wedding ring

Resolving issues in a New York divorce through mediation is usually less expensive than asking the court to resolve them through trial. However, certain conditions are necessary to mediate matters like property division, spousal support, child custody, and child support. The primary condition that needs to be present is the ability to communicate.  Sometimes a mediator is the very thing that can work to facilitate the communication necessary to resolve the issues needed to be agreed upon to legally separate or divorce.

Unfortunately, many relationships have broken down because of difficulties communicating. When a couple engages in deceit, threats, coercive behavior, or physical violence, the relationship may be too   damaged to have a rational discussion of options, especially with regard to such matters as maintenance and child custody.  Just because any of those aspects exist, does not mean it is impossible to mediate.  As, it all starts with the willigness to try to mediate.  Last week’s blog was about situations where mediation is worth trying, even in high conflict relationships.  If one spouse is phsyically afraid of the other, because of prior domestic violence for example, it is possible that he or she may agree to things in the process of mediation in order to get away from the other spouse.

Couples that have a high degree of conflict or even abuse in their relationships may not be able to communicate with each other in a productive way, but instead they may communicate out of strong destructive emotions like extreme anger (anger is not uncommon with mediating couples or fear. In those cases, mediation is not a good option because peaceful negotiations are not possible.  I should mention, that although past performance is not predictive of future results, I have seen a high success rate in resolving issues for the couples that have agreed to mediate.  But today’s blog is about a case, not one of mine, in which at least one of the parties to a mediation had second thought afterwards. Continue reading

Many people assume that the only way to handle a divorce with a high-conflict partner is to buckle down for a rollercoaster ride of litigation and court appearances. However, one point of view is that this just leads to additional conflict, and a lengthy divorce procedure that can cost a lot in terms of financial input, and emotional sacrifice. During my time as a professionally trained mediator, I have helped couples from a range of different backgrounds and surrounding circumstances to discover an agreeable solution to what may seem, in their eyes, to be an impossible problem. One thing that I have noticed in my experience is that although the mediation process is obviously easier, and less demanding when it’s launched between a pair of ex-spouses who still have a level of communication and amicability between them – that doesn’t mean that the system only works in cases of no-conflict divorce.

There are situation of course, where mediation is not possible, although in almost all circumstances, it is possible to achieve a more lucrative, and beneficial divorce procedure when a cooperative process is embraced – instead of a combative one. This means that it may be worth considering all of the options, before you simply assume that your “high conflict” divorce is limited to litigation.  After all, if mediation and litigation are both avenues that lead to arguments and disagreements between you and your ex-spouse, doesn’t it make sense to attempt to resolve those arguments with an impartial expert before spending time, money, and energy on aggressive litigation? Continue reading

synagogueNew York has a history of having a concentrated population of Jewish people who observe Jewish law. Currently, observant Jews who want to be divorced must effectuate a divorce that is valid under both Jewish law and New York state law, or they can choose not to marry under secular law and not be concerned with the way these two different systems intersect. Jewish law recognizes private marriages and private divorces that do not require court supervision.

However, Jews bound by both religious law and secular law are in a more difficult position when trying to obtain a divorce. One way in which the Orthodox community in New York ensures that traditional Jewish values are part of divorce proceedings is to use prenuptial agreements that are signed by both parties, allowing determinations to be made by the Beth Din of America, which is the largest rabbinical court in the United States.

In the 1983 case of Avitzur v. Avitzur, a New York court considered the enforceability of the Ketubah entered into as part of the religious marriage ceremony. The Ketubah is supposed to show the bridegroom’s intent to cherish the wife and provide for her, as well as the wife’s willingness to carry out her obligations according to Jewish law. The couple agreed to recognize the Beth Din of the Rabbinical Assembly and a Jewish seminary to have authority to counsel them and impose compensation as it saw fit for failing to respond to its decision appropriately.

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mosqueUnder Islamic law, marriage itself is a civil contract, and both spouses must have the legal ability to make a contract to create an enforceable marriage. Traditional Muslim marriage contracts include a provision called mahr. The mahr is automatically a wife’s separate property under Islamic law, and it supposed to help the wife financially after the dissolution of a marriage and to discourage a husband from exercising the right to repudiate the marriage.

Before entering into a marriage contract, the parties customarily discuss the amount of mahr. However, it’s not “consideration” for the marriage, and the mahr isn’t a prenuptial agreement, according to Islamic attorneys and scholars. The actual giving of the gift is postponed to the dissolution of the marriage or the death of the husband. Within Islamic law, the mahr is considered a gift that a husband must give the wife once a marriage contract is concluded.

