How Are Marital Assets And Debts Divided If One Or Both Spouses Decline Mediation?
Marital assets in a divorce are divided equitably. Equitably means fairly. Fairly is in the eye of the beholder. If the beholder is a judge, and the judge is making decisions for you, then it’s based upon testimony. The judge would inquire: How was the asset acquired? What were each of the spouse’s contributions to making that asset part of the marital estate? If the asset was acquired outside of the marriage, such as an inheritance or an award from a personal injury, that starts off as separate property. But when it goes into a joint account, and money goes in and out of that account in the regular course of marriage, that asset has now trans-mutated. In other words, it has become a joint asset subject to equitable distribution.
In high net worth couples, the law is exactly the same as it would be for low net worth couples. Equitable means fair. Through the mediation process, a couple determines what is fair with some guidance and education. A good skilled mediator is going to educate the couple as to what the law is, and, if asked, give a prediction as to the likely outcome of failure or success given any specific issue. Since the law of equitable distribution is extensively written and consumes a large volume of written material, the black letter law is pretty simple in 90% of the cases. It is important to remember that the state of New York is a very strong divorce state, which means that there is no interpretation as to whether or not a piece of property is marital. Whereas in some cases in California where there is community property or palimony, nothing like that exists in new York State.
Remember, the New York Stock Exchange was started back in the 1800s, which amassed huge amounts of wealth, and New York City continues to be the financial capital of the world. Therefore, the laws that have been set up in New York State are far more detailed and codified than those of Alabama, Mississippi, South Carolina, and Florida. The laws are reflective to wherever the wealth is and has been generated. And in New York, the divorce laws are exactly that, very codified, very exact and very predictable.
If you can’t figure it out and sit with a skilled mediator with a lot of experience and a good calculator, then you need a judge to do it for you. If you hire my team to do the litigation, I will always try to get this settled early. Behind me lies the Law Office of Somer & Heller, who are the bad cops, and we will litigate this for you until your very last dollar, if that is what you want to do.
In A High Net Worth Case, What Does New York Use To Determine What Is In The Best Interest Of The Children? How Is Custody Arranged? What Unique Situations Might High Net Worth Individuals Face In A Divorce Case When It Comes To Custody Matters?
The Supreme Court was asked whether or not there is a definition of pornography, they said, “I don’t know what the definition is, but I will know it when I see it.” That is the same concept when it comes to custody and the best interest of the children. What is going to be the best thing for these children objectively? No one can tell you what to do with your children, correct? Wrong. Child protective services, through the family court and the Department of Social Services of the state of New York in the county of Suffolk, can remove your children from you in the middle of the night and put them into foster care. They can have hearings to revoke parental rights and impose supervised visitation if the suspicion and the evidence leads to child abuse or neglect. Most of the time, of course, that is an absurdity except when it is not.
In those cases, the family court plays an essential, critical, vital, and very useful role in handling the minority of cases that have that complexion. But, most parents can figure out what to do with their children, and they should figure out what to do with their children. High net worth cases and low net worth cases have the same issues, but sometimes, they are resolved differently. With high net worth couples, you can afford two residences. You can afford to do things for and with the children that couples of modest means cannot. Many couples of modest means end up living in the same household, albeit separate lives, until the youngest graduates from high school. They then sell the house and move on with their lives simply because of the economics.
Couples with modest incomes cannot afford to maintain two separate households. Through our mediation center, we have successfully mediated hundreds of couples who have continued to reside in the same residence. They have either been legally separated with a judgment of separation or divorced with a judgment of divorce. The future is defined for them. They know exactly when the house is going to be sold and how the assets will get distributed because they have agreed to it on paper. They just cannot afford to physically separate at the time. It may sound silly, but on an expensive island like Long Island, you want to make sure that the best interests of the children are protected, which means they are eating, sleeping, and bathing. Those essentials are universal to everyone. However, only a small percentage of families can afford to keep the children in the same lifestyle that they had pre-divorce. But, the best interests of the children should be a rather objective criterion. Just ask yourself, take your ego away, be selfless, not selfish, and ask, “What is in the best interest of my children?” Then, do it.
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