Articles Posted in Divorce

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During a divorce in New York, there are a number of subjective steps that may be taken to pursue the best interests of a specific party. However, at the same time, the presence of the New YorkDomestic Relations Law in any divorce taking place throughout New York and Long Island means that certain restrictions will automatically be implemented in any case. These automatic orders, which are served in a notice to be included with the summons delivered at the outset of the case, are designed, among other things, to maintain certain status quos and preserve whatever marital property may be subject to equitable distribution within a typical divorce.

While understanding all of the complex facets of divorce can be difficult, it’s important to note that the automatic orders that are included within any divorce procedure are mandatory, and a failure to comply with these orders may be regarded as contempt of court according to domestic relations law, and the uniform rules of trial courts. As I have worked alongside many individuals and couples in numerous divorces during my time as a family lawyer, I have become familiar with the automatic orders that bind both spouses during a New York Divorce proceeding. However, I find that it’s often helpful to advise individuals undergoing the divorce procedure that the orders will remain in full effect and force during the pendency of the action, unless modified, terminated, or amended by a further order issued by the court, or through a written agreement that has been approved by both parties. Continue reading ›

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There are different ways to handle a divorce in New York, including mediation, litigation, and collaborative divorce. How the divorce is handled can substantially affect the outcome and cost, but there are pros and cons to each approach.

Divorce mediation is a popular form of alternative dispute resolution. Mediation involves a voluntary settlement process that allows a couple opportunities to make their own decision about significant decisions, such as where the kids will live, parenting time or visitation, how property will be divided, and whether one spouse will pay support to the other. Often, divorce mediation is not appropriate for cases involving domestic violence. In contrast, litigation in which negotiations are unsuccessful can lead to a trial after which a judge will make important decisions for the couple.

A trained divorce mediator, who should be a neutral party with no prior affiliation with either spouse, conducts the mediation and sets the structure. Generally, it is a good idea for both parties to also have legal representation from separate review attorneys, if not before, then when an agreement is drafted. This provides added protection against any oversights that occur during mediation. The mediator should be experienced and very familiar with the  Domestic Relations Law and other laws governing divorce in New York.

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Divorce mediation in New York is a voluntary settlement process used by spouses who wish to divorce. The process is facilitated by a mediator who works with both spouses to negotiate a settlement that both parties can live with and that is in the best interests of the family. The mediator typically tries to conduct the sessions in an atmosphere of respect and cooperation. For many couples, especially those with children, mediation is a better option than litigation because it is less expensive and involves negotiation to find a good solution for everyone.

However, it is recommended for each spouse to have a review attorney to discuss their legal rights, if not before, then after a settlement agreement is drafted with the terms agreed upon in the mediation. The mediator might give options about different ways that the issues are handled in court cases, but does not serve as legal counselor to either of them.  Whether or not individuals heed the advisement to seek the counsel of a review attorney, in most instances, people will be bound by what they agree upon by a properly drafted agreement through a divorce mediation. Continue reading ›

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Parties are free to agree upon what is fair for child support, equitable distribution, and maintenance when they negotiate their own divorce terms though mediation, settlement negotiations or collaborative cases. In litigated cases, in general, when it comes to making determinations during a divorce case about issues such as child support, equitable distribution, and maintenance, the court will generally follow a set of pre-appointed guidelines or principles that have been developed through years of case precedents or outlined in the most recent relevant statutes. This makes it easier for judges to establish a starting point from which to create orders. However, there are particular circumstances in a variety of different cases, which may allow for the standard amounts to be deviated from. This blog will be a summary about the awards at the end of a divorce case for child support, maintenance (alimony), and equitable distribution. Pendente lite or temporary awards (that which is ordered while the case is pending) has been the topic of previous articles and will be the topic of future blogs.

Child Support

In child support, the suggested basic child support amount may be changed as a result of the courts close consideration of the finances each parent has and the needs of the children to be cared for. Another reason why the court may deviate from guideline child support amounts could be attributed to the emotional or physical health of the child in question, as well as any aptitudes or special needs that child might have that may require extra expenses to be paid. What’s more, the court will need to consider the standard of living that the child has gotten used to within the parental relationship that they had previously – ensuring that a state of comfort remained intact following a divorce procedure. Aside from the reasons mentioned above, tax implications may cause a judge to deviate from a basic amount of support, as could the non-financial input a father or mother contributes to the wellness of a child. Continue reading ›

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In New York, annulments are rarer than divorces. However, though they may be less common, the procedure is still available for partners so long as the correct legal grounds are present. Underlying the concept of annulment is the legal theory that the “marriage” to be voided, after the annulment, was never a valid marriage. Legally, marriages that have been annulled are regarded as “nullified” or “void” marriages, and the action to begin this procedure must begin at a certain time to be considered applicable. The time limit that applies to your particular circumstances will depend on the circumstances as well as other crucial factors.

An annulment is distinctly different to a divorce in that the legal procedure for divorce is used to terminate a marriage that was considered to be previously legitimate and valid under the eyes of the law. An annulment, on the other hand, becomes a declaration that the marriage was never legally valid to begin with. However, as in a case of divorce, annulment cases may permit the courts to award custody and parenting or visitation rights regarding the children involved in the marriage, and may require the payment of child support or other forms of maintenance. For instance, according to Domestic Relations Law, there are formulas for both temporary maintenance (support for the spouse while a matrimonial case is pending) and durational or permanent maintenance if any (support for the ex-spouse for some time period after the case is finished), and courts have some discretion to decide whether or not to order a maintenance award within any matrimonial action – including annulments. Continue reading ›

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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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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.

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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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 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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