As Taylor Swift once said, “we are never getting back together, like, ever.” Unfortunately, this is the reality for approximately 50% of all married couples. That is because approximately 50% of all marriages end in divorce. We previously posted about the Key Components in Litigating your Divorce and detailed the framework of what the divorce process looks like. But what happens if you are not ready to move forward with the divorce process but are not happy in your marriage?

In New York, spouses can enter into what is referred to as a “separation agreement,” which is a written agreement that allows spouses an opportunity to resolve certain marital discord while also giving spouses the opportunity to live separate and apart from each other, all while remaining married. This can and is often done without court intervention, which saves time and money.

You may be asking, why do I need to enter into a separation agreement? Can’t I just move out and be considered separated from my spouse? The technical answer is yes. But from a legal standpoint, this may not be the wise choice. Let’s say you and your spouse are having difficulty in your marriage and decide to separate. Your husband moves out and establishes his own residence outside the marital home. While separated, your husband incurs a hefty credit card debt. After some time being separated, you decide to file for divorce and are shocked to learn that you may be responsible for the credit card debt your husband incurred during your period of separation. You are also shocked to learn that your husband may be entitled to the Florida vacation home you purchased with your income after he moved out. This is because this debt and the vacation home continue to be considered “marital property” under New York law subject to equitable distribution in a divorce proceeding.

These types of problems can all be avoided by entering into a separation agreement. A separation agreement can resolve issues like child support, maintenance (or spousal support), custody and parenting time, division of property, property acquired after the date of separation and the like. In terms of the hypothetical above, it can set forth terms that will prevent a spouse from being held responsible for credit card debt incurred after the date of separation or protect a vacation home purchased after the date of separation.

The beauty of a separation agreement is that although it prepares spouses in the event of a divorce, it is not a final and binding divorce decree. Meaning, if the spouses decide to get back together, they can do so. In certain instances, separation agreements become void when the spouses begin living together again and intend on reconciling. This is of course subject to the terms of the agreement you sign as some agreements may expressly provide that you can only void the separation agreement by executing another instrument expressly invalidating the prior agreement. Clearly, every separation agreement is different and depends on the desires and needs of the individual spouses.

Any person contemplating entering into a separation agreement or seeking advice on how a separation agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

In last week’s blog, we identified and discussed basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement.  In this week’s post, we discuss another type of marital agreement: a postnuptial agreement and which agreement might be best suited to your specific circumstances.

In many instances when people are about to get married, the last thing they are thinking about is entering into a prenuptial agreement. Some individuals may not have the money at the time leading up to their wedding to invest in a legal agreement or may feel that negotiating what might happen in the event of the demise of their marriage is the farthest thing from romantic.  Fortunately for them, they can still, after getting married, enter into a contract to determine their financial future as spouses, or in the event of a divorce, ex-spouses.

What Is A Postnuptial Agreement?

As we previously stated, the New York Domestic Relations Law provides that marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). Unlike a prenuptial agreement, which is entered into before the marriage, a postnuptial agreement is entered into after the parties get married. Aside from this fact, postnuptial agreements are essentially the same as a prenuptial agreement and parties are able to contemplate the same terms in a postnuptial agreement as they can in a prenuptial agreement.

While a postnuptial agreement is entered into after marriage, it is not an agreement entered into in contemplation of a divorce or even during a divorce proceeding. Instead, parties will enter into a postnuptial agreement when they intend to remain married and simply want to resolve any future issues.

One question you may be asking is “why would I want to enter into a postnuptial agreement?” Well, there are many reasons. A postnuptial agreement, like a prenuptial agreement, allows you and your spouse to take control over the distribution and division of your assets and takes that control away from the courts in the event of a divorce or even the death of a spouse.

What Are The Basic Requirements For A Postnuptial Agreement?

Like a prenuptial agreement, a postnuptial agreement must be in writing, must be signed by the parties, and must be acknowledged before a notary public. Courts will not uphold an oral postnuptial (or prenuptial) agreement.

