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Marital property is broadly defined, in the New York Domestic Relations Law, as all property obtained after the date of the marriage and prior to the signing of a separation agreement or the filing of a matrimonial case, without regard to the form that title is held, unless a proper agreement provides differently.  Separate property is excepted from inclusion in marital property under the law.  Separate property means:  property acquired prior to the date of marriage or property received by one spouse by inheritance or gift from someone besides their spouse; personal injury compensation; property received for or the increase in the separate property value, except any portion that is partly as a result of the efforts or contributions of the spouse; or property that is identified as separate pursuant to a properly made written agreement.  As a New York City area and Long Island Divorce Lawyer, what is marital and separate property is something that I constantly need to sort out.

To be a proper enforceable agreement that defines marital and separate property, the agreement could have been made before or after the marriage.  Agreements before the marriage are pre-nuptial agreements and those after the marriage are called post-nuptial agreements.  Stipulations of settlement of a divorce or separation proceeding can also resolve what should be categorized as separate property or marital property and would be a form of a post-nuptial agreement.  These agreements need to be written, and subscribed, acknowledged or “proven” in the manner necessary for a deed to be accepted for recording.  An acknowledgment is usually a simple paragraph, signed before a notary, affirming that the agreement:   was signed by that person; that they read it; and that it was made knowingly, intelligently, freely and voluntarily.

The law provides that a pre-nuptial agreement can be acknowledged before someone that is allowed, by law, to marry people. Besides defining marital and separate property, New York Domestic Relations Law Section 236(B)(3) outlines that the agreement can have (1) a contract to include a provision in a will or to waive the right to elect against a will; (2) the amount and duration of maintenance (alimony) or other terms or provisions of the marriage as long as they are in line with the New York General Obligations Law and the agreement is fair and reasonable when the agreement was made and not unconscionable at the time of a divorce judgment; and (3) custody, child support, care and education of a child subject to Domestic Relations Law Section 240. Continue reading ›

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Out of court statements offered for the truth of the matter asserted are hearsay under the evidence rules and are not admissible at a trial or hearing, unless they fall under a hearsay exception. This blog is intended to help give an understanding about the applicability of the hearsay rules that I have run into most often in my practice as a New York City area and Long Island Family Law Lawyer. As a practical matter, what this means, is that generally things that people that are not a part of the case say out of court is not admissible.

One important hearsay exception, which originally was made for abuse and neglect cases, is for children’s statements about abuse or neglect are admissible. This hearsay exception is found in Family Court Act 1046(a)(vi). The statement(s) alone are not enough for a finding of abuse or neglect without being corroborated. Case law has expanded this statutory hearsay exception to apply to custody cases.  To be admissible in a custody case, however, the law requires that these children’s statements about abuse and neglect be corroborated. The statements may be corroborated by other evidence which has a tendency to support the reliability of the statement. Repetition of the statement alone would not constitute corroboration, however pictures and testimony about bruises qualifies. Cobane v. Cobane, 57 A.D. 3d 1320, (3d Dept. 2008). Corroboration is defined broadly but must meet a threshold of reliability.

Party admissions are probably one of the most common hearsay exceptions found in matrimonial and family law cases. Generally this is used when witnesses testify about what they heard or read the other party to the case say out of court. Often times, statements made by the person testifying about what they said out of court are allowed in, particularly when they are about a conversation with the opposite party to the case, although they might not technically qualify as party admissions which is the hearsay exception. Unless the statement is harmful to the party that allegedly said it, usually it would not qualify as an admission. Another reason that statements might be allowed to come in is if they are not “offered to prove the truth of the matter asserted”, but rather to simply show that the statement was made. For example, if someone testifies that she told me “it was raining yesterday” is offered to prove it was raining, then the statement is “offered for the truth of the matter asserted”. If, on the other hand, it is being used to show that the woman was able to speak, in that example it would not be “offered for the truth of the matter asserted.” Continue reading ›

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I am a big fan of alternative dispute resolution such as mediation and collaborative law. Lawyers in New York are guided by the Code of Professional Responsibility. When I am in my role as a mediator, however, I am not acting as a lawyer at that time. Although I am both a matrimonial / family law attorney and also a mediator, mediators do not have to be lawyers. To guide mediators, in 2005 The American Bar Association and the American Arbitration adopted standards of conduct. The purpose of this blog entry is to summarize these standards and how they might apply to a New York Divorce Mediation.

The first standard is the principle of self determination. What this means to is that the decisions in mediation are to be made by the parties to the case, not the mediator. The mediator’s role is to guide and educate about the different options to settle the issues. For example, the mediator can explain different options for child custody like shared custody, joint legal custody, sole custody and joint custody with spheres of influence. Please click around my website or other blog entries for more information about any of these topics.

