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The law in New York for the division of marital assets in a divorce is equitable distribution.  Equitable distribution does not necessarily mean equal, although that is usually the starting point, it means what is fair.  The job of your New York City, Long Island or Nassau County Divorce Lawyer is to show what is fair.  New York Domestic Relations Law Section 236 is where the statutory provisions of this law can be found. The parties to a case may have made an agreement during or before the marriage about custody of children, child support, will provisions, maintenance (formerly known as alimony) and determinations of separate property and how marital property is to be divided or distributed which is the subject of this blog entry.  These agreements are commonly called prenuptial, post-nuptial, separations agreements or stipulations of settlement.

If the agreement is in writing, subscribed, acknowledged, or proven with the same formalities necessary to record a deed, the agreement should be honored in a matrimonial proceeding.  Future blog entries will have more details about marital agreements.  Different processes may be used for parties to settle their issues such as mediation, collaborative law, settlement discussions, and negotiations in litigation.  How is the law applied, however, when there is no settlement, prenuptial agreement, separation agreement or post nuptial agreement?

First, the determination of what is separate property and what is marital property must be made. Marital property is broadly defined in New York as property acquired from the date the parties were married to the date of a legal separation (not just physical separation), or the start date of a matrimonial case.  From that broad definition of marital property separate property must be carved out.  It is the burden of the person that is claiming something as separate to properly make that claim.  Separate property includes whatever was already agreed upon in a properly made written agreement. Also, that which someone received before the marriage or by gift from someone besides their spouse or from inheritance is classified as separate property.  Personal injury compensation, too, is listed as separate property.  Increases in value of separate property is also separate, except if the increase in value is due in part to the contributions made by the spouse (this is commonly called sweat equity).  The rest of the property acquired during the marriage is subject to equitable distribution. Continue reading ›

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Parents have a duty to support their children, in New York, until the age of 21 unless they are sooner emancipated.  The doctrine of constructive emancipation has been developed by the Child Support Standards Act and corresponding case law in New York.  Children can be emancipated because they get married or join the military.  Other ways for emancipation to occur is where a child of employable age becomes economically independent or voluntarily and without cause, abandons a parent or the parent’s home, against the will of the parent and for the purpose of avoiding parental control.  New   York courts have held that in these cases the child forfeits his/her right to demand support.  It is a difficult case for the moving party to win.  I have argued both sides of the issue at trial as a Long Island Child Support Attorney.

Economic independence is usually an easier concept to grasp than the abandonment cases.  Economic independence commonly occurs, according to the Child Support Standards Act law, when a child is working full time and is self supporting.  The debate under this aspect of constructive emancipation usually comes under the topic of whether or not the child is generating sufficient income even when working full time.  Therefore, when a child of employable age is working but still receives help from a parent for important economic items like food, utilities and insurance the child likely is not to be deemed emancipated.  This might even be the case when the child does not reside with either parent but still needs help for financial support.

Although economic independence is not always an easy call, abandonment cases can even be trickier and more subjective.  The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal.  A parent may impose reasonable regulations.  When the abandonment fact is that the child left a parent’s home, the debate can be whether or not it was against the will of the parent to avoid parental control and whether or not there was good cause.  Good cause is the key phrase in that situation which the court would need to decide in disputed matters.  The foregoing abandonment situation applies when dealing with the leaving of the home of what was the residential custodial parent. Continue reading ›

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In New York, in 2011 the legislature passed the Marriage Equality Act.  This law gives same sex couples the right to get married in New York State.  Under the law, out of state marriages for same sex couples are to be recognized in New  York.  Prior to the passage of the law, New York was, for the most part, recognizing same sex marriages performed in other jurisdictions, although the law was not abundantly clear in this state.  Currently, it is clear that New York State will not deny marriage license to same sex couples by reason of the couple’s genders.  Furthermore, all the rights, benefits and protections that opposite sex married couples enjoy now need to be afforded to same sex married couples by New York, whether they were married here or in another jurisdiction. There is no residency requirement to be married in New York therefore out of state same sex couples that wish to get married in New York can come here to “tie the knot”.  It is advisable to consult with a New York, Long Island or Nassau County Family Law Attorney if you have concerns about entering into or dissolving a same sex marriage.