Another important aspect of a postnuptial agreement is full financial disclosure of assets to the other party. Basically, both spouses are required to disclose to each other all the money and assets they each currently possess (both separate property and marital property). The spouses then can make informed decisions about the terms of the agreement with respect to those assets.

Further, it is critical that both parties obtain their own independent counsel when negotiating the terms of a postnuptial (and prenuptial) agreement. It is important that each spouse can receive independent legal counsel to advise them of their individual rights under the law and to ensure that their best interests are being served by the terms of the agreement.

Which Agreement Should I Enter Into?

Having now been educated in the difference between prenuptial and postnuptial agreements, you may be wondering, which is the right decision to make for your relationship. If you are entering into a marriage with significant assets to protect and the likelihood of earning significant income during your marriage, you should enter into a prenuptial agreement. This is especially so because things get much murkier once you are married, with assets being commingled and income earned during the marriage being possibly added to separate property assets owned before the marriage.  After marriage, items that may have had a separate property component may no longer be categorized as separate property and may be subject to an equal distribution between spouses.  Understanding this, postnuptial agreements may be better suited to a situation where financial circumstances have significantly changed since the date of the marriage or in a situation where one party or the other wants to set the framework for a quick and expedient departure from the marriage without the stress of protracted multi-year litigation.

Any person contemplating entering into a postnuptial agreement or seeking advice on how a postnuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Marissa J. Pullano or Samantha Guido at 516-746-8000 or via email at mpullano@jaspanllp.com or sguido@jaspanllp.com.

Most people have probably heard Kanye West’s infamous song, “Gold Digger.” Specifically, the line “Holla, ‘we want prenup! We want prenup!’” Interestingly, the lyrics of Mr. West’s hit song seem to indicate that a prenuptial agreement can protect an individual from having to pay child support (wrong).  Additionally, Mr. West’s popular song also seems to indicate that prenuptial agreements are only for the rich and famous.  When it comes to the discussion of prenuptial agreements, the reaction can be mixed.  Many people express apprehension about entering into a prenuptial agreement because they can feel like signing one is a symbol that their marriage is doomed.  However, prenuptial agreements do not only account for the possibility of divorce. They can also address what should happen in the event of an unfortunate and untimely death.  As such, in order to assist our readers, in this week’s blog post we set out to cover some basic concepts to think about when deciding whether you and your future spouse want to enter into a prenuptial agreement.

What is a Prenuptial Agreement?

Under New York Domestic Relations Law, marital agreements may be “made before or during the marriage.” DRL § 236(B)(3). As indicated by the first three letters of the word, “pre,” a prenuptial agreement (also referred to as an antenuptial agreement) is a marital agreement that is entered into before the parties to the agreement get married. A prenuptial agreement is entered into in contemplation of the marriage and becomes effective when the parties in fact get married. The agreement must be in writing and must be signed by both parties in front of a notary public. Further, the terms of a prenuptial agreement must be fair and reasonable at the time the agreement is entered into and not unconscionable at the time of the divorce to be enforced by a court.

Contrary to popular belief, a prenuptial agreement is not only for the rich and famous. Instead, anyone contemplating marriage can enter into a prenuptial agreement and tailor said agreement to their own specific needs.

What Can Be Contemplated In A Prenuptial Agreement?

Again, while a prenuptial agreement can be tailored to each couples’ own needs (subject to state law and public policy), there are some general terms many couples contemplate when deciding to enter into a prenuptial agreement. This blog will discuss just a few of those.

First, parties can waive maintenance or spousal support in a prenuptial agreement.  There is one caveat to this general proposition, however. Pursuant to New York General Obligations Law § 5-311, a spouse can contract to relieve the other of a requirement of support except to the extent that the spouse may become a public charge. For example, the parties enter into a prenuptial agreement and agree to waive maintenance. At the time of execution of the agreement, both parties are working and have a stable income. During the marriage, the wife stops working and becomes a stay at home mother, bringing in no income whatsoever during a lengthy marriage. At the time of the divorce, the wife has no job, is left with no assets pursuant to the terms of the prenuptial agreement, is at risk of being a public charge and will need to rely on government assistance to support herself. A court will likely find that the provision waiving maintenance is void and will not uphold the waiver because enforcing such provision would be unconscionable.

