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Huntington Station, NY 11746

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Northport, NY 11768

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Divorce and Family Law

When it's time to "Sue Someone You Loved"®

When your divorce action doesn't work out the way it should, other law firms contact Doniger & Engstrand to handle their client's appeal, why not contact us directly.  We handle all aspects of divorce appeals contesting the lower court's judgment of divorce, equitable distributions, maintenance and child support awards. Furthermore, we will make certain that you have an up-to-date health care proxy and Will.  In addition, if you are simply unhappy with your divorce lawyer, from our extensive connections we can help you find a new attorney who is more to your liking.  

Our firm is uniquely positioned in the field of divorce and family law.  Unlike firms that only focus on divorce law, our firm is experienced in a number of different practice areas such as corporate law, identity theft, consumer rights and personal injury.  When you retain us to handle your divorce appeal, our focus will not be limited to a cookie cutter application of divorce law as a divorce-only law firm would do.  Instead we will apply our experience in all of our practice areas to creatively bring about the best result for you both by preserving your income and assets as well as fighting to help get you get your fair share of equitable distribution of marital assets.  While we aggressively fight to get you the most, we are compassionate about protecting your children’s best interests and preserving the important role you play in their lives in terms of their upbringing, custody, visitation and child support.  So remember, when it's time to "Sue Someone You Loved,"®, call Doniger & Engstrand.

NO-FAULT DIVORCE

Effective for all divorce actions filed on or after October 12, 2010, divorcing couples no longer have to prove fault to obtain a divorce.  Although still viable as causes of action, the traditional fault grounds, such as “cruel and inhuman treatment (DRL §170(1)), spousal “abandonment” for at least a year (DRL §170(2)), confinement to “prison” for three or more years (DRL §170(3)), “adultery” (DRL §170(4)), living separate and apart pursuant to a decree or judgment of separation for at least one year (DRL §170(5)), living separate and apart for at least a year pursuant to a written separation agreement (DRL §170(6)), need no longer be pleaded.  With the passage of the No-Fault Divorce Law, Domestic Relations Law (DRL) §170(7), one spouse need only state under oath that “[t]he relationship between husband and wife has broken down irretrievably for a period of at least six months . . . ” to be entitled to a divorce.  DRL §170(7). 

On its face, the new No-Fault Divorce Law would save couples the legal expense of long and protracted litigation that simply established whether there was a fault basis to grant the divorce.  Unlike the traditional fault based grounds, there does not appear to be any defense to the claim of irretrievable breakdown of the marital relationship.  All it takes to prevail on this no-fault ground is a sworn allegation that the relationship between husband and wife have irretrievably broken down for at least six months.  However, before a No-Fault divorce will be granted, the statute requires that the issues of payment of spousal maintenance and child support as well as payment of counsel and expert fees and expenses must first be decided along with the equitable distribution of marital assets.  In addition, the statute requires that the issue of custody and visitation of infant children must be also be resolved before a No-Fault divorce will be granted. 

"The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."

DRL §170(7) (emphasis added).

CIVIL RICO IN MATRIMONIAL ACTIONS

Dan Engstrand, has been involved in the successful prosection of a Rackeer Influence and Corrupt Organizations Act litigation in the Eastern District of New York involving mail and wire fraud in connection with a spousal transfer of marital assets to overseas corporate holdings in an attempt to evade New York's equitable distribution.  This unique litigation strategy is what stands our firm out in the area of matrimonial law.

IDENTITY THEFT BY SPOUSE

Frequently, a divorcing spouse is surprised to learn that the other spouse has stolen his/her identity as well as the identities of the children.  This criminal theft of identity can cause significant damage to your and your children’s credit.  One of the areas of concentration of our firm is in the area of identity theft

ABUSIVE RELATIONSHIPS

In addition, when the marriage becomes violent, not only can we help you by securing an order of protection against the abusive spouse, but also, our firm is experienced in the field of personal injury.  Assault is considered a personal injury and you are entitled to sue for monetary damages for your injuries.  Although there is no insurance coverage to go after, frequently the major marital asset is the home.  If a personal injury judgment is secured against the abusive spouse, that judgment will be applied against the abusive spouse’s equitable share of the marital asset, thereby reducing and possibly, depending upon the amount of the judgment, eliminating entirely the abusive spouse’s share of equitable distribution.  It is important to keep in mind that the statute of limitations for assault is one (1) year.  If you fail to bring a personal injury action within one (1) year of the assault, you will be forever time-barred from doing so thereafter. 

