Divorce and Family Law
When it's time to "Sue Someone You Loved"®, call Doctor Divorce™
Wende Doniger, Ph.D., J.D. is Doctor Divorce™Why get just an attorney when you can get Doctor Divorce™. Wende Doniger is known in the legal community as "Doctor Divorce"™. With both a doctorate in psychology and a law degree, Wende Doniger, Ph.D., J.D. brings a unique perspective to any divorce or family matter by combining her professional experience as a licensed clinical psychologist with her years of experience as an aggressive, yet compassionate,
matrimonial trial lawyer. Moreover, our firm is uniquely positioned in the field of divorce and family law. Unlike firms that only focus on divorce law, our firm is experienced in a number of different practice areas such as corporate law, identity theft, consumer rights and personal injury. When you retain us to handle your divorce, our focus will not be limited to a cookie cutter application of divorce law as a divorce-only law firm would do. Instead we will apply our experience in all of our practice areas to creatively bring about the best result for you both by preserving your income and assets as well as fighting to help get you get your fair share of equitable distribution of marital assets. While we aggressively fight to get you the most, we are compassionate about protecting your children’s best interests and preserving the important role you play in their lives in terms of their upbringing, custody, visitation and child support. So remember, when it's time to "Sue Someone You Loved,"®, call Doctor Divorce™. Let Dr. Wende Doniger, Esq.'s family of skilled litigators at Doniger & Engstrand help you and your family through your divorce and family law issues.
SAME SEX MARRIAGE
Doniger & Engstrand applaud the legislature for its enactment of the Marriage Equality Act. Effective July 24, 2011, this statute, Domestic Relations Law §10-a, formally permits same sex couples to solemnize their marriage in New York. At Doniger & Engstrand, we believe that marriage is a fundamental human right and that same-sex couples should have the same right as others to the protections, responsibilities, rights, obligations, and benefits of civil marriage.
"A marriage that is otherwise valid shall be valid regardless of whether the parties to the marriage are of the same or different sex."
DRL §10-a(1).
Prior to the enactment of this new law, New York would recognize same-sex marriages solemnized outside of New York provided the marriage was considered valid in the place where it was celebrated. This was known as New York’s “Marriage Recognition Rule”. It was a judicial recognition that New York would, under the full faith and credit clause of the United States Constitution, recognize such out-of-state same-sex marriages even though such marriages would not qualify as marriages had they been performed in New York. However, despite this judicial recognition of the validity of same-sex marriages performed outside of New York, the courts left it to the legislature to enact a statute that would permit same-sex couples to marry in New York. That statute, DRL §10-a, was enacted by the legislature and effective July 24, 2011, same-sex couples can now legally solemnize their marriages in New York.
As with opposite-sex marriages, thorny issues can arise upon the divorce of the same-sex couple. For instance, upon the divorce of a same-sex couple, the non-birth parent may not have any right of visitation or custody to the birth parent’s child, unless that parent had formally adopted the child. At D0NIGER & ENGSTRAND, we provide assistance in adoptions by same-sex couples. Other issues unique to same-sex divorces are sure to arise as these issues are thrashed about in the courts over the ensuing years.
NO-FAULT DIVORCE
Effective for all divorce actions filed on or after October 12, 2010, divorcing couples no longer have to prove fault to obtain a divorce. Although still viable as causes of action, the traditional fault grounds, such as “cruel and inhuman treatment (DRL §170(1)), spousal “abandonment” for at least a year (DRL §170(2)), confinement to “prison” for three or more years (DRL §170(3)), “adultery” (DRL §170(4)), living separate and apart pursuant to a decree or judgment of separation for at least one year (DRL §170(5)), living separate and apart for at least a year pursuant to a written separation agreement (DRL §170(6)), need no longer be pleaded. With the passage of the No-Fault Divorce Law, Domestic Relations Law (DRL) §170(7), one spouse need only state under oath that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months . . . ” to be entitled to a divorce. DRL §170(7).