Second, parties can also waive their rights in estates in a prenuptial agreement. In fact, waiver of estates rights is one of the most significant motivators behind entering into a prenuptial agreement. Simply put, prenuptial agreements do not only account for what happens in the event of divorce. They can be an effective way of planning for an unfortunate and untimely death.  For example, if both or even just one party was previously married and has children from a previous marriage, they may want to seek to protect the children’s inheritance rights in an agreement.

Third, a prenuptial agreement can contain a provision waiving pension or retirement rights. However, this may be tricky as some retirement accounts only permit a spouse to waive their rights, not future spouses. On the other hand, the Employee Retirement Income Security Act of 1974 (ERISA), as amended by the Retirement Equity Act of 1984 (REA), does not prohibit a waiver of any interest in a pension by an otherwise valid prenuptial agreement. Instead, a prenuptial agreement cannot constitute a waiver of survivor benefits. Whether parties can waive their rights to a pension or retirement account in a prenuptial agreement should be determined on a case to case basis and should be explored with counsel of the parties own choosing.

Finally, a prenuptial agreement can establish pre-marital debt and separate property. For example, if a party comes into the marriage with substantial student loan debt, the parties can agree in a prenuptial agreement that the debt remains with that spouse and does not become a marital loan. Similarly, a prenuptial agreement can define and can specifically identify which property is separate property for each spouse. In other words, a prenuptial agreement can identify which property will not be subject to distribution upon a future divorce. As safe practice however, you should always keep your separate property separate and apart from all marital property (property obtained during the marriage) to ensure it retains is separate nature.

What Cannot Be Contemplated In A Prenuptial Agreement?

Contrary to what Kanye West’s song may suggest, there are certain things, like child support, that cannot be contemplated in a prenuptial agreement. Courts have found that it is against public policy for parties to waive child support in a prenuptial agreement for future children of the marriage. Similarly, a prenuptial agreement cannot address issues of custody for unborn children either. These issues must be addressed based on the circumstances at the time of the separation or divorce action.

The above is a mere glance at the intricacies of a prenuptial agreement. Any person contemplating entering into a prenuptial agreement or seeking advice on how a prenuptial agreement could benefit them should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event that you need legal assistance, please contact Marissa Pullano or Samantha M. Guido at 516-746-8000 or at mpullano@jaspanllp.com and sguido@jaspanllp.com.

 

Just recently on a Sunday morning at the beach, I read an advice column in a national publication in which a married woman referred to her marriage as a “business relationship.” This business relationship began when she and her husband agreed that there would be no emotional or physical intimacy.  Said arrangement was going to work for this couple because, as the Wife reported, they were able to get along “well enough” to parent their twin 8-year-olds. This woman declared that she did not love her partner, but fear held her stuck in place. She shared her worries about her job prospects and her financial security. As I was reading, I kept thinking, there’s no way Sally Advice-Columnist is going to tell her to stick this out and rubber-stamp this type of arrangement. And yet, just a few sentences in, there it was,

“Maybe it’s time to see that as a solution for now, vs. a problem.”

I stopped reading, looked up at the beach waves, and thought back to my social work education.  The social worker in me thought, is a “business relationship” modeling a healthy relationship for these children?  Then, I thought about the experiences shared with me by my clients over a decade into litigating divorce matters.  I’ve helped countless clients develop plans to co-parent with their spouses while achieving financial independence and moving forward to model healthy relationships.  So, rather than reflecting on why Sally Advice-Columnist believes that marriage can be a “business relationship,” I thought I would share what I have observed my clients show their children through effectively co-parenting after divorce.

