Westchester Divorce Blog

Jim Ehlers showed up at the courthouse in hopes of ending a grisly chapter in the life of his daughter.  Upon his departure from the courthouse, the story of his life as a father was beginning.

Ehlers now finds himself scheduling trips to go shopping for school clothes and parent-teacher meetings.  Suddenly he’s making reservations at Chuck E. Cheese for his daughter’s sixth birthday party.

For over a month, Ehlers’ daughter and her two half-sisters were trapped in a legal limbo between grandparents who wished to care for them, and a stalling court system which was threatening to return the girls to the custody of their abusive mother.

On Monday, August 11^th, Judge Greg Wilhelm of the Ellis County, Texas, approved the verdict of a jury giving Ehlers custody of his daughter and placing her 8- and 4-year-old siblings into the care of the state.

Through testimony in the trial that lasted a month, it was revealed that Susan Hyde, the mother, had been abusing the girls by treating them for illnesses they never had.  She treated the girls for ailments such as cystic fibrosis, cerebral palsy, and seizures.  In a four-year period, they visited the emergency room more than 150 times.

During the trial, doctors testified that Hyde’s behavior could be described as Munchausen syndrome and Munchausen syndrome by proxy, which are both psychological disorders in which people exaggerate or create false symptoms. Munchausen by proxy is characterized by a parent making a child appear to be sick, possibly even harming the child.

On June 30^th , a 12-member jury reached the decision to terminate the rights of the mother and place the children in the care of the state.  Some jurors said they didn’t believe the grandparents had done enough to protect the children from their mother.  However, until Monday, Judge Wilhelm had yet to approve the verdict the jury had reached, which left the children with their grandparents.  Had he not reached a ruling by September 1^st, the children would have returned to the custody of their mother.

Brian and Patricia Anderson, the grandparents, say they plan to appeal. 

Ehlers’s daughter will join him in Davenport, Iowa.  The other two girls will enter foster care in Texas.

Original source:  Dallas News

August 14th 2008 Posted to Custody and Visitation
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Here’s one we haven’t seen out of the Westchester courts.

A New Zealand judge is tired of parents who give their children bizarre names, and he has given a 9-year-old girl named “Talula Does the Hula From Hawaii” an opportunity to change hers by ruling that she become a ward of the court.

Judge Rob Murfitt’s decision came during a custody battle between the girl’s separated parents.  He expressed concern in his ruling at the “very poor judgment” the parents showed in naming the girl.

Murfitt said, “It makes a fool of the child and sets her up with a social disability and handicap, unnecessarily.”

The girl’s attorney told the court that the name embarrassed her so greatly that she refused to tell her friends, instead insisting that people call her “K.”

The judge’s ruling was handed down in February, but wasn’t made public until it was published in the New Zealand law reports on July 24.  In the interest of protection of her identity, the girl’s new name will not be released to the public.

Murfit also cited a list of strange names couples have given their children in his ruling.  He said names that registration officials blocked included “Yeah Detroit,” “Keenan Got Lucy,” and “Sex Fruit.” However, names like “Number 16 Bus Shelter” and “Violence” have been allowed.

August 05th 2008 Posted to Custody and Visitation
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Q:  Could you discuss Social Security benefits for divorced couples?  For example, can a divorced spouse who has never worked claim Social Security benefits based on the record of the spouse who has worked the requisite time?  What happens if the “working” spouse remarries?  Can his new spouse, who also has never worked, also claim Social Security benefits?

A:  A divorced spouse will be able to collect retirement benefits from Social Security based on the work record of a former spouse with no effect upon the latter’s retirement benefit or his or her current spouse, if remarried.  In fact, a person will not even been notified by the Social Security Administration if a retirement benefit based on that person’s earnings record is collected by a former spouse.

According to an SSA spokesman, typically, a divorced spouse who has never been employed can claim Social Security based on a “working” former spouse’s record.  If the divorced spouse wishes to collect on that record, the working spouse must be at least age 52, and either be collecting, or be eligible to collect, retirement benefits from Social Security.  The divorced spouse is also required to be at least 62-years-old and unmarried.