The fact that New York recognizes a same sex marriage, however, does not guarantee that it will be recognized by every other state or jurisdiction.  As of recent times places that recognize same sex marriages include, but may not be limited to as the laws are frequently being updated:  California; Connecticut; Delaware; Iowa; Maine; Maryland; Massachusetts; Minnesota; New Hampshire; Rhode Island; Vermont; Washington; and the District of Columbia.  Some states, like New Mexico, will recognize out of state same sex marriages, while other states, like New   Jersey, will recognize some of benefits that out of state same sex married couples could enjoy.  Most other states do not recognize same sex marriages, wherever they were performed.  Whether the federal government will recognize the marriage performed in New York for couples living in jurisdictions that have not enacted marriage equality law is not always clear.  Various rights that may apply to married couples, that non-married couples do not enjoy are:  tax benefits; insurance; inheritance; property ownership; among other benefits.     

Parental rights is another important area of law effected by same sex marriage.  The spouse of a woman who gives birth to a child in wedlock will also be listed as a parent on the birth certificate whether that spouse is a man or a woman.  This, however, would not preclude a paternity case involving a man, not married to the biological mother.  Different rights apply to married male couples since neither of them is the birth mother or married to the birth mother.  Adoptions by same sex couples is an important area of law to help solidify the parental rights over a child as well as to aid in the recognition of the parental rights by other states and jurisdictions. Continue reading ›

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Relocations can be discussed and settled upon in child custody cases, mediations and collaborative divorce cases.  What happens, however, if the parties (usually parents) do not agree on whether a parent should be allowed?  As usual, the best interests of the children are used as the legal standard in New York to decide relocation requests in child custody cases.  The default law, once an order about child custody or parenting time (aka visitation) is made, is that the parent that has physical custody would need permission from the other parent, or a court that has jurisdiction about child custody to decide the relocation request.  Parties to a child custody and parenting time case are free to agree to include different language about future relocations with the child.  If the order is silent about relocations, the default law is what would control in the case.  As a New York City and Long Island child custody lawyer, I have experience in settling and litigating relocation issues in child custody cases.

Probably the oldest and most repeated story about a custody dispute is the biblical story about the wise King Solomon.  Two women came to his court both claiming to be the mother of a baby.  As the judge, King Solomon proposed to resolve the situation by cutting the baby in half and giving each woman half of the baby.  One of the litigants thought this was a great idea while the other begged the King to give the live baby to the other woman.  King Solomon then decided that the true mother was the one who begged for the baby to be given to the other woman.  A New York court cannot propose splitting the baby in half, like the wise King, so in a custody dispute the court is left with the prospect of deciding which parent the child should live with.

The highest court in New York State, the New  York Court of Appeals has set forth factors which should be considered by a judge, or trier of fact when deciding what outcome is the likeliest to be in the best interest of the child, when deciding relocation requests.  For ease of reference I am going to list them out here.  The case law dictates that the following is significant and should be considered by the court: Continue reading ›

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A single adult, a married couple or two adult intimate, even unmarried, partners together may adopt according to the New York Domestic Relations law.  Adoptions can be done through an authorized agency or by private placement including step parent, adult and foster parent adoptions.  Anyone that needs more information on the topic should consult with a New York or Long Island Family Law attorney to learn about their rights.  My office happens to handle such cases.

Petitions for adoptions can be filed in the Surrogates   Court or a New York Family Court.  The petition should include the names, addresses, age, marital status, religious faith (if applicable), and occupations of the proposed adoptive parents.  Similar background information about the adoptive child needs to be submitted, as well as the health and medical history of the child at birth and thereafter.  Known hereditary illnesses or conditions including any drugs or prescriptions taken by the biological mother while she was pregnant with the child should be disclosed.  Care should be taken to include any supplemental information that might have bearing on the child’s well-being including any special skills, hobbies or interests of the parents.  This kind of information can help make a court feel more comfortable about the adoption.  In the final analysis, a court needs to feel that the adoption is in the child’s best interests.

