Articles Posted in Divorce

Kitchen-Fight-300x200In Nassau County and Suffolk County, as well as the surrounding areas of Long Island and New York, the law generally allows for concurrent jurisdiction in either the Supreme or Family court to tackle issues of spousal or child support for married couples not living together. For a married couple living together, usually, unless it was clear that one of the parents has custody over the other, if one of the parents filed a child support case in family court, the family court would usually dismiss the case and direct that the issue of child support should be the topic in a matrimonial case. Matrimonial cases are dealt with in the Supreme Court.  Proceedings for legal separation or divorce are the most common marital cases, although an annulment proceeding is also a matrimonial case.  The family court does have jurisdiction to hear a child support case for a married couple not living together.

If there isn’t a matrimonial case pending already, spousal support cases can be filed in the family court. This may be true even in a situation where a married couple remains living together, without support for the non-monied spouse. The family court does not have jurisdiction to hear newly filed cases for assistance when a matrimonial case is pending with the Supreme court. However, there’s a general exception to this rule which allows for the filing of a support petition in the family court, even when matrimonial cases are pending if one spouse and the children are likely to become public charges or are already on public assistance.

Examining Spousal Support Cases Before Matrimonial Cases Begin

But what about a situation where a spousal support case is filed in family court, before the filing of a matrimonial claim, but then a matrimonial case is started immediately afterward? We can go to the case law for guidance. Continue reading

Negotiationpic-300x207The courtroom is rarely a place that most people want to visit when dealing with their matrimonial issues. More often than not, a day in court is a stressful experience, particularly when it comes to dealing with things like divorce, child custody, and visitation rights. It’s no wonder that many individuals prefer to negotiate their divorce outside of court if possible. While there are ways for people to avoid the courts, such as using divorce mediation, not all spouses know for definite whether their spouse will agree to an alternative dispute resolution process like divorce mediation or collaborative law. In these circumstances, it’s important to keep your options open.

When a spouse contacts my office to arrange their initial consultation (free for up to 30 minutes with the potential to move to paid consultations after), we try to screen them first to see if they are looking to utilize me as their neutral divorce mediator. It’s important for us to find out whether they want a one-on-one consultation with me as an attorney, or whether they are looking for a divorce mediator. Meeting with someone one-on-one when they’re considering mediation could compromise my position as a neutral party in the eyes of their partner. If the individual tells me that they want to have a one-on-one consultation with me, I may not be able to be their mediator, but we can keep their options open. Continue reading

Mediation-Couch-300x200Divorce is rarely straightforward. There are a lot of things that couples need to cover when a marriage comes to an end, including figuring out how debts and assets should be divided between parties, and determining who should have primary custody over the children. However, depending on the nature of your relationship with your ex-spouse, and the strategy you choose for managing your divorce, it is possible to make things a little simpler.

Divorce mediation is often a more straightforward way to deal with divorce for the couples I work with that want to avoid things like litigation. During mediation, couples have the chance to discuss the outcomes that they want to achieve with their divorce and negotiate the terms of things like maintenance aka spousal support, maintenance, equitable distribution and more. For many parties, a divorce mediation is a more relaxing and fast-paced strategy for handling the various complications that arrive during divorce. That’s why I’m so committed to giving the people I work with the opportunity to choose mediation if they feel that it’s right for them. Continue reading

Mediation-Consultation-300x200When an inquiry comes in for someone inquiring about getting a divorce, someone from my office attempts to ascertain from them whether they are interested in using our office as a neutral divorce mediator.  If they’re interested in mediation, we invite them to bring their spouse to come in for a free initial consultation to meet with me.  We explain that I do not, at least initially, meet with the couple one on one, or have an initial consultation with either one of them before meeting the couple together.    The consultation is usually up to a half hour in length, although some couples choose to immediately begin mediating that day after the initial consultation. 

I might start by telling the couple that I am a divorce lawyer, but in a divorce mediation, I do not act as the lawyer for either side.  I inform them that it is recommended that each of them hire and use their own individual review attorneys.  I explain that review attorneys are the individuals that will explain the law, their rights, and advise each of them.  A review attorney might say, “This is a good deal” or “You might want to change this deal a little bit” or “You won’t do better in litigation” or “You will do better in litigation”.  Either side could prepare for mediation sessions, prior to each session, with their review lawyers.  They can then debrief with the review attorneys after sessions and prepare for the next.  If not beforehand, the time to consult with a review attorney would be when an agreement is drafted.  I might mention that in the perfect world everyone uses review attorneys, however, the reality is that not everyone takes me up on that recommendation.  I am not sure of the exact number but perhaps half of the mediating individuals use review lawyers and the other half do not.  The half that do not perhaps believe that they have educated themselves on the issues and think that the mediated agreement is fair and are ready to do it.  Either way I do tell them that review attorneys are recommended but usually not required (there are exceptions).  
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Review-Attorney-Picture-300x199Most of the time, the appellate courts recognize that the trial courts of New York are given a great deal of discretion to make decisions about child custody and visitation aka parenting time matters. This is because it is recognized that these courts are in the best position to determine what is in the best interests of a child.  The trial court’s opportunity comes from the ability to assess the character and demeanor of the parties, witnesses.  The theory is that combining the court’s observations of the witnesses in the case, combined with the submitted evidence puts the trial court in the best position to make custody determinations. As I mentioned in my previous blog post, it’s unlikely for the appellate court to overturn the decision an appeal is made by a parent or parents who want to appeal a custody or visitation decision. However, it does happen at times and it may be possible for the matter to be overturned in an appellate court if the attorney for the appealing party can prove that that there was not a substantial or sound basis for the custody decision in the first place.