Another important requirement is that a couple’s marriage must have lasted for at least 10 years before the divorce is finalized for the divorced spouse to receive retirement benefits based on the working spouse’s work record.

The size of the benefit the divorced spouse will receive depends upon the age at which he or she first files to receive benefits, in addition to the size of the benefit of the working spouse at his or her full retirement age.

The divorced spouse is also eligible to receive widow’s benefits upon the death of the working spouse (referred to as “divorced survivor benefits” by the SSA).

Original Source:  Wall Street Journal Online 

July 31st 2008 Posted to Finances
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For us, as matrimonial and family lawyers, the answer is always a resounding “Yes!”  But for you out there who need more elaborate and concrete explanations, we recently came across a blog dedicated to prenuptial agreements: www.prenuptialagreements.org. 

One of the better posts we found on the blog so far was titled 8 Reasons Why You Should Have a Prenup.

The 8 Important Reason pointed out in the blog are:

1. You are much wealthier than your partner. A prenuptial agreement can ensure that your partner is marrying you for who you are, and not for your money.

2. You earn much more than your partner. A prenuptial agreement can be used in many states to limit the amount of alimony that is payable.

3. You are remarrying. When you remarry, your legal and financial concerns are often very different than in your first marriage. You may have children from a previous marriage, support obligations, and own a home or other significant assets. A prenuptial agreement can ensure that when you pass away, your assets are distributed according to your wishes, and that neither your first family, nor your new family is cut off.

4. Your partner has a high debt load. If you are marrying someone with a significant debt load, and don’t want to be responsible for these debts if your marriage ends, then a prenuptial agreement can help ensure that this does not happen.

5. You own part of a business. Without a prenuptial agreement, when your marriage ends, your spouse could end up owning a share of your business. Your business partners may not want this to happen. A prenup can ensure that your spouse does not become an unwanted partner in your business.

6. To prevent your spouse from overturning your estate plan. A prenuptial agreement can ensure that you estate plan works, and, for instance, ensure that a specific heirloom remains in your family.

7. You are much poorer than your partner. Just as a prenuptial agreement can be used to protect a spouse who is well off, a prenup can also be used to ensure that the partner who is weaker financially is protected.

8. If you plan to quit your job to raise children. Quitting your job will negatively impact your income and your wealth. A prenuptial agreement can ensure that the financial burden of raising the children is shared fairly by both partners. 

As we pointed out in a prior post, a prenup makes so much financial sense in almost all circumstances that we call them “Smart-Nups”!

July 28th 2008 Posted to Pre-Nuptial/Post-Nuptial Agreements
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A playwright who made an international spectacle of her husband’s alleged impotence on YouTube acted in a “cruel and inhuman” manner toward her spouse, a Manhattan judge has ruled.

In granting a divorce to Philip J. Smith, Acting Supreme Court Justice Harold B. Beeler found that Tricia Walsh-Smith’s “exposure” of his private life caused him “enormous mental distress.” While Ms. Walsh-Smith might never “in her wildest dreams” have anticipated that her “public rant” against Mr. Smith, 76, president of the Shubert Foundation, and his daughters would become a media sensation, she nonetheless “persisted in exploiting its popularity,” the judge said.

Ms. Walsh-Smith not only made three more videos to draw attention to her plight, but appeared numerous times on a tabloid TV program to humiliate and “pressure” her husband into giving her a more lucrative financial settlement, the judge noted.

“To this day,” he wrote, Mr. Smith, who has a heart condition and “simply wanted to be left alone,” “is uncertain whether, in defendant’s words a ‘big hammer’ will fall on him, exposing even more embarrassing details of his personal life.” Given Ms. Walsh-Smith’s YouTube postings and “her exploitation thereof in the media circus” that ensued, “there is no doubt that her conduct, taken in its totality, has now so endangered the plaintiff’s physical or mental well-being as to render it unsafe or improper for him to cohabit with the defendant,” the judge concluded in Smith v. Walsh-Smith, 311784/07.