The birth certificate of the subject child should be attached to the application.  The petitioning parents will need to set forth when and how it is that the child came to be with the adoptive parent(s).  Information about the other members of the household in which the child will be living needs to be disclosed.  Anyone having legal custody of the child should be stated in the petition including their addresses.  If possible, a consent form from the birth or legal parents should be included with the application, however, consent is not always required under Domestic Relations Law Section 111 in situations such as when a parent has surrendered their child to an appropriate agency or a parent that has indicated an intent to forego their parental rights.  The consent of a child over fourteen years of age is usually necessary for the adoption.  The court reviewing the adoption application can determine whether consent is necessary for each specific case. Continue reading ›

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Divorce mediation, collaborative divorces and settlements in divorce litigations on Long Island, New York City and the rest of New York operate in the shadow of the law.  What this means is that the law exists in the background but does not have to control the resolution of that particular case.  The reason is these settlements are structured and agreed upon by the divorcing couple with the help of a mediator and/or attorneys.  A judge is confined to decide cases according to the law which might not be particular to the needs of each family.  My experience as a Long Island Divorce Mediation Lawyer, and litigator tells me that a divorce that is decided by a Judge after trial is almost invariably the most expensive route.  An essential element of a settlement or agreement whether it comes from a divorce mediation, collaborative divorce, or a settlement from an uncontested or litigated divorce is that the parties both agree to the terms.  This means that somehow people were able to get past the sticking points.

How do we get past the sticking points?  There is no magic formula or one size fits all approach, unfortunately, but different methods work for different people that have different fact patterns to their life situations.  The key is the willingness to try different methods to resolve the differences.  My experience tells me that people that choose divorce mediation or a collaborative law approach are the most willing to utilize different techniques to get past the sticking points.  Lawyers and clients  negotiating a case outside of divorce mediation or collaborative law may use creative settlement techniques as well.

I am writing this blog entry as a brainstorm of different ideas and techniques that I might use or anyone could use to get past the sticking points to settle their divorces no matter the method used.  The suggestions are not in any particular order and are by no means an exhaustive list. Continue reading ›

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A party to a divorce can change their last name back to a prior surname once the divorce is granted.  There will be language in the Judgment of Divorce which either specifies the last name that can be resumed or that in general they may start to use whatever their maiden name used to be.  That Judgment of Divorce can then be brought to the Department of Motor Vehicles, Social Security office and other important places, to have them issue a drivers license with the proper new name.  The Judgment of Divorce will reflect this regardless of the method utilized to get the divorce.  This means that if you go through divorce mediation, collaborative divorce, or the traditional adversarial model the same language about the name change should be in the Judgment of Divorce.  Your New York City or Long Island Divorce Lawyer that drafts the documents to submit to the Supreme Court as part of the divorce package should include the last name change language in the papers that are submitted to finalize the divorce.

People that want to change their first and/or last name or are not going through a divorce can apply to change their names as well.  On Long Island and other locations outside of New York City, such as Westchester and Rockland Counties, name change petitions are done in the Supreme Court.  In New York City they are done in the New York City Civil Court.  The application should be done in the County that the person applying for the name change lives in.  You do not necessarily need to have been born in New York to do your name change application here, it is however necessary that you are now a New York resident to file the case here. The filing fee to start the case in the Suffolk County or Nassau County Supreme Court is $210.00 while it costs $65.00 in a New York City Civil Court.

With the filing fee, you or your family law attorney can submit a name change petition and the order you would like the judge to sign granting the name change.  A birth certificate or other proof of birth needs to be submitted with the papers.  If the name change petition is approved, the Judge will require the notification of the name change to be published in a newspaper.  Name change applications are public record, but at times, a court might dispense with the publication requirement and seal the request for the name change if there are personal safety issues shown to the court. Continue reading ›

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Separation agreements or stipulations of settlement that come from divorce mediations or a collaborative divorce case are structured the same as a stipulation of settlement that emanates from a divorce litigation that was eventually settled.  The differences between the three methods are in the process by which the agreements are made.  For more information about the divorce mediation, collaborative divorce, and divorce litigation processes please see some of my other blog entries on this site.  This article will focus upon the contents of a typical agreement or stipulation of settlement.  The structure of agreements vary from case to case and by the person who drafts the agreement.  In other words, the appearance and contents of an agreement can vary.  This blog entry is just an overview.  Actual agreements should be drafted and reviewed by trained New York matrimonial lawyers.

I handle cases all around the New York City area.  As a Long Island Divorce Mediation Lawyer I have customary items that I like to include when I am the drafting attorney.  The beginning of the settlement agreement typically will list out certain facts about the specific marriage.  The date and place of the marriage, whether it was a civil or religious ceremony and if there are children of the marriage are set forth.  Next, the elements of the law that were considered in deciding the various aspects of the divorce can be enumerated.

