Tuesday, May 29, 2012

Divorce Hotel: A Weekend of Mediation?

This weekend's New York Times had a feature on a Netherlands based company that provides a "Divorce Hotel" where couples can spend a weekend mediating their disagreements in the hopes that they can resolve their issues and get a divorce.  So far, the company has struck up deals with six hotels in Netherlands, where the staff are advised that the guests participating in the program are to be treated differently than a regular hotel guest.  When the couple checks out, they are hopefully ready to show papers to a judge to finalize their divorce.  The article does point out, however, that "most breakups are too complicated - or, frankly, too acrimonious - to be worked out in a cozy hotel room somewhere."

According to the story, of the 17 couples who have tried it so far, all but one left "divorce ready", but that doesn't mean they are actually divorced.  The purpose of the weekend is to create a settlement agreement that would be ready to present to a judge.  While the process is different in each state here in the United States, this approach ignores many of the ancillary required filings to formalize a divorce judgment.  The resulting document would likely be similar to the legal document preparation services online these days, they provide you with forms, but it is left to you to get it right.  If the form is incorrect, they assume no liability for the problems that result.

In the case of individuals with child custody concerns or complex financial arrangements, a weekend spent in a hotel attempting to mediate your differences will likely lead to more frustrations than answers.  Especially where one spouse has been hiding assets or engaging in other spurious behavior, a weekend of mediation may result in a very unfair settlement for the spouse who is unaware of what is truly going on.  And while the cost for the program range from $3,500 to $10,000 depending on the complexity assigned to their relationship by the company, for that same price, many couples would benefit from actual legal advice to help them resolve their divorce matters.

Of course, because we live in a voyeuristic society, the article also points out that Base Productions is planning a reality show around participants in a weekend at a divorce hotel.  The producers believe the audience could be huge, despite the obvious privacy concerns of letting a television crew film what is probably the most dramatic and sensitive arguments you may ever encounter.

In the end, the hopes are that couples could avoid the length and delay of proceeding with a divorce in the court system, but such an informal process seems fraught with problems and concerns for couples who need legal advice when divorcing.

For more information on divorce practice and the ways to move your matter forward or to schedule a consultation, please call my office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.

Friday, May 11, 2012

Can I Claim My Child as an Exemption on My Taxes?

The question of which parent can claim their child as an exemption on their tax returns after a divorce comes up very often, even being litigated on occasion by parties.  Last week, the U.S. Tax Court issued a Summary Opinion in Scalone v. Commissioner of Internal Revenue, again explaining the requirements for claiming a child as a dependent exemption.

The Scalone's were divorced years ago (in 2001) and under the terms of their separation agreement, Mr. Scalone was entitled to claim the parties' child as a dependent on his tax returns going forward from the year 2000.  In 2006, Mrs. Scalone refused to sign the required IRS form and when Mr. Scalone claimed the child on his taxes for that year by attaching a copy of the parties' separation agreement, litigation ensued.

The opinion does a good job of explaining the basic operations of the child dependent exemption, including the use of IRS Form 8332 for filing with the tax return.  Using that form usually resolves these matters and no red flags are raised.

The underlying issue is what qualifies a child as a "dependent" under the tax regulations.  As the Court describes it

But "dependent" is one of those English words that the Code tortures into having a very specific meaning: A "dependent" child in tax law means a child who gets more than half her support from a taxpayer with whom she lives for more than half of the year.  See, sec. 152(a)(1), (c)(1).  The general rule for children of divorced parents is that the "custodial" parent gets to claim them as dependents, but the divorce decree or separation agreement can say otherwise.  Sec. 1.152-4(c), Income Tax Regs.

The Court explains that the above is a "general" rule with a variety of exceptions, including using a declaration from the custodial parent that they won't claim the child and the declaration is attached to the non-custodial parent's tax return.  In Scalone, the Court looked into the attachment of the separation agreement and if it provided enough information to entitle Mr. Scalone to claim the child as a dependent on his tax return.

In the end, the Court found that although the separation agreement didn't include the parties' social security numbers, that oversight wasn't fatal and the agreement was treated as a declaration entitling Mr. Scalone to taking his child as a dependent in 2006.

For more information on family law and the dependent deduction for purposes of your tax return or to schedule a consultation, please call my office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.

Wednesday, May 9, 2012

When Will the Court Sign My Divorce Judgment?

There are many people who experience the agony of a lengthy wait for their divorce judgment to finally be signed.  While Kim Kardashian may find ways to speed up the process, many people are stuck waiting for months.  A novel way to send a message popped up online this week, a holiday poem that has gotten an attorney in a bit of trouble.  The poem, posted on Above the Law, details yet another lengthy divorce that seemingly will never end, but it seems that the poster may be in a bit of trouble for his creativity.

The frustration of a litigant trapped in a seemingly never-ending family law matter is all too common.  This week, I had a consultation with a woman whose child is already past the age of emancipation, but the father of the child continues to file applications with the Court to change custody, to get child support and for other relief.  Despite the child being an adult, being pregnant and getting ready to get married, the father will not allow the mother and the daughter to move on with their lives.

It is these types of cases that are the source of endless frustration for litigants who are forced to pay years of legal fees for cases that should have been resolved.  Although the Court has a role of gatekeeper to hopefully stop these baseless claims, they always seem to find their way through and get on the court's calendar.  Currently, a good portion of my family law practice is taken up with these types of cases that seem to have no end in sight.  Even with motion practice and aggressive representation, to many clients it appears that their case will never end.