On its face, the new No-Fault Divorce Law would save couples the legal expense of long and protracted litigation that simply established whether there was a fault basis to grant the divorce. Unlike the traditional fault based grounds, there does not appear to be any defense to the claim of irretrievable breakdown of the marital relationship. All it takes to prevail on this no-fault ground is a sworn allegation that the relationship between husband and wife have irretrievably broken down for at least six months. However, before a No-Fault divorce will be granted, the statute requires that the issues of payment of spousal maintenance and child support as well as payment of counsel and expert fees and expenses must first be decided along with the equitable distribution of marital assets. In addition, the statute requires that the issue of custody and visitation of infant children must be also be resolved before a No-Fault divorce will be granted.
"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. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."
DRL §170(7) (emphasis added).
TEMPORARY MAINTENANCE and ATTORNEY FEES
With respect to these economic issues of spousal maintenance, child support and payment of attorney and expert fees and expenses, it is imperative that an attorney versed in this new matrimonial law be retained. At the same time that the No-Fault Divorce Law went into effect, the New York State legislature also enacted sweeping changes to the laws pertaining to payment of temporary maintenance and attorney/expert fees during the pendency of the litgation. These changes were enacted by the legislature to insure that the less-monied spouse would have the same access to legal resources to protect her/his rights during the course of the litigation.
In all actions commenced on or after October 12, 2010, DRL §236 allows the court to make a presumptive award of maintenance to the “less monied” spouse and DRL §237 states that there is a “rebuttable presumption” that counsel fees and the fees and expenses of experts are to be awarded to the less monied spouse from the commencement of the divorce action and at any time thereafter. Although at first blush it would appear that the less monied spouse is automatically entitled to an award of temporary maintenance and attorney/expert fees during the pendency of the litigation, the less monied spouse may be unpleasantly surprised to learn that he/she may not be entitled to the award that he/she thinks he/she is. That is why it is very important to secure the services of an attorney to help you protect your rights. You are invited to visit the Temporary Maintenance Guidelines Worksheet, Temporary Spousal Maintenance Guidelines Calculator, Child Support Standards Chart and Child Support Calculator in our Links section to get an estimate of the approximate dollar amount that will have to be paid for maintenance and support. Please note that the figures derived from these calculators are only estimates. The actual amount of maintenance and support that a court may order could differ from the amounts estimated by these calculators. During the short time that this new law has been enacted, however, it has been our experience that the courts routinely grant these awards to the less monied spouse without regard to the effect on the day to day finances of the so called "monied spouse." Hopefully in the near future, there will be guidance for the lower courts to follow in the more equitable application of this new law as some of the more draconian results go up on appeal.
FIRST STEPS TO SECURING YOUR ASSETS BEFORE FILING FOR DIVORCE
When you decide that you are ready to divorce, there are a number of steps that you must take to protect yourself. First, gather all your financial records together. This would include three (3) years of tax returns, bank statements, current paystubs, credit card statements, credit reports of both spouses (ie, Experian, Equifax and TransUnion), investments, stocks, bonds, pension and retirement benefits, disability payments, mortgage documents, insurance policies (life, health, disability, auto, home) in a secure place to present to your attorney. If banking records and other important financial documents are kept on a home computer, make certain that you have all the passwords and then download the information onto a CD, thumb drive or other electronic recording medium.
FAMILY BUSINESSES
If there is a family business created during your marriage, to preserve your assets and income and insure that you get the most in income allocation and the maximum amount of equitable distribution that you may be entitled to, it is important to hire a law firm experienced both in divorce and corporate litigation. We work with experts in the field of business valuation, income allocation and tax consequences to help insure the best results for you.