Lesson #1 – Marriage is Serious Business

Far too often, clients have shared that they got married because they felt pressure to do so either from family, society, or a ticking biological clock.  In fact, some clients have shared that they knew on their wedding day that they had made a critical mistake.  My experience has also taught me that most people spend more time planning the Viennese hour at their wedding than contemplating the day-to-day mechanics of marriage.  When a marriage begins with little preparation or contemplation, a divorce can be an opportunity for parents to bestow upon their children the lesson that they should prepare for marriage and enter it knowingly and for reasons that they understand.  The passing down of this knowledge from generation to generation slowly chips away at the societal structure that values marriage above all else.

Lesson #2 – Grit

As life in a pandemic has taught us all, life is hard.  We are not given a roadmap of the adversity’s life may hand us.  On top of that, divorce is stressful.  The litigation model for divorce can leave resentments high and unnecessarily cause harm to a family.  Regardless, when divorce comes to a family unit, most people learn a powerful lesson in resilience.  They begin to teach their children about the value of grit and they put words into action when they stand next to their ex-spouse at a graduation, awards ceremony and even, years later, at a wedding.  What a powerful example when both parents can walk their child down the aisle.  When big life events happen, such as a divorce, how a parent handles such a circumstance will teach the child about how to handle smaller and far less consequential life events.

Lesson #3 – Independence 

Far too often, divorce occurs when one party is a “spender” and another a “saver.”  Divorce can also occur when one party feels that they are contributing more to the marriage and carrying a higher financial burden.  Divorce, at its core, forces parties to declare their financial and emotional independence.  Children see parents capable of working and caring for them.  Children can learn about an economic partnership just as much as a romantic partnership when they see both parents’ model economic and emotional independence.

Many couples who consider divorce ultimately do not follow through with it because they want to remain married for the kids.  And maybe that is why Sally Advice-Columnist believed she was giving her reader the best advice for her circumstance.  If you find yourself confronting divorce, I hope you’ll consider the powerful life lessons that you can model for your children even in the aftermath of divorce.  They are, in my opinion, worthy of consideration.

Marissa Pullano focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement.  Marissa also has experience drafting prenuptial, postnuptial and separation agreements. Marissa believes that all clients deserve significant attention as they navigate the court system.  She strives to achieve resolutions that minimize conflict but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  In the event that you need legal assistance regarding matrimonial and/or family law matters, Marissa  can be reached at mpullano@jaspanllp.com or (516) 393-8297.

 

 

 

 

Early in my career I drafted an agreement for two soon to-be ex-spouses to share possession of their two (2) pure-bred golden retrievers.  After meeting with my client, the Husband, I deemed it my pet custody project and I went to town crafting an elaborate agreement including a five (5) year schedule (yes, you read that right) in which these pure bred dogs would be shipped every two (2) months from Florida to Pittsburgh, where the Wife was relocating.  It was an uncontested divorce with two people who wanted to share possession of their pet “children.”  However, in high conflict divorce litigation, the issue of who keeps the family’s beloved animals can add fuel to an already growing fire.

Under the current state of the law, possession of a family pet may be awarded to the party who purchased the animal and paid for maintenance of the pet. However, more often than not, courts find such squabbles over possession of an animal to not be worthy of court resources and urge the parties to settle the matter between themselves. In high conflict matters, the parties can spend countless hours negotiating a resolution that adds the family pet to a roster of assets on a spreadsheet to be divided up. However, one millennial Senator has set about to create a change in New York law that some may say is long over-due.

In February 2021, James Skoufis, a 33-year-old State Senator, introduced a bill seeking to amend Section 236 of the Domestic Relations Law.  The proposed legislation would add a fifteenth factor to New York’s equitable distribution statute, which would allow judges to consider the best interests of a companion animal when awarding possession in a divorce action.  The bill has passed both the New York State Assembly and the New York State Senate and is awaiting delivery to Gov. Andrew Cuomo. A copy of Senate Bill 4248 can be found here:  Legislation NY Senate.gov Bills 2021.

