CAN MY SPOUSE AND I FILE UNCONTESTED DIVORCE PAPERS OURSELVES?

Yes.  You can.  It is difficult, but certainly not impossible.  

NYS puts the Uncontested Divorce Package online, along with a booklet explaining how to do it.  You will need to read the booklet very carefully and pay very close attention to it.  I would read the booklet once to understand it, then read it again, highlighting with a yellow highlighter what you need to do.  This packet works best for people who have already been separated for a while and have already separated their finances.  It is also easier to use these forms where there are no children of the marriage, your children are grown, or you have already worked these matters out in Family Court with an order of custody and visitation as well as a child support order.  Here is the link to the Uncontested Divorce Forms and Instruction Booklet.  Remember, that unless you qualify for and make application for "in pauperis" status, you will need to write checks out to your local County Clerk's office for various filing fees, starting with the Index number application.  Here is the link:  http://www.nycourts.gov/divorce/forms.shtml

WHAT IS A LEGAL SEPARATION?

One of the most common questions I get asked is:  "What is a legal separation" along with, "what is the difference between a separation and a divorce?  Let's start with what a "legal separation" means in New York State.  This refers to a document, executed in the form that would entitled a deed to be recorded, which settles all issues which would be addressed during a trial, except for grounds for divorce.  Thus, it would cover custody, child support, maintenance, equitable distribution and legal fees.  A separation agreement is the document which is executed by both parties, typically drawn by a lawyer advocating for one party.  There must be a total agreement on all issues.  This comes under the category you can lead a horse to water but you can't make a horse drink.  Thus, you may have the best of intentions, wanting an amicable agreement, but if the other person is not on board, that person will not execute the agreement.  However, once an agreement is executed, you have a CONTRACT.  Thus, if there are important issues which may need to be enforced some day, such as support or installment payments, you may want to take it further and convert the CONTRACT into a judgment of divorce.  Otherwise, if the other party does not comply, your only remedy is to sue on a breach of contract.  Whereas if a party does not comply with a judgment of divorce, there are legal remedies, such as contempt of court.

FAMILY COURT PROTECTION FOR PERSONS IN "INTIMATE RELATIONSHIPS"

People may not be aware, but should be, that the Family Offense Statute, which is implemented in both Family Court and the criminal courts, now includes protection for people in "intimate relationships."  The original statute limited Family Offense protection to victims that were narrowly defined.  To bring a family offense petition, the original statute required the Petitioner to establish a "family" relationship, defined as spouse, parent, sibling, etc., or have a child in common.  This necessarily left out persons involved in "intimate relationships" such as same sex couples, domestic partners, boyfriend-girlfriend situations, and even senior citizens who often choose not to re-marry because they wish to preserve inheritance rights for their grown children and grandchildren.  The definition of a Family Offense now includes persons involved in "intimate relationships."  A court will look at the nature and type of relationship (need not be sexual), the frequency of interaction and the duration of the relationship.  Casual acquaintances and ordinary relationships are specifically excluded from the statute.  

From the Office of Prevention of Domestic Violence:  "In domestic violence cases, an order of protection can be issued in criminal and/or civil court. The civil venue for these proceedings in New York State is 

Family Court; domestic violence victims must fall within the Family Court‘s personal jurisdiction, and then the allegations must fit within the ―family offense‖definition, described below, in order for the victim to request a civil order of protection.

Domestic Violence is Legally Defined by a Combination of Relationship and 

Behavior.  New York State does not define ―domestic violence‖ for criminal court and Family 

Court proceedings. Instead, New York State uses the term ―family offense‖ to 

capture certain crimes3 when they are committed between ―family or household 

members.‖ Before the 2008 Expanded Access amendment, ―family or household 

members‖ included persons: related by consanguinity (blood relatives) or affinity (through marriage); 

married or formerly married; or with a child in common. Individuals who were married to, formerly married to, or had a child in common with the person who had abused them, were eligible to petition for an order of 

protection in both criminal court and Family Court. Those who fell outside of that 

definition could proceed in criminal court, but were not eligible for Family Court. 

