Author Archives: Daniel R. Burns

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About Daniel R. Burns

Daniel R. Burns is a divorce mediator & attorney in Latham, New York.
EMAIL: info@BurnsMediation.com
BIO: About Daniel
PHONE: 518-785-9522

How to Lose Custody
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Authored by , re: Family, Family & Divorce, LAW RELATED ARTICLES, on .
How to Lose Custody | Daniel Burns

{2:24 minutes to read} The law with regard to custody is fairly simple to recite. A court will award custody to the parent it feels has the “best interest” of a child in mind. I recently read a case where the application of this test ended up costing a mother custody. When the couple divorced in July of 2011 the court awarded mom “sole legal custody” of the children of the marriage. It then awarded dad “visitation,” a word I dislike but which is still used by courts in New York.

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“Equitable” Distribution?
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Equitable Distribution | Daniel Burns

{3:36 minutes to read} When mediating their divorce, many couples want to know “what would happen if we went to court.” I suppose for many of them they want to be assured that what they are agreeing to in mediation is at least close to what would happen if the matter were to be decided by a judge. I find myself telling my clients that one of the best reasons to mediate their divorce is that there is very little predictability in the equitable distribution law.

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Divorce & Debt
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Divorce & Debt | Daniel Burns

{3:54 minutes to read} Many people are under the impression that they are responsible for the debts of their spouse simply because they are married. But,

  • Getting married does not necessarily make you responsible for your spouse’s debts;
  • Getting divorced does not necessarily release you from debts incurred while you were married.
The reason why many people become liable for the credit card debt of their spouse is because they either allow their spouse to use their credit cards or add them to the account.

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Putting the Children First
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{3 minutes to read} In my last post I outlined how the Child Support Standards Act (CSSA) works in New York. I recently worked with a couple who created an agreement that worked much better than the result they would have obtained under the CSSA, not only for each of them but for their children! This couple had decided to sell their house, and each of them was going to live in an apartment since neither could afford to purchase another house right away.

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The Child Support Standards Act (CSSA) in New York
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
The Child Support Standards Act (CSSA) in New York | Daniel Burns

{3:30 minutes to read}

     The CSSA in New York creates the presumptively correct amount of child support that the “non-custodial” parent pays to the “custodial” parent. Unfortunately, or perhaps fortunately, the statute does not bother to define what the term “custody” means.

       Back in 1989 when the law was first passed, this may not have been much of a problem, since custody generally was assumed to be with mom. Today, however, most parents want to create a “shared parenting” arrangement so that the children reside with each of them about half of the time.

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The Grey Divorce
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
The Grey Divorce | Daniel Burns

[Time to Read: 2.6 mins]

     While the rate of divorce for the general population was relatively flat between 1990 and 2010, the divorce rate for couples age 50 and over doubled during that span. As a group, those over 50 accounted for about 25% of all divorces in 2010 according to a study by the National Center for Family & Marriage Research at Bowling Green State University in Ohio.

   Why is this so? Part of the reason is that older couples often have more financial resources to fall back on.

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The “Mediation Friendly” Attorney
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
The “Mediation Friendly” Attorney | Daniel Burns

[Time to Read: 2.9 mins]

  I have often heard mediators say that they recommend that their clients each see a “mediation friendly” attorney for legal advice either during or after the mediation process. But I do not believe that sending them off to separate attorneys is a good idea, regardless of whether or not the attorney is “mediation friendly.”

 Isn't it the role of an attorney to advocate for his or her client? Does that mean that a “mediation friendly” attorney would not?

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Why One Lawyer Is Better – Part 2
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .
Why One Lawyer Is Better – Part 2 | Daniel Burns

 My last blog post, which discussed why I believe having one lawyer helping a couple to obtain a divorce is better than two, generated a lot of comments. Many of those comments caused me to think further about my beliefs.

  For those of you who felt it is an inherent conflict of interest for one lawyer to represent both sides in a divorce, I agree

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Why One Lawyer Is Better than Two
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

In my last blog post, I suggested that sending mediation clients off to separate attorneys was not being helpful. In response to this proposition one reader, an attorney and mediator from California, suggested that I had a low opinion of attorneys.

I hope not. I have been a proud member of the New York bar for over 30 years. Being an attorney has given me the opportunity to help people, as a mediator, in ways I would not have been able to if I were not an attorney.

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Breaking an Impasse
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Bob* and Mary* were about halfway through their first mediation session when Bob announced that he was never going to leave the house. He did not want the divorce and did not feel it fair to have to leave his home. Mary indicated that she was okay with that but wanted her name off the mortgage so she did not remain liable for the payment.

Bob was willing to try to remove Mary from the mortgage but was very clear that he would not leave the house even if he could not do that. Mary was equally clear that she wanted her name off the mortgage and that Bob would have to sell the house if he could not do so.

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Ode to Dale
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My friend Dale died the other day. He was 45 years old, had a wife and a job that he loved, and suddenly he was gone.  I was talking and joking around with him on Friday night, and he died the following Monday.

