Donald Roger Wall's Answers

I want to file for divorce & he lives in the state we were married in. Do I have to file in my new state of residence?

If you can meet the residency requirement of the state that you live in, you can file where you live. If you have lived in New York for a continuous period of more than 2 years, you have met that requirement and you can sue in NY. There are different requirements which may allow you to sue in New York if you have only lived there for one year (for example if the marriage broke down in New York and you lived in New York for a year, that would be enough). Usually the "first to file" will...

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If I do not sign an IRS form 8332 for the ex-husband can I legally claim both my children on my taxes?

I am no expert in this area, but my understanding is that as of July 2, 2008, a custodial parent who releases the right to claim a child can unilaterally revoke the release for future tax years. You need to check out Treasury Regulation 1.152-4(e)(3). You need to give notice to the father and attach a copy of the revocation to your tax return. I have never done this for a client myself so I am a bit fuzzy on the exact process. I would suggest discussing this with an accountant or an...

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Can I buy my ex-husband's share of my home if the judge has ordered it listed for sale and sold on the open market?

First, determine if your ex is willing to be bought out. If he is, try to work out a sales price directly with him BEFORE you list the property with a real estate broker. This will save you between 4-6% on the sales price. If you ex and you can agree, you each should hire separate real estate attorneys and it becomes a simple purchase and sale of a home. In essence you and he are selling to you. Second, if your ex is unwilling or doesn't want to let you buy him out, or if he is willing...

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Would a pre-nup document I prepare using an online service but reviewed by an attorney representing my fiance be 'valid'?

I agree with my colleages. Three to four thousand sounds high for what you are trying to do. In addition, if this is important to you, it's probably not a good idea to try and get away with a budget solution. No one ever finds out of a prenuptial agreement is enforceable until it is challenged... and if that ever happens, your relationship with your Wife will be much different. In my experience, even with a "what's mine is mine, what's yours is yours" agreement, it's still important that...

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How can I get my money back from my prior attorney?

I agree with my colleague. Fee arbitration is the way to go. Check your retainer agreement, which is required to have a provision stating that in the event of a billing dispute you are entitled to fee arbitration (which is mandatory throughout NY). Go to this web site for some information on the program: http://www.courts.state.ny.us/admin/feedispute/faqs.shtml Since it appears that you are in Suffolk County, you can go to this web site to see where you need to file your papers and to...

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Is jewelry I gave my wife during marriage as gifts a marital asset?

With due respect to the other attorney who answered this question, my belief is that gifts given between spouses during the marriage are deemed marital property, subject to equitable distribution in a New York divorce. Gifts received from third parties to either one of the parties to a marriage are deemed separate property, so long as they are no co-mingled with marital property (e.g., deposited in a joint account). Hope this helps.

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Looking to file divorce

In a situation such as yours, I recommend that the two of you find a good mediator who is also an attorney. If you meet together with the mediator and you are all satisfied that you have resolved all the issues (sometimes clients are not aware of all the issues) the mediator should be able to draft a simple agreement for the two of you to sign and then complete all the necessary paperwork that is needed to process an uncontested divorce action. While, as noted in the other posts, the forms...

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I signed a separation,don't now if my ex did or not, my lawyer signed,didn't go to court for it.Is it legal still or dead?

A separation agreement, if signed by both parties and acknowledged (signed under oath before a Notary Public or the Court Clerk), is binding and enforceable like any other contract. The fact that your lawyer signed it doesn't make it any more (or less) binding, but simply is an indication that you were represented by counsel when you signed.

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Doesn't child support have to be paid as long as the child is in college (full or part-time) regardless of age and beyond 21?

Absent agreement to the contrary, in New York the obligation to pay for child support terminates when the child reaches age 21. Many agreements provide child support will terminate at age 21 or age 22 if the child is a full time student in college (whichever is later). Since you don't have an agreement, a court would only be permitted to direct payment until your son is 21, regardless of where he is in his college studies. Bear in mind that the payment for college, like any educational cost,...

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Ex husband brought our 17yr old to a shrink and didnt tell me!!

I agree with my colleages, but would add that Support Magistrates and Judges generally don't like it when and ex-spouse spends the other's money on something like this, without first consulting. You need to consult your agreement to see if there is any requirement that prior notice be given for non-emergency medical expenditures. If it doesn't require it, I would suggest you send a strongly worded letter (certified and regular mail) advising your "ex" that in the future you will not agree to...

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