Articles Posted in Divorce

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 Mediation is one of the most popular legal solutions available when it comes to negotiating the terms of a divorce. As I have stated in various blog posts before, I myself am a huge advocate of divorce mediation (and collaborative law) when it comes to settling disputes between couples that are willing to take an alternate route. For the process of divorce mediation to work as it should – both of the parties involved in the case must have some willingness and exert at least a little effort. Mediation is a voluntary process, and neither party can be forced into it – making it a highly different approach to litigation or the adversarial divorce case.  Most likely, the couple pictured above, however, would benefit by utilizing some of the tips contained within this blog.  Please consider the picture then, advice on what not to do.

In the traditional court centered divorces, a divorce proceeding can be started within the court without the consent of the other party, as one side and their lawyer will draft the initial pleadings, file them, and serve them to the other side. In New York, the other spouse involved will then have twenty days to “appear” within the case, which then makes both sides participants in the adversarial divorce. If your goal is to settle your divorce case “amicably”, then mediation is potentially the best route to pursue. In divorce mediation, yourself and your spouse – or in certain cases, the two of you and respective lawyers, utilize a mediator that will help you to resolve and discuss the issues in your divorce. Though the mediator will not make your decisions for you, they will serve as a facilitator to help you determine what is best with your spouse. Continue reading ›

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The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00.  The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law.  If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.  Continue reading ›

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The New Significant Other and Child Support

Last week’s blog article was about child custody and the new boyfriend, girlfriend, husband or wife. Like with child custody, I frequently get inquiries and new cases about child support when there are new significant others. As always, people should keep in mind that there are different processes available to deal with child support, like other family law issues, such as mediation, litigation, negotiation, and collaborative law. Why is it that a new relationship might cause child support issues? Like with child custody, the reasons this happens with child support can vary and be complex ranging from emotional issues, such as jealousy, to what is actually supposed to be the focus of child support cases, financial matters.

From a legal standpoint, I think one of the more important reasons is that the gross income of the parent that has to pay child support (the non-residential custodial parent) is reduced before the guideline child support calculation is made, by support orders that are first in time or support that is actually being paid pursuant to a written agreement. The first in time support order could be for child support or alimony also known as maintenance. So, the need to address child support, when there is a new relationship, may simply boil down to a race to try to maximize finances. Continue reading ›

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The New Significant Other Phenomena

When it comes to dealing with visitation time, parenting rights, child custody, and child support – there are a lot of sensitive and complicated issues to consider. One set of situations I deal with somewhat frequently as a family lawyer within Long Island and in and around the City, are those that arise when a biological parent of a child – with rights regarding that child – gets a new significant other, or partner be it a girlfriend, boyfriend, husband or wife.

It’s a fact that is both inevitable and uncomfortable at the same time – when you engage in a divorce or break up with your partner, the chances are that you will eventually have to deal with your ex-partner getting involved with a new romantic interest. Likewise, life will go on for you and you too will find love again. Although this may not impact people who don’t have a child with their ex, it’s obvious that concerns can arise when a divorced couple have custody, visitation rights, and child support matters to consider. These issues can be sorted out through mediation, litigation, negotiations, or collaborative law. Continue reading ›

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It is possible, under different scenarios, to discontinue a divorce, before it is finalized by the signing of the judgment. But how can it be done? The answer is found in the New York Civil Practice Law and Rules 3217 and corresponding case law that interprets it. What the law says is that for civil actions, in general (including divorces), an order is not required if no responsive pleading is served. But if no responsive pleading is required then it can be discontinued twenty days after the service of the original pleading. Otherwise a stipulation between the parties of discontinuance would need to be made or a court order for the same made.

So, what does this mean and how does this apply to divorces in New York? Divorces can be initiated by the filing of a document called a Summons with Notice (a complaint can be served with it in the beginning but often is not). Eventually a complaint needs to be drafted and served; however, sometimes this does not happen in a divorce for some time or even not until just prior to the submission of the judgment. If a complaint is not yet drafted and served, then the law seems clear that the initiating party can usually withdraw by their own accord. Less frequently, however courts have found, that the person waived the right to withdraw after lengthy proceedings and it would be inequitable, like in the case of Minkow v Metelka, (46 AD3d 864 [2d Dept. 2007]) where there were substantial court proceedings and the parties included a waiver of the right to discontinue at the Preliminary Conference despite not serving a complaint. If a complaint is served, and the defendant serves an answer, then the divorce can be withdrawn only by a stipulation signed by both parties or an order of the court. Continue reading ›

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Issues of conflict commonly arise when parties within a case find themselves intolerant of each other’s requests or opinions. When goals change, cracks can begin to form in relationships of any kind – from marriages, to parents and their children, colleagues in the workplace and more. When people think and act agreeably, there is an alignment that ensures dispute and conflict can often be avoided – however this is rarely the case in legal matters, particularly in regards to family law.