Limitations of New York’s “Family Offense” Structure

Over the years, New York State‘s laws have provided increasing protections for

those domestic violence victims who fell within the ―family or household member‖ 

definition. However, those same protections did not extend to many other victims.  A victim seeking a divorce, separation, or annulment, can also request an order of protection in another civil court, Supreme Court.  Family offenses/crimes: disorderly conduct, harassment in the first degree, harassment in the second 

degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse 

in the third degree, sexual abuse in the second degree as set forth in subdivision one of section 130.60 of 

the penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, 

stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third 

degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, 

criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third 

degree or an attempted assault.   Many people felt that the definition inappropriately excluded 

a large number of similarly situated victims from access to a critical civil remedy, including dating or unmarried couples, same sex couples, and adolescent and many elder couples, and that the definition no longer reflected the nature of families and households 

today. 

The 2008 Expanded Access Law

In 2008, New York State expanded its legal definition of ―family or household 

member‖ to include, ―…persons who are or have been in an intimate relationship 

regardless of whether such persons have lived together at any time.‖4 For the 

purposes of this report, we will refer to these newly qualified individuals as 

―intimate partners.‖5 This change in definition means that intimate partners now 

have the same legal rights and protections as victims who were already covered 

by the law. These benefits include the following:

an intimate partner victim can seek an order of protection from Family 

Court in addition to, or instead of, pursuing criminal court options;

the court must enter the order into the statewide Order of Protection and 

Warrants Registry, which police consult when called to enforce an order of 

protection; police officers must, when responding to a domestic violence complaint, 

complete a Domestic Incident Report (DIR), regardless of whether a crime 

is alleged or an arrest is made, and must provide the victim with a copy;

police officers must make an arrest according to the mandatory arrest

provisions for family offenses in the Criminal Procedure Law § 140.10(4); 

and police officers must determine which party is the primary physical 

aggressor when two parties both allege domestic violence misdemeanors. 

The law enumerated factors the court may consider in determining whether a relationship is an 

"intimate relationship," including, but not limited to: the nature or type of relationship, regardless of 

whether the relationship is sexual in nature; the frequency of interaction between the persons; and the 

duration of the relationship. The law also clarified that “Neither a casual acquaintance nor ordinary 

fraternization between two individuals in business or social contexts shall be deemed to constitute an 

’intimate relationship.’"

This is a definition of convenience for this report: ‘intimate partner’ is commonly used to refer to a 

broader category of individuals that includes married and formerly married and those with a child in 

common.NYS Expanded Access Report October 12, 2011

This change impacted other legal areas that reference the family or household

definition as well, such as: 

enhanced criminal contempt charges that apply only to violations of family 

offense orders of protection;

alternative voting options that maintain the confidentiality of the victim‘s 

address; and

protections against workplace discrimination based on an individual‘s 

status as a domestic violence victim.

Since most enhanced provisions in domestic violence-related laws reference the 

family or household definition, future laws will likely utilize this more inclusive 

definition of victim of domestic violence. For example, during the 2011 legislative 

session, the Social Services definition of ‗victim of domestic violence‘ was 

amended to include the new category of ‗intimate partner.‘6 Social Services laws 

and regulations had already included unrelated individuals living in the same 

household or having regular access to one another‘s household, but adding the 

intimate partner category created a more comprehensive definition, so that all 

individuals who are eligible for a civil order of protection have corresponding 

eligibility for residential and non-residential domestic violence services."

The new "superwomen" -- Edith Windsor (US v. Windsor) and Attorney Roberta Kaplan, and their fight to overturn the Defense of Marriage Act

Tomorrow, March 28, 2013, the U.S. Supreme Court will hear arguments on whether Section 3 of the Defense of Marriage Act, 1 U.S.C. § 7, which defines the term “marriage” for all purposes under federal law as “only a legal union between one man and one woman as husband and wife,” deprives same-sex couples who are lawfully married under the laws of their states (such as New York) of the equal protection of the laws, as guaranteed by the Fifth Amendment to the Constitution of the United States.  We would like to wish Roberta Kaplan, Esq., partner at Paul, Weiss, Rifkind and longtime attorney for Edith Windsor luck tomorrow.  Roberta has called herself a “stress junkie,” and arguing this matter before the US Supreme Court doesn’t get much more stressful. 