UP TO DATE HEALTH CARE PROXY AND WILL

Imagine your spouse, whom you want to divorce, is making health care decisions that affect your very life. Farfetched? Not really.  If you were to become mentally incapacitated and therefore unable to make health care decisions on your own, New York would look to your spouse to make those decisions for you.

Public Health Law §2994-d

According to N.Y. Public Health Law §2994-d, your spouse or domestic partner is first on the list of surrogates that a hospital would look to for decisions on your medical care and treatment, followed next by any children you may have over the age of eighteen years, followed thereafter by your parents, then your siblings and finally your close friend. 

N.Y. Public Health Law §2994-d(1)(b) through (f). According to this statute, unless you and your spouse were legally separated, your spouse would have the legal authority to “make any and all health care decisions on the adult patient’s behalf that the patient could make.” 

N.Y. Public Health Law §2994-d(3)(a)(i)

This means that if you and your spouse were in the midst of a divorce and not legally separated, and you were no longer capable of making these decisions (unless some family member or close friend ran to court for judicial relief, such as guardianship proceeding under Article 81 of the Mental Hygiene Law), odds are that you would be left at the mercy of your estranged spouse to make these life and death decisions for you.  This would be especially true if you suffered a sudden calamity such as a car accident and no friend or family member knew about it.  When time is measured in seconds, the hospital is not obliged to run to court when a spouse, even an estranged spouse, is present and willing to make these vital health care decisions for you. 

The scope of your spouse’s authority over your health care would include the right to make a decision concerning withholding or withdrawing life-sustaining treatment (N.Y. Public Health Law §2994-d(5)).  Before life support can be refused or withdrawn, a physician with the concurrence of another physician would have to determine that you are either (a) permanently unconscious (i.e., persistent vegetative state) or (b) likely to die in six months whether or not treatment is provided. (N.Y. Public Health Law §2994-d(5)(a)(i)). 

This is especially true if you had previously appointed your spouse in a health care proxy during better times.  Until revoked by you with a new health care proxy or until a final judgment of divorce or a legal separation (meaning a court has signed off on it) was entered, your estranged spouse, even during the pendency of a divorce proceeding, could conceivably make health care decisions affecting your very life should you become incapacitated and unable to make those decisions on your own (N.Y. Public Health Law §2985(1)(e)).  That statute specifically states the following:

The appointment of the principal's spouse as health care agent shall be revoked upon the divorce or legal separation of the principal and spouse, unless the principal specifies otherwise.

N.Y. Public Health Law §2985(1)(e). 

Consider the predicament of Terri Schiavo, who at the time she had lapsed into a coma, did not leave any written instructions as to what should be done for her medically in case she were to become disabled.  At the time she had become comatose, she was married and living with her husband, Michael.  Diagnosed years later as being in a persistent vegetative state, Michael Schiavo who was still legally married to her, but now living with another woman with whom he had fathered two children, wanted to “pull the plug” against the wishes of Terri Schiavo’s parents.  Because he was still married to her, Florida, as would New York, allowed her estranged husband,  Michael Schiavo, to make all her health care and, ultimately, the end of life decision because there was no health care proxy designating someone else to make these decisions or a living will which could have clearly stated a contrary wish for continued treatment. 

Unless your wishes are clearly stated (living will) or you have designated someone you want in a health care proxy to make these decisions, all that is required of the surrogate spouse when making health care decisions that could affect your life is that they be made “in accordance with the patient’s wishes, including the patient’s religious and moral beliefs. . . .” (N.Y. Public Health Law §2994-d(4)(a)(i)).  If your wishes are not known (no health care proxy or living will) or cannot be reasonably ascertained, then all the law requires is that the surrogate’s decision be “in accordance with the patient’s best interests” (N.Y. Public Health Law §2994-d(4)(a)(ii)).  What the best interests of the patient are is determined as follows:

An assessment of the patient's best interests shall include: consideration of the dignity and uniqueness of every person; the possibility and extent of preserving the patient's life; the preservation, improvement or restoration of the patient's health or functioning; the relief of the patient's suffering; and any medical condition and such other concerns and values as a reasonable person in the patient's circumstances would wish to consider.