Why am I telling you this? It is to remind us all that life is fleeting; we never know how much time we have or when our lives will be over. It is a point I try to make to my divorce mediation clients every day, especially when they are arguing back and forth about the past and about who is to blame for the end of the marriage.

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6 Factors to Consider When Considering a Divorce
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

As I have said before, I believe that couples who are seeking a legal separation or a divorce do not have a legal problem; rather, I believe they have a practical problem that has legal implications.

The practical problem is often how to live separately on the same income that was previously supporting one household. The legal implications involve reaching an agreement that resolves this practical problem while satisfying the requirements of a legal system that may one day examine this agreement.

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Judicial “Approval” of Divorce, Part II
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Many divorce lawyers, as well as divorce mediators, did not agree with my suggestion in a recent blog post that a couple be allowed to obtain an uncontested divorce without court approval (Judicial “Approval” of Divorce). I was surprised by how many professionals expressed strong opinions about the need for the court system to approve a divorce.

Some concerns raised were:
• Power imbalances
• Domestic violence
• Welfare of the children

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Why Should a Judge “Approve” a Divorce?
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Hal and Sheree had been dating for several years when they decided to get married. Neither had been married before, and they did not have any children, although they agreed they would like to someday. While they wanted to get married right away, they had to wait for a Judge to approve their marriage application, and it was taking three to six months for that to happen.  

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I Hate Daddy’s New Girlfriend
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In my previous blog I addressed the idea of creating a “dating agreement” for a couple who had ended their marriage but who were still living together. Today I would like to discuss a related issue.

I was recently working with a couple who were having a disagreement over how long they should wait before introducing their children to dad’s new girlfriend. Mom was suggesting that he wait six months or more, while dad felt that the best approach was to “take the band aid off” by introducing them to her right away.

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Still Living with Your Soon-to-Be Ex? A “Dating Agreement” Might Help
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

Many of my clients have been “separated” from their spouse for quite some time, even though they are not living apart. I am talking about couples who decided long ago that their marriage was over, but have been unable to live separately due to financial issues or because they are waiting for their house to sell.

Since the marriage is over, some of them wish to “get on with their lives,” which means they want to start dating again. The problem is that it is often difficult to date while you are still living with your soon-to-be ex. And you certainly do not want there to be any misunderstanding between the two of you about the dating “ground rules.”

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Preliminary Private Planning Sessions – Do They Work?
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I just attended the Annual Conference of the New York State Council on Divorce Mediation (NYSCDM) where I heard the keynote speaker, Forrest (Woody) Mosten, discuss “47 Things” every mediator should know or do. One of those “things” was to have a preliminary private planning session with each of the parties prior to the first joint session with the couple.

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The Affordable Care Act and Health Savings Accounts
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Authored by , re: Financial Planning & Insurance, Insurance Related, on .

The Affordable Care Act (ACA) may allow you to open a Health Savings Account (HSA) if you have a “high-deductible” plan. Here’s how it could work and why it might be worth considering. A Health Savings Account is a savings account that allows you to set aside money to cover medical expenses. It’s typically coupled with a health plan with lower premiums but a steep deductible, so that only catastrophic medical bills are covered.  

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A Parental Shift
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

In the not-too-distant past, most custody agreements provided that the children would live with mom, and dad would enjoy “visitation” on alternate weekends, and perhaps one evening each week. But nowadays I am seeing more and more “shared” parenting arrangements where the children spend a significant amount of time each week with each parent.

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Trading a Pension for the House? Think Carefully!
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Authored by , re: Family & Divorce, LAW RELATED ARTICLES, on .

A traditional pension, as opposed to a retirement account such as a 401(k) or an IRA, provides a life-time income stream to the employee, based upon a combination of his or her years of service and salary. Without a pension, the major problem you face is outliving your money. And this is especially true today when people are living longer than ever.

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Parental Alienation
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While I guess it should not surprise me, I see many court cases that deal with a parent who is so angry with his or her former (or soon-to-be former) spouse that they allow that anger to put their children in the middle of a court battle.

    In New York, and I suspect many other states, custody is determined by applying the “best interest” of the child standard. While this is a very subjective test, it is based on a number of factors that include:

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No Pension? Why an Annuity Might Be Right for You
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In my last post, I discussed the concern I have for someone who trades his or her interest in a pension for, most commonly, the house. Despite the fact that I almost always suggest to my clients that this is something that should be carefully considered since the house not only requires care and maintenance but may not provide them with the income they will need when they are ready to retire, many of my clients elect to make this trade anyway.

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Life Lessons: Let Your Children Learn from Yours
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Life Lessons: Let Your Children Learn from Yours | Daniel R. Burns

This article was written by Rosalind Sedacca and is being sent (with her permission) to my clients and friends since it reflects the work that Rosalind and I do and the values that we share. I hope you find it informative.

Bad things can happen to good people. Divorce is a prime example. Good people get divorced. Responsible people who are loving parents get caught in the decision to end a loveless marriage.

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