Articles Posted in Divorce

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My mission is to help the wronged, unhappy or injured get what is fair and right.  This is the initial draft of my “Why” as I discovered yesterday when doing an exercise at the annual training of the New York Association of Collaborative Professionals.  The “Why” can be tweaked and tested, but this is was what I came up with after working with others to search for it in the exercise.  The exercise to find our Why was as suggested by Simon Sinek’s method through our trainer at the meeting.  My understanding of what the Why is would be that which we can not help but doing because it is our natural inclination.  On reflection, I get to do this as a matrimonial,  family law lawyer and mediator on a daily basis.  As a mediator, it is not my role to advocate for either side of the issue, but rather to facilitate the coming together to resolve their issues.  When I look at the settlements as crafted between the parties from my mediated cases, I find that they are fair balanced agreements.  It is my job as a review attorney to identify for my clients the fairness of the agreements that have been negotiated with a different mediator.

As previously mentioned, I am a big fan of alternative dispute resolution processes such as mediation and collaborative law, but the majority of my cases are and have been in the more traditional route as set up by the court system, which is the adversarial system.  So, a lot of my clients are in battle, and as their lawyer, I fight hard for them.  Since I am an experienced litigator, trained and certified mediator and collaborative law attorney, it allows me to help people with divorce and family law issues no matter what process they choose to use.  It turns out though, that my chosen profession fits the why that I discovered.  Invariably, people with matrimonial and family law issues either feel wronged, unhappy or injured in some way.  It is my job as their lawyer to help them get what is fair and right.

There are many reasons that I recommend mediation or collaborative law over the traditional adversarial route for those that are willing and able to do it.  To name a few of them, the adversarial method tends to foster bad feelings between the parties as the usual modus operandi of everyone involved is to emphasize the good for their side and the bad about the other.  In other words there is mud slinging in litigation.  Just because a relationship has ended, however, does not mean that people need to leave the relationship as enemies.  Two parents are forever connected by their children even if they are no longer romantically involved. Continue reading ›

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There are various resources out there free on the internet which are useful in practicing New York family law.  The New York statutes are one of the most important sources of information and are located in different places on the internet.  As a Long Island Divorce Lawyer, family law attorney and mediator, I pay for services where I have access to statutes, cases and public records information that enhance my ability to search for information.  But, there are also a lot of areas on the internet where there is helpful free information.

One convenient place to find statutes for the various New York laws is the Cornell Law website. The Domestic Relations Law is controlling for matrimonial practice in the New York Supreme Court. The Family Court Act controls for practice in the Family Court. The Civil Practice Law and Rules contains rules about the dynamics on procedure such as the filing and service of cases, rules of evidence in civil cases, the making of motions and discovery procedures just to name a few areas this law controls.  This website is also a good source to locate legal professionals who practice specific areas of law in various geographies. Case decisions for New York matters may also be found through this website.  There are links to published decisions for New York and other jurisdictions on this site.

Another huge resource for family law and all other areas of practice in New York court is the court website located at nycourts.gov.  This site also has links to find published decisions for case law in New York.  There is a large volume of information, tools and forms on this website which are invaluable for lawyers and litigants alike.  I’ll spend the rest of this article highlighting just some of these that I find important. Continue reading ›

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Marital assets, and debt, in New York generally are things that are acquired during the marriage that does not fall under the exception of separate property.  Separate property, in general are things that a spouse entered the marriage with that was kept separate throughout the marriage. Property acquired by gifts or inheritance that are kept separate also usually fall under the category of separate property.  Marital assets are broadly defined while separate property is narrowly defined. It is the burden of a party claiming something to be separate property to prove that claim.  In a divorce, separate property needs to be identified, while the marital assets and debt need to be distributed.

Equitable could mean equal or something different when distributing property in a dissolution of a marriage in New York. Equitable means what is fair. Sometimes there are pre or post-nuptial agreements or a separation agreement that already dictate how property should be divided. Usually these agreements are honored but there are circumstances when a court could void them or set them aside. If there are no agreements in place, the parties and their attorneys can agree upon what is equitable. If there is no agreement on what is fair, then equitable distribution becomes the job of the judge.

