Articles Posted in Trials

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Unhappy-couples-300x200The recent issues caused by COVID-19 have surfaced some common questions about family court cases, and what kind of issues require immediate attention. For instance, if a person was removed from their home because of a temporary order of protection, would this require an immediate hearing to ensure that each person is the case is properly protected?

For related people, and people who have been in an intimate relationship before, the Family Court can offer order protections when someone has a claim to being a victim of a Family Offense. The concept of a “family offense” can be difficult to understand, as there are many different levels to family offense cases. A broad description for this matter would identify family offenses as specific acts defined by Penal law and committed against members of “family”.

Family, defined by the New York Family Court Act, can include everything from obvious family relationships, to boyfriends, girlfriends, and people with children in common. The term “family” might also refer to people living in the same household. A person seeking an order of protection would need to file a petition with the Family Court and highlight the offenses that were allegedly committed by the “family” member. Continue reading ›

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Finger-Pointing-300x200There are a lot of complicated components in family law that need to be addressed when a divorce takes place. That’s one of the reasons why I’m creating this bullet point guide, to help people find the answers to the questions that are most important to them.

In today’s guide, we’re going to be looking at the guidelines in place for things like health insurance and medical expenses when dealing with divorce.

 

Ongoing Health Insurance Benefits in Divorce

In most cases under New York Domestic Relations law, the courts will consider any assets accumulated during a marriage as “marital property”. However, this can leave a lot of things open to speculation. For instance, a question that often arises is how your divorce lawyer can ask a court to address pension and healthcare benefits in a divorce.

  • Typically, pension benefits can be subject to equitable distribution in a divorce. The pension benefits that a party accrues when married can be seen as a marital asset. However, the portion of benefits of obtained before the marriage and after the filing date of the divorce action isn’t considered an asset of the marriage. Pension plans, however, often contain more than just provisions for future financial compensation. These plans often provide for continued health insurance too.
  • While courts consider pension plans in equitable distribution, that’s not always the case for health insurance coverage. Courts issued an opinion a few years ago that a husband/s pension plan of lifetime healthcare coverage wasn’t a marital asset, and that it shouldn’t be split between the husband and wife. The court also noted that the wife wouldn’t totally lose out in this matter, because “loss of insurance benefits” would be considered in the equitable distribution analysis of other assets.  Keep in mind also, as part of the Automatic Orders involved with a litigated divorce, health and other insurance benefits that were in place before the filing date of the divorce must continue while the divorce is ongoing unless an agreement or court order is made to the contrary.

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Arms-Crossed-200x300Welcome back to our bullet point series addressing some of the biggest issues that people face with divorce litigation. If you’ve ever considered a divorce before, or you know someone who has been through the process, you probably have some questions about how everything works. This bullet point guide is designed to give you a better insight into what you can expect.

In this part of the series, we’re going to be looking at things like the costs incurred in a Queens, Nassau or Suffolk County, New York divorce, and the different options available to suit your budget. We’ll also address agreements and strategies that can speed up your divorce, and how money can come into the discussion when you’re planning your divorce.

The Costs of a Divorce in New York

One of the biggest concerns that clients have when it comes to figuring out how to plan their divorce, is how much everything is going to cost. Beyond your divorce attorney fees, filing for divorce isn’t free. The court filing fees are approximately $370.00. At the same time, there are expenses like marital debts to think about too. So, how much is everything going to cost? Continue reading ›

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Welcome back to our second set of bullet points for the divorce and litigation series guide. If you read my previousHurt-Couple-300x204 blog, you’ll already know that I’m using this several-stage guide as a way to provide quick and useful information about divorce litigation to anyone who might be considering starting their own case. These guides will act as a source of quick-fire knowledge when you have questions that you need to answer as quickly as possible.

In this part of the series, we’ll be looking at relocation clauses and how they work when it comes to child custody agreements made in litigation. I’ll also touch on the concept of separation agreements, and when they’re helpful in a divorce case.

Relocation Causes Agreed To in Divorce Litigation

Family law is made up of many complicated areas, from maintenance, to equitable distribution. However, there are few aspects more stressful for most families than deciding on divorce with custody and visitation times. Continue reading ›

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If you’ve been staying tuned with my blog recently, then you’ll know that I’ve been creating a list of blogs highlighting Colleagueslaptop-300x200key points in divorce mediation. These guides are designed to give you easy access to important information about mediation in a bite-sized package. Now, I’m going to be looking at more traditional divorce representation, that in which the lawyer is representing a client as their advocate, in a similar fashion, highlighting key points for you in an easy-to-read format.

This is the first of what is likely to be a number of lists about divorce litigation, and it will be looking distributing debts and assets, the concept of filing for divorce, maintenance, child custody, child support and more.

Divorce and the Latest Distribution Laws

One of the major issues that couples need to address when getting divorced, is how they’re going to handle the distribution of assets. This includes dividing not just important assets like belongings and the family home, but also deciding who should be responsible for debts after the marriage is over. Continue reading ›

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Swearing-In-300x211Assets aren’t the only thing that may need to be distributed between two parties when a divorce takes place. Some couples need to think about distributing their debts too – particularly when there is a dispute about whether the couple agreed to take on those financial commitments together or not. In order to prove to the courts of New York and Long Island that a debt should be split, parties must provide some crucial information. Most commonly, the courts will require some evidence that the debt was incurred either for the benefit of the other party, the household, or with the other party’s permission. This is a way that something may be considered marital debt, rather than just “individual” debt.