Original Source: New York Law Journal (Noeleen G. Walder), July 22, 2008  

July 22nd 2008 Posted to Celebrity Divorce
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Pre-/post-nuptial agreements do not put a price tag on love and marriage.  They put a price tag on divorce.  Divorce is not only a time-consuming, contentious, and emotionally draining process – it is very expensive. 

A legally binding pre-/post-nuptial agreement can drastically reduce the cost of divorce.  For every $1 you spend on a pre-/post-nup, you will save between $100 and $1,000 on the cost of divorce.

We call pre-/post-nuptial agreements “Smart-Nups”, because they may just be one of the best financial planning decisions you ever make. 

Below are some of the expenses that contribute to the high cost of divorce, but that you can avoid by signing a Smart-Nup.

Tracing

The Law presumes that all property spouses acquire after marriage is marital property.  This is the case because the Law wants to capture as many assets as possible in the marital estate.  These assets must be divided between the spouses upon divorce.

If one spouse claims that a particular asset is his/her separate property, that spouse bears the burden of tracing the asset back to a separate property source – such as a gift, an inheritance, or an asset that he/she owned before the marriage.

Tracing your separate property asset(s) back to one of these separate property sources is problematic.  The greatest of these problems is the burden of proof.  Detailed documentary proof, such as bank statements, wills, or trusts, is required.  However, most people do not maintain such detailed and accurate records for extended periods of time.

Consequently, you will most likely need the services a forensic accountant to help with tracing.  Your attorney will then have to review the tracing to make sure that it complies with evidentiary standards.  Then, your spouse’s attorney will have to review the tracing to determine whether it is sufficient.  Lastly, if your spouse claims that you have not sufficiently traced your separate property asset, you will likely end up going to trial over the issue.  While this process is time consuming and can cause a considerable delay in the divorce proceedings, each of these professionals is also likely to charge you at an hourly rate, contributing to the costliness of divorce.

Conceivably, the entire value of your separate property assets could be gobbled up by the cost of the tracing alone.

Valuations

If part of the marital estate consists of a business, a professional license, stock options, retirement assets, or real estate, the Judge is likely going to appoint one or more neutral experts, such as accountants, pension experts, and real estate appraisers, to value these assets.  These services also come with a hefty price tag.

The first thing everybody has to agree on is the valuation date.  The Judge has the discretion to set the valuation date at any point between the date of commencement of the matrimonial action (when one of the parties files a summons) and the date of the trial (that can be anywhere from 12 to 18 months later).  Married couples can spend inordinate amounts of money on litigation, fighting over just the date when assets should be valued.

Even when you get to the point where the valuation has been completed, you have not necessarily finished with the process.  One of you may disagree with the valuation done by the court-appointed expert.  In that event, you will have to hire your own expert to identify why the neutral expert is wrong.  Your spouse will then get his/her own expert to contest why your expert is wrong and why the Court’s expert is right.  The end is a battle of the experts – funded by you and your spouse.

By examining the costs of tracing and valuation alone, one can see how the cost of divorce litigation can spiral out of control.

The Court’s Discretion

Part of the reason divorce is so emotionally and financially devastating, is that there is virtually no certainty about how the case is going to come out. 

It is literally a shot in the dark. 

The reason for this uncertainty is that the Judge has enormous discretion over the financial aspects of a divorce case.

For example, the Law provides for the equitable distribution of marital assets and debts – not equal distribution.  The Judge has far-reaching discretion to assign property to either you or your spouse, depending on a laundry list of statutory factors, such as your income and property, length of marriage, your age and health, the need of a caretaker to stay at home, and each spouse’s financial and non-financial contributions, such as homemaking and child rearing.

The award of spousal maintenance (so-called “alimony”) is also subject to the Court’s discretion.  The Judge is charged with the highly unscientific exercise of balancing a list of statutory factors and arriving at an appropriate dollar amount and duration of alimony.  Some of these statutory factors include: the pre-separation standard of living, income of the parties and property distribution, duration of the marriage, age and health of the parties, present and future earnings capacity of each spouse, ability of the party seeking alimony to become self-supporting and the time and training needed to reach that point, the reduced earnings capacity of one spouse due to the career building of the other spouse, and the presence of children in the home.

