New York is an equitable distribution state. Thus, when it comes to dividing up a couple’s assets in a New York divorce case, the court will consider a number of factors. However, before the court gets to the point of dividing up the assets, it needs to determine which assets are subject to the equitable distribution rules.

Pie ChartOnly marital property is subject to equitable distribution. And as a general matter, property that is determined to be the “separate property” of one spouse will remain with that spouse. Courts use a common-sense approach when determining whether property is marital or separate property. Under New York Domestic Relations Law section 13-236, separate property includes property acquired before the marriage and property that was gifted to one spouse by someone other than the other spouse.

In addition, “property acquired in exchange for [separate property] or the increase in value of separate property” will be considered separate property unless the increase in value is due in part to the “contributions or efforts of the other spouse.” This last category of separate property is often the subject of much dispute. A landmark case decided by the New York Court of Appeals set forth the framework regarding how courts view these claims.

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When most people get married, they take into account their prospective spouse’s financial situation. Indeed, to some degree, it would be foolhardy not to take this information into account, given that in most cases a married couple acts as an economic partnership, sharing in both income and expenses. Indeed, New York courts take this reality into account when it comes to dividing up assets following a New York divorce proceeding.

Wedding RingsThe idea behind the economic partnership model of marriage is important to grasp when it comes to understanding how courts divide assets following a New York divorce. New York is an equitable distribution state, meaning that the court does not merely divide up all assets 50/50 and send the parties on their way. Instead, courts take into account a number of factors in determining how to divide a couple’s assets.

New York Domestic Relations Law Article 13 section 236 outlines the criteria courts use to equitably distribute assets after a divorce. In all, the statute lists 13 considerations, including the duration of the marriage, as well as the age, income, and education of the parties. Courts will also consider the sacrifices one spouse made for the benefit of the couple. In addition, courts are able to consider “any other factor which the court shall expressly find to be just and proper.”

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In an earlier post, we discussed some of the issues that may arise when a sperm donor seeks to establish the parental rights of a child. One of those issues arises when a sperm donor seeks to establish parental rights. This is complicated by the fact that New York does not generally enforce contracts between sperm donors and the couples using the donor’s sperm on the basis that such contracts are against public policy.

PregnancyThis post follows up on that topic with a discussion of a recent case issued by a New York court, which acts as the most recent example of how courts treat the parental rights of sperm donors versus the woman (or family) who gives birth to the child.

The Facts of the Case

A same-sex lesbian couple arranged to have an acquaintance provide them with a sperm sample so that the couple could have a baby. Since the agreement did not go through a sperm bank or a licensed medical professional, the couple drew up their own contract without the assistance of legal advice. The contract waived the donor’s parental rights, as well as any rights to visitation. The contract also waived the couple’s right to seek child support from the donor.

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Child custody issues are often the most hotly contested area in divorce and family law cases. It would stand to reason, then, that New York child custody issues are not limited to situations in which the biological parents of the child are in a relationship – or even know each other.

SurrogacyWith the advent of recent medical developments over the past few decades, couples who thought they may never be able to have children are able to give birth to a child through various means. Of course, this includes same-sex couples relying on donated sperm. However, with these recent developments, child custody issues have arisen, requiring New York courts to come up with ad hoc methods of resolving these child custody conflicts.

As a general matter, if someone goes through a doctor for the artificial insemination process, there is little to worry about in terms of the sperm donor later seeking custody of a child. Similarly, a sperm donor probably has little to worry about the parents seeking to enforce a paternity action. This is because the contract between the sperm donor and the business or organization accepting and storing the sperm provides for the termination of any parental rights the donor may otherwise have. Thus, to try to ensure that there will not be any problems in the future, parents who hope to conceive through artificial insemination are advised to use an official medical provider to do so.  However, it is possible that if somehow the anonymous donor was identified that the court might allow a paternity action to be maintained against him.  How that case would play out is not clear at this time under New York law.