In most instances the debt that exists at the time of filing the divorce will be open to consideration by the courts. Usually, any debts that are taken on after the divorce case is filed won’t have any traction in the case. However, I have found some exceptions to this rule. For instance, in the case of G.T. v. A.T., 43 Misc. 3d 500, 501, 980 N.Y.S.2d 255, 256, the court was prepared to consider any debt incurred when the divorce was ongoing. However, the court ended up ruling that it was not going to distribute the debt that was incurred during the pendency of the divorce, simply because neither side was able to show evidence that the debt was made with the other’s permission.

In the case above, the plaintiff had a discover card in their name and a Visa and Mastercard in the name of the defendant. The two parties had accrued debt on all of the cards during the pendency of the case. However, as no evidence was available to suggest that the debt was incurred for the benefit of the other spouse, or with the other spouse’s permission, that debt was not be treated as marital debt. My experience is that if post filing expenses or debt is going to be an issue that the parties would want to attempt to get a Pendente Lite Order from the court. This is an order that provides for payments to be made for support and expenses while the divorce is ongoing. Continue reading ›

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As we have discussed in previous posts, when a New York court is tasked with determining the amount and duration of spousal maintenance payments following a New York divorce, the court will start with the formula contained in Domestic Relations Law section 236(b). For determining the duration of spousal maintenance payments, the statute breaks marriages down into three categories and assigns each a percentage range:

  • Marriages less than 15 years in length: 15-30% of the length of the marriage
  • Marriages between 15 and 20 years in length: 30-40% of the length of the marriage
  • Marriages over 20 years in length: 35-50% of the length of the marriage

Domestic Relations Law Section 236(b) makes room, however, for the situation where the presiding judge believes that the guidelines do not adequately account for the party’s situation. In this case, the judge can order post-divorce maintenance for a duration that is shorter (or longer) than recommended by the formula. However, if a judge decides to depart from the guidelines, she must detail her reasoning in writing.

The spousal maintenance duration formula was made law back in 2015, and there have been relatively few cases testing a judge’s limits to depart significantly above the guidelines. However, the cases that have been issued are instructive. For example, a late-2016 case presented a situation where the party seeking maintenance payments was able to obtain them for the upper range of the guidelines.

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Many New York family law cases involve a child custody dispute. Most often, these disputes arise when the parents of a child or children go through a divorce and argue over who has primary custody of the children. However, in some cases, grandparents seek visitation or custody of a child. This may be after a divorce or even while the child’s parents are still together.In previous posts, we have discussed under which situations a court may award visitation or custody to grandparents. As previously noted, grandparents do not have a “right” to the custody of their grandchildren. Thus, custody will only be awarded to a grandparent if certain factors are present. Among others, a court must determine that awarding custody to a grandparent or grandparents is in the best interests of the child.

How Do Courts Determine What Is in the Best Interests of a Child?

Judges know the law. However, very few judges are trained in psychology, and fewer still are able to glean sufficient knowledge of a family’s dynamics through the evidence presented to the court. For example, much of the evidence presented in a New York custody case may be limited to text on a page, which may not provide a judge with much knowledge of the relationships between the parents, children, and grandparents. Additionally, any live-witness testimony has the potential to be biased or fabricated.

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A divorce case will often be an emotional and complicated time for everyone involved. Feelings are hurt, and insome cases, sadness spurred by the end of a marriage can turn into anger, making the experience of litigation even harder to handle for those involved.  While I am a strong believer in alternative dispute resolution through processes like mediation or collaborative law for couples willing and able to go those routes, often, litigation is the process used.  As a divorce lawyer and child custody attorney, it’s my responsibility to help the people dealing with the complications of divorce to present their case as clearly, calmly, and effectively as possible in front of a New York judge. Often, this will mean telling a story on the behalf of the client, that begins with an opening statement, continues through to a body featuring witness testimonials, direct, and cross examination, and finishes with a closing statement.

From the very beginning when I start working with a client on their divorce case, we will discuss their circumstances in detail with them, and at times writing what I like to call “golden nuggets” of information down in the trial folder, so that we can refer to them later. This allows me to know what kind of story I want to tell throughout the course of the case, although it’s important to listen carefully to what the witnesses, and opposing lawyer says throughout the experience, as this can sometimes alter the considerations that need to be considered when presenting a divorce summation. Continue reading ›

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Although the nature of divorce trials can change from one case to the next, it’s worth noting that divorce attorneys and child custody lawyers like myself often use a very specific set of techniques when presenting our case to the court. Those techniques allow us to create a story for the judge to follow, beginning with an opening statement that explains the nature of the state, then moving onto direct and cross examination. While direct examination is a process used by divorce attorneys to question our own witnesses and establish context within a trial, cross examination is a strategy that’s more focused on changing the perspective of the court to suit our specific client.

During a cross examination, divorce lawyers such as myself ask witnesses essential to our client’s case to provide an in-depth account of the facts that support the case presented by whichever party called the witness to begin with.  Cross examination allows opposing lawyers and perhaps the attorney for the children, if there is a custody dispute, to ask questions of the witness, in an attempt to reveal information that’s beneficial for their clients. For instance, as a cross-examiner in a divorce case, I might use carefully-worded questioning to draw light to points that present my client in a good light. For instance, I could ask the witness to reveal something positive that my client did, or draw more attention to the bad behavior of the opposing party. Continue reading ›

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