N.Y. Public Health Law §2994-d(4)(a)(ii).

If the above-quoted language is the benchmark standard that the law applies to determine whether “pulling the plug” is in your best interests, consider if you were comatose.  You could conceivably bet your very life that a hospital would side with your estranged spouse who was acting as your surrogate that terminating life-support would be in your best interests especially if your medical insurance was about to run out.  Would you want your estranged spouse making those life and death health care decisions for you instead of a trusted family member or close friend?

To avoid a Catch-22 situation in which your estranged spouse would be empowered by law to make these health care decisions for you if you could no longer make them on your own, the easiest thing to do is to sign a health care proxy and appoint whomever you want to make these decisions for you.  This is something you can do on your own without an attorney simply by clicking on to the link to New York’s “Health Care Proxy”.  Remember, you will need two people to witness your signature at the time you sign the health care proxy. Once you have done this, give the original proxy to whomever you designated and give a copy to your doctor to be included in your medical files. 

Should you decide to consult an attorney, Doniger & Engstrand, PLLC can draft Health Care Proxies and more sophisticated Living Wills as part of the Estate Planning work that we focus on. A Living Will sets forth in writing what you would like to have done medically should any number of various calamities befall you in the future that would render you disabled.  Unfortunately, even the best drafted Living Wills cannot cover every conceivable event.  Therefore, even with a Living Will it is wise to have a Health Care Proxy in place to fill in where a Living Will might leave a void. 

Don't leave your safety to the uncertain vagaries of someone who might not have your best interests at heart.  Dan Engstrand can help you draft your intentions so that your wishes are always upheld and respected. 

LAST WILL & TESTAMENT:  "UNTIL DEATH DO US PART"

 What exactly should these words, “Until Death Do Us Part” mean to a monied spouse who, having lived separate and apart from his/her betrothed for countless years, has simply, not because of some vestige of love but rather because of fear of losing the lion’s share of the assets that he/she has worked so hard to accumulate over the years through equitable distribution, never wanted a divorce?

Such an arrangement can never be one-sided.  Suffice it to say, more than likely the monied spouse has paid a small ransom to buy off his/her estranged spouse to keep that spouse content with staying married and away from the courthouse steps.  One, the other or both may have had significant others over the passage of time, but both are content at being unable to tie the knot in their new relationships while still legally married to each other.  This type of relationship can suffice for twenty, thirty years or more.  Alas, such an arrangment cannot go on forever.  At some point in time, one of them is going to check out on the time-clock of life.  

The time now is not for a matrimonial attorney, but rather an estate attorney, such as Dan Engstrand, Esq., who can help secure your estate assets from your estranged spouse.  

What happens when the monied spouse is nearing the end of his/her days and the estranged spouse is still going strong?  Because they are still legally married, New York law says that the surviving spouse takes all should the monied spouse die without a Will and without children.  Estate Powers and Trust Law   §4-1.1(a)(2) (hereinafter referred to as “EPTL”).  The result is less draconian should the monied spouse who dies without a Will be survived by a spouse and children.  In that case, the surviving spouse takes the first $50,000 of the estate and then fifty percent of what’s left over; the balance or remaining fifty percent is divided equally amongst the children.  EPTL §4-1.1(a)(1).

The result is similar even if there is a Will which expressly excludes/”leaves nothing to” the estranged  spouse.  In that situation, New York gives the surviving spouse who has been cut out from a Will, the right to elect fifty percent of the estate as his/her spousal right of election, or one-third of the estate if there are children.  EPTL §5-1.1(c). 

