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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 LongIsland. 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 ›

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Today’s blog is a blend of some of my prior blogs and/or website articles over the years on child support. As a NewYork divorce lawyer and family law attorney, one of the most common types of cases I deal with involves the issue of child support. Under the law of New York State, both parents responsible for a child are required to support their child financially until that child turns 21 years old. Regardless of whether the parents have been involved in a divorce or not, they remain financially responsible for their child.

In any divorce or child support case that I encounter as a family law professional, I find that it’s important to outline the details that go into determining how much child support is possible. Child support is a very complicated matter, and if it’s something that you’ve never encountered before, you might find yourself getting confused, or overwhelmed. Here, I’ll talk a look at a few things that you might not know about New York child support. Continue reading ›

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Divorces in New York follow many of the same procedures as other lawsuits. The plaintiff spouse filing must provide the defendant spouse with notice consisting of a summons and either a copy of the divorce complaint or a notice describing the nature of the lawsuit. Delivering these documents to a defendant is commonly known as service of process. Failing to do this properly can delay a case or even result in its dismissal. Once the defendant has been served, they must file an answer or else risk a default judgment on some or all of the plaintiff’s claims. An interesting question arises when a plaintiff spouse serves a summons with notice—meaning without a copy of the divorce complaint—and the defendant spouse defaults. Does a defaulting spouse have a right to service of the actual complaint? The scant amount of caselaw on the topic, suggests that notice, without the complaint, is sufficient for a divorce but not for issues like custody and support.

New York law requires a plaintiff to file a summons, along with either the complaint or a notice that describes the nature of the complaint. If a plaintiff chooses the latter, known as “summons with notice,” they must file the actual complaint at a later time. The exact deadline depends on how the defendant responds to the lawsuit.

The New York Domestic Relations Law (DRL) and Civil Practice Law & Rules (CPLR) govern service of process in divorce cases. Section 232(a) of the DRL requires a summons to clearly state that it is for an “action for divorce.” Rule 320 of the CPLR states that the defendant has 20 days to respond if they were personally served, or 30 days if they were served by any other means. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.

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Laws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

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In Anonymous v. Anonymous, a husband filed a motion for summary judgment to dismiss his wife’s petition alleging he’d violated an order of protection. The order of protection had been entered without a finding of fault and directed him to stay at least 1,000 feet away from the wife’s residence and job, except for court-ordered child visitation or to go to church on Sundays. It also ordered him not to commit a family or criminal offense against her.

The wife alleged that the husband had retained a private investigator. The PI recorded the wife, and the DVD showed she’d gone into a motel and had an affair with a priest at the church where she worked. The wife claimed the husband gave the DVD to her employers, and this forced her resignation.

She argued the husband had no legitimate purpose in sending a PI to follow her, and his goal was just to cause her to lose her job and humiliate her. She claimed this was a violation of the 2009 order of protection.

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When two spouses get a divorce in New York, they must address multiple complicated issues, including the equitable distribution of marital property. This often includes the marital home. A divorce agreement, or a court order granting a divorce, usually includes provisions for the disposition of the marital home. The sale of a home might not be practical or even possible at the time of the divorce for a variety of reasons. What happens when a home is to be sold after a divorce? Should the person paying the mortgage get credit for the full amount of the payments or some other amount? As for the person waiting to receive their share of the sales proceeds, should they receive interest in some form? These questions have no easy answers, but they are worth exploring.

Section 236(B)(5)(a) of the New York Domestic Relations Law requires a court to resolve all issues of marital property distribution in, or prior to, a final judgment of divorce, except for issues regarding which the parties have entered into an agreement. Postponing the sale of a marital residence requires careful planning in the hopes of avoiding a return to court. A court is unlikely to approve the future sale of the home without both parties’ agreement, along with a plan for either selling it or otherwise disposing of one spouse’s marital property interest.

Divorcing spouses have several options when postponing the sale. One spouse may buy out the other spouse’s share of the marital interest, either in cash or with a promissory note. This arrangement, along with most other postponements, creates potential problems with a mortgage lender. Any postponed sale means that one spouse must continue making mortgage payments, while the other spouse remains liable for missed payments.

