After a divorce is finalized, the former husband and wife will go their separate ways. When the former couple has children together, this may result in one of the parents leaving the state with the children. While the state overseeing the initial divorce proceeding generally issues an initial custody order, that order is subject to revision.

U.S. MapCustody orders can be revised by either the state where the original proceeding occurred or, under some circumstances, by the state where the child resides. A common issue in New York family law cases is the state’s ability to enforce custody orders that were made by another state.

The Uniform Child Custody Jurisdiction and Enforcement Act

Lawmakers understand that situations like the ones discussed above are likely to arise, and as a result, they have developed a uniform act to streamline custody proceedings across state lines. The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) has been adopted by 49 states, including New York, and provides guidelines as to which court has the power to issue binding custody determinations and modifications. It also allows for consistent enforcement of out-of-state custody determinations.

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Child custody trials can be very challenging experiences for every individual Lawyer-Justice-Scales-226x300involved. After all, they require the court to consider the best interests of a child when moving forward after a divorce case. An important element to remember is that while many professional techniques are used during a child custody battle, no-one really “wins”. Instead, the best arrangement will be suggested based on the unique needs of the child, and the ability of a parent to provide the healthiest upbringing for that child.  It is very much preferred for parents to be able to make agreements as to what the custody and parenting time arrangements for their children will be.  Trials build the animosity between the parties and thereby are harmful to the children.  That being said, custody hearings and trials happen as people involved in a custody battle sometimes cannot or will not settle.

Opening statements represent the start of a custody trial.  Often times custody lawyers choose to waive opening statements as the trier of fact in the case is a judge (there are no jury custody trials in New York), not a jury, and the judge most likely would rather proceed to the testimony rather than hearing opening statements.  Opening statements are not evidence so a judge might actually appreciate the first witness being called who can provide evidence by their testimony, rather than hearing the musings of the child custody attorneys.  Continue reading

When it comes to pursuing the best interests of a child in the case of “child Kitchen-couple-fight-300x200custody” there are many different paths for an individual to choose. For instance, some partners considering divorce who must think about child custody concerns will decide to undergo a professional course of mediation, Mediation allows couples to negotiate over potential outcomes for their child, in a setting that allows each side to have their say, without the emotional hardship of litigation. On the other hand, there’s also a “middle-ground” between mediation and litigation that’s known as collaborative law, where spouses will work alongside divorce attorneys and other experts to make decisions regarding parenting time and visitation rights.

Of course, there will always be some cases in which the only option to truly outline the best interests of the child, will be to take the matter to court. In front of the New York Court, divorce attorneys and child custody lawyers will attempt to present a case that shows their client as being the care-provider who can offer the best future for the child in question. This will help the court to make a decision regarding the “best interests” standard for child custody. To present a case fully, attorneys like Mr. Shapiro will frequently use questioning in the form of direct examination, and cross examination.

The Difference Between Cross Examination and Direct Examination

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There are various ways to approach a child custody case. For some parents, the ChildGlasses-300x258best solution to negotiating things like parenting time, visitation, and custody, will be to consider an amicable approach featuring settlement negotiations, collaborative law or mediation. Indeed, many couples believe that mediation is a powerful option for cases regarding children, as it allows them to limit their risk of exposing the child to painful memories of their parents fighting or uncomfortable emotional experiences such as being interviewed by an Attorney for the Children, a forensic evaluator or a judge. However, avoiding court battles will not be possible for every case. In some instances, the only way to properly pursue the best interests of a child, will be to take the matter to a New York Family court or Supreme Court, and present it in front of a judge.

Litigation in family law is a complex, and often highly nuanced area. There are numerous skills, methods, and techniques that an attorney can use to sway the opinion of the judge, or potentially assist in outlining crucial points in a specific case. One common element of child custody cases, and indeed many litigation circumstances, is the use of “direct examination”. When properly done, direct examination in a child custody case can be used to demonstrate to the judge, or trier of fact, that a person’s request or plan for parenting time or custody is within the best interests of the child or children involved.

What is Direct Examination?

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Addressing your Most Frequently Asked Divorce QuestionsLawyer-with-Judge-300x200

As a divorce attorney, I do my best to keep my clients informed and educated about each step of their divorce procedure. Often, this means answering some of the most common questions that might arise about the complications of marriage dissolution. To help people facing family law issues to address some of the most typical concerns surrounding divorce, I’ve put together this list of some frequently asked divorce questions that I have answered in my previous blogs and web site pages.  Child custody, parenting time, child support, maintenance (spousal support) are important issues that need to be decided in a divorce as well but I do not discuss them in today’s blog.

Question 1: What Are New York Divorce Residency Requirements?

Parties to a divorce in New York must meet the residency requirements for the state, or their case may be dismissed. To apply for a divorce, residents must meet with the following requirements:

  • The marriage ceremony must have taken place in New York, and one spouse must have had legal residence for at least one year prior to action taking place.
  • Both spouses lived as a married couple in New York, and one or both residents has been considered a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York, and at least one spouse has been a resident for at least one year prior to action taking place.
  • The grounds for divorce took place in New York and both spouses were residents at that time.
  • At least one spouse was living in New York as a resident for at least 2 years prior to filing the case.

