How to save money in your divorce

June 16, 2016 by Melissa Rutkoske

Let’s be honest: divorce costs money, and litigation is the most expensive way to do it. Here are my top 10 ways to economize in a litigated divorce:

1)  Gather as much financial information by yourself as you can. Ideally this includes information for you and your spouse, separately and together.  If later it’s necessary to supplement this with information from your spouse, the work you’ve done on your own can serve as a cross-check and highlight areas of inconsistency.

2)  Organize information before giving it to your attorney. Organize it the way s/he suggests. If your attorney doesn’t tell you how to organize it, ask.

3)  Agree with your attorney when you will deliver information to him/her. Deliver it on or before the agreed date; your attorney may have made commitments to your spouse’s attorney about when financial information can be exchanged. Failure to honor these commitments may occasion motion practice in court, adding unnecessary costs.

4)  Disclose all facts to your attorney, whether or not you believe they’re important.  Your attorney can separate legally relevant facts from irrelevant ones, and surprises can be embarrassing and costly.

5)  Listen to and seriously consider your attorney’s advice. After all, it is what you’re paying for, and a seasoned divorce lawyer — provided s/he has all the all the facts — can bring a wealth of experience to a client’s decision-making process.

6) If you have the opportunity to negotiate a settlement rather than continue litigating, respond promptly to your attorney when s/he asks questions. Delays can sabotage a deal.

7) Understand yourself. Know and experience your feelings. It is normal that emotion plays a part in divorce. However, while emotion is a very real part of your experience as a client, it is not how a court looks at issues in your case.

8) Be reasonable. Judges don’t appreciate it you’re not, so being unreasonable can be costly. Stand back, take an objective look and ask yourself whether you’re being reasonable or not.

9)  Don’t make decisions on your own and implement them without discussing them with your attorney. They can trigger a motion from the other side that you will have to respond to in court, which of course costs money.

10)  Understand that your attorney is skilled in legal matters and is not trained as a therapist.  Using your attorney as a therapist, however good a listener s/he may be, is not economical.



Splitting annuities in divorce

June 15, 2016 by Melissa Rutkoske

Is an annuity account in your divorce picture? An annuity can seem harder to split than a marriage, according to an article in the May 2016 issue of Research Magazine.

An annuity account gives the account holder the  right to receive periodic payments, usually fixed in amount, for life or a term of years. Unlike pensions, which can usually be split by court order, annuities are split only by a handful of the companies that offer them.

Strategies for handling annuities in divorce include leaving the annuity with one spouse, giving the other spouse an asset of equal value. Annuity values are not always obvious. For example, if the annuity features a death benefit, it is likely to be worth more than the account value.

Other variables in valuing annuities include the annuity holder’s cost basis, the value of annuity benefits (which can be living and/or death benefits), any cost to surrender the annuity (which can be in double digits, expressed as a percentage of the account value — for example, a $300,000 annuity account may decline to $220,000-$250,000 in value if surrendered) and whether the annuity pays guaranteed interest.

Bottom line: annuities are not as tractable in divorce as certain other investment products that divide more readily. Except for situations where all annuity benefits can be kept fully intact, divorce and annuities can be a costly combination and divorcing spouses should obtain complete information  before agreeing to split an annuity.


Your child’s voice in divorce: children’s lawyers

June 14, 2016 by Melissa Rutkoske




Children are  stakeholders in divorce as much as their parents. How are children’s wishes made known during a divorce or custody proceeding? In New York state, children in certain cases are entitled to their own lawyers, who represent their interests before the court.  Children’s interests may differ from their parents’.  For example, suppose one parent is emotionally unstable and breaks down at visits with the children, dismaying and confusing them. They are not comfortable and say so to their lawyer, who may speak in court on their behalf.


The function of the Attorney for the Child (“AFC”) is described in the rules of New York’s chief administrative judge. An AFC represents a child as any other attorney represents a client and conversations between AFCs and their clients are confidential. An AFC has the responsibility to represent and advocate the child’s wishes and interests. AFCs are subject to the ethical requirements applicable to all lawyers, including constraints on: communication with the court without notifying other parties in the case; disclosure of client confidences and attorney work product; conflicts of interest; and becoming a witness in the case. In learning the child’s position, the AFC must consult with and advise the child in a way that takes into account the child’s capacities, and the AFC must have a thorough knowledge of the child’s circumstances.

In view of the age of the clients and the sensitive nature of the cases in which they are appointed, AFCs are presented with unique challenges. For example, a parent may “lobby” a child to make negative statements to the AFC about the other parent. As attorneys for children, however, AFCs must act in a manner consistent with proper legal practice and should not assume the role of social worker, psychologist or advocate for one of the other parties. Although they may be tempted to step outside the role of counsel for the child when the circumstances of the case are especially compelling, the rules of good lawyering apply here the same as elsewhere. For example, an AFC may speak with a child’s parent only if the parent’s attorney gives permission to do so.

Boiled down, the rules governing AFCs dictate that they must advocate their clients’ wishes unless doing so places a child in harm’s way. If an AFC substitutes his/her judgment for the client’s for this reason, the AFC must inform the court of the child’s articulated wishes if the child wants the AFC to do so, notwithstanding the AFC’s position.

Private hearing

The judge may wish to speak directly with a child when a case is protracted, has gone to trial or may go to trial.  The judge decides whether or not this will happen. This is not an open hearing. Parents are not there, nor are parents’ attorneys; only the AFC, the child and the judge are present. The hearing is recorded.

Cannot remove AFC

Sometimes parents ask their attorneys to have the AFC removed, as they think the AFC may have taken one side or another.  This will not happen unless there is a true conflict of interest.  The AFC’s taking a position adverse to a parent’s or what the child says is not enough to justify removal.

  Compensating the AFC

In Supreme Court, clients pay for the AFC’s services; in Family Court, the State typically pays; however, if both parties have retained attorneys, the parties can be ordered to pay.