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According to the New York Domestic Relations Law, as part of a matrimonial case, such as for divorce, annulment, separation, or obtaining maintenance or equitable distribution following a foreign divorce judgement, the court may award counsel fees. In New York proceedings it is well established that the Court in domestic relations cases has the discretion to award fees depending on the parties’ circumstances, the merits of each sides positions and the complexities involved in the particular case.  As part of a post nuptial agreement, pre nuptial agreement, separation agreement, or stipulation of settlement of a divorce, often times a provision is included about future payment of the other side’s counsel fees by the party that takes a non meritorious position.  In those situations the court will usually seek to enforce the terms of the parties agreement regarding counsel fee applications.  The balance of this blog is about cases that are not covered by counsel fee clauses.

The underlying purpose and rationale behind many counsel fee awards is to make sure that a “needy” spouse has the ability to defend themselves, or carry out legal actions in court. Through counsel fees, the New York court is able to situate both spouses on an equal economic footing when it comes to using legal help and carrying out court proceedings. What’s more, these fees can help to ensure that during litigation, both spouses have equal leverage. The Supreme Court of New York may deliver an order to either spouse involved in the case, requesting them to directly pay counsel fees to an attorney for the other spouse, so as to enable that spouse’s continued participation in the case.  Courts can consider:  type of services rendered; the actual time used; the professional experience and reputation of the counsel; and the respective financial situation of each side. Continue reading ›

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For child support cases proceeding in a New York Family Court, the court, pursuant to statute, should make a temporary child support order, while the case is ongoing, of an amount that is enough to meet the needs of the child.  According to the law, this should be done regardless of whether immediacy or an urgent need is shown.  The law provides that even if the financial disclosure, which is required to be provided ultimately in the case, has not been yet provided, that the court should still enter the order.  If the information that would be on the financial disclosure is already provided at the time the temporary order would be entered, such as income and assets of the respondent or the parent that should be paying child support, then the court should make the temporary child support order in accordance with the child support standards act formula.  If the information is not yet available, then the child support amount to be paid should be based on the child(ren)’s needs.

Ultimately, when the child support order is finalized, the court needs to make the final order according to the child support standards act formula, unless an acceptable agreement is made for a different amount between the parties.  The payor would then be given credit for any payments made under the temporary child support order that was in existence prior to the finalization of the case.  At times, the temporary order might have been in an amount more than the final order.  If that were the case, then the payor parent might have a credit against future support payments.  The court is to make the amount of child support due under the final order retroactive to the filing date of the petition for child support.  In cases where public assistance was involved, the order can go retroactive to the date that public assistance started.  Often times there are arrears for child support due at the time the final order was made.  The arrears may be because of the retroactive date that child support is due from or as a result of the possibility that the temporary child support order was lower than the final order.  Both reasons might be applicable.  Arrears, as well as the ongoing support payments, will need to be paid to the residential custodial parent as the child support order continues. Continue reading ›

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Filing for a divorce, regardless of where you live or what the underlying circumstances may be, can sometimes require some thought to ascertain in which state in this Country you should file. There are rules to follow throughout almost every aspect of the case, from determining where you will be able to file for a divorce, to figuring out exactly who has the rights to what through equitable distribution. Before you can go ahead with filing for a divorce, regardless of the process chosen to sort out the issues to dissolve your marriage, be it mediation, litigation, or collaborative law, you must ensure that you meet the residency requirements for a divorce case to take place in New York. After all, throughout the United States, each state has its own jurisdiction, and you must apply for legal action in the State that applies to you.

Those who apply for divorce without meeting the residency requirements for New York may find that their cases are dismissed. To apply for a divorce within New York, it is crucial for at least one party to meet with one of the following requirements regarding residency as is outlined in the New York Domestic Relations law:

  1. The ceremony for the marriage of the couple seeking a divorce must have been performed within the State of New York, and at least one of the spouses involved had legal residence within the state of New York for at least one year continuously prior to the beginning of the action; or,
  2. Both spouses lived and held themselves as husband and wife within the State of New York, and one (or both) has been considered a resident for at least one year before the commencement of the action; or,
  3. The reason (grounds) for the divorce took place within New York, and one of the spouses has been a resident of New York for at least one year before the action commenced; or,
  4. The reason for the divorce took place in New York, and both spouses were residents of New York at the time that the grounds for divorce occurred; or,
  5. If both spouses were not married within the State of New York and were never living as a “husband and wife” couple within the state, or the reason for the divorce didn’t occur within the state, either spouse must have lived within New York as a resident for a minimum of 2 years before the case is filed.

Continue reading ›

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I recently wrote about the revisions to the New York maintenance (alimony) law which was passed in September 2015.  It became effective for the temporary maintenance provisions on October 25, 2015 and for durational or permanent maintenance (the maintenance ordered for some period of time after the divorce if there is any) it will be effective as of the end of January 2016. This article will be about the narrow issue if maintenance should exist when a spouse/former spouse is living with a new romantic partner. The law about this situation is contained in New York Domestic Relations Law Section 248 (DRL 248) which also received some changes in the recent law update. It seems, mostly, that section of the law remains intact. The language, though, was updated to be more gender neutral and reflective of our modern times.