Before you even retain an attorney, it is important to secure as many corporate documents as possible, before they disappear. For example, try to get copies of stock certificates evidencing your ownership, if any, in the corporation and the NYS Secretary of State’s filing receipt which is proof of when the corporate existence came about. Copies of the business tax returns with the Schedule K-1s are also very important to secure. The Schedule K-1 sets forth each party’s ownership interest in the company along with other financial data, such as monetary distributions and retained earnings.
One of the first things that you will have to do when you file for divorce is to prepare a Statement of Net Worth. This lists your income, expenses, assets and liabilities, and will be used to calculate maintenance and support. You are invited to visit the Divorce Forms in our Links Section and scroll down to Net Worth Statement to prepare your own draft copy of this crucial document.
Not only can help you work through the complex financial challenges you will be facing in divorce proceedings, but we can also help you with child custody agreements, child support, equitable distribution of marital assets, spousal maintenance, income execution, contempt proceedings, orders of protection, and enforcement proceedings.
HIDDEN ASSETS AND INCOME
If one spouse has an all-cash business or is hiding assets and claims to earn less than you know he does, the court can impute a greater amount of income to that spouse based upon his/her lifestyle, spending patterns, etc. We work with expert business appraisers and investigators to help uncover and reveal these assets so that you can expect to receive what you are entitled to by way of maintenance, child support and equitable distribution. Moreover, from our experience in litigating some hotly contested divorces, we know where to look for these assets.
CIVIL RICO IN MATRIMONIAL ACTIONS
Dan Engstrand, has been involved in the successful prosection of a Rackeer Influence and Corrupt Organizations Act litigation in the Eastern District of New York involving mail and wire fraud in connection with a spousal transfer of marital assets to overseas corporate holdings in an attempt to evade New York's equitable distribution. This unique litigation strategy is what stands our firm out in the area of matrimonial law.
IDENTITY THEFT BY SPOUSE
Frequently, a divorcing spouse is surprised to learn that the other spouse has stolen his/her identity as well as the identities of the children. This criminal theft of identity can cause significant damage to your and your children’s credit. One of the areas of concentration of our firm is in the area of identity theft.
ABUSIVE RELATIONSHIPS
In addition, when the marriage becomes violent, not only can we help you by securing an order of protection against the abusive spouse, but also, our firm is experienced in the field of personal injury. Assault is considered a personal injury and you are entitled to sue for monetary damages for your injuries. Although there is no insurance coverage to go after, frequently the major marital asset is the home. If a personal injury judgment is secured against the abusive spouse, that judgment will be applied against the abusive spouse’s equitable share of the marital asset, thereby reducing and possibly, depending upon the amount of the judgment, eliminating entirely the abusive spouse’s share of equitable distribution. It is important to keep in mind that the statute of limitations for assault is one (1) year. If you fail to bring a personal injury action within one (1) year of the assault, you will be forever time-barred from doing so thereafter.
ORDERS OF PROTECTION
Hand in hand with any assault cause of action is an application for an order of protection. Included within this type of order are "stay away" orders that can prevent the abusive spouse from returning to the marital residence, keep him/her away from the spousal victim's place of employment and, where appropriate, prevent the abusive spouse from having contact with the children. Orders of protection provide protection from someone you are married to, divorced from, have had a child in common with, have had an intimate relationship with whether or not you were ever married to that person or even lived with that person, or have a child in common with. Orders of protection can be obtained in both Supreme and Family Courts.
PRENUPTIAL AGREEMENTS
For parties with assets contemplating marriage or remarriage, a good idea is having an attorney draft up a prenuptial agreement for each to sign. In essence, this is an agreement entered into before marriage in which the parties give up their rights to the other's assets in the event of divorce or death.
ENFORCEMENT OF SUPPORT AND MAINTENANCE AWARDS
When a money judgment is rendered in favor of one spouse and that debtor spouse fails to pay support and/or maintenance, an income execution may be enforced against a source of the debtor's income up to as high as sixty (60) percent of the debtor spouse’s earnings if the debtor is not supporting a new spouse or a dependent child. Civil Practice Law and Rules (CPLR) §5241(g). If the debtor has remarried or has another child, then fifty (50) percent of his income can be garnished. CPLR §5241(g).