Here is link to an interview with Attorney Kaplan, conducted by Victor Li,  from approximately two years ago, from AmLawDaily:

http://amlawdaily.typepad.com/amlawdaily/2011/02/robertakaplanqa.html

Huge Prenup Win: Victory for Elizabeth Cioffi-Petriakis

Elizabeth Cioffi-Petriakis just won a huge decision in her favor.  It took years, but the Plaintiff said she did it at the trial level once she decided to go pro se (without lawyers), after spending $475,000.00 in legal fees.  By establishing fraud in the inducement and breaking the pre-nup, she stands to receive half of the marital estate, which is said to be worth many million of dollars.  This will have a big impact on cases in the State of New York.  Here is the decision of the Second  Department:


"Supreme Court of the State of New York
Appellate Division: Second Judicial Department
D37430
T/hu
AD3d Argued - January 9, 2013
DANIEL D. ANGIOLILLO, J.P.
SANDRA L. SGROI
JEFFREY A. COHEN
ROBERT J. MILLER, JJ.
2012-01250 DECISION & ORDER
Elizabeth Cioffi-Petrakis, respondent, v Panagiotis
Petrakis, appellant.
(Index No. 8252/08)
Gassman Baiamonte Betts, P.C., Garden City, N.Y. (Stephen Gassman and Cheryl
Y. Mallis of counsel), for appellant.
Weg and Meyers, P.C., New York, N.Y. (Dennis T. D’Antonio and Derek M. Zisser
of counsel), for respondent.
In an action, inter alia, to set aside a prenuptial agreement, the defendant appeals, as
limited by his brief, from so much of a judgment of the Supreme Court, Nassau County (Bennett,
J.), entered February 6, 2012, as, upon a decision of the same court (Falanga, J.), dated December
12, 2011, made after a nonjury trial, is in favor of the plaintiff and against him setting aside the
prenuptial agreement.
ORDERED that the judgment is affirmed insofar as appealed from, with costs.
In general, New York has a “strong public policy favoring individuals ordering and
deciding their own interests through contractual arrangements” (Matter of Greiff,92 NY2d 341, 344;
see Bloomfield v Bloomfield, 97 NY2d 188, 193). “However, this right is not and has never been
without limitation” (Kessler v Kessler, 33 AD3d 42, 45). “[T]he State is deeply concerned with
marriage and takes a supervisory role in matrimonial proceedings. . . . Indeed, in numerous contexts,
agreements addressing matrimonial issues have been subjected to limitations and scrutiny beyond
that afforded contracts in general” (id. at 46 [citation omitted]). Thus, while “there is a heavy
presumption that a deliberatelyprepared and executed written instrument manifests the true intention
February 20, 2013 Page 1.
CIOFFI-PETRAKIS v PETRAKISof the parties” (Brassey v Brassey, 154 AD2d 293, 295), an agreement between spouses or
prospective spouses may be invalidated if the party challenging the agreement demonstrates that it
was the product of fraud, duress, or other inequitable conduct (see Christian v Christian, 42 NY2d
63, 73; Petracca v Petracca, 101 AD3d 695; Weinstein v Weinstein, 36 AD3d 797, 798; Lombardi
v Lombardi, 235 AD2d 400).
“In reviewing a trial court’s findings of fact following a nonjury trial, this Court’s
authority is as broad as that of the trial court and includes the power to render the judgment it finds
warranted by the facts, bearing in mind that due regard must be given to the decision of a trial judge
who was in the position to assess the evidence and the credibility of witnesses” (D’Argenio v
Ashland Bldg., LLC, 78 AD3d 758, 758).
Here, the Supreme Court reasonably resolved credibility issues in favor of the
plaintiff, and its determination that the defendant fraudulently induced the plaintiff to execute the
prenuptial agreement was supported by the evidence. With respect to the material facts underlying
the plaintiff’s claim, the Supreme Court found that the plaintiff’s testimony was “credible,”
“convincing,” “unequivocal,” and consistent with “additional corroborative evidence,” and that any
“inconsistencies” in her testimonyrelated to “insignificant” matters. Bycontrast, the Supreme Court
found the defendant’s “credibility to be suspect,” due in part, to his “patent evasiveness.” The
Supreme Court’s credibility findings are supported by the record. The plaintiff’s claim in this case
rested largely on the credibility of the parties, and we decline to disturb the Supreme Court’s
determination with respect thereto (see Reid v Reid, 57 AD3d 960). On the particular facts of this
case, the Supreme Court correctly determined that the plaintiff sustained her burden of establishing
grounds to set aside the prenuptial agreement (cf. Petracca v Petracca, 101 AD3d at 695).
The defendant’s remaining contentions are without merit.
ANGIOLILLO, J.P., SGROI, COHEN and MILLER, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court
February 20, 2013 Page 2.
CIOFFI-PETRAKIS v PETRAKIS"

Divorced and looking for Tax Tips?

