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The Matrimonial Strategist
Federal Tax Errors That Attorneys Make
Matthew A. Feigin
This article is intended to help practitioners by warning of mistakes the author has seen matrimonial attorneys make in applying federal tax law.
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The Matrimonial Strategist
Bisbing: The Relocation Question Wasn’t Necessarily the Intriguing One
Laurence J. Cutler and Alyssa M. Clemente
Part Two of a Two-Part Article
According to the authors, using the holding of recent New Jersey Supreme Court case Bisbing v. Bisbing as a model, the clear and current trend throughout the United States that when a custodial parent is seeking to relocate outside of the state with a child, the best interest of the child standard should apply.
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The Matrimonial Strategist
Drafting Divorce Settlement Agreements
David Bliven
Best Practices
This article addresses some deficiencies in reviewing separation or settlement agreements done in divorce cases, and recommends various clauses that practitioners may implement in their own practices.
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The Matrimonial Strategist
Case Notes
Analysis of a case in which the Eighth Circuit reversed the confirmation by the Board of Immigration Appeals of a deportation order because the Immigration Judge’s finding of a fraudulent marriage was not based on proper evidence.
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The Matrimonial Strategist
To Relocate, or Not to Relocate; Was That Even the Intriguing Question in Bisbing?
Laurence J. Cutler and Alyssa M. Clemente
Part One of a Two-Part Article
As of August 2017, the seminal case in New Jersey deciding the issue of the appropriate legal standard for a divorced parent seeking to relocate outside of the state is Bisbing v. Bisbing. This case is an important example that can be used to explore this topic throughout the country.
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The Matrimonial Strategist
Children of a Married Same-Sex Couple
Janice G. Inman
The Presumption of Legitimacy
In what is being hailed as a landmark decision, New York's Appellate Division, First Department, recently held that the presumption that a child born to a married couple is their legitimate offspring applies not only to biological children of both spouses, but also to children born through more modern means — even when the married parties are in a same-sex marriage.
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The Matrimonial Strategist
Ferri v. Powell-Ferri: A Critical Planning Case for Practitioners
Martin M. Shenkman and Rebecca Provder
The Trust Ferri Could Be Better Than the Tooth Fairy
Practitioners should encourage all clients with existing irrevocable trusts to meet to review those trusts. Modifying old irrevocable trusts through decanting (or other means) might make improvements, or as in the Ferri v. Powell-Ferri case, save the trust assets.
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The Matrimonial Strategist
Social Media: Questions of Admissibility and Ethics
Khizar A. Sheikh, Lynne Strober and Jennifer Presti
Part Two of a Two-Part Article
Social media evidence can be acquired both informally — through an attorney's own investigation or from the client — or more formally through the use of discovery and the rules of discovery. While each gives rise to practical and ethical issues, this article focuses on informal methods of acquisition.
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The Matrimonial Strategist
Case Notes
Two cases of great interest, including one about the legitimacy of an IVF child whose parents are married.
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The Matrimonial Strategist
Social Media: Questions of Admissibility and Ethics
Khizar A. Sheikh, Lynne Strober and Jennifer Presti
Part One of a Two-Part Article
This two-part article is divided into three sections: 1) Social media, defined; 2) Examples of how social media has been used in family law cases; and 3) Ethical considerations for attorneys who gather social media evidence.
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Employment Law Strategist
NY's Paid Family Leave Program
Sharon P. Stiller and Rachel Demarest Gold
Part Two of a Two-Part Article
Last month, the authors discussed the fact that New York State will have its own "Paid Family Leave Benefits Law," effective Jan 1, 2018. They noted the differences from the FMLA, and discussed insurance considerations. The discussion concludes herein.
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The Matrimonial Strategist
Autism in Family Courts
Kelly C. Wall and Karen Markle
The latest concern in family courts is a result of the sharp increase in the number of children who are diagnosed with Autism Spectrum Disorder (ASD), which has revealed that our courts are not prepared to handle cases with ASD individuals and families.
