The issue of the discoverability of private social media postings arose in a personal injury action. In the case, the defendant sought to discover the plaintiff’s entire Facebook account including private postings- those postings neither published nor made publicly visible. The defendant wanted to use the private postings to disprove that the plaintiff sustained debilitating injuries. The plaintiff sought to limit the private postings as an invasion of privacy.
New York’s highest court, The Court of Appeals, allowed the private postings to be discovered, noting that if that if the postings were not discoverable a party would then be able to effectively “hide” otherwise discoverable material simply by marking it as private or otherwise curating their own social media postings.
The Court noted that there could be limits to discovering private postings on social media:
Indeed, as the name suggests, the purpose of discovery is to determine if material relevant to a claim or defense exists . . . In the event that judicial intervention becomes necessary, courts should first consider the nature of the event giving rise to the litigation and the injuries claimed, as well as any other information specific to the case, to assess whether relevant material is likely to be found on the Facebook account.
Second, balancing the potential utility of the information sought against any specific “privacy” or other concerns raised by the account holder, the court should issue an order tailored to the particular controversy that identifies the types of materials that must be disclosed while avoiding disclosure of nonrelevant materials. . . Temporal limitations may also be appropriate—for example, the court should consider whether photographs or messages posted years before an accident are likely to be germane to the litigation. Moreover, to the extent the account may contain sensitive or embarrassing materials of marginal relevance, the account holder can seek protection from the court (see CPLR 3103[a] ). Here, for example, Supreme Court exempted from disclosure any photographs of plaintiff depicting nudity or romantic encounters.
While discovery in divorces is generally limited to financial issues, the disclosure of romantic encounters could be relevant to establish marital waste. Likewise, postings about purchases, travel and large expenditures could be relevant to undermine a parties’ economic claims.
The moral of the story is everything posted on social media may be used in against you if you are involved in contested divorce. The wiser course of action, until your case is settled, stay off social media.
If you have questions about your divorce, contact us!
The clock is ticking; 2018 will be the last year maintenance in New York (alimony virtually everywhere else will be deductible. The recently enacted tax bill eliminates the tax deduction for the payment of alimony.
Historically, maintenance has been deductible to the paying spouse and includable as income to the recipient spouse. Child support, on the other hand, was a tax neutral payment and is neither deductible to the payor nor taxable to the recipient.
By definition, the spouse paying maintenance would be in higher tax bracket then the recipient spouse. Because of this, attorneys were able to leverage the difference in tax rates between the monied and non-monied spouses to, in part, put more money in the hands of the non-monied spouse at a nominal cost to the payor spouse.
Suppose, for example, a high earning husband in the 50% tax bracket and is paying his wife $100,000 a year in alimony. On a cash flow basis he would be paying maintenance of $100,000, but, because of the tax deduction, his spousal support would actually only cost him on $50,000 after the payment is tax impacted (@50% tax rate on a $100,000 payment).
On the other hand, the wife would receive the $100,000, but after tax (assuming a 25% tax bracket) she would be left with $75,000. This tax impacted payment often was called the “divorce subsidy” because the spouse receiving maintenance payment would be receiving more in after-tax dollars than the spouse was actually paying.
This ability to leverage the parties’ tax rates was particularly beneficial when the payor spouse was paying child in addition to maintenance. The divorce subsidy could be extended by apportioning some part of the non-taxable child support payment taxable maintenance. The payments could be “netted” up so that payor would be in the same place if the payment were tax neutral. The recipient, on the other hand, had more cash in hand
The Future of Spousal Maintenance in New York
New York’s maintenance guidelines, like the Child Support guidelines, are used to calculate the payments based on the parties’ income before consideration of federal and state taxes. It can reasonably be anticipated that the maintenance guidelines will need to be revised to account for the loss of the tax deduction.
Alternatively, if the guidelines are not amended, the parties will be left to negotiate how to tax impact the maintenance payments. Any maintenance guideline calculation would have to be discounted to take into account the tax consequences.
In addition, while maintenance will be deductible to parties with agreements in place before December 31, 2018, any modifications after January 1, 2019, would eliminate the tax deduction. In this case, a party, who lost a job and is seeking a downward modification of a maintenance payment, may get a reduction in the amount of the payment, but lose the ability to deduct it.
I can predict that in December there will be a mad rush to settle cases where maintenance is contemplated.
If you have questions about maintenance in New York, contact us or call us directly at 212-683-9551.
