New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

It is always a good idea after a divorce to update your will or to change the beneficiary designations on your insurance policies and investment accounts. Prior to the divorce it was likely that your wife was your heir or beneficiary. After your divorce, you may not want your ex to benefit from your death.

Problems arise when someone dies and their pre-divorce will or beneficiary designation has not been changed and their spouse is the beneficiary. .

While a disposition in a will to a former spouse would be  revoked by a divorce or an annulment, until recently a divorce did not revoke many other revocable dispositions which are essentially like wills (so-called "testamentary substitutes"), such as lifetime revocable trusts (including Totem Trusts), life insurance policies, or joint tenancies (including joint bank accounts). 

A new law was enacted to end this inconsistency. Now, according to the law’s legislative memorandum:

.  .  .  a divorce or annulment would revoke any revocable disposition or appointment of property to a former Spouse, including a disposition or appointment by will, by beneficiary designation, or by revocable trust (including a bank account in trust form). It also would revoke any revocable provision conferring a power of appointment on the former spouse and any revocable nomination of the former Spouse to serve in a fiduciary or representative capacity, such as nomination of the former Spouse as a personal representative, executor, trustee, guardian, agent, or attorney-in-fact. Finally, a divorce would sever joint tenancies between former Spouses (including joint bank accounts) and transform them into tenancies in common.

The law is applied so as to treat the surviving former spouse as if she/she predeceased the decedent.

So, how to avoid the application of this law? It is simple. Update your will and beneficiary designations after the divorce is granted. Get your ex-spouse out of your will.  If you really want to benefit your former spouse, spell out your desire in your updated will.

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I was featured in an article on Forbes.com about divorce during the recession.

Quoting Billy Joel’s lyric, “They started to fight when the money got tight. . .”
I have definitely noticed an increase in work, telephone inquiries about divorce and even traffic to this blog as the economy soured.

My experience, according to the article quite explainable . “Recession has always been a factor raising divorce rates," explains University of Chicago Business School economist Gary Becker."

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A-Rod, Christie Brinkley, Madonna. There is no escaping it. Divorce is all over the news. The tabloids (and their readers) are eating it up.

The issues in these celebrity divorces are, in large measure, the same as those of everyone else. Granted - few of my cases involve the wealth of someone like A-Rod.

These cases seem to all have the recurrent theme of adultery, infidelity and loss of trust. As a result of the betrayal, marital assets will have to be divided.

The very public Christie Brinkley trial is particularly compelling. It is providing a primer on how a child custody trial works. In a child custody case the inquiry is what are the best interests of the children. In the Brinkley case the court must decide if the children should be in the sole custody of the mother or whether there should be some type of shared custody. The trial also demonstrates the role of mental health professionals in a custody fight.

The very public process, the attorneys and the press all try to demonize or to paint parties as “all good” or “all bad.” In my experience, this is often not the case. In most cases, the spouse you loved and married years ago, did not over-night morph into some unrecognizable evil force. While all the parties to the process are flawed, they have good attributes as well.

At the end of the custody battle like Christie Brinkley’s, there are no winners, only losers. The parties will not only have lost their dignity, they will also have lost the ability to share, together, the joy of life’s great events like their children’s graduations and weddings, or even the birth of their grandchildren.

The children will certainly lose. In the end, they will be drawn into the “battle” and become alienated from one, or both, of their parents.

In the end, the lesson from these trials should be that divorcing parents should, to the extent possible, agree that they cannot live together and that the marriage should end. While there may be some dispute over economic issues, parents should, to the extent possible, work together to find a way to share responsibility for raising their children

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The New York State Bar Association has produced a video “The Divorce Process in New York: What you Need to Know “ which can be viewed online by hitting the hyper-link.

The video provides a good overview of the law in New York, covering  topics such as child support, maintenance, equitable distribution and domestic violence. It even addresses attorneys’ fees and retainers.  

For those new to the divorce process, it  would be beneficial to view the video before  having a consultation with an attorney.

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Following up on yesterday’s posting is this article, in today’s New York Post, (in which I was quoted).

The floodgates have opened; there will be thousands of same-sex marriages performed in California in the near future. In the aftermath, I anticipate a wave of same sex divorces.

At least, one court has already recognized the right of same sex couples to seek a divorce in New York.

 In order to avoid the pain of divorce, same-sex marriage couples should be urged to proceed with caution. As pointed out in the Post:

Fools rush in, they said, even gay fools.

"It's not a decision to rush into," said Jim Key, a spokesman for the LA Lesbian and Gay Center.

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In an environment where every day we are greeted with news about the troubled economy, we are thankful for any sign of economic growth.

Today, California began performing same sex marriages which may provide a boost to the local California economy.