Remember: Love is grand, but divorce will be Fifty Grand!  Get a Smart-Nup. 

July 16th 2008 Posted to Pre-Nuptial/Post-Nuptial Agreements
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Let’s face it – most people react negatively to the word “pre-nup.”  There is something inherently distasteful about the idea of hedging your bets before you get married.   Marriage is supposed to be about love, about romance, about infinitely wondrous possibilities, about forever and ever, for richer or poorer, in sickness and in health.  Marriage is not supposed to be about money. 

Consequently, pre-nuptial agreements are often seen as cold and calculating, as cynical and sinister, and as a prescription for divorce.  Unfortunately, not all marriages have a happy ending, making pre-/post-nuptial agreements an integral part of marital and financial planning.

Love is grand, but divorce will be Fifty Grand!

Divorce is not only a time-consuming, contentious, and emotionally draining process, but it can also be very expensive.  Pre-nuptial agreements do not put a price tag on love and marriage; they put a price tag on divorce!   

A legally binding pre-nuptial agreement drastically reduces the cost of divorce.  For every $1 you spend on a pre-nup, you will save anywhere from $100 to $1,000 in a divorce.

A pre-nup may just be one of the best financial planning decisions you ever make.  That is why we don’t call these agreements “pre-nups” / “post-nups”.  We call them Smart-Nups!

Everyone Gets a Pre-Nup - Whether You Want One or Not

Each and every marrying couple gets a pre-nup, whether they want one or not.  At the very moment that you are staring into each other’s eyes and saying, “I do,” New York State is pronouncing you an economic unit, subject to the Domestic Relations Law.

The Domestic Relations Law is the statute that governs how your assets and debts will be divided upon divorce, and whether one of you can get alimony, including how much you can get and for how long.

Be the Masters of Your Fate

A Smart-Nup gives you the opportunity to opt out of the Domestic Relations Law (the state system).  It also gives you the opportunity to take charge of your own affairs, and to write a marriage contract to suit your individual needs.

Playing the Odds – Get “Divorce Insurance”

Many people say, “A pre-nup will jinx my marriage.”  That makes about as much sense as saying, “If I get homeowner’s insurance, my house is more likely to burn down.”

You have to face an unpleasant reality.  Roughly half of first marriages fail.  The median duration for first marriages that end in divorce is just over six years.  For second marriages, the rate of failure is even higher and the median duration, even shorter.

The best way to think about a Smart-Nup is as a form of “divorce insurance” with no annual premium.  For a small, one-time fee, you get something you hope you never have to use, but if you ever need to, you will be glad you have it, and it will save you a lot of money.

A Smart-Nup simply recognizes that bad things happen to good people; that it is always better to be prepared for the unanticipated.

Money is the Root of All Evil

It is often said that money is the last thing people talk about before they get married and the first thing they fight about after getting married.  In our divorce practice, conflicts about money are at the root of about 70% of divorces.

By entering into a Smart-Nup, you and your partner put all your financial cards on the table up front.  This will ensure that you play with a full deck on financial issues once married, helping to reduce the likelihood of divorce.  

Three’s a Crowd – Keep the Judge Out of It

Matrimonial Judges have literally hundreds of divorce cases pending before them at any given time.  The Judge simply cannot take the time to understand your financial circumstances as well as you do.  As a result, your financial future is basically resting in the hands of a stranger.

A Smart-Nup allows you to keep all of the potentially life-altering decisions about your income, assets, and debt in the event of divorce where they rightly belong – with you.

July 15th 2008 Posted to Pre-Nuptial/Post-Nuptial Agreements
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This sure seems to be the Summer of Discontent in celebrity households.  In addition to the divorce sagas of Christie Brinkley and Bill Murray that have played out in the tabloids this summer, Alex Rodriguez is now heading for divorce court, Hulk Hogan’s divorce continues to drag on, and a well-known CBS reporter has been named as the “other woman” in a divorce.

Cynthia Rodriguez, wife of New York Yankees third baseman Alex Rodriguez has filed for divorce, claiming emotional abandonment of her and of the couple’s children.

The couple’s marriage of five years collapsed amid reports of a new relationship between Alex Rodriguez and 49-year-old pop singer Madonna.