Eighteen years, eighteen years
She got one of yo kids got you for 18 years
I know somebody paying child support for one of his kids
His baby momma's car and crib is bigger than his
You will see him on TV, Any Given Sunday
Win the Superbowl and drive off in a Hyundai
She was spose to buy ya shorty TYCO with ya money
She went to the doctor got lypo with ya money
She walking around looking like Micheal with ya money
Should of got that insured got GEICO for ya money
If you ain't no punk holla We Want Prenup
We want prenup!, yeah
It's something that you need to have
'Cause when she leave yo ass she gone leave with half…
-Gold Digger Kanye West
One sure way to protect yourself from financial ruin when a loving marriage ends in a divorce is to have a prenuptial agreement in place. A prenup can establish your post-divorce lifestyle and fix your financial responsibilities and rights even before you wed.
A prenup in New York can completely eliminate or limit maintenance payments. It could also define what happens to property acquired during the marriage. Absent a prenup, the higher earning spouse may be required to pay maintenance to the other spouse as determined by a statutory formula. The prenuptial agreement could over-write the law and eliminate this obligation.
Likewise, a properly executed prenuptial agreement can provide how property will be divided if there is a divorce. Under New York law, marital property is equitably distributed. A prenup can define what, if any, property is marital and how the marital property will be distributed.
What New York Prenups Can and Can’t Do
The prenup cannot only address post-divorce issues, but marital life. The agreement could provide for how expenses during the marriage are paid, how marital bank accounts are funded and how assets, like the marital home, are titled. The only things that cannot be addressed in a prenuptial agreement are issues involving child custody or child support. Those issues can only be addressed if, and when the parties divorce.
In short, prenups are not only used to provide protection against gold-diggers, but they are also appropriate when one spouse:
Comes into the relationship with substantial assets that require protection from the claims of your prospective spouse;
Has children from a prior relationship and wants to secure their inheritance rights.
Runs a business and wants to protect his/her business interests.
Wants to identify his/her separate or pre-marital property.
If you are contemplating marriage, we can assist you in drafting and negotiating a prenup agreement and we will do it right. Please contact us or call us at 212-683-9551.
Hard to believe, divorce in New York may get even more expensive. The tax bill proposed in the House of Representatives, last week, seeks to eliminate the deduction for alimony payments.
The new tax law attempts to eliminate what has been called a “divorce subsidy.” Under the existing law, the party paying alimony may deduct the payment and the party receiving alimony would include the payment in his/her income for tax purposes. Since the payor of spousal support would be in a higher tax bracket than the recipient, the payor’s tax deduction would be larger than the recipient’s tax liability resulting from the support payment.
In real terms, if the party was making a maintenance payment of $100 and was in the highest federal tax bracket (39%), the real cost of the maintenance payment would be $61.00. On the other hand, the recipient, in the lowest bracket (15%) would receive $100, have a tax liability of $15, and receive an actual benefit of $85.
By being able to leverage the differences in the parties’ tax rates, payments between future ex-spouses can be structured in a tax-efficient way. Absent the alimony deduction, the real cost to the payor in the above example would be the full $100 payment.
Sine the recently enacted New York maintenance guidelines were drafted with the “assumption” that the maintenance payments would be tax deductible, if the new tax law is enacted, I would anticipate that the maintenance guidelines would need to be re-formulated to ensure that they are not confiscatory in application.
Given that this tax reform bill was just introduced and is in its first iteration, we will have to keep on it to what if, any changes, are made to alimony deduction. If enacted, the tax law will become effective on January 1, 2017. So, if your divorce settlement contemplates you paying maintenance, do what you must to finalize the divorce as soon as possible– your savings could be substantial. On the other hand, if you are to receive payments, it could be beneficial if you can delay the entry of the divorce until the beginning of the year.
Whether you just decided you want a divorce or you have been served with a summons for divorce, it's time to contact a divorce lawyer in NYC. With the right attorney on your side, your legal rights and interests will be protected.
Divorce is ugly, but it doesn't have to become your worst nightmare. With the right divorce lawyer on your side, you'll have someone ready to guide you through the issues that come with divorce.
Divorce is rarely a happy thing and often filled with animosity and plenty of tension. When the most meaningful relationship in your life comes to an end, it's necessary to be represented by an attorney with a pragmatic approach to the legal and financial side of divorce.