Now it’s time to look at the math.  The monied spouse during his/her lifetime has paid “hush” money every month for years just to keep the estranged spouse away from divorce court.  What has this bought the estranged spouse?  Well it’s a business decision.  Looking at it from this perspective, the monied spouse has keep his assets intact at a price; sometimes at a great price if the monthly “hush” money payout has been doled out for decades.  Yet perhaps for this individual, it was a sound decision to payout over time rather than split the assets all at once in divorce court. 

No matter what the rationale, there will come a point in time, namely at the end of life, when the monied spouse is forced to contemplate what we set forth in our opening query, what then does the phrase “Until Death Do Us Part” mean, or should mean, to the spouse who has refused to divorce for fear of losing too much money under equitable distribution?  If the monied spouse dies first, it would appear that the surviving spouse would still get his/her equitable distribution at the time of death under New York’s estate laws.  See EPTL §§4-1.1 and 5-1.1-A(c).  If monthly “hush” money payouts have been doled out for decades, perhaps then that was not the soundest business decision.  In such a case, it would appear that the monied spouse, by avoiding divorce, has in effect paid out more than he/she would have if equitable distribution had been allowed to split up the assets all at once.  

What then should the smart spouse do to insure that his estranged spouse doesn’t step in and walk away with every cent?  Well there’s a loophole in New York’s estate laws.  Crafty lawyering can help that spouse leave his/her monies to the one he prefers rather than having the estranged spouse step in and help  him/herself to half the estate.

No pun intended, but that loophole is buried deep within estate laws of New York.  EPTL §5-1.1(c)(1)(D) states, in pertinent part, the following:

Where the elective share is over ten thousand dollars and the decedent has by testamentary provision  created a trust in an amount equal to or greater than the elective share, with income therefrom  payable to the surviving spouse for life, the surviving spouse has the limited right to elect to take the  sum of ten thousand dollars absolutely, which shall be deducted from the principal of such trust and  the terms of the instrument making the testamentary provision remain otherwise effective.

EPTL §5-1.1(c)(1)(D).

Legalese aside, this statute says, in layman’s language, that if your surviving spouse’s elective share of your estate (remember if you die with children, then that share is one-third of your estate; if no children, then the elective share is fifty percent) adds up to more than $10,000, then if the Will sets up a trust with income for life to the surviving spouse that springs to life upon the monied spouse’s death and is funded in an amount that at least equals the elective share of the surviving spouse, then the surviving spouse can only elect to take $10,000 cash outright.  The money that is used to fund the trust—in this case the surviving spouse’s elective share of the total estate—is called the “principal” or “corpus”.   Off the top of the trust principal, the surviving spouse’s right to elect to take cash outright has been drastically reduced to $10,000.  Whatever monies are left in the trust after the $10,000 payout  is then invested and the income only—never the principal—is paid out each year to the surviving spouse for the rest of his/her life.

If you think about it carefully, this is quite a good deal. Let’s consider that the monied spouse dies with a cash estate worth $10-million dollars.  The estranged spouse’s elective share is $5-million and this would be tax-free!  Do you really think that the deceased monied spouse would, in his/her right mind, want to fork over $5-million tax-free dollars to a person that he/she long ago fell out of love with?  Of course not.  So what that monied spouse did was have a Will drawn up leaving half his estate (in our example $5-million) in trust with income for life payable to his surviving spouse.  The only cash the surviving spouse can elect to take up from is limited to $10,000 and no more.  Any other monies the surviving spouse gets will be from the income generated each year by the trust principal.

Who is the trustee of this income-for-life trust?  Well just about anyone, which would mean that the monied spouse could name his/her paramour as the surviving spouse’s trustee or an adult child of the monied spouse from another marriage could even be named as the trustee.  

Who then gets the principal/corpus of the trust once the surviving spouse dies?  Anyone the monied spouse named as the trust principal’s beneficiary.  This means income-for-life to the surviving spouse and, in our example, when the surviving spouse’s lifetime ends, as all lifetimes must do, the $5-million in trust principal (the corpus) could then be distributed to the monied spouse’s favorite charity, children, paramour—namely anyone the monied spouse had named as a beneficiary in the trust, thereby excluding the estranged surviving spouse’s estate.  