We will continue to monitor this bill as it awaits Governor Cuomo’s signature. In the interim, or if this bill is not signed by the Governor, a validly executed Pre-Nuptial Agreement can be used to resolve such issues of possession of a family pet. To learn why Pre-Nuptial Agreements are important to consider before tying the knot, you can find my prior blog post here: Four Things to Consider Before You Say I Do.

Marissa Pullano focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement. She also has experience drafting prenuptial, postnuptial and separation agreements. Marissa believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, Marissa  can be reached at mpullano@jaspanllp.com or (516) 393-8297.

 

 

 

 

 

Proposing to your significant other is a huge step in any relationship. When making the decision to propose, the last thing that you’re probably worried about is what will happen to the engagement ring in the event of a divorce. But alas, one can never plan for every possible outcome and so this blog will address what happens to the engagement ring in the event of divorce.

I have both good news and bad news—all depending on whether you were the one that was down on one knee. The good news: if you were proposed to with a nice, sparkly engagement ring and have since gotten married and find yourself in the midst of divorce, that ring is all yours! The bad news: if you were the one down on one knee and proposed with that nice, sparkly engagement ring and have since gotten married and find yourself in the midst of divorce, you have no claim to that ring.

If you have gotten to the point where you are considering divorce or are in the midst of a divorce, what may happen to the engagement ring does not seem like something that should matter in the grand scheme of things. However, the engagement ring may be a big deal to the spouse who proposed if the ring is a family heirloom. In cases such as this, there is great sentimental value to the engagement ring that cannot be replicated and it is now the property of your ex-spouse. Thus, before deciding to propose with the diamond ring that has been in your family for hundreds of years, perhaps you should consider how you would feel if that ring ends up with your spouse in the event of divorce.

The moral of the story—diamonds really are a girl’s best friend.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Hanna E. Kirkpatrick at 516-393-8259 or hkirkpatrick@jaspanllp.com.

 

The decision to get divorced is not an easy one. Once a party has decided to get divorced they may not even know what the process looks like. While there are many different approaches that spouses may choose to take when getting a divorce (we have previously blogged about them here), often there is no other option but court.

One of the first questions we get asked is what does litigation look like? The short answer is that each case is different and there is no way to predict what your divorce litigation may look like. However, the purpose of this blog is to provide you with a framework of what the divorce process may look like if you are forced to bring your case before a judge.

  1. Commencement of the Divorce Action: The first step in any divorce action is to file for divorce. This is done by the filing of a summons and complaint. Once the summons and complaint are filed, you will have your date of commencement.
  2. Serving your Spouse: After you have filed the summons and complaint you are required to serve your spouse. However, it is important to note that you have 120 days from the date of filing the summons and complaint to serve your spouse.
  3. Court Intervention: This is typically the next step after serving your spouse. However, what type of court intervention a party is seeking will vary case by case. Perhaps you just want to get a preliminary conference to set a discovery schedule and to get your case moving. In cases that have time-sensitive concerns that need to be addressed immediately, this may mean seeking court intervention by way of filing a pendente lite motion asking for interim (short-term) relief for finances and/or custody/visitation.
  4. Discovery: The discovery process can be long and tedious. In New York State parties are required to make full and complete disclosure of their finances to their spouse. This requires both parties to exchange all financial documentation concerning their assets (bank accounts, brokerage accounts, retirement accounts, real property, etc.) as well as all debts (mortgages, student loans, credit card, etc.). All tax returns must be exchanged, including business tax returns if one or both parties own a business.
  5. Depositions: Depositions are part of the discovery process but typically are held after the exchange of documents from both parties. During a deposition, parties are questioned, under oath, about finances. In some cases, there may be reason to depose third parties, such as business partners.
  6. Expert Reports/Appraisals: In cases where one or both parties own a business or assets that need to be valued expert reports/appraisals may need to be obtained. Parties to litigation can choose to have a neutral expert and/or to retain their own expert. The process of obtaining an expert is typically done in the early stages of the case as parties want the report to be completed and ready to review prior to depositions.
  7. Court Conferences: From the time you seek court intervention until a trial is held, the court will hold status conferences on your case. During these conferences certain issues may be addressed with the court and the purpose of these conferences is to ensure the case is staying on track to reach a resolution whether it be by way of settlement or trial.
  8. Trial: If you have gone through the discovery process, held depositions, and exchanged expert reports (if applicable) and are still unable to resolve your case, the last step is to have a trial. It is important to note that trials are a time-consuming task for both you and your attorney.