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The Matrimonial Strategist
New York State's Attorney for the Child System
Yonatan Levoritz
Part Two of a Two-Part Article
As discussed in Part One last month, an AFC advocates for the child client in much the same way that any other attorney advocates for an adult client. This author is not a fan. He concludes his discussion of the drawbacks of New York's AFC system herein.
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The Matrimonial Strategist
Tri-Parenting
Bari Weinberger
Part Two of a Two-Part Article
Last month, the author asked what matrimonial and family law attorneys can do to help their clients with tri-parenting concerns. The discussion concludes herein.
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The Matrimonial Strategist
Tri-Parenting: Three's Company or Three's a Crowd?
Bari Weinberger
Part One of a Two-Part Article
Laws pertaining to legal parentage have changed frequently in recent years as states have attempted to keep pace with the evolving configurations of modern-day families. Major contributors to this process have expanded our definitions of family and parenthood. Still, what about the related issue of how many recognized parents a child can have?
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The Matrimonial Strategist
New York State's Attorney for the Child System Falls Short
Yonatan Levoritz
Part One of a Two-Part Article
Custody disputes can be financially and emotionally draining, and stressful for both parents and children. It was once believed that after a divorce, children needed the full-time stability of a home run by one parent, but today, shared custody has become an accepted method of circumventing the brutal dynamics of divorce litigation.
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The Matrimonial Strategist
A Broadening Consensus to Narrow Asset Forfeiture
Edmund W. Searby
When Attorney General Jeff Sessions announced in July that the federal government planned to again emphasize the pursuit of civil asset forfeitures, it raised issues for many, including the spouses and family members of those who are charged with committing federal crimes.
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The Matrimonial Strategist
Forensic Mythologies and Custody Evaluations
Jeffrey P. Wittmann
Part Two of a Two-Part Article
Last month, we looked at several commonly held beliefs about forensic psychologists and psychiatrists who conduct custody evaluations for the courts. Many of them are not necessarily true. We conclude this discussion herein.
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The Matrimonial Strategist
Psychological Subjugation: The Elusive Form of Abuse
David A. Martindale
Mental health and legal professionals must devote more resources to studying the interpersonal dynamics of subjugation that is accomplished without resort to physical force, and the implications of these dynamics for the appropriate adjudication of custody/access disputes.
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The Matrimonial Strategist
Divorce and the Undocumented Spouse
Laurie J. Woog
Divorcing Women Immigrants and VAWA; Part Two of a Two-Part Article
The Violence Against Women Act (VAWA) includes a procedure that gives legal status to immigrants who were abused by their U.S. citizen or lawful permanent resident spouse, who often use the immigration law as a cudgel of power and control.
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The Matrimonial Strategist
Forensic Mythologies and Custody Evaluations
Jeffrey P. Wittmann
Part One of a Two-Part Article
As forensic psychologists and psychiatrists agree to accept appointments as evaluators or take the stand to testify about a custody matter, there are often many assumptions about forensic practice floating among those in the legal community, and even on the part of litigants, that are questionable at best.
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The Matrimonial Strategist
Inadequate Judicial Response to Emotional Abuse
David A. Martindale
Part One of a Two-Part Article
According to the author, emotional abuse does irreparable harm to the children and adults subjected to it, yet it often gets inadequate attention from our courts.
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The Matrimonial Strategist
Divorce and the Undocumented Spouse
Laurie J. Woog
Part One of a Two-Part Article
Marriage to a U.S. citizen, by itself, does not confer legal status on an undocumented immigrant. However, a valid marriage — one not entered into for the purpose of evading immigration laws — can provide an avenue to legal status in some circumstances. Thus, if an undocumented immigrant gets divorced, she will generally lose that avenue.
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The Matrimonial Strategist
NY Divorce and UK Pension Rights
Gerry Wendrovsky and David Salter
What happens when a New York matrimonial litigant's pension benefits are foreign, administered by a plan administrator outside the jurisdiction of a New York court? As the authors state, the importance of specialized and expert legal and tax advice cannot be underestimated.