For instance, in the relatively recent case of Weisberger v Weisberger,  154 AD3d 41 (2nd Dept. 2017) the court found that the trial court’s previous decision to modify the stipulation and award full custody of the children to the father in the case was made without a substantial and sound basis in the record. According to the details of the case, the trial court gave excessive weight to the religious upbringing clause in the case, rather than focusing exclusively on the children’s best interests. There’s nothing to show that unsupervised visitation was detrimental to the children, and it was therefore inappropriate for the court to order supervised visitation. Continue reading

Lawyerlaptop-300x200Child custody is a complicated part of divorce and family law.

Parents will often fight tooth and nail to get the custody order that they believe is right for their family. Even after a court order has been ruled on by the trial court, one or sometimes both parties to the case may seek to appeal the decision of the trial court. However, because the trial court is vested with broad discretion to determine what is in the best interests of the child in mind when making custody decisions, it’s unlikely that arrangements will be changed in most situations on appeal. The courts in New York strive, in theory, to keep the disruption to a child to a minimum when making decisions about their future.

Typically, the decision of how to award custody is made in a trial court which is either the Supreme Court, in cases of divorces, or Family Court can also deal with child custody cases. The case law stands for the propositions that the trial court needs to be able to weigh various factors, including the character, sincerity, and testimony of the parties involved. The trial court has access to both parties and can supplement the information it learns from everyone with professionally prepared documentation and reports if such evidence is submitted. If one party in the case is unhappy with the outcome, then they can ask to have the matter reconsidered by the appellate court. However, appellate courts are often reluctant to re-evaluate the subjective factors addressed by the trial court. Additionally, decisions of trial courts are usually upheld, on an appeal, unless the party can prove that there was a lack of a sound or substantial basis, in the record, for the trial court’s original order. Continue reading

Maintenance-Fight-300x200While many aspects of family law may stay the same over the years, certain components may also need to be changed to adhere to the evolving nature of life in the United States. Recently, the federal tax law was changed, with the change in the taxation of maintenance (alimony) payments that came into effect on the 1st of January 2019. According to the rules of this new law, maintenance payments delivered from one spouse to another can no longer be classed as a tax deduction for the payor. Additionally, the payee no longer has to count those payments as taxable income. What this means is that there can be greater resistance to the payment of maintenance than before.

The last update in the New York State maintenance guidelines was made at the time that maintenance payments were tax deductible to the payor and taxable income to the payee. These maintenance guidelines are still in place, and at as of the time of this blog have still not been revised by the New York State legislature.  The law still reflects an environment wherein maintenance is tax deductible to the payor, and taxable income for the recipient. Accordingly the courts may decide to deviate from the guidelines for maintenance based on this change in the taxability, now that the rules are different, as deviation may be required to creating an agreement that’s fair for both parties. Continue reading

Businessdebtpicture-300x200There are many complicated things that a couple may need to address when it comes to managing their divorce. Everything from child custody agreements, to how assets and debts will be shared needs to be considered by the parties involved. In mediation, a mediator such as myself can work with a couple to guide them through their discussions about things like equitable distribution. The process of equitable distribution isn’t just about splitting things 50/50 after all. The parties need to think about how assets and debts can be shared fairly.

The equitable distribution of debt can be particularly complicated. While marital debts need to be shared between both parties, separate debt belongs to a single individual. Determining which debts are marital and which are separate can be difficult at times. Fortunately, when people do not immediate know how an issue should be handled, there are many cases that I can address with parties in divorce mediation or other divorce processes, to help them explore the concepts that come into question during equitable distribution. Continue reading

Relocation-Picture-300x200There are many complicated aspects of family law. Arranging equitable distribution in a divorce can be difficult, particularly in cases where it’s hard for the couple to agree. Deciding who should get control over a family home is also a complex discussion. However, few things require more caution and careful consideration than issues associated with child custody. Not only does a child custody agreement need to be approved by a court based on an observation of what’s in the child’s “best interests,” but changing the order is a challenge. Even if a modification of child was right for the child, absent an agreement about it, the court would need to see a substantial change in circumstances before even getting to the issue of whether the modification is in the best interests of the child or children.

When working with clients on family law issues that involve child custody agreements and visitation or parenting time rights, I find that it’s essential to highlight the complexity involved in making the right decision for a child. The courts of New York and Long Island will not disrupt a child’s life and growth by altering their custody situation unless there is a good reason to do so, that’s why a substantial change in circumstances is crucial. It’s also essential for the people requesting the change to show that the alteration is in the best interests of the child.

In the past, the situation used to be that if people agreed in advance that another parent would be able to relocate as part of a written agreement that was ordered by the court, the agreement would control the relocation. However, that may not be the case today. The court can no longer automatically say what might be in the best interests of a child without hearing the full case. Continue reading

ChildSupportMediationCouple-300x200As a divorce attorney and divorce mediator, I often ask questions to learn more about my clients and their cases. Many aspects of law revolve around the ability to ask the right questions at the correct times. Recently, I attended a conference at the New York State Council of Divorce Mediation, to further my education on Divorce Mediation and network with my peers. During that event, Kenneth Cloke, JD, Ph.D., and LLM provided an interesting training session on the “art of asking questions.” This session raised some interesting insights in the questions in divorce and family law mediation cases, and I’ve written this blog to share those insights with you.

In any legal case, asking the right questions is crucial. For a divorce mediator, asking questions can be complicated and even dangerous, because it sparks emotional responses in clients. Sometimes, you need to ask the difficult questions to get to the deeper meaning behind certain issues and domestic disputes. One thing that all divorce attorneys and mediators see, is that the disputes between parties in a divorce are often two-dimensional. Dr. Cloke points out, usually, a husband or wife complaining about dirty dishes left in the sink isn’t just about the dishes – it’s also about the lack of respect that someone shows when they ignore something important to their spouse. Continue reading