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When a couple goes through a New York divorce proceeding, the court is tasked with dividing up the couple’s assets and liabilities. While this may seem intuitively simple, in practice, dividing up assets and liabilities that have accrued over the course of a relationship can be exceedingly complex. In New York, courts use a method called equitable distribution to do this.

ScalesWhen a judge uses equitable division to divide up assets and liabilities, the judge takes into account many factors about the couple, including their roles in the marriage, level of education, income-earning potential, and future obligations. The judge will generally not include separate assets or liabilities that were obtained or taken on prior to the marriage.

Back in 2009, the New York Court of Appeals issued an important decision discussing how lower courts should equitably distribute certain assets and liabilities.

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At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, a court may rely on information that was not correct, or it may have made a determination without considering all of the relevant information.

FrustrationIn such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the court’s determination was based on a “mistake of fact.”

A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.

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It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.

GavelNew York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”

An Example

Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.

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When going through the process of a divorce or family law dispute in New York, it’s important to make sure that you fully understand what your rights and responsibilities are as a client. TheMeeting-300x200 more you know, the more you can make an informed decision about your future. Therefore, a divorce lawyer will always provide his clients with a document known as the “Clients Rights and Responsibilities” form. The document is prescribed by the Appellate Division, and it’s provided at the initial conference, before any retainer agreements are signed.  I am attaching a link to the complete Statement of Clients Rights and Responsibilities here, while this blog is intended to highlight some of the features.

When I give my clients the “Clients Rights and Responsibilities” document, it’s intended to give that individual not only an insight into what they’re entitled to by law, but also what is expected from them. Of course, it’s always possible for my clients to come to me with any questions they might have about their rights or responsibilities, or the case that they will be addressing with me in the future. It’s well within the rights of any family law client to speak to their divorce attorney, child custody attorney or family lawyer if they have any concerns or questions about the manner in which their case is handled.  I endeavor to make myself available.  One of the rights people have is that an attorney never has the right to refuse your case based on creed, color, sex, orientation, origin, race, or disability. Continue reading

In today’s society, it is very common for families to move between states, especially when a couple’s children are young and parents are still developing their careers. While it has become easier over the past few decades for families to move between states, this situation presents a potentially complex situation if the couple divorces and one of the parents moves out of the state.

East Coast MapYears ago, courts in different states were routinely entering conflicting orders in New York child custody cases. For example, a New York court may make an initial determination, only to have the non-custodial parent move out of the state and file a case in that court for a modification of the order. Under the Full Faith and Credit Clause of the U.S. Constitution, the court in the non-custodial parent’s new home state should defer to the New York court; however, in practice, that was not always the case.

The result was the eventual passage of the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (UCCJEA). The UCCJEA developed a system that has since been adopted by 49 states, including New York, which courts use to determine which state has jurisdiction over a child custody case.

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When a divorce takes place between partners with children, there’s a lot more to consider than just who will maintain custody of the child. One of the standard issues that I address with my TaxDivorce-300x200clients is who will be able to claim the child as a dependent on their tax returns. After all, the tax credits associated with caring for a child can be substantial and may help a great deal with transitioning to the new life.

As usual I advise that I am not a tax lawyer and therefore for specifics about taxes everyone is advised to consult with tax professionals such as CPAs.  This blog, however, is to outline some of the new concerns, after passage of the tax reform law, that people need to think about regarding children, taxes and child support agreements.  Because of the new tax laws passed in December 2017 in the United States, the rules surrounding tax and support in New York divorces and everywhere will change dramatically, which could lead to more complex discussions between divorcing parties. For instance, in the past, it has been common for the custodial parent to claim for the child.  The parties often make agreements that the non-custodial can claim the children or some of the time claim the child(ren) if he or she was responsible for a significant amount of child support. Now, as my last blog pointed out, that after 2018 maintenance (alimony) payments will no longer be able to be deducted from income for tax purposes, it may be that child support paying party might find the dependent claim more important than in the past for tax purposes.  The deductibility of child support payments is not changing as still child support payments are not deductible for child support purposes and it is not income for the recipient.  Continue reading