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The Matrimonial Strategist
Home Insurance May Cover Jealous Husband's Attack on Third Party
Janice G. Inman
A man returns home unexpectedly, finds his wife with another man, and shoots him. It's an unfortunate chain of events, but certainly not unheard of. What is unusual is how the case of a love triangle like this one could lead to an Eleventh Circuit decision about homeowners' insurance.
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The Matrimonial Strategist
The Veterans Survivor Benefits Scheme, the Unlawful Marriage and CUE
Janice G. Inman
The case of Lewis v. Shulkin, heard by the U.S. Court of Appeals for Veterans Claims, shows us one instance in which an attempted but not legal marriage just might have a chance to be recognized, at least for the purposes of determining government benefits.
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The Matrimonial Strategist
Forensic Accounting: When Do You Need It?
Ken Stalcup, Penny Lutocka and Ross Koble
Most matrimonial attorneys have heard a client, typically the "out-spouse" in a marriage with a business interest, say, "The books are cooked," or "Personal expenses are being paid by the business," or "The accounting records are fiction." Failing to probe these issues may cost your client a lot of money when the asset division takes place, and may leave him or her dissatisfied with your representation.
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The Matrimonial Strategist
NJ's New Child Support Statute
Kory Ann Ferro
Considering the Disabled Child
New Jersey's new child support statute, titled Termination of Obligation to Pay Child Support, became effective on Feb. 1. Under this statute, a child support obligation terminates "by operation of law" when the child turns 19, which termination can be extended until the child turns 23 under certain circumstances and using certain procedures. But what about children with special needs?
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The Matrimonial Strategist
Case Notes
Discussion of two key cases.
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The Matrimonial Strategist
Trust Drafting Tips: How to Make Trusts Harder to Reach in Divorce
Martin M. Shenkman
Part Two of a Two-Part Article
Part One of this article in last month's issue addressed perhaps a dozen trust provisions and evaluated how to strengthen them to provide greater protection for a future divorce of a beneficiary. We conclude this discussion herein.
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The Matrimonial Strategist
Making Prenuptial Agreements 'Bulletproof'
David B. Saxe
Can prenuptial agreements be made "bulletproof," that is, immune from the challenges and vagaries of litigation? Perhaps not entirely, but with certain precautions, many of those agreements can be made more invulnerable.
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The Matrimonial Strategist
Litigation
Discussion of two recent notable cases.
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The Matrimonial Strategist
Trust Drafting Tips: How to Make Trusts Harder to Reach in Divorce
Martin M. Shenkman
Part One of a two-Part Article
Trusts have traditionally been used to protect wealth from divorce. However, what many estate planners refer to as "traditional" trust draftingis not nearly as effective at protecting wealth from the potential risks of divorce as approaches advocated by what some loosely refer to as "modern trust drafting."
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The Matrimonial Strategist
An 'Extra Parent': NY Law Can Accommodate That Situation
Janice G. Inman
We have seen surrogate mothers seek custody of children they carried for couples who provided their own egg and sperm; same-sex co-parents fight for visitation rights with children with whom they have no biological or adoptive connection; and grandparents argue that they are the “real” parent to a child. Now comes a new twist: custody of a boy born after three people decided they wanted to have a child.
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The Matrimonial Strategist
Common Law Marriage
Bari Z. Weinberger
Why do so many misunderstandings about common law marriage persist? In an age where more couples say "I don't" than "I do" to traditional marriage, this article offers some points to consider.
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The Matrimonial Strategist
Immigration Status, Divorce and Removal: What Is the Standard of Review?
Janice G. Inman
Although immigration law need not be an area of expertise in a family law practitioner's toolbelt, it doesn't hurt to have some knowledge of the ins and outs of this system when presented with a client facing possible removal from the United States because a marriage was short-lived.
