Divorce

Proof of Child Support Payments and Cash Payments In New York

September 24, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

The New York Family Court processes petitions for child support, establishes new child support orders, and determines whether a modification should be made to an existing child support order. It is possible to also utilize the Supreme Court to establish, enforce or modify child support, particularly in a divorce or postjudgment divorce case. Most child support payments in New York are made by a noncustodial parent paid direct to the other parent or through the Support Collection Unit (SCU).

Once the court has issued a child support order requiring the support collection unit to collect payments, the SCU collects and distributes the payments. If the noncustodial parent falls behind in payments, the SCU can enforce the order. Once a parent applies for services, the support order has to be paid through the SCU, and the custodial parent can no longer accept direct payments from a noncustodial parent or informally agree to change the support order. If the noncustodial parent wants to pay the custodial parent directly, the noncustodial parent should either make sure this is reflected in the initial order or file a modification petition subsequently in order to ask that a direct payment be credited to his or her account.

Once child support is ordered, the parent who is required to pay is given a payment instruction sheet, indicating how much to pay and how to make the payments. For parents who work, a notice may be sent to their employer with instructions about taking the child support payments out of the salary and sending them to the Support Collection Unit or SCU. However, these payments can also be taken directly from other income streams, such as unemployment or even a pension. Payments may not be deducted from a worker’s paycheck for a few weeks from the time of the child support order.

Validity of a Universal Life Church Marriage and Prenuptial Agreement

September 19, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In New York, an antenuptial agreement that goes into effect once the parties are married may be valid even if the minister that solemnized the marriage received his authority from an unconventional religion. In Oswald v. Oswald, the court considered the effect of a antenuptial or prenuptial agreement after a marriage ceremony performed by a Universal Life Church minister. The parties had executed the agreement three days before the ceremony, but its terms only took effect after the “solemnization of the marriage.”

The plaintiff sued five years after the marriage asking the court to declare the marriage void from the beginning and the antenuptial agreement unenforceable because the person performing the ceremony did not have legal authority to solemnize the marriage. Alternatively, he wanted a divorce. The defendant responded by denying the marriage was invalid and counterclaiming for a divorce. The parties both moved for summary judgment.

The lower court granted the plaintiff’s motion. The defendant appealed, arguing that the plaintiff should not be allowed to argue the marriage was void because he represented otherwise on their joint tax returns. The court agreed that a litigant could be prevented from taking a position contrary to the position taken for purposes of filing taxes. However, it explained that a marriage that is void couldn’t be retroactively validated because the party held themselves out as being married.

Evidence Time Period for Modification of a Stipulation to a Child Custody Order in New York

September 3, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When you apply for a modification of an earlier order in a New York child custody dispute, you’ll have to present evidence showing a change of circumstances to justify that the modification is necessary to protect a child’s best interests. If you stipulated to the earlier order there is case law that stands for the proposition that you can present evidence of any changes from the time of stipulation.

Although you should show that the substantial change occurred since the issuing of the order, the court may consider all relevant factors related to the best interests of the child when determining child custody, sometimes, even, including the behavior of the parents before and at the time of stipulation. In determining whether a change in circumstances warrants the modification of a custody arrangement, the court will look at whether the change implicates the fitness of the custodial parent or affects the nature and quality of the noncustodial parent’s relationship with the child. There may be a time lag between a stipulation and the court’s issuance of an order, but this should not be a lost period for the purposes of presenting evidence to prove that the modification is appropriate.

For example, in the Matter of MMH v. William DH, the court considered a New York mother’s request for a modification of an earlier order. She wanted an order for sole custody and an order that would allow her to move to another state. The father opposed the application for these orders.

When Is New York Mediation Appropriate in High Conflict or Abusive Relationships?

August 26, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Resolving issues in a New York divorce through mediation is usually less expensive than asking the court to resolve them through trial. However, certain conditions are necessary to mediate matters like property division, spousal support, child custody, and child support. The primary condition that needs to be present is the ability to communicate. Sometimes a mediator is the very thing that can work to facilitate the communication necessary to resolve the issues needed to be agreed upon to legally separate or divorce.

Unfortunately, many relationships have broken down because of difficulties communicating. When a couple engages in deceit, threats, coercive behavior, or physical violence, the relationship may be too damaged to have a rational discussion of options, especially with regard to such matters as maintenance and child custody. Just because any of those aspects exist, does not mean it is impossible to mediate. As, it all starts with the willigness to try to mediate. Last week’s blog was about situations where mediation is worth trying, even in high conflict relationships. If one spouse is phsyically afraid of the other, because of prior domestic violence for example, it is possible that he or she may agree to things in the process of mediation in order to get away from the other spouse.

Couples that have a high degree of conflict or even abuse in their relationships may not be able to communicate with each other in a productive way, but instead they may communicate out of strong destructive emotions like extreme anger (anger is not uncommon with mediating couples or fear. In those cases, mediation is not a good option because peaceful negotiations are not possible. I should mention, that although past performance is not predictive of future results, I have seen a high success rate in resolving issues for the couples that have agreed to mediate. But today’s blog is about a case, not one of mine, in which at least one of the parties to a mediation had second thought afterwards. Continue reading ›

Can Divorce Mediation Work in High-Conflict Relationships?

August 21, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Many people assume that the only way to handle a divorce with a high-conflict partner is to buckle down for arollercoaster ride of litigation and court appearances. However, one point of view is that this just leads to additional conflict, and a lengthy divorce procedure that can cost a lot in terms of financial input, and emotional sacrifice. During my time as a professionally trained mediator, I have helped couples from a range of different backgrounds and surrounding circumstances to discover an agreeable solution to what may seem, in their eyes, to be an impossible problem. One thing that I have noticed in my experience is that although the mediation process is obviously easier, and less demanding when it’s launched between a pair of ex-spouses who still have a level of communication and amicability between them – that doesn’t mean that the system only works in cases of no-conflict divorce.

