PHASE 2 TIME TO PLAN–DIVORCE AND FAMILY COURT OPEN

Effective June 3rd under Phase 2, essential matters will be heard in person for Family Court.  In addition, non-essential matters will continue to be heard virtually and attorneys can make a request to the assigned Judge to deviate from the Phase 2 Plan.

What does this mean for you?

It means your life can stop being on hold, you can once again start planning for the futre.  The emotional and financial burden on you and/or your children can become unbearable.

If you have a custody, child support or family offense matter that needs attention the legal system is OPEN.  For many of my clients it never really shut down and we have been working together for months. Do you need to make a plan and move your life forward?

If you have a divorce or matrimonial matter you can obtain legal counsel, file in the court system and have your matter addressed.  Why keep your life on hold when their are other options available once again.

If you have any questions, please contact me for a FREE initial consultation which can now be held by either phone conference or in person whichever you prefer.  I am here if you need me.

 

COURTS ARE OPEN!!!

You may have already heard that the Court system is beginning to “re-open” for new business starting very soon.  The legal process is a slow even under normal circumstances and this State of Emergency still has a learning curve to it, however, your children, your safety and your ability to live your lives rely on a court and legal system that is able to address your needs and concerns.

Our office NEVER closed.  We have settled divorce matters, obtained temporary orders, assisted clients all through the Coronvirus Emergency.  If you need us we are here.  COURTS ARE OPEN.

Contact us at staceybalduf@gmail.com or 315 622 5202 for your FREE CONSULTATION.

Negotiating Custody Yourself

This sounds like a good idea, right? You are smart, you know your spouse or significant other. You don’t want to spend any money or don’t have money to spend on an attorney.  So why wouldn’t you just go to a mediator or decide to start negotiating custody yourself?

Well, here are some reasons to ponder regarding your ability to successfully negotiate.

  1. Do you realize that when you settle certain matters, once it is in a court order, you cannot just go back and change something that no longer works or that you no longer want or because you didn’t understand something or did not get legal counsel. So many think I can “fix it” later. Well you cannot without meeting certain legal standards which are difficult.

  1. Are you aware that the order will not change just because your child gets older and does not want to do it anymore. In NYS there is no age where a child decides–just the opposite.  I have actually had a hearing where the child was 17 years old, because one side would not agree.

  1. Do you understand each and every possibility that exists today regarding your parenting situation. There are some very creative ways to address issues.

  1. Have you planned for what it looks like in 5 years, the issues and lifestyle.

  1. Do you have the knowledge and ability to put things in an order that would allow for modifications later, and no— you cannot just put in that you will modify it. That does not always work with the overtaxed courts.

I have been a practicing Family Law Attorney for over 30 years. I have successfully represented fathers, mothers, and children.  I offer a free initial consultation so give me a call or email before you decide to negotiate the most important thing in your life alone.

Virtual Court Proceedings

COURT IS OPEN!

In an effort to try and get non-essential matters before the Court, New York State Chief Judge has stated the following:

Beginning April 13th Judges are  authorized to schedule conferences at the request of attorneys and can be available during normal court hours to address discovery disputes and other ad hoc concerns.  Judges have also been urged to decide fully submitted motions.

These appearances will be virtual and by skpe or phone and  may be conferences with attorneys only.  We will have to see what the instructions will be from the Administrative Judge in each District.

If you have matters of concern, it is time to prepare the motions and get them before the Court and see what they will schedule.  Contact an experienced attorney who has not stopped working since this Coronavirus outbreak began and has been working for and with clients and successfully getting court interevention when possible.  Give me a call 315 622 5202 or email staceybalduf@gmail.com

LAWYERS AND THE CORONAVIRUS

These are some very difficult times during this Coronavirus for the people I work with and for.  Many of you are calling about parenting time that is going badly, children that are being exposed to potential virus or other inappropriate and risky circumstances. balduf_legal_advice_experience_divorce_attorney

Some of you need money to get by that is currently not coming in.

