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On Behalf of The Law Offices of Joseph H. Nivin, P.C. In recent years, many couples have been drawn to mediation as an alternative to going to court. It is an attractive option because of the benefits it offers: less expense, a faster divorce, confidentiality, a less formal way of divorcing and more control for the couple when it comes to making decisions about their assets and their futures. However, mediation is not appropriate in every case. While mediation is highly effective, it is most effective in cases involving collaborative couples, parties who are willing to negotiate and compromise in good faith. When is mediation a good option? Generally, mediation is optimal for cases where the parties get along, at least to a certain extent. In addition, mediation is ideal for cases where: The parties have some idea of what they want and what the other party wants The parents have no strong objections to compromising and negotiating The couple understands that they will get some things they want but not others There are no extreme factors like domestic violence or other criminal activity In essence, a successful mediation requires parties who are willing to work together to solve problems and who do not need help beyond the scope of what the mediator can provide. When is mediation not the best choice? In some cases, mediation is not appropriate, and traditional litigation is the best course of action for a divorcing couple. For example, in cases where: There is domestic violence or any other alleged criminal activity There is significant conflict, and attorneys for the parties have discovered lies on the part of one or both parties, whether withholding financial information or other inappropriate activities The couple cannot see eye to eye, and their goals, relating to what they wish to get out of the divorce, are extremely far apart from the other person In such cases, judges and court staff can help. Courts provide a structured process, where you are usually represented by counsel and where you can provide evidence, testimony and make your arguments. At the end of the process, the judge will decide based on the law and the evidence provided to the court.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Couples who have marital agreements know exactly what will happen when they divorce. They already set their property division rules in writing in their prenuptial or postnuptial agreement. The majority of couples divorcing in New York will not have an agreement dictating what they do with their assets, meaning they will have to arrange a settlement or have a judge handle the process for them. Even if you hope to resolve your property division dispute outside of court, understanding how New York approaches property division will give you more leverage during that conversation. After all, if you cannot reach an agreement, then you will have to go to court and apply the state rules to your assets. How does property division work in a New York divorce? The courts apply state law to your assets and debts A family law judge tasked with dividing your assets will use the state’s equitable distribution standard as a guide for the process. The goal is for the judge to review your disclosed assets and debts to fairly divided your marital property between you. Only marital assets are subject to division. The wages earned by either spouse during the marriage are typically marital property, and the same is true of everything you purchased during the marriage. Even your credit cards or student loans taken out during the marriage with the intent of supporting the family could be marital debt that the judge will have to split. Assets you owned before you got married and anything that you inherited will usually be separate property that the courts will not divide. However, if there has been commingling of those separate assets with marital assets, then those separate assets could also be vulnerable during the property division process. How can you determine who gets what? Unfortunately, there is no reliable way to exactly predict the distribution of your assets in a contested New York divorce. Much is left to the judge’s discretion, and everything from the length of your marriage to your custody arrangements can influence what a judge believes is fair and appropriate. The only way to retain control over the division of your property is to reach a settlement with your spouse outside of court, possibly through mediation if necessary. Thinking about your hopes for the future can help you establish practical goals for property division in pending New York divorce.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Pets are precious members of the family and as such, they become a hot-button issue in cases of separation and divorce. However, no matter how strongly pet parents feel about their beloved companions, courts cannot equate pet custody to child custody in contested divorce cases. Pet custody criteria in New York Judges determine child custody arrangements by considering the best interests of the child, but when charged with deciding where the family dog, cat or bearded dragon should reside, New York courts use the following criteria: Who legally owns the pet? How did the pet join the family (purchased, adopted or gifted)? Which of the parties took on most of the pet care during the marriage? Who is in the best position to meet the daily needs of the pet? What pet custody arrangements have the parties agreed to post-split? Due to caseload issues, not all courts will agree to hold pet hearings, and these judges may issue an order for animals that follows the child visitation schedule or leave the pet custody decisions entirely to the parties. Special considerations for service animals Registered service animals aid persons afflicted with disabilities such as visual, hearing or mobility impairments. As such, the party in need will likely retain ownership of the service animal after the divorce. Because the law regarding live beings is everchanging, judges’ decisions often occur in a gray area of the law between custody and personal property. Therefore, it is important to understand how courts in your district typically approach the subject of pet guardianship in divorce cases.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. Getting divorced is one of the most emotionally taxing and financially challenging decisions you can make. After spending decades building a life with someone, property division can be among the most contentious aspects of the process. If you cannot settle with your ex-spouse who gets what, a judge will decide, and that does not necessarily mean a 50-50 split. New York is an equitable distribution state when it comes to dividing marital property – assets acquired during the marriage. Think real estate, vehicles, furniture and artwork along with bank accounts, stocks, retirement savings and pensions. Usually it does not include gifts or inheritances one spouse receives while married. Either way, the court has ample discretion when distributing marital property. What the court will consider Equitable does not always mean equal. Judges can award one spouse a greater share of marital property based on each spouse’s role and contributions to the marriage. That is where the nuance comes in. The law has more than a dozen factors for a judge to consider when distributing property. Among them are: Length of the marriage, age and health of both spouses The spouse with custody of minor children and whether they still need the marital house Whether the spouses can divide liquidated real estate in cash or only after a sale Child support or alimony Each spouse’s potential earnings or financial conditions Loss of health insurance benefits Another critical circumstance when a marriage ends is valuing each spouse’s professional growth or caretaking. A breadwinner can increase his or her wages by getting an advanced degree or certification. What is that worth? And how about a stay-at-home mom? Minding the children instead of paying for daycare might be considered a monetary contribution. Navigating your case Divorce will affect your financial future. Be smart in picking your battles during the process. Safeguarding your property is important to ensure you receive a fair share proportionate with the effort you put into the marriage. An experienced attorney can review your case, strategize and help you start over.

On Behalf of The Law Offices of Joseph H. Nivin, P.C. A recent Supreme Court decision considered the complications in divorce cases and dividing assets that couples acquire during their marriage. Retirement savings are one of the largest and most valuable assets to be considered during a divorce, such as 401(k) and pension plans. In May, the Supreme Court overturned a decision by the Supreme Court of Arizona in the case of Howell v. Howell.  Any waived portions of military retirement pay are not divisible community property. In this divorce case, the military retirement pay changed after 13 years, altering the original agreement. Divorce agreements can be confusing and cause feelings of hostility between you and your spouse. It’s best to be prepared before you go to family court where your financials, homes, and property will be divided. Joseph H. Nivin can help you understand the process and in the end, help you reach an agreement that is fair to both parties and families.