Articles Posted in Divorce

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No matter how amicable or contentious a divorce case was, issues can arise after judgment that can be dealt with in the Supreme Court.  As a Nassau County Divorce Lawyer, I frequently defend against or bring applications in the Family Courts in Long Island, New York City and the surrounding regions of New York involving post judgment child support, child custody, maintenance or orders of protection issues for both my ex-husband and ex-wife clients.  The Supreme Court, however, is usually available to deal with these post judgment issues as well.

Sometimes, the issues must be dealt with in the Supreme Court such as for enforcement of a property settlement, an attempt to vacate certain terms of the divorce, or in the event that exclusive continuing jurisdiction is reserved in the Supreme Court for future matters involving child support, child custody, or maintenance. Often times the Supreme Court is selected to deal with issues over the Family Court as the Supreme Court can deal with the issues as part of one case, while the Family Court requires the issues to be dealt with in separate cases.  For example, support issues are assigned to a Support Magistrate while custody issues may be assigned to a Referee or a Judge in the Family Court.   This blog entry is intended to outline some of the more common issues that the Supreme Court can deal with that come up soon after or many years after a couple has divorced.  More specifics about the specific areas of law are covered in other blog entries and on my website.

Contempt or enforcement applications often come up after a divorce.  These applications are done when either the former wife or husband is asking the court to punish the other party for their disregard of the order or to help them enforce the terms of the divorce.   The contempt allegation may be that one of the parties violated:  an Order of Protection that was issued as part of the divorce; the provisions involving a property settlement; the requirement to sell the marital residence; the custody and parenting time provisions in the divorce; the terms of the payment of child support or maintenance (formerly known as alimony); or other provisions that were a part of the terms included or incorporated into the Judgment of Divorce.  Remedies for contempt could be money damages, incarceration, modification of the previous terms, or the award of attorney fees among other possibilities. Continue reading ›

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People are free to make arrangements in their settlement agreements concerning the circumstances that would allow for child support to be changed as time moves on from their last child support order.  Absent an agreement, however there are two different methods to try to change child support.  The first, which most people know about, is filing a petition, application, or motion in the Family Court or Supreme Court to modify child support.  The second method, not as widely known, is to serve and file a timely written objection to a notification by the Support Collection Unit of a Cost of Living Adjusted Order.  If a timely written objection is properly made to the notice of the COLA increase or Cost of Living Adjusted Order, the court is required to then determine what child support would be based on current income or circumstances.  This is called a “denovo” hearing on child support. This blog entry is intended to provide a general outline of these two different techniques.  I am a Long Island Child Support Lawyer that handles cases on Long Island and all around the New York City area.  Through experience, research and education, I gained my knowledge and experience with child support.

The law in New York regarding child support is commonly referred to as the Child Support Standards Act and is set forth in both the Domestic Relations Law and the Family Court Act.  As the law stands in New York today, the default rule is that a party to a support order may seek to modify child support if since the last order:  there exists a substantial change in circumstances; three years or more elapsed since the order was entered, modified or an adjustment made; or since the entry, modification, or adjustment of the order either party to the order has had a change to their gross income of fifteen percent or more.  This is the law for cases filed subsequent to the law change in 2010.  For orders that were before the law change, the old standard applies which was that absent an agreement for modifications otherwise, there would need to be a substantial change of circumstances.  It was more challenging to obtain modifications under the old law.     Continue reading ›