CONTEMPT PROCEEDINGS
Contempt proceedings may occur if a spouse disobeys an order, tampers with documents, or withholds evidence. If found in contempt, a spouse can be jailed.
FAMILY COURT
Family Court has jurisdiction over issues like child support, spousal maintenance, paternity proceedings, adoptions, and family offence proceedings between spouses, former spouses, parent and child, members of the same family or household, persons not married who have a child in common, and persons not married or related to each other but are or have been in an intimate relationship with each other regardless of whether they ever lived together. Such family offenses include, but are not limited to, assault, menacing, harassment, stalking, sexual misconduct and sexual abuse.
CHILD CUSTODY, SUPPORT and VISITATION
Child custody agreements, visitation and child support are issues addressed during a divorce when there are children of the marriage. When children are born out of wedlock, then these issues, as well as paternity, are handled in Family Court.
A child support award is dictated by the Child Support Standards Act Guidelines. Essentially, these guidelines base child support on a percentage of the parent's income, after first deducting FICA and state tax. From that adjusted gross income, 17% is awarded if there is one child, 25% for two children and 29% for three or more children. Simply by clicking on to the Child Support Calculator, you can get an estimate of what this support obligation will be.
MEDIATION
When couples are able to amicably resolve their differences without resorting to litigation, what they save in attorneys' fees will be considerable. Many people mistakenly believe that litigators cannot mediate. Quite the contrary. Litigators are in the best position to mediate the parties' differences because they can help spell out what the likely outcome will be if a trial is resorted to. Often, mediation-only firms do not have the litigator's foresight to anticipate all the probable scenerios should one party later default in his/her obligations under the agreeement that is reached during mediation. This type of perspective can only come from years of litigation experience. Wende Doniger is a seasoned matrimonial litigator who has helped many couples successfully work out their differences at mediation. Unlike other litigators who mediate, Wende Doniger holds a Ph.D. in psychology. In her professional experience as a psychologist, she has counseled many couples going through divorce. Her unique qualifications that come from being a licensed psychologist as well as a skilled legal advocate can assist couples that want to mediate rather than litigate in helping to bring about a quick and fair settlement at a substantial savings in attorneys' fees.
SECOND AMENDMENT FIREARM RIGHTS
The right to bear arms is guaranteed by the Second Amendment to the United States Constitution. Nevertheless, such a right is still subject to state regulation. The state has a legitimate interest in protecting the life and safety of its citizens. Therefore, if you own a firearm and are charged with domestic abuse, your firearm license will be supended and the courts will require that you surrender your weapons to the appropriate authorities through the issuance of a Temporary Restraining Order. This Order can be issued ex parte, meaning one party alone without your knowledge can petition the court, under oath, for this relief and, if warranted, get it. Of course you will be granted a hearing within 14-days, but in the meantime, you are still required to turn in your weapons or you will be in violation of the law. If the restraining order has been issued by the Family Court, that court lacks the authority to compel the police to return your weapons if the restraining order is later dismissed or withdrawn as part of a settlement.
It has been our experience that in Suffolk County, if the restraining order is no longer in effect, Suffolk Police will return your weapons to you. Nassau Police, on the other hand, will require you to petition the Supreme Court under Article 78 to get an order compelling them to return your weapons. If the restraining order becomes a permanent order of protection, even though you cannot take possession of your weapons, you still have a property right in them. N.Y. Penal Law §400.05(6). This means that provided the weapons were not found to have been used in a crime, you have one-year from the time of surrender to sell or transfer your weapons that are in police custody to a licensed firearms dealer. If you have not made arrangements for the return or transfer of your weapons within that year, the law requires that your weapons be destroyed.