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Different people approach divorce from different angles. While some are limited to litigation, others will prefer toexplore alternative solutions like collaborative law and mediation. I offer mediation to couples as a way of helping them to sort through the various issues that commonly arise during a divorce or separation. As a mediator, I try to ensure that the discussion is calm, constructive, and open, so that both parties are able to have their say. Because of this, mediation is often seen as a very flexible process, and it can be used to address matters regarding children, visitation, and custody rights, or consider concerns about the financial side of dissolving a marital relationship.
Using divorce mediation properly is all about understanding what you’re getting involved with, what the benefits are, and who you need to be in contact with. It’s important to remember that mediation isn’t there to deal with your relationship problems or get you back together, but instead assist you in agreeing on the issues that will allow you and your ex-partner to move on with your separate lives. Continue reading ›

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Unlike circumstances relating to child custody cases, where the testimony made by the children involved (please seemy last blog for more information), can be done in a private setting (In-Camera), circumstances can differ somewhat in order of protection or family offense cases, where children are brought forth as witnesses to a specific event. In the case of a family offense proceeding, which is a case in family court that addresses whether or not there should be an order of protection, a child’s testimony that will be entered into evidence must be presented in front of all the parties involved.

Obviously, asking a child to testify in front of the parties, who are often their parent(s), in a family offense case can be a very difficult process, and it’s something that is frequently avoided at all costs, whenever possible. The reason for this is that the psychological damage a child is exposed to during such a procedure can be very significant, particularly when he or she is offering evidence against their parents.

Though a family offense proceeding is recognized as a civil proceeding, and isn’t directly about crime and punishment, it’s seen as a “quasi-criminal” case, because when family offenses are found, an order of protection can restrict someone’s freedom by forcing them to stay away from certain places and people. Additionally, these orders can prevent certain people from performing certain acts and behaving in a particular way. Continue reading ›

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There are many considerations a court has to make when it comes to child custody cases. Though, ultimately, thecourt must put the best interests of the child first when it comes to dictating who should be given parenting or visitation rights.  There are numerous factors that come into play when helping the court to define the best interests of a specific child. For instance, one issue that the courts of New York might consider may be the financial stability of the parents in question. Alternatively, if the child in question within the case is old enough to make informed decisions about his or her own future, the wishes and requests of that child may be taken into consideration.

It’s worth noting that a child who is already suffering from the discomfort and trauma of a broken home can often benefit from avoiding any further disruption in his or her life.  This was the concern of the New York Court of Appeals in the case Lincoln v. Lincoln that established how to take testimony of children in divorce and child custody cases.  As such, it can be a good idea to consider solutions for obtaining information about the child’s wishes regarding custody, in a private format. No child would feel comfortable having to publicly share information about his or her relationship with his parents, or choose between them while either party watches. As such, “In Camera” testimony and interviews can be conducted to help provide a less harrowing experience for a child of divorce. Continue reading ›

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In any divorce or child support case that involves children identified as minors, it’s crucial to determine how much support needs to beprovided to give those children an on-going, and undisrupted lifestyle following a divorce or separation of parents. Child support is often a very complicated issue within divorce cases, and I often remind my clients that the courts of New York must examine a number of crucial factors before determining how much should reasonably be awarded.

Generally, the guideline amount of child support is determined by the parent’s income.  There are a number of factors upon which a deviation from the guideline amount of child support can be based, including, but not limited to:

  • The non-custodial parent’s financial abilities
  • The custodial parent’s earning capacity: Both parents have a duty to support their children, thus the earnings of the custodial parent must also be considered.
  • Other factors that a court might deem appropriate.

Here, we’ll examine the difficulties that can become present during a child support case when it comes to considering combined income in excess of $143,000.00 (the initial cap in 2017, when this blog was written on child support), and the ultimate financial abilities of the paying spouse. In determining parental income, the courts of New York adhere to the Child Supports Standard Act, starting with an evaluation of parent’s “gross” income. Often, this income is evaluated according to the numbers on that individual’s most recent income tax return. Once that gross amount has been considered, the court continues to evaluate potential other compensation including, but not limited to voluntarily deferred, or additional income. Continue reading ›

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