The saga was played out in both the sports pages and gossip magazines and seemed to take its toll on Cynthia Rodriguez.  According to her petition, the couple’s marriage is “irretrievably broken” due to the extramarital affairs and other marital misconduct of “A-Rod.”

The petition for dissolution of marriage was filed in the family division of the Circuit Court of Miami-Dade County, Florida.

Richard Rubenstein, a spokesman for the MLB star, declined to address the infidelity allegations, saying that it was a matter to be brought up in court.

Cynthia Rodriguez has filed for primary custody of 3-year-old Nathasha and 2-month-old Ella, the couple’s two children, in addition to demanding child support and alimony.

Meantime, the divorce attorneys of Terry Bollea, better known as former professional wrestler “Hulk Hogan,” and his wife Linda are scheduled to return to court in Clearwater, Florida.

A judge has called for a hearing on the morning of July 15 in order to hear from attorneys on various issues concerning the divorce of Hulk and Linda, who have been married for 24 years.

Hogan, 54, and his family starred in “Hogan Knows Best,” a reality show on VH1.

The couple’s son, Nick Bollea, is currently serving an eight-month prison sentence after he pleaded no contest to causing a crash that resulted in his best friend sustaining serious personal injuries.

Lara Logan, a former reporter in Iraq for CBS suddenly found herself on the front page of the tabloids in New York as the “other woman” in a bitter divorce in Texas.  She also received more news on July 8: she’s pregnant.

Logan, 37, says that the baby’s father is Joseph Burkett, a federal contractor she met during her time in Baghdad.  He and his wife, who resides in Texas with their 3-year-old daughter, are currently separated.  Logan is also going through her own divorce proceeding, expected to be finalized within the coming weeks.

July 14th 2008 Posted to Celebrity Divorce
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This article was posted on the Georgia Family Law Blog.  It is an insightful look at divorce from the perspective of a seasoned divorce lawyer:

1. What behavior of clients still surprises you?


That couples who did not get along during their marriage expect a divorce judge to suddenly make them cooperate with each other.

2. What determines how fast a divorce can be obtained?


The psychological point the parties are at.  Some are ready to end it, get on with their life.  Others use the process as a catharsis to re-live their entire marriage, vent their frustration and assert blame.

3. What is the best advice to give to a non-custodial parent?


Be polite and kind to the custodial parent.  They control access to your children. Regardless of your visitation, the custodial parent has tremendous control.  You may be rude behind their back but never to their face. It’s a game you need to learn to play well or you could lose something greater than your pride.

4. What is the best advice to give a custodial parent?


Let your ex have the children as much as they will take them.  You need a break.  They are the perfect babysitter.  You know they will take care of them and if they are around the children a lot, they will be more sensitive to their needs.

5. Does joint custody work?


It can.  Some people are naturals at it; others need a little help.  A child psychologist can help those who don’t realize they have damaging behavior.  Putting the child in the middle and parental alienation are classic problems in joint custody.

6. What is the worst fear of most women?


That their spouse will fight them for custody.

7. Do most men fight for custody?


There are two categories of those who do: Men who honestly want custody.  And men who want to scare their wives into accepting less child support provided they later relinquish the fight.

8. How can you tell the difference?


From the obvious. Those who never spend any time with their children prior to the divorce; those who travel and are never home; those who have girlfriends. Those guys don’t want custody.

9. Any way to control those who are insincere?


For the ones who are just using custody as a fear factor, you should call their bluff.  Offer them custody and watch them run.

10. Does guilt play a part in the outcome of a divorce?


Yes.  Usually the party that seeks the divorce is willing to take less.  Men who want the divorce and have children are willing to pay more support and often give up the house to the wife and children.

11. Does mediation work?


If you have an experienced mediator, you can usually resolve some of the issues.  The mediator’s experience should match the sophistication of the parties.

12. Does the personality of the parties influence the Judge?


Yes. I like to find out what question I need to ask to make their spouse mad and that is the first one I ask.

13. How do you prepare your client for trial?


I prepare and go over their questions and answers in advance. That way they know at least 50% of what is going to happen.