While I don't recommend the approach used by A. Todd Merolla in his case, there needs to be some way to ensure that these cases are wrapped up in a timely manner for the mental well-being of all involved.

For more information on divorce practice and the ways to move your matter forward or to schedule a consultation, please call my office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.

Monday, May 7, 2012

What Do I Do When My Spouse Hides Assets?

It used to be a lot easier to hide assets and money from your spouse.  Often, it took a lot of detective work, subpoenas and forensic accountants to uncover the true nature of your spouse's assets.  Now as more people use online banking and online access to financial and real estate records, putting together a dossier of a person's actual financial picture can be done in a cost-effective way.  Last week, the Wall Street Journal focused on this issue in its Wealth Adviser Section article Why Hiding Money From Your Spouse Has Gotten a Lot Harder.

The article cites to some interesting statistics, including

  • 31% of adults who have combined assets admitting they have been deceptive about money;
  • 58% of those adults admit they hid cash;
  • 15% of those adults hid a bank account; and
  • 34% of them lied about finances, debt or money earned.

With the exception of hiding cash, these statistics play directly into the ever expanding world of "e-discovery" that is used in the practice of law - the production of electronic records and information.  As odd as it seems, the low-tech method of cash stored in a shoe box in your attic (which I have seen employed by plenty of individuals over the years) seems to be one of the better methods to hide your money these days.

The Wall Street Journal also looks at statistics tied to lawsuits, including

  • 92% of divorce lawyers seeing more cases using evidence from smart phones in the past 3 years; and
  • 66% of the lawyers citing Facebook as the top source of compromising information online.

With all of the information available online and the ability to quickly get access to this information, it is important to consider all of the information you post online, no matter what forum.  It's no longer just your employer that is monitoring you, it is likely your spouse as well.

For more information on family law and the discovery of assets or to schedule a consultation, please call the office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.

Thursday, May 3, 2012

Kim Kardashian and Kanye West Getting Married?

Apparently it hasn't taken long for Kim Kardashian to get ready to walk down the aisle again, this time with Kanye West.  While most people love weddings, Ms. Kardashian may have forgotten a little fact: she is still married to Mr. Humphries and it's hard to find a place to allow you to get married to someone else when you are still married, or bigamy as the legal statutes define it.

This situation arises more often than you would think, but without the publicity that comes along with a celebrity wedding.  Even this week, a former client reached out to me to help obtain certified copies of her divorce judgment because she was getting re-married and had to provide a certified copy of the judgment to get her marriage license here in New York.

One of the more common cases when this arises is a case that is similar in a way to Ms. Kardashian, when you've submitted your divorce documents and are awaiting your Judgment of Divorce and meet someone else and would like to get remarried.  Unfortunately, the paperwork process of a divorce can take a significant amount of time, up to one year after the submission of the papers, and can cause a barrier to the perfect summer wedding that you want to plan with your new beau.

When this happens, it helps to have a lawyer on call to help you speed things up.  With a certain amount of evidence on your side, you can petition a Court to review and sign your divorce paperwork sooner than scheduled.  I have a feeling that if Ms. Kardashian (or more likely, Ms. Jenner) really wants this marriage to Kanye West to happen immediately, we'll see some type of legal machination to get the divorce from Kris Humphries resolved quickly so that perfect summer wedding can make it on to E! this summer.

For more information on divorce practice or to schedule a consultation, please call the office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.

Wednesday, May 2, 2012

Payday Loan Scams

Recently I've encountered an increase in consultations for people who are getting harassed by "payday loan" companies who have allegedly hired a law firm to collect money for them.  This week's scam was particularly worrisome as they were preying on a retired client of mine who lives on a fixed income and is now without more than $1,000 that he could use to live on.

The scam seems to go like this: you get a call from a "lawyer" representing a payday loan company who informs you that if you do not pay them within a few hours, you will be arrested.  When you attempt to arrange for a payment by check, credit card or other means, you are told that only cash or a "MoneyPak" will suffice (MoneyPak must know that they are being used this way as there is even a "Fraud" warning section on their product).  You get the MoneyPak, you provide them the number, and you never hear from them again, at least until the next time they attempt to prey upon you.

It appears what has really happened is that the money has been sent overseas to a company that is using VOIP technology to fake their presence in the United States.  If you ask the person on the phone any questions, they get angry at you, refuse to answer and say that they are sending an officer to your home or work to arrest you.

If they do provide you any information, it is usually the name of a law firm (who has no connection to the scam and who has no idea their identity is being used for collections purposes) who is supposedly collecting the debt for the loan company.  They will refuse to tell you their name, the information regarding the loan you supposedly owe money upon or any other information regarding the debt.

Unfortunately, if you send them any money, you will likely never see it again.  When you look up the telephone number they called from on the internet, you will find a list of people who were also scammed. When you look up the attorney who supposedly called you, you find it's from a state where you've never been and an attorney who does not practice collections law.  When you contact MoneyPak to get your money back, you'll find that there is no way to get your money back.

The FBI is aware of this scam, http://www.fbi.gov/scams-safety/e-scams, but unless people actually question the caller and ask the questions, this scheme will continue to prey upon innocent people who can't afford to lose their hard earned money.

For more information on defending yourself against these scams or to schedule a consultation, please call the office (718.568.0221) or visit my website (AndrewMAyers.com) for more information.