The current old law, which is effective only until January 23, 2016, states that when the wife remarries the court must terminate any support payments (not child support) that are to be made by the Husband for the Wife. The antiquated language here I think is apparent – “Husband” and “Wife”. While courts have in recent years read gender neutrality into these terms, those terms are changed in the new law to “payor” and “payee”, thus recognizing that either spouse might need to pay maintenance. The current/old law goes on to say that the husband can make a motion, and the court in its discretion may grant the motion, for termination of support payments for the wife if the husband can prove that the wife is habitually living with another man, and holding herself out as his wife, even though they are not married. The updated law, again, modernizes the terms to “payor”, “payee” and “spouse” (which is also reflective of the fact that same sex couples can now marry). Continue reading ›

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No matter the circumstances, a divorce is rarely pleasant or easy, but it can be resolution and a new beginning. In any situation, there are various factors that both parties will need to carefully consider – such as how to split or share assets, who should be responsible for what, arrangements connected to child custody and parenting time or visitation, alimony aka maintenance, and so on. Commonly, divorcing spouses find that they agree on very little, and neither are immediately willing to compromise. When dealing with a high net worth divorce, the issues can become somewhat more intense, as unique nuances present themselves that are likely to occur less frequently in other cases. For instance, the stakes are higher as each side has more resources at stake, including a combination of business interests, assets, tax implications and more. Because of this, certain steps that wouldn’t be considered at other times come into play more frequently and in greater number.

In any divorce, both parties are likely to feel a wide range of emotions, from disappointment and aggravation, to anger and betrayal. Because of this, divorce rarely seems like the best time to make decisions regarding long-term finances, but it is crucial to consider the effect a divorce is going to have on someone’s life moving forward. In a high net worth case it is particularly important not to rush, just to get the divorce done. While a quick resolution may be desired, things need to be carefully considered. It’s worth noting that many of the considerations that must be addressed in high net worth divorce cases are topics that may be relevant in typical divorces. However, since the resources are greater, the incidence of issues within high net worth cases may be more frequent and the consequences greater. Continue reading ›

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The law in New York is that a non-biological, non-adoptive parent does not have standing to proceed in a court for custody or parenting time.  There is, however, a statute that allows grandparents standing to petition for custody and visitation under certain circumstances, which I have previously blogged about.  In Debra H. v Janice R., 14 N.Y.3d 576 (N.Y. 2010), New York’s highest court, the Court of Appeals reaffirmed its rule that neither parents by the doctrine of equitable estoppel or people standing “in loco-parentis” to a child has standing to seek custody and visitation or parenting time in court.  The rule would be then that biological strangers that have not adopted a child cannot proceed in court in New York for custody and visitation.

Still applying this precedent, though, two different cases decided in different parts of New York, ended up with different results.  In one, the same sex partner was allowed to proceed with her custody case, in the other a domestic partner was found not to have standing.  The law was re-iterated in the Fourth Appellate Department, which covers part of upstate New York just this year, in 2015 in the case of Matter of Barone v Chapman-Cleland, 129 A.D.3d 1578 (2015) which stated that biology or adoption under our current statutes define what a parent is and stated that any change of this needs to come from the legislature.  In that case a same sex partner to a biological parent tried unsuccessfully to proceed in court on a case of custody and visitation.  The court ruled that this former partner did not have standing to proceed in court as a biological stranger that never adopted the child, despite the possibility that the person was very much like a parent to the child.  Continue reading ›

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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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Fair Hearing when Challenging “Indicated Findings” by Child Protective Services or the

Administration For Children’s Services (CPS and ACS)

No matter what the reason behind a hearing may be, one thing that all of my clients should have access to is a fair hearing if they want it. The right to a fair trial is fundamental to the rule of law, and it applies to civil and criminal cases alike. The right to a fair trial or hearing requires a fair public hearing within a reasonable time by an impartial tribunal established by the law. This blog will cover exactly how a fair hearing should go when it is for the purpose of challenging an “indicated” finding by Child Protective Services.

So, if the case has proceeded to the scheduling of a hearing, that means a caseworker has investigated the case and made an initial determination that the case was “founded” or “indicated”. This means that they believed there was some credible evidence to believe that the allegations involving child neglect or abuse occurred. It also means that the person that was “indicated” or who the case was “founded” against made a timely request to challenge the finding. An administrative review happened after the timely challenge and the review did not overturn the initial indicated finding. Therefore the fair hearing is now scheduled. Continue reading ›

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It’s important to recognize that step-parents are a common and familiar part of everyday life, and just like their partners, everyone may want to know their legal rights and responsibilities regarding their step-children. Over time, many step-parents who spend time with their step-children develop a strong attachment and commitment to those youngsters – taking responsibility for them on a moral and financial level. However, somewhat crucially, a step-parent doesn’t automatically receive standing in New York to ask a court for custody or parenting time rights if a mother and father are already legally established. Step-parents do not instantly receive the “parental authority”, including the rights, powers, duties, and responsibility of a biological mother or father, simply because they marry the child’s mother or father. Step parents do not gain parenting time and visitation rights except if they are legally appointed guardian, adopt or if there is a paternity finding for the step-parent.

Step-parents may be required to pay for child support, while married to the other parent of the child (ren) if the children involved are in danger of becoming “public charges”. Frequently, this information can act as an incentive to prompt parties into getting a divorced finalized, if other compelling reasons haven’t presented themselves. If the children are not in danger of becoming public charges, usually step-parents are not in danger of becoming obligated for child support of their spouse’s children, that is, unless they become a parent by the legal doctrine called equitable estoppel. Continue reading ›

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