But isn’t everything just divided in half in a divorce?  Usually that is the case for marital assets and debt, but it is not a foregone conclusion.  Sometimes the split might be that eighty percent of the marital assets go to one spouse with twenty percent to the other.  Sometimes the split is equal after an application of credits to one side before the division.  Some assets are given entirely to one spouse, while others are shared in some way at times. Continue reading ›

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Orders of protection can be issued by either the Family Court or the Supreme Court as part of a child custody case or divorce in New York. My previous blog articles concerning orders of protection in family law matters focused on the most common method that orders of protection cases occur against family members, outside of criminal prosecutions, which is called a Family Offense proceeding.  Later in this article I will discuss some of the differences between the orders of protection in custody cases from Family Offense petitions.  First, though, I will outline the order of protection authority given to the courts in child custody cases pursuant to the New York Family Court Act (for family court cases) and the New York Domestic Relations Law (for Supreme Court matters like divorces).

On good cause, the Family Court Act authorizes temporary orders of protection to be issued as part of a custody case. The temporary order may stay in effect for as long as the case is pending.  Under the law, the length of time any temporary order of protection is in effect does not need to be a consideration on how long a final order of protection should be in force.  A final order, or permanent order of protection, can be issued as part of a divorce or custody case to help with or as a condition of the judgment of divorce or custody order.  As the standard is in all child custody matters, whether or not the order of protection is proper would be controlled by the children’s best interests.

The order can require a party to the case to obey certain conditions of behavior like to: stay away from the children or parent; refrain from activities that put a child’s welfare at risk; take an educational class; pay for treatment or medical care that stem from the reasons that require the order or protection; pay lawyer fees of the protected party; not injure a pet of the child or a parent; to give back identification of the other party like drivers licenses, passports, etc.; observe other conditions required to protect. The orders of protection contemplated in this article are between family members, in a custody case, as defined in the law.  Family under the law includes spouses, former spouses, household members, and people that have a child together among other specific situations.  The law also allows the court to give the protected party authority to terminate a lease under the Real Property Law. Continue reading ›

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I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the order that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense. Continue reading ›

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In a word, yes, drug tests can be ordered, but they do not have unfettered discretion to order tests at their whim. The cases in New York have held that when the physical and mental state of a parent is in question the New York Civil Practice Law and Rules can support a test request. Case law helps to outline situations where getting drug tests in custody and family law cases are allowed and not.

The court required hospitals to produce medical records of a mother pertaining to her treatment for alcohol and drug dependency in DeBlasio v. DeBlasio, 187 A.D.2d 551 (2nd Dept. 1992). In that case the records were sought from three different hospitals that were not themselves parties to the case. The reasoning cited by the court for the production was that the mother’s interests in confidentiality were outweighed by the need of protecting the children’s well being.

In the case of Burgel v. Burgel, 141 A.D.2d 215 (2nd Dept. 1988), the court ordered a mother to go to a doctor’s office to give hair samples for drug testing. In this case the father, in a divorce, alleged that the mother was using cocaine. The mother admitted past use but claimed she was currently clean. The court held that in a custody dispute the mental and physical conditions of the parents were at issue and the information was relevant to determine parental fitness and whether the mother was being honest about her current use. The past use of drugs and the children’s best interest were stressed by the court as justifying the test. Continue reading ›

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Temporary orders of protection are issued by the Family Court (or the Supreme Court in divorce cases) and can last as long as a Family Offense case is pending in the court. Final orders of protection are those that are issued at the end of the case. Family Offense petitions are the method by which order of protection cases are initiated in the New York Family Courts. If the filed petition makes out the elements of a “Family Offense”, the court will issue a temporary order. This initial order is based on the one sided presentation by the applicant and requires the other side, or respondent to observe certain behaviors to protect the alleged victim. The respondent will have a right to contest the petition. Each county has different procedures on the length of the temporary order of protection which I have seen in my practice as a New York City, Suffolk County and Nassau County Order of Protection Lawyer.

For example, some courts make the temporary order for only the length of time until the next court appearance.   Usually the temporary order will then be continued again until the next court appearance if the case remains pending. Other venues issue the temporary order to last for six months or a different time period. This does not mean that the order will definitively stay in place for six months or the other time period as court appearances will most likely be scheduled for sooner time periods than the order is set to expire. If the case is still not resolved before the order expires then, usually, the court will extend the temporary order while the case is still unresolved. Some courts will extend or continue the orders automatically, however, others will only do so upon a request. Therefore, it is important for a party or better yet, their lawyer to pay attention to when an order is set to expire so appropriate requests can be made to the court to extend it or arguments be made against the order continuing or being extended.

