December 13, 2011

End-of-the-year Divorce Checklist Published By Forbes.com
part 1: Gather And Copy Financial Records Before You Start A Divorce Case

END-OF-THE-YEAR DIVORCE CHECKLIST PUBLISHED BY FORBES.COM
PART 1: GATHER AND COPY FINANCIAL RECORDS BEFORE YOU START A DIVORCE CASE

            Today, the financial website, Forbes.com, published a year-end "End-of-the-Year Divorce Checklist for Women."   The bulk of the items on the divorce checklist are matters of basic commonsense, and are equally applicable to both men and women who are facing the prospect of divorce.   During the next week, I will be addressing each item contained on the Forbes list, with insights based on my experience as a divorce lawyer who has been in the trenches of New York courts for 18 years. This article is the first installment of my New York divorce checklist series.  The information and advice contained in these articles involves an overriding mandate: you must begin the process of basing your actions on strategy, rather than uncontrolled emotion, before you start your divorce case. 

             As a divorce lawyer for 18 years, I have helped several thousand clients make the difficult transition from being emotional overwhelmed to proactive, strategic action.  Divorce involves essential legal and financial rights that will affect you for the rest of your life. You cannot afford to wallow in anger, shame, resentment or despair.  You must act proactively and strategically.  An important role of any divorce lawyer involves helping his or her client make this difficult - yet essential - transition.   Acting and thinking in a proactive and strategic manner will lead to unexpected benefits.  Beyond helping you with your case, this new paradigm of thought will actually help you in dealing with the emotional effects of your failed relationship, and the psychological challenge of re-defining yourself. 

             Item No. 1 on the "To-List" of Anyone Contemplating Divorce: Gather Financial Records, and be Prepared.

             The first item on the Forbes "divorce checklist" is to begin the process of gathering and reviewing financial records.  Compiling and preserving financial records is a matter of utmost importance.  If divorce is even a remote possibility, it is essential for you to thoroughly familiarize yourself with all financial records, including bank records, credit card accounts, retirement accounts, and investment accounts.  It is equally essential for you to photocopy all of the records relating to such matters. Regrettably, after a divorce case is commenced, it may be too late.  Your spouse may selectively withhold certain items (such as information about his or her retirement benefits).  Although nearly all jurisdictions require full disclosure by both parties of their respective (and joint) financial records and information in connection with divorce, many spouses attempt to evade their disclosure obligations, or only selectively disclosure partial information so as to distort the actual value of assets in their name. 

             In New York, all contested divorce actions begin with full financial disclosure by each side, in the form of a Statement of Net Worth.  According to New York's Domestic Relations Law, a Statement of Net Worth is supposed to be an exhaustive and comprehensive statement of all assets, liabilities, income, and other financial data, of both parties.  In practice, many spouses try to withhold information.  New York's matrimonial judges are overburdened, and do not always demand full compliance with financial disclosure mandates of NY's Domestic Relations Law.  The result is that divorce proceedings in New York sometimes feel like the "Wild West".  Accordingly, you must protect yourself, and not assume that a judge will compel your spouse to comply with his or her obligations under the law.  Beyond preserving financial records, you must retain a New York divorce lawyer who is experienced and will fight hard for you in the trenches of the courtroom. 

             I recently concluded a case in which my client had virtually no information about her husband's retirement assets (401k) and income.  Despite the fact that this case involved a long-term marriage, my client spent years in the dark.  Unfortunately, despite multiple court orders requiring him to provide financial disclosure, the husband remained noncompliant and secretive.

             As a result, my client and I had to undertake time-consuming discovery and legal proceedings to uncover the truth about the husband's financial conditions.  Among other things, we issued subpoenas to the husband's employer and banking institutions in which the husband maintained accounts.  We arranged for asset searches, and undertook an exhaustive deposition (oral questioning under oath) of the husband.  As a result, we were able to uncover certain assets that the husband had tried to conceal.  Did we get the whole truth?  We will never really know. 

             Divorce seems to bring out the worst in human nature.   Not surprisingly, many marriages fall apart because one or both parties has unresolved psychological issues.  These same issues are sometimes manifested - during the divorce proceedings - by vindictiveness, bitterness, and rage.  In the worst case scenario, a spouse resorts to physical violence.  If you are concerned that your spouse (or former spouse) presents a physical danger to yourself or your children, a Family Court Order of Protection may be required.  An experienced New York divorce lawyer should be fully familiar with the legal standards and procedural mechanisms for obtaining an order of protection under New York's Family Court Act.  Sadly, dealing with the threat of domestic violence is part of a divorce attorney's job. 

             Regardless of how well you think you know your spouse, do not assume that he or she will be cooperative or forthcoming.  Prepare for the worst.  Gather all documents relating to the assets, debts, income, retirement assets, and any other aspect of the financial affairs, from the beginning of your marital relationship to the present.  Copy those documents, and place them in a secure place (for example, the office of your divorce attorney, or some other place to which your spouse does not have access).  If you are facing divorce, you should consult with an experienced New York divorce lawyer at the earliest possible stage.  New York divorce lawyer Marc Rapaport has 18 years of experience, and handles all NY family law and matrimonial matters.  Call us today for an appointment: (212) 382-1600.

 

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