Some of you need to have an Order of Protection to stay safe.

Many of you see spouses dissipating assets that you will never retrieve.

I can no longer tell you exactly what the steps are for court intervention or tell you for sure you will get heard however, what I can tell you is that since this Emergency has been put into place I have had a matrimonial Order to Show Cause, signed by a Judge (it took quite a bit of persistence) and three Orders of Protection granted, one which even limited parenting time (supervised).

I have also spoken with and met directly with people at the courthouse who have given me additional insight as to what steps to take to continue my representation of my client’s interest.

Beware of the attorneys  out there who are in need of revenue and they will tell you whatever you want to hear so that you pay them—I am not one of those attorneys.  You will always get the straight story from me.

If you need help, give me a call, it is free.

Remember, much of what we do does not involve court for quite some time, now is a really good time to come in (or have a phone conference) and make a plan for divorce.

DON’T OVERPAY FOR LEGAL FEES!

Not all attorneys have the same experience.

Not all attorneys have the abilities.

Not all attorneys respond to client’s promptly.

AND ATTORNEYS DO NOT ALL CHARGE THE SAME FOR THE SAME WORK!!!!

What does this mean for you?

  1. READ

  • Read over the family court or matrimonial retainer agreement they give you very By the way, they must have a written retainer agreement for you to review. Take it home and review it prior to going to the office and signing, to make sure you understand it.

  1. ASK THE FOLLOWING QUESTIONS:

  • Do you charge a nonrefundable retainer regarding your legal fees? Do not be fooled, not all attorneys charge this.  It means you are paying a minimum amount whether or not the attorney has to work for it. So, if you settle with two hours work you still may pay for 8 or 10 etc. work not done. I do not charge a nonrefundable retainer. You are only charged for work done.

  • Do you get back retainer funds not used regareding your legal fees? You might be surprised to learn many attorneys have a minimum amount no matter what work is done?   You get back any retainer money that remains when my work is done.  Again, you only are charged for work done.

  • Do you charge a minimum hourly fee  for legal fees? Does the attorney charge you a minimum fee or for the actual time spent on your matter. This can add up to hundreds or even thousands of dollars. There is never a minimum hourly fee for court or anything else.  Again, you are only charged for work done.

  • What is your retainer amount fregarind legal fees? What is your hourly rate?  This is the amount of money that the lawyer gets up front before they begin work. Some attorneys have a lower initial retainer amount however the hourly rate is so much higher than other attorneys that this retainer is used up really quickly and you are asked for MORE money sooner than with attorneys how charge a lower hourly rate.  THE HOURLY RATE IS THE MOST IMPORTANT FACTOR. My hourly rate AND retainer are a reasonable amount given the area and economy and I try to work with clients. 

  1. UNDERSTAND:

  • That the amount of money your attorney charges for legal fees is NOT a sign of their ability. Some of us believe that everyone is entitled to experienced and dedicated representation, not only the wealthy.

  • That even if your spouse will have to contribute toward your legal fees, they seldom are ordered to pay the whole amount and often if your attorney charges more that the “going rate” the courts take that into consideration when awarding fees for the other side to pay. What does this mean for you:  YOU COULD OWE THE ATTORNEY MORE MONEY THAN YOU EXPECTED.

Child’s Therapist- Legal System

I often have parents who tell me that their child’s therapist supports their position and insist that I tell the Court and the Attorney for the Child to be sure and take that position into consideration before rendering a recommendation, position or decision.

For over 30 years, with NO exception, therapists are seldom the supportive expert that my clients believe them to be.

This is not to say that a good therapist is not helpful. They can be:

  1. They can help the child understand and deal with the custody arrangement. Including one they may not like.

  2. They can offer therapeutic sessions between parties.

  3. They can work with parties to develop a parenting schedule.

But don’t be fooled.  This seldom results in their being a very good witness for you if things break down.

My clients do not believe me when I explain to them that therapist generally:

  1. Treat the child and do not want to damage the therapist relationship by getting involved in the court proceeding.

  2. Cannot be an expert for parenting plans as they have not done formal evaluations for that purpose or spent enough time with all parties.

