance plan
  • Enjoying the financial benefits of filing taxes jointly
  • Better social security benefits
  • And more

What is a Separation Agreement?

A Separation Agreement is a contract between you and your spouse that determines the same issues that would be addressed if you were getting a divorce.  These issues include child custody, visitation rights, child support, spousal maintenance (alimony), and the division of property.  The Separation Agreement is binding on both parties can be enforced through the Court system.  It is also suggested that the Separation Agreement be filed with the County Clerk.  The Separation Agreement can be for a set length of time if that is what the parties wish.  But most commonly, the Separation Agreement is without expiration and is eventually incorporated into a divorce judgment.

What are the benefits of a Separation Agreement?

As mentioned above, if your spouse fails to comply with the terms and conditions of the Separation Agreement, you can go to Court and seek relief from a judge.  In addition, the Separation Agreement can protect each spouse in various ways.  For example, if either you or your spouse acquire property but do not have a Separation Agreement in place, then technically, the acquired property is marital and subject to division upon divorce.  However, your Separation Agreement can set forth the understanding that any property acquired after the date of the Separation Agreement, will be the separate property of acquiring party.  Moreover, if you do not have a Separation Agreement and your spouse incurs debt, you may be responsible for the debt of your spouse.  Also, you should know that if you die without a Separation Agreement, your spouse can make a claim against your estate if you are still married.  New York’s Trusts and Estates Law provides for a spouse’s right of election [they can insist on a portion of the estate regardless of what your Last Will and Testament indicates.

In all, if you intend to separate but not divorce, you should strongly consider entering into a Separation Agreement to protect your interests and your assets.  Please call Danziger & Mangold and ask to speak to one of our attorneys about a Separation Agreement.

While these situations may seem farfetched, Courts have increasingly been faced with these questions.  The infamous Bernie Madoff ponzi scheme is probably the most well known financial scandal of late.  However, there are many other recent financial scandals, one of which recently intersected with New York Divorce Law.  New Yorkers Paul Greenwood and Stephen Walsh allegedly ran a fraudulent commodities trading company, WG Trading Investors. Starting in 1996, Greenwood and Walsh used the funds as their own “piggy bank” and misappropriated over $550 million from their clients.  The firm’s assets were frozen and in 2009, the SEC filed a civil complaint in federal court in Manhattan charging the men with fraud. They also faced criminal charges.  While Mr. Greenwood pleaded guilty in 2010, Mr. Walsh’s criminal charges are pending.  For more information on this scandal, please click here:

Stephen Walsh and his ex-wife, Janet Schaberg, were divorced in 2007, two years before the civil and criminal charges were brought.  As a result of the divorce they divided their assets and Mr. Walsh’s ex-wife received millions of dollars, most of which were likely the fraudulent monies that her husband misappropriated.  In August 2009, a federal judge froze most of Ms. Schaberg’s assets, including $7.6 million in cash, to potentially give back to the victims of the misappropriation.  However, the New York Court of Appeals advised the federal court that under New York law, Ms. Schaberg was entitled to retain this money and the freeze was lifted.

The Court held that Ms. Schaberg could keep the proceeds from the divorce agreement, even if those proceeds were the result of her husband’s financial fraud.  The Court ruled that because there was no indication that she was aware of or participated in any wrongdoing related to her ex-husband’s fraudulent scheme, she was entitled to keep the proceeds.  Justice Victoria A. Graffeo stated, “Ex-spouses have a reasonable expectation that, once their marriage has been dissolved and their property divided, they will be free to move on with their lives.”   The fact that the spouse was innocent of the wrongdoing was a major consideration by the Court, which stated, “Most definitely, the victims of fraud are entitled to pursue disgorgement where it is demonstrated that the transferee-spouse was aware of or participated in the fraud or otherwise failed to act in good faith.”  In all, New York Courts seem very reluctant to adjust bargained for asset distributions.   Therefore, marital property can include the proceeds of fraud and ex-spouses can keep stolen property if he or she had no knowledge of the fraud and gave fair consideration for the divorce settlement.

1. The marriage ceremony was performed in New York State AND either spouse is a resident of the state at the time of the commencement of the action AND has resided in this state for a continuous period of one year immediately prior to the commencement of the action
2. The couple lived as husband and wife in this state AND either spouse is a resident of the state at the time of the commencement of the action AND has resided in this state for a continuous period of one year immediately prior to the commencement of the action
3. The grounds for divorce occurred in this state AND either spouse is a resident thereof AND has resided in this state for a continuous period of one year prior to commencement of the action
4. The grounds for divorce occurred in this state AND both parties are New York residents at the time the action is commenced
5. If you and your spouse were married outside of New York AND you never lived together as husband and wife in this state AND the grounds for divorce did not occur in this state: Either you or your spouse must presently be a resident of New York State AND have resided continuously in the state for at least two years prior tothe commencement of the action.

If you have any questions regarding how to determine your residency; how to determine where the grounds for your divorce occurred; or any other legal issue regarding divorce law, please call Danziger & Mangold and ask to consult with one of our attorneys.