We conclude with a reminder that the above is merely a framework of what the divorce process looks like. Not all divorce ends in settlement and not all divorce ends in a trial. Each case has its own unique set of facts and circumstances which will set the stage for whether the case can be resolved amicably or will need to be tried before the court.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance, please contact Hanna E. Kirkpatrick at 516-393-8259 or hkirkpatrick@jaspanllp.com.

We recently blogged regarding the third round of stimulus payments which was one of the many provisions included in the American Rescue Plan.  As highlighted in that blog, eligible taxpayers will receive up to $1,400 for each dependent claimed on their tax returns.  In addition to eligible taxpayers receiving a stimulus for dependents, the American Rescue Plan made changes to the Child Tax Credit and the Child and Dependent Care Credit which will further benefit eligible taxpayers with children.

Child Tax Credit

For the tax year 2021, the following changes have been made:

  1. The credit has been increased from $2,000 per child to $3,000 per child.
  2. Children 17 years old and younger are now covered by the Child Tax Credit.
  3. Those eligible for the 2021 Child Tax Credit will receive advance payments which will be made periodically from July 1, 2021, through December 31, 2021.
  4. The Child Tax Credit is now fully refundable, meaning if you have no income you would still be eligible for the Child Tax Credit.
  5. The Child Tax Credit is now extended to Puerto Rico and the U.S. Territories for the first time.

Child and Dependent Care Credit

For the tax year 2021, the American Rescue Plan has raised the dollar limit on employment related child and dependent care expenses and increased the maximum reimbursement percentage for eligible taxpayers.  The dollar limit has been raised from $3,000 to $8,000 for one qualifying child or dependent and from $6,000 to $16,000 for two or more qualifying children or dependents.  Additionally, the maximum reimbursement has increased from 35% to 50%.  As a result, the maximum reimbursement percentage has increased from $4,000 for one qualifying child or dependents to $8,000 for two or more qualifying children or dependents.

Due to the changes made to the Child Tax Credit and Child and Dependent Care Credit for 2021, many eligible taxpayers may receive a tax refund that they do not normally receive.  In the event that you are in a pending divorce action and you have children, it is important to take the changes to the Child Tax Credit and Child and Dependent Care Credit for 2021 into consideration.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  If you need legal assistance, Hanna Kirkpatrick can be reached at 516-393-8295 or hkirkpatrick@jaspanllp.com.

 

As matrimonial attorneys, we often face many new and complicated fact patterns or legal issues that often times could not have been anticipated. Whether it is litigating custody in the middle of a pandemic, or the unfortunate circumstance of having a spouse pass away before the entry of a judgment of divorce – no two divorce cases are the same.

We have blogged extensively about custody and visitation battles that have occurred throughout this pandemic. But what about the other issues that have become unfortunate consequences of this pandemic? Sadly, the country has seen well over 500,000 people pass away. Those individuals had families, lives, careers, friends, the list goes on. Unfortunately, some of those individuals that passed may have had divorce proceedings pending. Some may have even settled those divorce proceedings and were merely waiting for the entry of a judgment of divorce. This blog post will address the legal ramifications of a party’s death after the parties enter into a stipulation of settlement, but before a judgment of divorce in New York.