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The Matrimonial Strategist
Current Trends in Alimony Laws
Laurence J. Cutler and Alyssa M. Clemente
The Swinging Pendulum
Since the time that fault-based divorce fell into disfavor, and no-fault divorce became commonplace, there have been significant ebbs and flows in the nationwide trends of alimony. Now there has been yet another trend in alimony nationwide, commonly referred to as "alimony reform."
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The Matrimonial Strategist
Essential Foundations of Preparedness for Procedures in the Divorce Process
Alton L. Abramowitz
The release of the January 2017 Report of the New York Chief Administrative Judge's Matrimonial Practice Advisory & Rules Committee (MPARC report) provides the stimulus for reflection on the manner in which divorce lawyers process their clients' case matters. Thus, it seems appropriate now to look at some of the practicalities of matrimonial practice and procedure in today's environment.
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The Matrimonial Strategist
Litigation
Discussion of two recent rulings of interest.
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The Matrimonial Strategist
Expert Witnesses: Observing the Limits of Expertise
David A. Martindale
Life-altering opinions are also being offered by file reviewers (work product reviewers), some of whom seem to be oblivious to, or unconcerned about, the inherent limitations of a file reviewer's data.
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The Matrimonial Strategist
Bias in Custody Evaluations
Jeffrey P. Wittmann
Evaluator bias can interfere with the noble goals of effective and reliable forensic work and lead to the court being misled.
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The Matrimonial Strategist
Standing to Seek Visitation and Custody
New York Expands Definition of ‘Parent’
Thomas A. Elliot
In a recent case, New York's highest court held that, where it is shown by clear and convincing evidence that the parties agreed to conceive a child and to raise the child together, the non-biological, non-adoptive partner has standing, as a parent, to maintain a proceeding pursuant to Domestic Relations Law (DRL) Section 70 seeking custody and visitation.
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The Matrimonial Strategist
'Potential Client' Conflict Issues: Six Tips for Avoiding Them
Part Three of a Three-Part Article
Matthew A. Feigin
Problems can arise for attorneys and their clients when a lawyer consults with a third party but ultimately is not retained. As the author discussed in Parts One and Two of this article, communication with such a potential client might disqualify the lawyer from representing his or her current client. Following are his six tips for avoiding this problem.
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The Matrimonial Strategist
Athletes in Family Matters
Part Two of a Two-Part Article
Lynne Strober and Elisabete M. Rocha
Last month, the authors described some of the challenges unique to representing a professional athlete or his or her spouse or child in family matters. Some of the issues touched upon included pre-nuptial agreements, alimony and child support. The discussion concludes herein.
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The Matrimonial Strategist
Case Notes
In-depth analysis of two important rulings.
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The Matrimonial Strategist
The Athlete in Family Matters
Lynne Strober and Elisabete M. Rocha
There are many family law issues, both mundane and unique, facing a client who is either a professional athlete or married to one. If such a case is offered to you, will you accept it? And if you do, what issues should you expect to encounter?
Part One of a Two-Part Article
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The Matrimonial Strategist
'Potential Client' Conflict Issues
Matthew A. Feigin
Continuing the discussion of matrimonial client "conflict checks" — the exercise attorneys must go through with each new potential client, to make sure that the representation will not conflict with work the attorney is doing or has done for a current or former client.
Part Two of a Three-Part Article
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The Matrimonial Strategist
Case Notes
New York’s Appellate Division, Second Department, has reversed a family court decision denying a father’s objection to a magistrate’s upward modification of his child support obligation.
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The Matrimonial Strategist
Child Custody Evaluations
Jonathan Gould and Sol Rappaport
Proper Use of Psychological Test Results
Child custody evaluations often include administration, scoring, and interpretation of psychological tests. Custody evaluators who present results and interpretation of psychological test scores often discuss only their interpretation of the scores.
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The Matrimonial Strategist
Trust Issues: Pre- and Post-Nuptial Clauses
Martin M. Shenkman and Rebecca A. Provder
Part Two of a Two-Part Article
A discussion of the trust issues that can arise in the context of matrimonial practice.
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