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When a marriage is ending, unless there is a valid agreement between the parties, it is left up to the judge to determine the financial responsibilities of the parties in what they call in New York equitable distribution. In most cases, this requires the judge to figure out all of the marital assets as well as the marital debts. Student-loan debt is no exception; however, calculating which party is responsible for the payment of student-loan debt may be more complicated that it initially seems.

Graduation CapStudent-Loan Debt Incurred Before the Marriage

As a general rule, student-loan debt that is incurred prior to the marriage is not considered a marital debt, and the party who took the loan out will be solely responsible for the payment of that debt. However, student-loan debt that is incurred during the marriage presents a more difficult situation and often requires the court to apply a multi-faceted test to determine which percentage of the debt, if any, is attributable to the spouse who did not incur the debt.

Student-Loan Debt Incurred During the Marriage

Under New York case law that was decided prior to the 2015-2016 updates to the New York Domestic Relations law student-loan debt may be considered marital debt that is subject to equitable distribution, depending on all of the surrounding circumstances. However, prior to the 2015-2016 update to the New York Domestic Relations law this used to also means that the degree or professional license that was obtained through the procurement of the debt may also be subject to equitable distribution.  The updated Domestic Relations law, however, specifically changed the law to say that degrees were not subject to equitable distribution.  In one of my next blogs we will examine whether the change to the New York Domestic Relations Law about degrees being subject to equitable distribution has altered the landscape about student loan debt.

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When a marriage is in the process of coming to an end, it is common for one spouse to make payments to the other spouse not just throughout the pendency of the divorce proceeding but also moving forward on a permanent or semi-permanent basis. The term for these payments is spousal maintenance. Payments made during the divorce proceeding are called temporary support payments, whereas payments made after the divorce is final are called post-divorce payments. Spousal maintenance, which is intended for the benefit of the payee spouse, is different from child support benefits, which are intended for the benefit of the children of the marriage.

CourtroomHow New York Courts Determine Spousal Maintenance Payments

Recently, New York lawmakers passed a new law that tweaked the way spousal maintenance payments were calculated. Under the new law, if an agreement is not made between the parties and their divorce lawyers, the judge presiding over the divorce proceeding will use a predetermined formula to calculate both temporary maintenance support payments as well as post-divorce payments.  Incidentally, this same formula applies to spousal support proceedings in Family Court.  While the formula is somewhat complicated and beyond the scope of this post, it takes into account the following:

  • Whether the payor spouse is also paying child support payments;
  • The total income of the payor spouse (under the new law, only the first $175,000 of the payor spouse’s income will be used in the calculation);
  • Whether the parties entered into a valid written agreement regarding the determination of spousal maintenance payments; and
  • How long the marriage lasted.

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As a divorce lawyer for the regions of Long Island, the surrounding areas and New York, I like to inform my clients Senior-Couple-300x212that I’m capable of offering them a range of solutions when it comes to dissolving a marriage. While some people will find that litigation is their best option (and I do litigate), others will prefer to access the often time, and cost-effective solution of mediation instead. As a trained mediator, I can offer clients a more collaborative experience when it comes to settling divorce issues.  I routinely litigate, as well as settle cases under the more traditional system, which is set up as an adversarial system (ie.  Plaintiff versus Defendant).  I also work as a mediator or a review attorney for those that choose divorce mediation as their process to dissolve their marriage. Here, I’ll address some of the common questions I encounter about divorce mediation.

Question 1: How Can I get My Spouse to Agree to Mediation?

Often, both spouses need to feel comfortable in a mediation setting for this process to work. As such, my clients often ask me how to convince their spouse to take part in mediation as an alternate source of dispute resolution. Often, I find that the best option is to simply approach the topic from an angle that both of you understand. For instance, if you’re concerned about money, you could acknowledge that mediation is often cheaper than litigation. Alternatively, if you want to defend the children from an emotional process, mediation is often a much calmer approach to divorce. Continue reading

As a child custody lawyer for New York, and Long Island, I know that people involved with a child custody case often Family-Breakfast-300x200have questions about it.  The complexities of best interests and various pre-set standards can make it difficult for parents to understand exactly what they’re getting into when they approach a custody case. With that in mind, I’ve put together this quick introduction into some of the most frequently asked questions I encounter as a child custody attorney.

1.     What Is The “Best Interests” Standard

For most legal matters, the court focuses on resolving issues by considering the past and present behavior of the parties involved. However, in child custody, the court must use that information to look towards the future, and predict which parent may offer a healthier, more successful environment for the child in question. By examining past behavior, and sometimes engaging psychological or other expert testimony, New York Courts must determine outcomes based on their opinion of the “best interests” of the child.

2.     What does the “Primary Caretaker” mean ?

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Equitable distribution is one of the matters that I deal with most often as a divorce attorney for New York and Long CoupleShakeHands-300x204Island. Though all the intricacies involved in equitable distribution can be a concept that’s difficult to understand without a background in family law, it can become more challenging when an individual is facing the concerns of splitting unique elements, such as retirement benefits.

It’s relatively well know that the marital portions of retirement plans like 401ks, pensions and deferred compensation plans,  are typically subject to equitable distribution in the case of a divorce. However, determining the right course of action can become more complex when it comes to disability pensions. After all, the divorce lawyers and the New York courts in cases of disagreements need to determine whether the asset is one that was accumulated during the marriage and what is appropriate as far as equitable distribution, or something that should be regarded like a personal injury award. Continue reading