Some of you may be asking, why is this even important? Well, in many divorce agreements, spouses give up certain rights that they would be entitled to upon the death of the other spouse.  For example, a spouse in New York can contest a will and seek to inherit a certain percentage or amount of assets from the deceased spouse’s estate. Or, let’s say the deceased spouse doesn’t have a will, the surviving spouse will be entitled to receive assets from the estate.[1] So, how does this relate to divorces? Well, technically, even after spouses execute a settlement agreement, distributing assets, setting maintenance and child support obligations, etc., they are not divorced. In fact, parties are not officially divorced until a judge has signed the Judgment of Divorce. So, if a spouse dies after the execution of a settlement agreement, but before the judge signs the judgment of divorce, technically the spouse died as a married individual.  As a result, issues surrounding the deceased spouse’s estate may arise that may not have otherwise existed.

So what can be done? Well, it turns out this issue is not a new one. It did not arise with the onset of the Covid-19 pandemic and will not end when the pandemic does. Case law out of this state has made it clear that courts can sign and enter a judgment of divorce after the death of a spouse if all other issues have been resolved (grounds for divorce, equitable distribution, maintenance, child support, custody, etc.) and the only remaining issue is ministerial, i.e. signing the judgment of divorce. This is because if all issues of the divorce have been resolved prior to the death of a spouse, technically a judgment of divorce would have been able to be entered while both spouses were living.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. Samantha Guido can be reached at 516-393-8250 or sguido@jaspanllp.com.

[1] Please note that this discussion of estates and a spouse’s rights under New York Law to inherit assets from their deceased spouse is in general terms. All estate litigation cases are different and any individual who may have a question regarding estate planning, contesting a will, or any other question regarding wills, trust, etc., should seek advice from a trusts and estate attorney of their choosing. Nothing in this blog post is meant to be legal advice to you.

On Thursday, March 11, 2021, President Joe Biden signed the $1.9 trillion American Rescue Plan into law in an attempt to further combat the disastrous financial impact as a result of the Covid-19 Pandemic.  One of the most talked-about features of the American Rescue Plan is the third round of stimulus payments (aka “Economic Impact Payment”) which will be sent directly to taxpayers.  As with the previous rounds of stimulus payments, the amount you receive is dependent on your adjusted gross income.  To determine if you may be eligible to receive the third stimulus payment, click here.

For the third stimulus payment, eligible taxpayers will receive up to $1,400 for individuals or $2,800 for qualifying married couples, together with $1,400 for each dependent.  Unlike the first stimulus payment, eligible taxpayers will receive a check for all of their dependents claimed on their tax return whereas the first stimulus payment applied only  for dependents under the age of seventeen (17).

While one would assume that the third round of stimulus checks that are being dispersed creates more good than harm, this may not be the case for parties that have just finalized their divorce or are going through the divorce process.  Instead, the third round of stimulus payments potentially adds to the list of battles for parties and their attorneys to fight over.  We previously addressed some of the potential issues that may arise for those parties who have recently divorced or are in a pending divorce action in our blog post discussing the first round of stimulus checks.  Those same issues in that blog post with respect to the first stimulus payment may also apply to the third stimulus payment.  However, the third stimulus payment has the potential to create more issues as a result of the change of the dependency requirement.

For parties in a pending divorce action that may be eligible for the third stimulus payment one of the main issues that may arise is how parties are going to equitably distribute the money received for claimed dependents.  The first stimulus payment only provided $500 for a dependent child who was under the age of seventeen (17).  In contrast, the third stimulus payment provides that eligible taxpayers are to receive $1,400 per dependent claimed on their tax return regardless of their age.  Based on this, eligible parties with three (3) dependents could receive $4,200 ($1,400 per dependent).  Ultimately this means there is more money to be fought over in a pending divorce action, creating the potential for more problems.  If parties cannot determine on their own how the third stimulus payment will be equitably distributed, which includes any money they may receive for their claimed dependents, they will need to seek out the assistance of their counsel and/or guidance from the Court.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  If you need legal assistance, Hanna Kirkpatrick can be reached at 516-393-8295 or hkirkpatrick@jaspanllp.com.