Equitable distribution is a topic that needs to be considered for the dissolution of marriage with or without children.  Therefore almost every stipulation will state that in regard to the subject of equitable distribution the parties have considered New York Domestic Relations Law Section 236(B) (5)(d) and the specifics of that section of the statute.  Even if there are no marital assets to distribute, this section will usually still be included.  Almost every settlement agreement will also list that in resolving the issue of the spousal maintenance, the Parties considered the following statutory factors, pursuant to New York Domestic Relations Law Section 236(B) (6).  This section should be included whether or not any spousal maintenance is actually awarded to the husband or wife.  Only if there are children the agreement should spell out that the parties have considered the provisions of Domestic Relations Law Section 236(B) (7) and have been advised of the provisions of Domestic Relations Law Section 240(1-b), commonly known as the Child Support Standards Act.  If there are children under eighteen years of age then the elements of the Domestic Relations Law that were considered regarding custody and parenting time should be spelled out as well. Continue reading ›

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Alimony is now known as maintenance in New York.  “Pendente lite” (Latin for pending the litigation) maintenance, or temporary maintenance, is a legal term for the maintenance that is to be paid while a divorce case is ongoing.  Pendente lite maintenance is different from durational or “permanent” maintenance which is the maintenance, if any, that is to be paid once the judgment of divorce, is granted.  Durational or permanent maintenance does not mean maintenance that is paid forever more, if there is any to be paid, as it is usually for some period of time.  Maintenance is intended to allow a party to a divorce sufficient time to get back on their feet, so to speak, or to be able to be self supporting.   As a New York City and Long Island Alimony Attorney and divorce mediator, I deal with the issue of maintenance every day.

In a divorce mediation or a collaborative divorce cases, the issue of whether there should be maintenance should be discussed to determine if there should be maintenance, the amount, and for how long it should last.  How the family can transition from a one household unit to a two household unit is usually the focus in a mediation or collaborative case.  Everyone’s budgets are looked at to see how to make things work.

Likewise, in a litigation, the amount of maintenance can be agreed upon.   If there is not an agreement concerning temporary or pendente lite maintenance, a party to a divorce litigation would need to make a motion to ask a Judge to order that to be paid while the case is pending.  This motion is called a pendente lite motion in the court.  Usually all of the things that someone might need a court to order while the case is ongoing should be requested in a pendente lite motion.  Typical things to ask a Judge to rule upon might be:  temporary custody and parenting time (visitation) of children; pendente lite child support; payment of the carrying costs of the marital residence; exclusive use and occupancy of the marital residence; attorney fees; and expert fees among other requests.  Other and future blog entries contain more details about these other aspects, besides maintenance, of pendente lite motions and agreements. Continue reading ›

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Collaborative law is a process where couples, and their lawyers, agree to settle their differences without the courts or threatening to litigate.  This is accomplished by everyone signing an agreement to work together in a cooperative or collaborative fashion, to iron out all the details that need to be settled in a divorce (or other family law issue such as spousal support, child support, or custody).  Compliance with collaboratively made agreements is higher than settlements or orders that emerge from litigated divorces.  What this means is that the need for future litigation and court processes are less likely for people that go through a collaborative divorce than a litigated case.  Couples that go through a collaborative case can often stay friends, even after they are no longer married.  The stress on the children of divorcing couples is minimized in this method.

A usual first step for someone interested in a collaborative law divorce is to find a collaborative law attorney that they wish to use on the case.   I happen to be a Long Island collaborative divorce attorney, although I work all over the area.  A lawyer that is properly equipped to work on a collaborative law case should have substantial matrimonial law experience.  The lawyer should have undergone extensive collaborative law and mediation training as well.  One sure way to find a lawyer that has the right credentials to work on a collaborative law case is to select one that is a member of the New York Association of Collaborative Professionals.  Member lawyers have been screened to ensure that they have the right background and training to handle a collaborative law case.

The lawyers do not use adversarial methods in this process.  Clients have the benefit of being represented by a lawyer at all times.  Some people feel that they need the representation and advice of a lawyer through the whole divorce process, which they might not get in mediation.  The parties in a collaborative case however have decided that they do not want to battle in court as is often a part of the traditional litigation model.  The lawyers that work on the collaborative case are not permitted to continue on the case if later there is litigation.  This helps to ensure that everyone is committed to the collaborative process.  The professionals that work on the case are able to deal with the legal, financial and emotional aspects that are part of a divorce.  For people who are not interested in an adversarial divorce, collaborative law could be the alternative approach they are seeking. Continue reading ›

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