The common ways to resolve a Family Offense petition is by an agreement for an order of protection without an admission; withdrawal of the petition; dismissal of the petition before or after a trial; or the finding that a family offense petition has been committed and an order of protection put into place. The order of protection that is made at the end of a case becomes a permanent order of protection. It does not mean an order of protection that will be in place forever, rather it is permanent as it remains in place for a length of time after the case is over in contrast to a temporary order of protection. Continue reading ›

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For some litigation works, but many find litigation to be a frustrating process.   Litigation can be a time consuming, expensive, emotionally draining process that is hard on any children of the family.  Some cases settle relatively quickly after one, two or a few court appearances.  Others find though, after being embroiled in a divorce for months, sometimes literally years (depending on the complexity and the location of the court), without a definitive end date in sight, that they are weary from the court process.  As a Long Island Divorce Lawyer, mediator and collaborative law attorney, I can definitively say that it will take longer from the start of a divorce case to the end of a trial than a mediation or collaborative law case.

Why might it take so long?  Due to the volume of divorces filed in areas like Nassau County, Long Island and Queens, New York City, many cases can not be settled right away and need the courts to either decide the cases or help them settle.  The amount of judges and judicial hearing officers that can deal with the cases is simply not enough to be able to resolve the cases in the amount of time that the parties would like.  A lot of people going through a divorce are under the misimpression that the first time they go to court they will stand at the microphone in front of the judge and have their turn to tell the story.  The belief is that then the judge will rule upon their case and the divorce will be over.  I think we have television shows like the People’s Court, Divorce Court, and Judge Judy to thank for this misperception.

Most of the time, the first time people go to court in a New York divorce it is for a preliminary conference.   At a preliminary conference a schedule for the case is made including when discovery demands need to be served and responded to, when examinations before trial should take place (depositions), and when a case should be ready for trial among other things.  The ready for trial date is usually six months to a year after the preliminary conference.  Routinely, however, the dates set forth in the schedule in retrospect were hopeful dates. In most cases, every step of the way takes longer than was anticipated in the schedule. Even if the lawyers and parties met the initial deadlines set forth in the case, the court’s calendar needs to be able to accommodate a trial. Trials can take many days that might not be consecutive.  At times a trial begins and then is continued at a later date weeks or months later.  Accordingly, it might take months to complete the trial and get a decision out of the court.  Also, the decision, might not be what either side wants.  A common example of this is with a parenting time schedule.  The court usually will make a “cookie cutter” type parenting time schedule, such as every other weekend to the non-custodial parent that may or may not fit either side’s schedule. Continue reading ›

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Whether a case is settled before it is filed, after some litigation, or a Judge decided it, at the conclusion of the case a number of documents must be prepared, signed and filed with the court in order for the divorce to be finalized.  These same documents are required throughout the state and regardless of the method used to decide the case such as mediation, collaborative law, litigation, or settlement negotiations.  Therefore, in my practice as a Long Island Divorce Lawyer, or in my New York City and surrounding area cases, the same forms are used.  The first document that always needs to be filed in a case is called the Summons.  A divorce can be started simply by filing a Summons with Notice alone, in the local Supreme Court along with the payment of the filing fee to purchase an index number which is $210.00.  A Summons is filed along with the Complaint, but when a Summons with Notice is filed the Complaint can follow at a later time.  Both a Summons and a Summons with Notice dictate the time period for the spouse to appear in the case by serving a Notice of Appearance.  A Summons with Notice must also contain the grounds for the divorce, be it the “No-Fault” or otherwise, along with a description of the ancillary relief that is requested such as child support, maintenance and equitable distribution of marital assets.

The Notice of Automatic Orders and Notice Concerning Health Care Coverage need to be attached to the Summonses. The Automatic Orders essentially provide that the status quo be maintained until written agreements or court orders otherwise are made.  For example, retirement accounts can not be drawn upon and insurance that is in place must be maintained to name some of the orders.  The Notice Concerning Health Care Coverage informs that upon the entry of the divorce that spouses may not be able to stay on the health insurance of their spouse.  COBRA benefits are usually available for a period of time, however this comes at a cost.

A Verified Complaint needs to be filed and served. The Complaint sets forth if the residency requirements are met, the children of the marriage (if any), health insurance plans, grounds, if the ceremony was religious or civil, and the relief sought again.  The Verification sets forth that the Plaintiff has read the complaint and that it is true and is signed before a notary public.  If the parties were married in a religious ceremony, an additional document called the Sworn Statement of Removal of Barriers to Remarriage must be included in the filing package.  Each party signs these before a notary to set forth that they have or will take any necessary steps to make sure the other side can get remarried in their religion. Continue reading ›

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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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