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An uncontested divorce means that every possible issue necessary to settle the divorce is agreed upon.  There are different processes available to settle all the issues.  Kitchen table discussions between couples is always available, divorce mediation, collaborative law, four way meetings with counsel and clients, and attorney negotiations are some of the more common.   If there is any issue that is not resolved, such as what the child support payments are going to be, or how the equity in the marital residence is going to be divided, then the divorce cannot yet be called uncontested.
It does not mean that the case needs to become a contentious battle if it is not at uncontested status as of yet, rather it just means that there are things that still need to be resolved.  Once the issues are resolved the case can become uncontested.  I have been dealing with matrimonial and family law cases all over the New York City area, Nassau County, and Suffolk County for a number of years now.  As a Long Island Divorce Lawyer, many of my cases start as contested only eventually to become uncontested.  Some cases, however, are not settled and stay contested.  That is how I gained my litigation experience.  Most of my cases that I handle as a divorce mediator end up being uncontested after spending a little time working together.
The first topic that needs to be dealt with is grounds.  One of the seven grounds must be selected as applicable and not disputed to meet this first hurdle.  The most commonly selected grounds since the 2010 enactment of the no fault divorce in New York is in fact the no fault grounds, Domestic Relations Law Section 170(7), the irretrievable breakdown of the marriage.  It must be agreed that one of the parties will be granted the divorce based on the selected grounds.  Under the No-Fault law, it’s nobody’s fault, the marriage just did not work or was irretrievably broken for at least six months.  One of the other grounds could be selected as well which are:   Domestic Relations Law Section 170(1) cruel and inhuman treatment; Domestic Relations Law Section 170(2) abandonment; Domestic Relations Law Section 170(3) imprisonment; Domestic Relations Law Section 170(4) adultery; Domestic Relations Law Section 170(5) living separate and apart pursuant to a separation judgment or decree; or Domestic Relations Law Section 170(6) living apart pursuant to a separation agreement.  Even if one of these other grounds is selected, the party who is not being granted the divorce does not have to admit the grounds, they can simply neither admit nor deny the grounds.  That’s enough for the grounds issue to be resolved. Continue reading ›

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Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing.  Pendente lite is latin for “while the action is pending.”  Pendente lite orders are not intended to settle  the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case.  They are supposed to tide things over, so to speak, until the rest of the case can be decided.  There are various things that your New York City or Long Island Divorce Lawyer  might ask the court to rule upon in a pendente lite motion.  Motion practice usually consists of motions, opposition, cross-motions and any reply papers.

Custody and parenting time might be a part of a pendente lite order.  This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children.  Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved.  The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon.  A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time.  Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.

Exclusive use and occupancy of the marital residence might be requested.  Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property.  The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties.  In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate.  Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property. Continue reading ›

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If your spouse refuses to go to divorce mediation or collaborative law, then the question is already answered since mediation and collaborative law are both voluntary processes.  You still can get a divorce, but the process will be under the traditional adversarial litigation model.  Some cases under the traditional approach can be settled right away as an uncontested matter while others might drag on for years with a heavy emotional and financial toll. As a Long Island Divorce Mediation Lawyer, litigator, and Collaborative Divorce Attorney, I am familiar will all of these models.  Divorce mediation and collaborative law are considered alternative dispute resolution methods.  I am a big fan of either of these, in place of litigation, for the right couples.  This blog will describe the two methods and some of the pros and cons of each.

Some people are purely driven by the fees that are going to be associated with going through the divorce process.  As a general rule, mediation is the less expensive alternative.  Each case is different, and the professionals that work with you on your divorce mediation can have their own billing and payment methods, but I can relay details about fees for a typical divorce mediation that I handle.  While mediating the issues with a divorcing couple I charge my usual hourly rate.  Once a consensus is made I am able to offer hourly or flat rates to be the drafting attorney for the settlement agreement and the uncontested divorce filing to get the divorce finalized and entered.  Collaborative law cases will in most instances be more costly than a mediated case. Usually it will be less costly than a fully litigated case however.  The New York Association of Collaborative Professionals, of which I am a member, is now integrating streamlined protocols into our regular collaborative case procedures which are designed, in part, to help make the process more economical.

Typically,  mediating couples will come to the mediator and go through the process without attorneys present during the mediation sessions.  The mediator does not represent either side so is not there to give either party legal advice.  Couples are encouraged to each consult with their own review attorneys at a minimum after a draft of a settlement agreement is prepared.  Some individuals choose to meet with their own attorneys before mediating or in between mediation sessions.  Not everyone does use the recommendation to have review attorneys but it is advised.  The parties work together with the mediator to resolve all the issues that need to be addressed for the couple, and their children to dissolve the marriage and move on with their lives.  In divorce mediation the parties settle their marital issues together with dignity. Continue reading ›

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Custody trials can be a challenging part of a divorce or post-judgment divorce case in the Supreme Court where there is a disagreement over the custody and parenting time of a child.  A custody and visitation (parenting time) case can also proceed to trial in the Family Court.  Although the procedures to get to trial and other aspects of the case might have differences between the Supreme Court and Family Court, the actual trial on the custody and visitation of the children fundamentally will be the same in the two New York courts.  I am a Long Island Child Custody Attorney and have experience handling Supreme Court and Family Court child custody cases all around New York City and Long Island.