14. What is the best advice you can give your client in the courtroom?


The judge determines everything.  Although the judge doesn’t ask the questions, you should look at the judge when you answer.  It is his courtroom.  Get him involved.  Read the situation.  If he looks bored or disinterested, make your answers short.  Be respectful.  Don’t argue with the opposing attorney and never, never argue with the judge.

15. What practical considerations should a party consider when testifying?


The judge makes a decision based on a very limited view of the situation.  In doing so, perception becomes reality.  If one witness is better organized, more articulate, the judge can understand their testimony.  For someone to make a decision, they have to be able to understand the facts.  Disorganized testimony is difficult to follow.  Also. perception gives credibility.  Witnesses who are neat and clean and speak in an even tone without anger or bitterness are received as more truthful.  Arrogance is a certain loser.  Create advantages.  If no one believes you, your evidence and testimony loses its importance.

CLOSING THOUGHTS: I am assisting people at a very difficult time in their life when they are called upon to make major decisions when they are not emotionally prepared to make them.  I try to give them a sense of control over a situation that appears out of control.  I try and give them feedback on how their behavior will be perceived to the Court and suggest approaches that will reflect more favorably on them.  I strive to narrow the issues to the best settlement possible so they can determine if it’s a settlement they can live with, or whether they would rather take their chances with the decision of the Judge.  Often times, a judge will be fairer than the person you have been married to.

ORIGINAL SOURCE: DivorceNet

July 09th 2008 Posted to General
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A court-appointed psychiatrist’s report yet to be introduced in the sensational Christie Brinkley-Peter Cook divorce trial will reveal that Brinkley is consumed by rage, Cook’s attorney said late last week in a television interview.  But as lawyers for the two sides traded charges in exclusive TODAY interviews, the supermodel’s attorney said that the report also says that Brinkley should get primary custody of the couple’s two children.

The psychiatrist “has … found that Christie is angered and she’s going to have to overcome her anger,” Cook’s attorney, Norman Sheresky, told TODAY’s Meredith Vieira before heading to court for the second day of testimony in the salacious trial that began Wednesday.

Sheresky said that the psychiatrist also determined that testimony about Cook’s $3,000-a-month appetite for Internet porn should be “out of the case,” and that “Peter is a wonderful father. He should have a relationship with the children, and Christie Brinkley should not interfere with it.”

But in a separate interview that followed directly on TODAY, Brinkley’s attorney, Bob Cohen, said his adversary left out an important element in the report. “The court psychiatrist found that Christie should be the custodial parent,” he told Vieira. “But being the custodial parent doesn’t mean Peter doesn’t get to see the children. He’s going to get to see the children. He has seen the children. He will continue to see the children.”

See the interview with the two lawyers here.

Cook sought to keep the salacious trial private, but Brinkley fought to make open to the public and the media. Sheresky said that Brinkley is driven by anger and that her determination to air the couple’s dirty laundry will ultimately harm their children.

I do believe that this trial offers at least two important lessons for everyone facing divorce in New York:

1.            Custody trials are nasty affairs, not only for celebrities, but also for anyone else going through a divorce.  They rip families apart and should be avoided, if at all possible, for the sake of the children. Don’t be shortsighted.  You have to co-parent with your spouse once the case is over.  Think of the years to come – the graduations, weddings, Holidays, and grandchildren in your family’s future.  Both Cook and Brinkley have talented, experienced counsel.  This case could and should have settled quietly out of court.

2.            There is a difference between “custody” and “visitation.”  The fact that Christie Brinkley is asking the Court for sole custody does not mean that she wants to keep Peter Cook from seeing the children.  This misconception has been widely reported in the media and is being perpetuated by the Cook camp.  Sole legal custody simply means that, should she win, Brinkley will have the right to make important decisions on the children’s behalf with regard to their medical care, education, religious upbringing, and general welfare.  But part and parcel of any custody order of the Court will be a parental access schedule granting the non-custodial parent frequent and meaningful access time with the children. 

July 07th 2008 Posted to Celebrity Divorce, Custody and Visitation, Uncategorized
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