  3. Are not willing or able to offer a professional opinion as an expert.

  4. If testify, often rendering something supportive comment regarding the opposing parent. Therapists are generally all about both parents having a relationship, not winning a legal case.

It is also VERY important to note that the therapist does not disclose to the parent all that they learn or know.  I often have therapists who disagree with my client’s position, however, do not feel it is helpful to discuss that with the client as it does not further the treatment of their client.  The takeaway here: YOU DO NOT KNOW WHAT THE THERAPIST IS TRULY THINKING!!!! 

Recently I sent the following email to a child’s therapist.  I did so as I had a client who insisted that I had to make the Attorney for the Child and Court understand that her child was being detrimentally affected by Dad’s behavior and that the therapist couldn’t wait to tell everyone that on behalf of the child. This is how it went…

Dr. ________:  Can you please clarify some points for me. 

Are you able to testify as to the following if needed: 

Do you have a professional opinion as to what is best for a custody situation or parenting time. 

Do you have a professional opinion as to whether your client is being influenced by either party or by their behavior as to his desire to live with Mom. 

Do you have a professional opinion as to any negative effects the  current parenting schedule  would or does have on your client.

 Please feel free to add anything else you believe relevant or important for me to know.  I look forward to talking with you next week.  Thank you.

Response:

Hi


I am not in a position to testify or provide opinion as to any of those items.

When first meeting with my client, the purpose was to function as my client’s treating therapist, with no role in custody or parenting plan determinations. I intend to maintain that role, so any information I provide would be factual and likely redundant.

Thank you, 

 

Should I Hire a Father’s Rights Attorney?

IS A FATHER’S RIGHTS ATTORNEY A REAL THING?

Just for the record, there is no formal training or certification for being what is referred to by some as a “Father’s Rights Attorney”.  When used it is simply a label a lawyer gives themselves to induce men to hire them.father's rights

Ask yourself what does a “Father’s Rights Attorney” bring to the table?

  • A single- minded approach that is often lacking in a true understanding of the “other side”. Having a clear and experienced understanding of the position of the opposing party is critical to the successful strategy for your case.  When the attorney is experienced enough to have successful outcomes against fathers, that experience is then used to a father’s advantage when they represent fathers.

  • Limited experience and often argue father favorable positions, even if the facts don’t support the request. What does this mean?  I have had a “Father’s Rights Attorney” insist on a hearing because the Father was entitled to physical custody. It is important to note that the Father worked 5pm to 3am Monday through Friday, out of state, as a truck driver.  The hearing was held and the Father received less time than was offered as a settlement. Yes, the Father got heard.  Yes, the attorney made a dramatic argument about Fathers.  But in the end the outcome looked at the facts.  The attorney got paid, the Father got screwed. 

  • A false sense of what can be accomplished. Many “Father’s Rights Attorneys” make promises that just can’t be kept, and then blame the negative outcome on the system or the Court. The attorney gets paid regardless of the outcome.

 What is the take away here?  Don’t be fooled. Pick your lawyer because they are experienced and are willing to tell you the bad with the good.  When able, talk to a lawyer who is recommended by someone you respect.

 

SHOULD I MODIFY THE CUSTODY ARRANGMENT

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When someone comes in to meet with me because they want to modify or change their custody order or arrangement, I begin each FREE CONSULTATION with this question:  What do you want the Court to do? 

This is the single most important question in a modification of custody matter.  What do you want a new or modified order to say in place of the old one

It is not effective to simply bring problems to the Court to solve, they are not in the problem-solving business, they are in the “what do you want me to do about it” business.  The Court’s ability to solve many of families’ complex issues is very limited.

I want the Court to put in an order that my children decide when to visit. 

There are attorneys who will take your money and go to Court with this request, however, an experienced attorney will have told you that in NY the child cannot decide when to visit.  Orders can reference “taking into consideration the activities and wishes of the child”  however, that still does not give the child the ability to just not visit.