The New York Times reported that:

The potential windfall of same-sex marriage was underscored this week in a study by the Williams Institute at the University of California, Los Angeles, School of Law, which estimated that over three years, same-sex nuptials would contribute $684 million to the state’s wedding industry and $64 million to the state budget.

The Times describes the cottage industry of performing the once forbidden same sex marriages:

It’s basically a godsend,” said Daniel Doiron, the general manager of the Ingleside Inn in Palm Springs, which is offering honeymoon specials from $479 bargain basement (boutonnieres, 15-minute wedding, 20 guests) to the “Elizabeth Taylor” at $29,999 (poolside villas, wedding cake and reception, ice sculptures, flowers, sit-down dinner for 200 and three nights in the honeymoon suite).

Not to jinx any of the nuptials, but, like heterosexual marriages, some of the same sex marriages will not be everlasting and will end in divorce. These same sex divorces will further drive the economy, as the parties will need to employ the services of lawyers, accountants, financial planners, mental health professionals, appraisers and other divorce professionals.

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Mark Wortman in the Missouri Divorce and Family Law Blog supplies multiple answers the question, why do you need a lawyer.

Among the reasons given are:

•  The attorney can take much of the burden off of the litigant, reduce the length of the case, and hopefully negotiate a settlement where everyone wins and nobody goes to court.
• You wouldn't perform your own surgery, why would you try to take on the court by yourself. Divorce lawyers are here for a reason.
• Whatever your argument, the judge has heard it before. The attorney knows how to pick the battles and keep you on the judges good side.
• Family law is not like other areas of the law. A skilled negotiator is superior to a combative lawyer or litigant who wants to fight about everything.

Mark diplomatically stops short of quoting the old adage that anyone who attempts to represent himself in court has a fool for a client. Though this expression has become a cliché, it is also true.

You should retain a divorce lawyer because he is expert and knowledgeable in the field. As a self represented litigant, you may not understand the relative strengths or weaknesses of your case, the limits of  your rights or the full extent of your liabilities.

To put it in context, would you, as a pro se litigant, know how to distribute a professional license or an educational degree?

Moreover, the law is ever changing. The practitioner through participation in professional associations, continuing legal education and daily practice, keeps abreast of the evolving case law and statutory changes.

Finally, legal representation brings objectivity to a case. As a litigant, you may be simply too close to the litigation to make reasoned business-like decisions. A good practitioner will set out options and assess the risks of litigation.

In the end, most litigants want a fair resolution with an end to the divorce litigation – a good attorney will lead you there.

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In any litigation, in which the court must render an order or judgment, there is a winner and there is a loser. Sometimes, the court will even telegraph its decision, in advance, in order to facilitate a settlement discussion.

Most clients, when informed of an adverse decision (or even the potential for one), will, as a knee jerk reaction invariably say, “Let’s Appeal!” or “If the judge does that, we will appeal.”

Without even addressing the fact that not every decision is appealable, the odds are that an appeal will NOT be successful. To the contrary, most appeals are unsuccessful.

Dick Bailey Service, Inc., an appellate printer, recently sent me statistics it compiled of the appeals submitted to the Appellate Division, Second Department from January through June 20007. Not surprisingly, in 52% of all cases appealed, the trial court’s order or judgment was affirmed (the appeals court agreed with the trial court); sixty two (62%) percent of all matrimonial cases were affirmed.

Less than, one quarter of all cases, but only 14% of the domestic relations cases were reversed. In eleven percent of the cases, the lower court decision was somehow modified.

These statistics illustrate the fact that an appeal in a matrimonial case has only about twenty five (25%) chance of either reversing or modifying the underlying order or judgment.

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Over a year ago, New Jersey recognized irreconcilable differences as grounds for divorce. So, what can New York lawmakers, who have been struggling to enact a no-fault grounds for divorce, learn from New Jersey’s experience?

According to the New Jersey Lawyer, “The law stands as a classic case of a proposal lingering for years in the state legislature based on opposition from religious groups and, when finally enacted, is actually heaped with praise.”

In the absence of a no-fault or irreconcilable differences ground for divorce, the parties need allege and prove marital fault. Prior to the enactment of New Jersey’s irreconcilable differences grounds for divorce, extreme cruelty was a common ground for divorce.

“All attorneys interviewed agreed that a detailed filing under extreme cruelty had the potential to create an especially combative and mean-spirited divorce proceeding.” The new no fault law has effectively defused some of the animosity.

“Unlike the extreme-cruelty standard, an irreconcilable-differences filing "starts the litigation off on a positive note; you don't have to start the litigation with smearing the other party," added Paterson lawyer José I. Bastarrika.”

The attorneys and judges interviewed, not surprisingly, acknowledged a drastic reduction in cruelty filings.

Perhaps one day, New Yorkers, after enacting a no-fault divorce law, will like our New Jersey neighbors, will look backward and wonder, what was all the fuss about.

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