Here are some of the most commonly asked questions concerning taxes among divorce clients.  For the final word, always ask your tax professional:
1.  Who Claims the Kids? The Internal Revenue Code says the custodial parent gets the dependency exemptions.  However, most divorce judgments will provide that the parents share the dependency exemption(s), so long as the non-custodial parent is current with child support and both parents can "use" the dependency exemption.
2.  Is child support tax-deductible?  No, not in New York State.
3.  Is maintenance tax-deductible?  The Internal Revenue Code says yes, but your divorce judgment/ separation agreement must contain certain language.  The payments cannot be actual child support or "disguised" child support, and must cease upon the payor's death.
4.  How am I supposed to file, married or single?  For those who want to filed "married," if you were still legally married on December 31, you should be able to file "married, filing jointly."  Yes, even if you were not living under the same roof; and even if a divorce action was commenced but not concluded.  Just remember, you are filing a JOINT return and are responsible for what the other person is putting down on the return, including liabilities.

Remember to consult a tax professional for more detailed advice.  Here's a link to a video from Turbo Tax with more tax tips for divorced persons: http://turbotax.intuit.com/tax-tools/tax-tips/Family/Video--Tax-Tips-for-Divorced-Couples/INF14631.html
Juliana LoBiondo
www.LoBiondolaw.com
www.Facebook.com/LoBiondoLaw

Advice from a Successful Attorney: Don't waste your money on Law School

February 2014:  This Blog remains, by far, one of the most popular I have written, even one year later.  I have updated it slightly.  My husband and I, law partners, have been attorneys for 23 years each.  We are probably the last generation to be able to say the following:  we have no regrets about going to law school and we are happy to be practicing law.  Our kids, if they decide to go to law school (not pushing it) will be all right because they will "inherit" a successful law practice.  Unless you have a family law firm you will be walking into, my advice remains the same:  don't waste your time and money.

There was an article in the New York Times in January 2013 entitled, "Law Schools' Applications Fall as Costs Rise and Jobs Are Cut."  The article discusses the drastic decrease in law school applications, and the increasing debt load for unemployed law graduates.  There is a class action suit pending in which unemployed law school graduates are suing their former law schools for "fraud," claiming that they were induced into attending law school and taking on big loans, when in fact there were no jobs to be had.

The average cost of a NYC law school, including lodging, is said to be $80,000.00 per year.  Law school is 3 years, after which one must study for, then sit for the grueling NYS Bar Exam.  According to the NYT article, Professor William Henderson of Indiana University Law School said, "30 years ago, if you were looking to get on the escalator to upward mobility, you went to business or law school. Today, the law school escalator is broken."

That's true.  I can tell you why.  Essentially, there is nothing  more useless than a newly minted lawyer.  That includes myself and my husband when we graduated.  You know nothing that translates to the real world when you get out of law school. I would rather have a trained paralegal than a new lawyer any day, even a trained legal secretary is of more use to us.

New lawyers are coming out of school with so much debt, that they cannot afford to do what my husband and I did:  we took very low-paying jobs, in order to learn our craft.  Anthony worked for the Orange County District Attorney's Office as an A.D.A. for about 7 years, I worked for the Legal Aid Society of Nassau County for 2 and a half years, then took a low-paying job with a large local law firm to learn the business of practicing private law.

By the time we were done with our "apprenticeships," we had many years of trial experience behind us.  I had tried over 50 jury trials, Anthony had been in charge of the Newburgh Bureau or the Orange County District's Office.  Once you have that kind of experience, you have a new kind of confidence in the courtroom that you can't learn any place else.  We learned from the best.

Even back then, it was not easy to get our first jobs, there was a lot of competition, despite the low pay.  Now, with the hiring freezes and the economy the way it is, unless you know someone, it's really hard to get an apprenticeship-type job, and harder still if you're saddled with big law school loans.

I have put out ads for paralegals and received resumes from attorneys who had decades of experience but had lost their jobs.  I have no advice for the recent law school graduates, other than we wish you all well.  However, to any parents considering sending their kids to law school, and college grads thinking about taking the LSAT's: unless you're going to come back to work for the family business, my advice is:  Don't do it!


Juliana LoBiondo ("Mrs. Lo")
www.LoBiondoLaw.com
www. Facebook.com/LoBiondoLaw