I want visitation to change and not include current overnights or to have less time with the other parent. 

To accomplish this in Family Court you must show a CHANGE OF CIRCUMSTANCES since the last order.  What happened that would cause the Court to change your order since you were last in court.  The Court will not go back and re-litigate matters prior to that date.  You must be able to set forth specific actions (not just worries of what might happen) since the prior order.  If you simply say your child wants the change and do not put in other specifics your petition is not likely to survive a motion to dismiss.  Do the best you can to tie everything to an effect on your child or children. This can be tricky so hire an experienced attorney or you could spend the money and put in the time and get your papers and matter dismissed with nothing to show for it.

My child wants me to bring this request so they can visit differently. 

To be successful your child must understand a very important concept.  YOU CANNOT SPEAK FOR THEM!!!  I have represented hundreds of children over the 30 years I have been in practice.  So many times the children do not tell me anything that supports the effort to change the custody arrangement.  They simply assume that they told their parent so now they do not have to advocate for themselves or say anything bad about their parent.  This is NOT true.  The Attorney for the Child (AFC) is the one person who has to put forth their position and it is not hearsay.  The Court will ask if they have a position and why (much like your attorney is asked) and if the children do not have a position and specifics then it hurts your chances.

The final point here is that filing for a modification is complicated business and should not be attempted without experienced legal assistance.  Conta me for a free initial consultation before proceeding.

Tax Bill Impacts Divorce

The GOP tax bill signed by Trump late last year changed drastically how maintenance/alimony will be handled.

One way the Republican tax bill writers tried to raise revenue to compensate for the cuts was through maintenance/alimony. Under the new bill, alimony paid by one spouse to the other will not be tax deductible, and the spouse receiving the alimony no longer has to pay taxes on it. In the current system, it works the opposite way, with the payer deducting the full amount and the recipient paying taxes on the alimony at a rate of 15%. The new rule means the government will end up with more of a divorcing pair’s combined money.

Although the law won’t take effect until next year, giving divorcing couples a reprieve for now divorces are potentially likely to get a lot messier.

Amicable divorces will become more difficult now that the maintenance/alimony payer is not only going to have to pay but will lose a key deduction, thus suffering a much higher financial burden.  This will likely make settling more of a challenge and cause more tension and fights among parties and lawyers.

Perhaps the largest and most uncomfortable tension will stem from timing. One side could be dragging its feet in an attempt to delay, and the other will be trying to get a deal signed before New Year’s.

New York has a formula for calculating appropriate payments and less leeway for negotiations, so timing may be critical.

The loss is not only for the monied or paying spouse. If the courts start adjusting the maintenance to compensate for this tax change the spouse receiving the funds could loose out as well.

An example of the change

Using a wealthy client as an example, under the old system, if a highest-tax bracket, soon-to-be ex-spouse was set to pay $100,000 per year in alimony, they would get a deduction off the top — at the highest tax rate of around 40% — so they would only be out around $60,000. The recipient would end up with $85,000 after paying a 15% rate on that $100,000.

For couples divorcing in 2019, if the wealthier spouse paid $60,000 — the same out-of-pocket cost as the example above (they’d have less money without the deduction) — the other spouse would only get $60,000.

I encourage my clients to try and figure things out.  Most of my clients would rather see more money go to the family members than the government.

This new tax issue won’t go away in 2019 when the new tax bill takes effect. New York uses a formula to calculate alimony payment amounts, and there is no guarantee it will change the laws any time soon.

The formula factors in tax deductibility for the payor. Judges and courts generally have broad leeway to deviate from the formula if they see fit and to establish payment amounts to account for increased take-home income for the receiver and increased costs for the payer. The legal standard in many states, like New York for example, is whether something is “unjust and inappropriate.”

There’s no guarantee that this gambit works, however. Judges, unlike written laws, are humans, and it’s very difficult to predict how all of them will deal with the changes.  Some judges will compensate for changes in the tax law and some will not. That is also going to create tension.

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