The second standard is that the mediator should have the qualifications to be able to properly handle the mediation be it from education, experience or training. In the context of divorce and family law this means: having matrimonial and family law knowledge; understanding how conflict impacts families and children; mediation process training as well as experience; and the ability to see how diversity and backgrounds impact people and situations. Mediators should be able to answer questions and provide information about their qualifications to potential mediation participants. Continue reading ›

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Previously, I have touched upon the rights of grandparents and non-parents in child custody and visitation or parenting time cases against parents in New York.  In my years of practice in New York City, the surrounding areas, and as a Long Island Child Custody Lawyer, I have needed to deal with these issues a number of times.  The purpose of this article is to further shine a light on the standard that the law outlines that courts should use in deciding these cases.

In order for a parent to be able to prevail against a non-parent to be awarded by a court custody or guardianship of a child, the court must find that extraordinary circumstances exist.  This standard was announced by the New York Court of Appeals in the landmark case of Bennet v. Jeffreys, 40 NY2D 543 (1976) which remains the law in New York today.  Over time, precedents decided since have helped clarify situations in which these extraordinary circumstances are deemed to exist.  The extraordinary circumstances were exemplified as:  unfortunate or involuntary disruption of custody over an extended period of time; surrender; abandonment; persisting neglect; unfitness or comparable situations.  For a non-parent, such as a grandparent, relative or family friend, to be able to proceed with the custody or guardianship case, a court must first find that these extraordinary circumstances exist.  This gives the non-parent what is called “standing” to have the case heard by a court.

If standing by the non-parent is not found to exist in the cases particular circumstances, then the case must be dismissed.  If, however the extraordinary circumstances are found to exist, then the court needs to decide whether the best interests of the child are served by awarding custody to the parent or the third party.  The Bennett v. Jeffrey’s case was guided by the principle that parents have a fundamental right to raise their own children and children have the right to be raised by their own parents, except in certain circumstances.  Continue reading ›

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Juvenile delinquency cases are handled in the New York Family Courts.  If a child is determined to be a juvenile delinquent, the court is there to issue an order that not only is designed protect the community, but is also there to consider the needs and best interest of the juvenile delinquent since he or she is a child.  Right away, the difference between adult criminal defendants and juvenile delinquents is apparent since the best needs of the juvenile delinquent are included as a proper consideration in the purpose of article 3 of the Family Court Act, the juvenile delinquent article.  I have found in my practice all around the New York City and surrounding areas as a criminal defense attorney and Long Island Family Law Lawyer that there are nuances in handling juvenile matters.

Juvenile Delinquents are children over seven and under sixteen that are found to have done an act, which if committed by an adult would be a crime.  The treatment is given either because the juvenile is to be considered not criminally responsible because of his or her infancy or the case was removed from a criminal court to the family court.  Generally, the same statutes of limitations that apply to adult criminal proceedings apply to juveniles except for certain designated felonies which also must be commenced before the respondent’s eighteenth or twenty first birthdays depending on the felony.  The criminal procedure law is not applicable to juvenile delinquency proceedings except in certain instances.  For example, the Family Court Acts specifically provides that double jeopardy is also applicable to juvenile proceedings.  The Family Court Act also specifically requires that the defenses outlined in articles thirty five and section 30.05 of the penal law apply to juvenile delinquency cases.

When an alleged juvenile offender is arrested they are only fingerprinted if they are certain ages and are accused of certain felonies.  The specifics ages and charges for which fingerprinting apply are outlined in the Family Court Act Section 306.  The trier of fact in a juvenile proceeding is a judge.  There are no jury trials in Family Court.  The Family Court Act dictates the applicable rules of evidence.  The burden of proof, like for adults, is beyond a reasonable doubt which is the highest burden in our justice system.  If the Respondent is found to have committed a juvenile delinquency act beyond a reasonable doubt then the case shifts to a dispositional hearing.  The Respondent might be conditionally discharged, put on probation, or placed in custody among other alternatives.  Again the needs of the Respondent and safety of the community are weighed. Continue reading ›

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Trials and hearings, in New York divorces, can be on the topics of grounds, custody, support and equitable distribution.  While the majority of cases settle prior to trial, many trials are still necessary on some or all of the issues.  Although other hearings are possible, such as on contempt or modifications of orders, the aforementioned are the most common.  All of the issues may be heard together or handled at different times.  For example, if grounds are disputed, a court may schedule a grounds trial right away since if grounds do not exist, then the rest of the divorce is a moot point as it cannot proceed.

Grounds are rarely an issue nowadays since the passage of the No-Fault law in 2010 which merely requires one party to the case to be able to swear that the marriage has been irretrievably broken for at least six months.  However, if a party insists on fault based grounds that are disputed, a trial might be necessary on those grounds if disputed.  As a New York City and Long Island Divorce Lawyer, I found myself in a grounds trial soon after the passage of the No-Fault law since the other side insisted on pursuing fault based grounds.  Another possible grounds trial could be on the issue if a party substantially complied with a separation agreement when divorces are sought based on the grounds that the parties have lived apart pursuant to a legal separation for at least one year.