Hiring the Right New York City Divorce Lawyer
With a good attorney on your side, you won't have to worry nearly as much. Daniel Clement is the right choice. Your relationship is coming to an end and Daniel understands how challenging this time in your life can be. He will help you to make the right decisions so that you can move forward with your life instead of remaining stuck in the past.
When you hire the right divorce lawyer in NYC, you'll get someone ready to work hard to ensure your needs and wants are addressed. With Daniel Clement on your side, you'll have an attorney ready to help you achieve your goals as you go through the divorce process.
What to Expect with Divorce
You can be divorced in a few different ways. A divorce can be uncontested. In the case of an uncontested divorce, the parties, with the help of their attorneys, negotiate a settlement agreement and then uncontested divorce papers are filed in court. When this happens, you can be divorced rather quickly and it doesnot have to be incredibly expensive.
While a divorce without a trial may be ideal, it's not always the reality. Sometimes, it's necessary to take the divorce to court and settle the issue.
Whether your divorce happens settles out of court or is litigated and requires court intervention, Daniel Clement will be right by your side throughout the entire process.
Legal Grounds for a NYC Divorce
In the state of New York, thelegal grounds for are:
Living separate pursuant a separation agreement
Cruel and Inhuman treatment
The irretrievable breakdown of the marriage
No matter the reason for filing a divorce, you need a good divorce lawyer in NYC. Without a good attorney on your side, you could end up out in the cold without much left. You have rights and you need to protect those rights as you go through the divorce process with your soon to be ex-spouse.
Hiring the Best NYC Divorce Lawyer for the Job
When divorce cannot be avoided, you need to be protected by a skilled and experienced attorney. When you retainer Daniel Clement to represent your divorce, you will get you someone with more than 30 years of experienced. He has actually been selected as a Super Lawyer.
If you're going through a divorce or you want to file for divorce, contact Daniel Clement today and find out how the Law Offices of Daniel E. Clement can help you.
Hiring the right divorce lawyer in Manhattan will certainly make a difference. Manhattan is a very affluent area within New York City and many of the divorce cases in the area are considered to be high net worth divorces. Millions of dollars and assets may be at stake; the right divorce attorney could make all the difference.
Preparing for a High Net Worth Divorce
When it's time to part ways with your spouse, it's time to protect your assets, especially if you did not sign a pre-nuptial agreement before your married. The right divorce lawyer in Manhattan will protect your rights and your assets.
When divorce becomes a part of your life, decisions are clouded by emotion which fuel your disagreements. The battles can turn into an all-out war, but they don't have to. With the right attorney helping you through your divorce, you won't have to go through the divorce yourself. A good divorce lawyer in Manhattan can settle your divorce without going to trial.
At the outset, you will need to prepare for divorce, become informed and set your goals. Communicate your goals to your divorce attorney. Of course, you will want to make sure your Manhattan divorce lawyer has plenty of experience.
If children are involved, the divorce will become about more than just assets. A good divorce lawyer will be able to help you set realistic expectations when it comes to custody and child support. You should be prepared for what life will look like after divorce and the right attorney will become a tremendous help in this area.
Hiring Your Manhattan Divorce Lawyer
Experience plays a big role in finding the right attorney for your needs. If your divorce falls into the category of a high net worth divorce, you'll want to find a divorce lawyer in Manhattan with experience in these types of cases. You certainly don't want a rookie handling your divorce with millions of dollars worth of assets on the line.
Why Hire Daniel Clement
Daniel Clement is not only a dedicated, hard-working divorce attorney in Manhattan, but he is experienced in all aspects of divorce including distributing assets, maintenance, child custody and child support. With more than 30 years of experience in this arena, he knows how to ensure you get what you deserve during a divorce
While breaking up a marriage is never ideal, it happens. You may not even be the one wanting a divorce, but you still need to be protected. Financial, legal and psychological consequences are all a part of divorce. This emotional time can have you thinking irrationally, but with the right divorce attorney on your side, you'll have someone with their head in the game.
Protect yourself by hiring an experienced and skilled divorce attorney in Manhattan. Call The Law Offices of Daniel E. Clement and find out how we can help you with your divorce case, child custody, child support and even a high net worth divorce.
In New York, there is a “presumption of legitimacy” which provides that a child born during a marriage is presumed to be the married couples’ child. A New York appeals court ruled that this presumption should apply equally to both heterosexual and same-sex couples.