Unfortunately, the more conflict is allowed to grow, the more likely it is that such conflict will begin to cause serious problems – which can be a barrier to resolving a case and reaching an amicable settlement. The task of professional mediators, collaborative lawyers and negotiators is to utilize the right techniques in de-escalating conflict and resolving matrimonial and family law cases. Although this blog is mostly written with divorce mediation in mind, such techniques can also be useful in collaborative cases, and to a certain extent may have some impact on classic settlement negotiation or litigation. However, the adversarial model used within the court system often tends to escalate, rather than reduce conflict – leaving less room for resolution by agreement. Continue reading ›

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Egregious conduct affecting equitable distribution in divorce

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds. Continue reading ›

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This blog article will discuss some, but certainly not all, of the features and reasons for or against having payments going through the New York Support Collection Unit. Any recipient of child support has the right to ask that the court order provide that the payments be made through the Support Collection Unit. Payments could initially be made by the payor sending payments to the Support Collection Unit in Albany, New York. As long as the payments are sent on a timely basis, in that case an income deduction order or income execution order might be avoided. One disadvantage to the custodial parent or payee of child support for payments going through the Support Collection Unit is that it takes longer for the payments to be received by that parent. The payments need to go through Albany, get processed, and then distributed.

The Support Collection Unit, however, will keep a clear record of payments received. In the event of a “violation” case, in court, a representative from the Support Collection Unit can be summoned to the court room to provide a statement and report of payments received and balances due, if any. A lot of non-custodial parents like this idea as well since it eliminates debate about what was paid or not. Something for everyone to keep in mind when payments are ordered through the Support Collection Unit is that payments made in some other fashion might not get credited as child support. For example, if someone gives a direct payment of cash there is a danger that the recipient would not acknowledge it or that it would be called a “gift” instead of child support. Usually the question is asked to the custodial parent whether there have been any direct child support payments, even though the payments should have been through the support collection unit, but paying in some other way can be dangerous territory. Continue reading ›

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Best Interest Standard

In many legal matters, the focus of a court is often into the past of the parties involved in an attempt to resolve the issues. On the other hand, in a custody case, the court attempts to perceive the future and predict which parent will provide a better environment for the child in question. To this end, the New York courts employ various methods – relying on the use of expert testimony, and examining past behavior to predict future actions. Though the statutory law in custody in New York is somewhat sparse, the Domestic Relations Law 70 provides that there will be no prima facie right to custody for either parent – rather the court must determine solely what is in the best interests of the child.

Though most people are relatively familiar with the “best interests” term, it regularly defies a firm definition. Because cases regarding children are sensitive in their very nature, each case is decided in regards to its own particular merits. However, it’s worth noting that some definitions do remain consistent from one case to the next, and so too do certain factors that courts will consider in an initial custody determination. Following, we will consider a number of factors that are considered by the New York court in establishing the “best interests” of a child. The list that we will discuss is not exclusive by any means, however it will provide a general idea of some of the things courts consider in coming to a decision. Great deference is permitted to the trial court by appellate courts since the trial courts are in the best position to weigh the credibility and testimony in a case(Eschbach v. Eschbach 56 N.Y.2d 167).   This blog will summarize the best interests standard as articulated in the Eschbach case which remains an important case for child custody matters in New York to date. Continue reading ›

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In a previous blog post, we touched upon issues of discretion of judges and other triers of fact (referees, judicial hearing officer and support magistrates), and the ways in which parties in a legal proceeding, and their attorneys may have the ability to shape the decision of a judge or court. In matters of family law, there are a number of discretionary points to consider that may help to change or manipulate the decision a judge makes at the end of a case or hearing. These matters can range from imputation of income, to the determination of what should be considered “equitable” distribution in the dissolution of a marriage.

Imputation of Income

In child support and spousal support cases, for example, the court may conclude that an individual involved within a particular case has attempted to diminish their assets or income in an attempt to avoid a child support or spousal support obligation. If such circumstances are found to be true, then a court may choose to “impute” income or calculate someone’s income based on their previous resources or income, lifestyle or based on expenses paid on their behalf by other people. For example, this may happen if the court believes that the individual in question chose to voluntarily leave their previous jobs, were fired for cause, or personally chose not to work either full time, or at all. In combination to previous earnings, a court may consider the education and ability to learn of the party involved. Whether that party has chosen to diligently apply for employment in a manner that is commensurate with their experience, abilities and background could become an important factor when determining income. A judge or support magistrate may consider what people with similar backgrounds and educations are capable of earning when imputing income. Continue reading ›

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