Jurisdictional Flexibility

Sometimes when an action or legal need arises, it is unclear as to what jurisdiction or court a case might be brought in, both geographically as well as via forum.

For example, courts sometimes insist that real estate disputes take place in certain states, such as the state in which the real estate is located.

In addition, if a plaintiff brings an action against defendants that are all from another state or states and the amount in controversy exceeds seventy-five thousand dollars ($75,000), the defendants can remove the case from state court to federal court. The same applies when the complaint includes at least one claim of federal law.

Jonathan Victor is admitted in four (hoping to be five soon) states and multiple local federal courts, including both federal trial and appeals courts.


Use of Trusts to Keep Assets within Family

Sometimes, a person may not want his or her assets to go to his or her son-in-law or daughter-in-law, should the son or daughter predecease the spouse. Probably the most common reason for this is that the spouse may have children from a prior marriage, and the grandparents may want to keep the assets in the family, i.e. go straight from the children to the grandchildren.

In many states, including New York, the spouse is automatically entitled to a share (flat amount of percentage) of the deceased’s estate. There are only two ways around this: a prenuptial agreement or using a trust.

Many people think a trust is only for estates with very large amounts of assets. However, a trust is cheaper thank you may think. Setting up the trust may cost some attorney’s fees, or you can even create your own with templates available online. If you can use a trusted family member or friend then you might not have to compensate the trustee either.

Best of all, subject to limited exceptions (this is the part where you might want an attorney!)you ensure that the assets stay in the family, until your state’s Rule Against Perpetuities runs (but that’s a whole other discussion, a notorious tricky area of law!).

Advantages of Uncontested Divorce

New York State offers two types of no-fault divorces: contested and uncontested. The different between the two is that uncontested divorces require no judicial intervention other than the grant the judgment of divorce. Either the parties agree on all other issues, or the other party defaults and the Plaintiff obtains a default judgment.

By contrast, a divorce becomes “contested” where:
1) A party files a Note of Issue, a request to schedule a trial after all parties exercise or waive all rights to pretrial discovery;
2) A party requests a Preliminary Conference for purposes of scheduling deadlines for pretrial discovery; or
3) A party files a motion for relief, either procedural (such as indigents’ waiver of fling fees), or substantive, mostly commonly temporary orders for legal or physical custody or requiring the other spouse to pay child support or maintenance, vacate the marital residence, or maintain health insurance for the moving party or the parties’ children.

If both parties live closely, i.e. within the same school district, they may want to consider “50-50” timesharing. This way neither parent has to pay child support. If you are the noncustodial parent, you should pay your share of child support voluntarily, based on the statutory formula. Otherwise, your spouse might seek the temporary order, and make you look irresponsible in the process.

New York state also offers a temporary maintenance formula. Again, check this to determine what, if any temporary maintenance each spouse should pay.

Divorce can be emotionally draining. Better to save your energy where you have two reasonable people, and obtain a fair settlement that preserves assets for both spouses during what is already a financially and emotionally difficult time.