This is a logical extension of the Court of Appeals decision in Matter of Brooke S.B. v. Elizabeth A.C.C., in which New York’s highest court expanded the definition of “parenthood” to include the nonmarried, ex-partner of a biological parent. The court in Brook S. B. declared that either party could seek custody or visitation rights of children resulting from the same-sex relationship. The Brook S.B. case is discussed at length here.
This latest case goes even further than the decision in Brooke S.B. in expanding the parental rights of same-sex couples. Now, not only can either party seek custody or visitation if the same sex relationship dissolves, but now, since the child is presumed to be the legitimate child of both parties, it would be unnecessary for the non-biological parent to formally adopt the child in order to establish his/her paternity rights. Like a child born to heterosexual parents, the child of a same-sex couple will be presumed legitimate, and its parents will enjoy all the rights of natural parents.
This is not the first case to deal with the presumption of legitimacy for same-sex parents in New York, but, I believe, it is the first appellate decision. This case, therefore, must be followed by the trial court in Manhattan and will be persuasive throughout the remainder of New York State.
This decision is a continuation of the progress made in bestowing same sex-couples the same rights as possessed by heterosexual married couples. It further is recognition that even though it is impossible for both same-sex parents to be a child’s biologic parent, in a marriage, this strong presumption will trump science.
Huma Abedin filed a motion to have her New York divorce against Anthony Weiner calendared, docketed and heard secretly. The request would allow their divorce to be listed on the New York County Supreme Court’s dockets as “Anonymous v. Anonymous” This move would, in effect, shield the parties from the glare of the news media.
Divorce filings in New York are immune from glaring eyes of the press, nosey relations, and other gossips. Only the parties and their attorneys can access court papers filed in connection with a divorce. The court’s calendars, which list cases by litigant’s names, are readily available and the courtrooms are open to the public. Making a case anonymous so the case is designated “Anonymous v. Anonymous” makes it much more difficult to follow.
Cases are listed as anonymous sparingly and only when circumstances require it. In child custody cases, the court makes a case anonymous only to protect the health and welfare of the children.
Despite, this seemingly high threshold, it is common for celebrity divorces to be captioned anonymously
Against this backdrop, Ms. Aberdin requested that her divorce be anonymous because there was a child involved. Understandably, this divorce which encompasses presidential and New York mayoral politics, an FBI investigation, pornography, and sexting would be a magnet for press coverage.
Before denying the request the judge, surveying the courtroom packed with the press noted:
I appreciate the parties’ request to keep this as quiet as possible, but as a practical matter, it does not appear to me that despite your attempt to have this be anonymous, it’s particularly anonymous.
Those who want to follow the case can do so under caption Abedin v. Weiner.
Whether you a celebrity or person in the spotlight and need an anonymous divorce or you can proceed in the normal course, contact us or call us directly at 212-683-9551.
What happens when a couple separates, but for some reason, despite the passage of time, don’t divorce? Suppose still further that during the long separation when the parties have been married but living separately, one of the parties acquires some wealth? Are the assets acquired during the long separation marital and subject to equitable distribution? Are the assets the separate property of the spouse who acquired them?
A recent case involving the entertainer Ben Vereen supplies the answer. The Vereens married on February 10, 1965, and permanently separated in 1966- long before Mr. Vereen acquired some level of celebrity. Apparently, the Vereens were separated for so long that they had forgotten that they were divorced in 1974.
In 2016, Ben again filed for divorce in New York. Though the parties had not been together for more than four decades, his wife sought equitable distribution of the assets he acquired during their long separation.
Even had the parties not previously divorced, Mrs. Vereen would have no right to equitable distribution. The theory of equitable distribution in a New York divorce is that marriage is an economic partnership. Assets acquired during partnership should be shared between the partners when the partnership dissolves.
As the Court noted, when the parties separated, both were young, and Mr. Vereen's career was just beginning. In seeking equitable distribution, Ms. Vereen failed to address the economic circumstances of the parties when they separated, but instead sought equitable distribution resulting from the celebrity and economic success Mr. Vereen achieved after they separated.
In denying Mrs. Vereen equitable distribution, the Court relied on a litany of precedents which provide:
no award of equitable distribution or maintenance was appropriate where the parties had been physically, although not legally, separated for approximately 30 years; although the husband was a very wealthy man who owned several companies and properties in Nigeria, the wife's 30-year delay in seeking money or property from him was insufficient to warrant an award of the requested relief; because the economic partnership of the parties ended three decades ago, it would be inequitable to make any award of money or property to plaintiff where the husband's wealth did not result from her direct or indirect contributions
In order to divide assets acquired during a marriage, it is not enough to show that you are legally married. Evidence must be presented demonstrating that the marriage was, in fact, an economic partnership, with each of the parties contributing to the acquisition of the claimed marital assets.