New York courts, however, have usually interpreted the mahr as a dowry or a prenuptial agreement, rather than a simple contract. If they are approached as a simple contract, mahr and other agreements before an Imam are likely to be enforced. However, prenuptial agreements in New York must also be in writing and signed before the marriage. Although there is no obligation to make financial disclosures, if they are voluntarily made, they must be true.

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autumn leavesIn New York, parents owe an obligation to pay child support until their child is 21. The child support obligation is usually paid to the other parent. However, for other purposes such as child custody, children become adults at age 18. When a parent-child relationship breaks down, but there is neither abuse nor other facts that would justify an order of protection, a parent can ask the child to leave.  If there is domestic violence, a court might have the child leave via a stay away order of protection.  If this remedy is not sought or available then he or she may need to bring an ejectment action against an adult child.

However, in Kakwani v. Kakwani, a New York District Court considered an analogous situation in which a woman lived with her brother in a family home. The woman’s mother had conveyed the property to her in 2006. The brother married in 2008. The woman continued to live on the property with her brother and sister-in-law. The woman never sought rent from her brother, and he never paid it.

In 2012, however, the woman served a 10-day notice to quit on her sister-in-law, and a few months later in 2013, she filed a petition seeking to evict the sister-in-law only under RPAPL 713 (7) on the ground that she was a mere licensee whose license to occupy the premises had been revoked.

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broken videotapeDuring a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

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It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s orspy call your spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

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Residency requirements to obtain a divorce exist so that the person filing for divorce can’t simply choose the state with the laws they want, move to that state, and then sue for divorce. Those who move to New York without their spouses cannot immediately sue for divorce on the grounds that their marriages have irretrievably broken down. They must wait two years, at least according to at least one trial court in New York.  Whether Appellate Courts would agree and come to the same conclusion is an open question but this article will relay how the trial court came to it’s conclusion.

In Stancil v. Stancil, the court considered whether New York’s no-fault divorce statute created a cause that would reduce a divorcing spouse’s residency requirement from two years to one. In New York, either spouse must live in the state continuously for two years or continuously for one year when certain conditions are present. Under Domestic Relations Law § 230 (3), one condition for meeting the latter requirement is when the cause for the divorce happens within the state.

In the case, the husband lived in Virginia and objected to having a divorce in New York, since the wife had only lived there for 14 months before filing. The wife argued that the divorce could proceed in New York because the basis for the divorce was the irretrievable breakdown of the marriage, and this was a cause for the divorce that happened within New York.

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When a custody case is brought to a New York family court, the law requires the papers to be served to the other Summons Doorside, often in the form of a summons and petition. It is up to the parent that is filing the case to ensure that the other parent in the custody argument receives the papers – generally through in-hand delivery. Ensuring the service of papers is essential, as the law recognizes that there are few things more important in child custody cases than ensuring that every person entitled to make a claim on the behalf of the best interests of the child will receive notice of the proceedings taking place. Importantly, the law dictates that services of a petition and summons should be given at least eight days before the first court appearance is required of the other party. However, in practice, it is worth noting that regardless of how a respondent may receive the notice to attend court – so long as they attend and admit that they were served the papers, then the court will be given jurisdiction, and have the right to proceed with the case.

In cases of custody, visitation, or other matters brought before the family court, I often find that the case is started using an order to show cause, instead of a summons, and a petition. While the petition underlines what the person presenting the case to the court wants to address, the order to show cause specifies how service should be addressed.  When service is directed pursuant to the Order to Show Cause, how to serve the papers is spelled out by the judge who signed the order.  It takes the guess work out of service, however, it then becomes important to precisely comply with the method and timing of service that is directed. Continue reading

Issues of parenting in child custody and visitation cases are often very complicated, as they consider a wide range ofParentsPJS factors when determining the best interests of a child. After all, it is the responsibility of the New York court to ensure that their decisions regarding custody orders are made according to the needs of the specific children, or child involved in the case. Because of this, before a final decree is declared in a dissolution, divorce, or custody case, the court of New York might require parents to complete a course of Parental education which may be different and cover different matters depending on the nature of your circumstances.

Although the lessons can be different in parental education classes in regards to such things as format, the general idea of all parent education classes is to help parents separating from a partner or spouse to better understand the way their divorce from an ex-partner might affect their children. This education therefore ensures that the parents have the skills and resources necessary – regardless of whether they are a non-custodial, or custodial parent – to provide the appropriate care for their child, and help them move through a transitional period in their lives with as little distress as possible. Continue reading