A related provision, EPTL §5-1.1(c)(1)(F), basically does the same thing but eliminates the estranged surviving spouse’s right of election.  In reality, this is not something that the monied spouse should think really sticks it to the estranged surviving spouse.  Under this provision of the estate law, if you want to eliminate the right of election, then you must, in addition to setting up a trust with sufficient principal that at least equals the elective share of the surviving spouse, give an outright gift (testamentary disposition) in the Will to that surviving spouse of at least $10,000. 

In pertinent part, EPTL §5-1.1(c)(1)(F) states as follows:

Where an absolute testamentary provision is made for the surviving spouse of or in excess of ten  thousand dollars, and also a provision in trust with income payable to such spouse for life of an amount  equal to or greater than the difference between such absolute testamentary provision and his elective  share, the surviving spouse has no right of election.

EPTL §5-1.1(c)(1)(F).  New York will always allow the estranged surviving spouse to pocket at least $10,000.  Anything more than that the estranged surviving spouse will have to wait for each year by way of a distribution of trust income for life.

Therefore, with crafty lawyering, the phrase, “until death do we part”, can have the desired meaning that the estranged spouse does not get to take one-third or one-half of your estate.  By setting up a trust with income-for-life in a Will, the monied spouse has effectively eviscerated the spousal right of election to ten thousand ($10,000) dollars (either by right of election under EPTL §5-1.1(c)(1)(D) or testamentary gift under EPTL §5-1.1(c)(1)(F)).  The surviving spouse is left with income for life that is generated by the trust principal/corpus and upon that spouse’s death, the principal/corpus (in our example, $5-million) would then go to whoever the monied spouse intended and not to the estranged spouse’s estate.  Until that eventuality, the monied spouse can derive great satisfaction as he/she heads off to the great beyond knowing that this income-for-life trust will be administered by someone of his/her own choosing and not by the surviving spouse who will have absolutely no control whatsoever over it.

Dan Engstrand can help you draft your estate plan to meet your desired needs, whatever your matrimonial status might be.  Call Dan for a consultation.

ENFORCEMENT OF SUPPORT AND MAINTENANCE AWARDS

When a money judgment is rendered in favor of one spouse and that debtor spouse fails to pay support and/or maintenance, an income execution may be enforced against a source of the debtor's income up to as high as sixty (60) percent of the debtor spouse’s earnings if the debtor is not supporting a new spouse or a dependent child.  Civil Practice Law and Rules (CPLR) §5241(g).  If the debtor has remarried or has another child, then fifty (50) percent of his income can be garnished.  CPLR §5241(g).

CONTEMPT PROCEEDINGS 

Contempt proceedings may occur if a spouse disobeys an order, tampers with documents, or withholds evidence.  If found in contempt, a spouse can be jailed.

SECOND AMENDMENT FIREARM RIGHTS

The right to bear arms is guaranteed by the Second Amendment to the United States Constitution.  Nevertheless, such a right is still subject to state regulation.  The state has a legitimate interest in protecting the life and safety of its citizens.  Therefore, if you own a firearm and are charged with domestic abuse, your firearm license will be supended and the courts will require that you surrender your weapons to the appropriate authorities through the issuance of a Temporary Restraining Order.  This Order can be issued ex parte, meaning one party alone without your knowledge can petition the court, under oath, for this relief and, if warranted, get it.  Of course you will be granted a hearing within 14-days, but in the meantime, you are still required to turn in your weapons or you will be in violation of the law.  If the restraining order has been issued by the Family Court, that court lacks the authority to compel the police to return your weapons if the restraining order is later dismissed or withdrawn as part of a settlement. 

It has been our experience that in Suffolk County, if the restraining order is no longer in effect, Suffolk Police will return your weapons to you.  Nassau Police, on the other hand, will require you to petition the Supreme Court under Article 78 to get an order compelling them to return your weapons.  If the restraining order becomes a permanent order of protection, even though you cannot take possession of your weapons, you still have a property right in them.  N.Y. Penal Law §400.05(6).  This means that provided the weapons were not found to have been used in a crime, you have one-year from the time of surrender to sell or transfer your weapons that are in police custody to a licensed firearms dealer.  If you have not made arrangements for the return or transfer of your weapons within that year, the law requires that your weapons be destroyed.