If you are seeking a divorce, contact us. We are here to protect all of your property rights.
There is a welcome trend in child custody cases in New York- parents, the courts and even New York divorce attorneys, are all recognizing the importance of both parents being engaged in making decisions effecting their children’s health, education and welfare. Rather than vesting one parent with child custody and decision making authority, now many custody disputes are being resolved in a way to give both parents say in making major decisions for their children.
Even without court intervention, with ever-increasing frequency, divorcing parents in New York are agreeing to some form of joint decision-making. This arrangement, which is commonly referred to as "joint custody" or "joint legal custody," enables both parents to have meaningful input into what happens in their child's life.
While a shared decision making is aspirational, it is not appropriate for everyone. There are cases where the parties either are just too contentious to jointly make decisions or shared custody is just not appropriate (i.e., in cases of domestic violence, drug or alcohol abuse etc.)
How Child Custody Decided in New York
A recent case provided a survey of the law regarding decision making in custody cases in New York. Not only is the case informative as it relates to legal issues, it is enlightening as Justice Cooper shares his candid impressions of the parties and how it affected his opinions.
The decision begins by addressing four ways decision making in custody cases can be handled. Decision making in custody case in New York can be made:
Jointly- all major decisions are made collectively by both parents.
Spheres of influence, where each parent is assigned specific areas where that parent has final decision-making authority
Sole custody, where one of the parties is dysfunctional, lacks adequate parenting skills, or is suffering from some infirmity, so that it would be improvident to allow him/her to participate in making decisions for their children.
Hybrid cases where the parents are deadlocked and unable to make joint decisions. The decision making is effectively given to an “expert” such as a parent-coordinator, educational consultant, or pediatrician, to cast the deciding vote.
Describing the importance of the custodial designation, the Court opined:
Because the word is defined as the "care and control" of another, the granting of custody to one parent can be seen as a declaration that the other parent has no role, or at best, a decidedly secondary role, in raising the child. Thus, it makes sense, wherever possible, to avoid using the word in favor of more neutral terms that do not give rise to the negative associations that come with being designated the non-custodial parent
. . . .even in a situation where hostility and poor-communication abound, courts, when called upon to designate legal custody, should opt, if at all possible, for designating both parents joint custodial parents, rather than making one the custodial and the other the non-custodial parent. . .To designate [a father] a non-custodial parent would, in effect, label him — to the child and the rest of the world — as being somehow defective and inferior to the mother, who, in turn, would wear the crown of custodial parent.
Sole or Joint Custody and Decision Making
For this reason, the Court explicitly rejected awarding of one parent the authority to make all decisions because the end result would marginalize the parent denied decision making and would decrease the likelihood of cooperation between the parties. Instead, the Court relied on two earlier cases and award each parent decision making authority in specific areas.
In Mars v Mars,, the first case the Court relied on, it noted that
It is undisputed that each parent takes an active interest in the children's lives and that it is in the children's best interest that both parents remain involved with them, notwithstanding the parents' present intolerance for each other .... While there is significant precedent for dividing decision-making between parents, we are aware of no precedent for completely depriving a non-custodial parent, who is otherwise to remain fully involved with the children's lives, of decision-making in all areas.
It found that it was in the child's best interests to divide authority so as "to maintain the respective role of each parent in the child's life." With the mother as the "child's primary caretaker," the court found that granting zones to the father took into consideration "the strengths and weaknesses of both parents"and the "child's need for nurturing, guidance and the meaningful involvement of both parents."
Spheres of Influence Decision-Making
The Court then addressed the two major areas where decisions must be made, medical and educational issues. After consulting with the other parent, each parent was granted the authority to make the decision is specific areas within their “wheelhouse”- the father for educational issues because he was involved in both the parent association of the child’s school and was a trustee of his college, and the mother because she was better attuned to the child’s physical needs. It was noteworthy, that the Court also ordered that the parents consult with a parenting coordinator to assure that parents actually consulted with each other.
Undoubtedly, children fare best in a stress-free environment where parents are both on-board in making unified decisions. Unfortunately, parents who are no longer together, may have competing agendas for rearing their children. I do believe that parents can put their competing interests aside and do what is necessary to jointly make decisions in the best interests of their children.