There are situation of course, where mediation is not possible, although in almost all circumstances, it is possible to achieve a more lucrative, and beneficial divorce procedure when a cooperative process is embraced – instead of a combative one. This means that it may be worth considering all of the options, before you simply assume that your “high conflict” divorce is limited to litigation. After all, if mediation and litigation are both avenues that lead to arguments and disagreements between you and your ex-spouse, doesn’t it make sense to attempt to resolve those arguments with an impartial expert before spending time, money, and energy on aggressive litigation? Continue reading ›

Enforceability of Marital Agreements in New York Involving Jewish Law

August 15, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

New York has a history of having a concentrated population of Jewish people who observe Jewish law. Currently, observant Jews who want to be divorced must effectuate a divorce that is valid under both Jewish law and New York state law, or they can choose not to marry under secular law and not be concerned with the way these two different systems intersect. Jewish law recognizes private marriages and private divorces that do not require court supervision.

However, Jews bound by both religious law and secular law are in a more difficult position when trying to obtain a divorce. One way in which the Orthodox community in New York ensures that traditional Jewish values are part of divorce proceedings is to use prenuptial agreements that are signed by both parties, allowing determinations to be made by the Beth Din of America, which is the largest rabbinical court in the United States.

In the 1983 case of Avitzur v. Avitzur, a New York court considered the enforceability of the Ketubah entered into as part of the religious marriage ceremony. The Ketubah is supposed to show the bridegroom’s intent to cherish the wife and provide for her, as well as the wife’s willingness to carry out her obligations according to Jewish law. The couple agreed to recognize the Beth Din of the Rabbinical Assembly and a Jewish seminary to have authority to counsel them and impose compensation as it saw fit for failing to respond to its decision appropriately.

Enforceability of Islamic Marriage Agreements in New York Made in Front of an Imam

August 7, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Under Islamic law, marriage itself is a civil contract, and both spouses must have the legal ability to make a contract to create an enforceable marriage. Traditional Muslim marriage contracts include a provision called mahr. The mahr is automatically a wife’s separate property under Islamic law, and it supposed to help the wife financially after the dissolution of a marriage and to discourage a husband from exercising the right to repudiate the marriage.

Before entering into a marriage contract, the parties customarily discuss the amount of mahr. However, it’s not “consideration” for the marriage, and the mahr isn’t a prenuptial agreement, according to Islamic attorneys and scholars. The actual giving of the gift is postponed to the dissolution of the marriage or the death of the husband. Within Islamic law, the mahr is considered a gift that a husband must give the wife once a marriage contract is concluded.

New York courts, however, have usually interpreted the mahr as a dowry or a prenuptial agreement, rather than a simple contract. If they are approached as a simple contract, mahr and other agreements before an Imam are likely to be enforced. However, prenuptial agreements in New York must also be in writing and signed before the marriage. Although there is no obligation to make financial disclosures, if they are voluntarily made, they must be true.

Can You Make Secret Videos to Use in a New York Child Custody, Divorce or Family Law Case?

July 17, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

During a heated divorce or a child custody battle in New York, both parties may try to gather evidence against the other party. Several laws protect individuals’ rights to privacy, but there are certain gaps.

The Federal Wiretapping Statute prohibits auditory wiretapping, but it doesn’t mention videotape surveillance. This means that states decide for themselves whether and when videotape surveillance is permissible.

Can you surreptitiously videotape your spouse in the home in order to get evidence for divorce or child custody proceedings? In New York, only voyeuristic video recordings are prohibited.

Recording Phone Conversations in New York for Use in Child Custody or Divorce

July 10, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

It can be tempting in the midst of a contentious divorce or child custody proceeding to record the other parent’s oryour spouse’s phone calls with a mistress or his/her conversation with his child. However, if the evidence you obtain was obtained illegally, you will not be able to use it as evidence in the courtroom, and in some cases there are criminal consequences.

Under Civil Practice Law and Rules section 4506, evidence you obtain through criminal eavesdropping is inadmissible. Under Penal Law section 250.05, you are guilty of eavesdropping if you unlawfully engage in wiretapping or mechanically overhearing someone else’s conversation.

In New York, it is illegal to wiretap without the consent of at least one person on a call. Accordingly, you can record your phone conversations with your spouse or the other parent (because you’ve consented to it), but not your spouse’s phone conversations with other people unless you have consent from your spouse or the other person.

No-fault Divorce and the Residency Requirement in New York

July 6, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Residency requirements to obtain a divorce exist so that the person filing for divorce can’t simply choose the state with the laws they want, move to that state, and then sue for divorce. Those who move to New York without their spouses cannot immediately sue for divorce on the grounds that their marriages have irretrievably broken down. They must wait two years, at least according to at least one trial court in New York. Whether Appellate Courts would agree and come to the same conclusion is an open question but this article will relay how the trial court came to it’s conclusion.

In Stancil v. Stancil, the court considered whether New York’s no-fault divorce statute created a cause that would reduce a divorcing spouse’s residency requirement from two years to one. In New York, either spouse must live in the state continuously for two years or continuously for one year when certain conditions are present. Under Domestic Relations Law § 230 (3), one condition for meeting the latter requirement is when the cause for the divorce happens within the state.

In the case, the husband lived in Virginia and objected to having a divorce in New York, since the wife had only lived there for 14 months before filing. The wife argued that the divorce could proceed in New York because the basis for the divorce was the irretrievable breakdown of the marriage, and this was a cause for the divorce that happened within New York.