So, what evidence is admissible at a divorce trial?  For the most part, these rules of evidence apply at most civil trials whether on a divorce, family court matter or otherwise.  In general, all relevant evidence is admissible, unless it should be excluded based on some rule of evidence.  Irrelevant evidence should not be admitted at trial if objected to by the opposing side or the trier of fact (judge).  Evidence that has a reasonable tendency to show or not show the existence of a fact necessary to the decision on a matter is relevant.  If a bit of evidence seems to be from a non-reliable source, usually it would still be deemed admissible, however it might not carry a lot of weight.  What value to give the evidence is for the court to decide.  However, even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, undue delay or waste of time. Continue reading ›

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The New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age.  If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined).  In any of these instances the court would not allow the test.  As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue.  This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.

As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests.  Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice.  Equitable estoppel occurs when someone has held himself out as the father of a child.  Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.

The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place.  The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006).  The court recognizes a big quandary faced by potential father’s in this case.  If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship.   He can request a DNA test before assuming the role of father.  This, of course, can have the effect of causing a strain on the relationship between him and the mother.  On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father.  It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father.  It is not required that the person who holds himself out as the father did so knowing that this representation was false.  If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading ›

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The law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant. Continue reading ›

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This article is meant to provide some background about divorce and family law matters in the New York City borough of Queens, New York. As mentioned in prior blog entries, although the statutes are the same for everyone in New York State, there are different rules and procedures that change from County to County and even court room to court room. New York is made up of four Appellate Divisions.  Queens County happens to be located in what is called the Second Judicial Department and therefore the case law coming out of the Second Department is controlling for Queens County divorce and family law cases. The New York Court of Appeals is the highest court in New York. Therefore, case law from the New York Court of Appeals is controlling on Queens County as well as everywhere else in the State. Decisions from the three other judicial departments would be influential if the Second Department has not directly ruled on the matter. Although I practice all around the Long Island and New York City area, which includes both the First and Second Judicial Departments, my office and most of my cases are from areas located within the Second Judicial Department. This familiarity is helpful in my practice as a Queens County Family Law attorney.

Throughout my legal career, I have handled a great deal of cases in Queens County. Since my office is Nassau County, New York, conveniently bordering Queens, it is a short ride to the courts in Queens. Besides Nassau County, Queens and Suffolk are my highest volume geographic areas at this time. First I will discuss the Queens County Supreme Court, followed by information about the Queens County Family court.

Like everywhere else in New York, a person that wants to file a divorce case in Queens needs to use the Supreme Court. The Queens County Supreme Court is located at 88-11 Sutphin Boulevard Jamaica, New York 11435. Issues that arise for couples after a divorce (post-judgment) can be filed and dealt with at the Queens County Supreme Court. Supreme Court Justices are assigned cases that are filed in the Queens Supreme Court. Justices are elected Judges, but, Judicial Hearing Officers (who are usually former judges) may be assigned for trials or a hearing on one or all of the issues. The consent of the parties is usually obtained before sending it to a Judicial Hearing Officer since everyone has the right to have their cases heard in front of a Judge. In Queens, like every other County in New York, incidentally the only issues in a divorce that would go in front of a jury would be a grounds trial. Everything else would be decided by the Judge or a Queens Supreme Court Justice. Grounds trials, particularly, jury grounds trials are rare but they are a possibility. Continue reading ›

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Can the New York courts exercise jurisdiction over a child custody case?  In my practice as a New York City area and Long Island Child Custody attorney, this question comes when a child moves into New York from out of state or if a child moves from New York.

The Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA has been enacted at the time of this blog entry in New York and all but one state in the United States.  New York’s version of the Act begins in the Domestic Relations Law Section 75.  The Act provides a mechanism to determine which state, when multiple states are involved, has jurisdiction to issue and modify a child custody order.  First, a state must meet the definition of home state to be able to make an order.  If a child is under six months of age, the state in which the child is born is the home state as long as a parent still resides there.  For children over six months of age, the home state is where the child resided for the previous six months.  If the child has not lived anywhere for at least six months then a state in which one parent resides and the child has significant connections can assume home state status.  If more than one state can make this claim, then the states should communicate to determine which has the most significant connections to assume jurisdiction.

Once a custody order is made, the state in which the order was made remains the home state, generally, as long as the child resides there.  If the child moves, but one parent remains in the home state, in general, the state that made an initial child custody order stays the home state until it declines to exercise jurisdiction.  The discretion to exercise jurisdiction should only be excercised so long as the child has significant connections with the state and there is substantial evidence for the state to make a custody determination still available in that state.  In practicality, what this means is that the longer a child resides outside of a state, the more likely that the original home state should relinquish jurisdiction. There’s no bright line rule on the timing required for a state to decline to exercise jurisdiction. Continue reading ›

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