There are two general categories of custody trials that I am going to discuss in this blog entry.  The two are an initial custody determination and a modification of a prior order (writs of habeas corpus, contempt and enforcement proceedings will be discussed in later entries).  In both categories, the Judge or Trier of Fact (sometimes called a Referee), must make the final decision on what is in the children’s best interests.  However, in a modification of custody proceeding there is an additional first obstacle that needs to be surmounted.  The requesting party must first prove that there is a substantial change of circumstances that requires the best interests of the child(ren) to be weighed.  It is important for the lawyer and the parties to keep these standards in mind throughout a trial in order to present the most compelling and relevant information to the court.  The judge on your case will appreciate a focused presentation that does not include too much superfluous information or irrelevant material.  There are no jury trials for custody issues in New York so the hearing is what is called a bench trial.  The judge is the audience and the person who decides the case.

The petitioning or moving party goes first and will be given the opportunity to make an opening statement.  The responding party or other side of the case will be given a chance to make their opening statement afterwards.  Often their will be an attorney for the child or children that will also have the chance to make a statement.  Sometimes lawyers, or self-represented parties, will waive their right to make an opening statement and choose instead to let the evidence brought out, or the lack of evidence, speak for itself.  That is because the opening statements are not actually evidence.  They are a recitation of what might be brought out in evidence.  Stylistic preferences, and the facts of the case, will influence whether to make an opening statement or how to do it.  It is important to keep those aforementioned standards in mind, specifically, if a substantial change of circumstances needs to be first shown.  Also, everyone should never lose sight that ultimately what is in the best interests of the child(ren) is most important. Continue reading ›

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Forensics are ordered in custody and parenting time cases by the New York Family Courts and Supreme Court when there are disputes about the custody and/or visitation (parenting time) of minor children.  The custody dispute might be part of a divorce or can be a part of a case when the parties are not married or divorcing.  Forensics is the word used for investigations and reports made by psychological professionals for the court which are then used to aid in deciding how to rule on the dispute.   Usually forensics are employed for cases in which there is a battle for custody.  Sometimes, however, the question might be over time, access, child relocations or visitation with the child (ren).  Your New York City or Long Island Child Custody Attorney will be an important part of your case when forensics are involved.  Using the forensic investigator and report in a case is a technical process.

Forensic investigators are usually social workers, psychologists or psychiatrists that specialize in children and family matters.  The forensic professional will speak with each parent or other parties such as a relative or grandparent, the subject child or children, and other prominent people in the child’s or parent’s life.  Usually, at least a few meetings for each person will be required by the investigator with each parent and he/she will also meet with the child.  It is common for the forensic investigator to meet with each parent alone, the child (ren) alone and then the child together with each parent.

While forensics can be a useful tool for the trier of fact (the judge or referee), to gain valuable insight about what ruling would be in the children’s best interests, another motive might be to put financial pressure on the parties to settle.  Forensics can be a costly process.  The final price will vary from case to case, as the hourly rates of the investigators vary and the time spent on the case will differ.  How much time is required will depend on the specific matter and all the players involved. The allocation of the expense for the forensics is usually pro-rata, according to the percentage share of each parent toward the total combined income.  It is not unexpected, however, for a court to order that the costs initially be split and possibly be reallocated at trial.  Some courts will not decide a custody and visitation case without forensics regardless of the wishes of the individual parties or their financial circumstances.   Other courts are more sensitive to the financial ability to pay of each individual party and might not require them if it is a great hardship. Continue reading ›

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Appeals from decisions of the Supreme Court in a divorce or appeals from Family Court orders in New York are challenging. It is very important to properly serve and file the right documents, according to the deadlines in order for your appeal to be able to proceed. It is always advisable to use an experienced matrimonial or family law attorney whenever you are involved with a family law case in court. This is especially true for appeals which are highly technical in nature. This blog entry is intended to be used for information purposes only and not as a substitute for a consultation with a New York City, Long Island or Nassau County Family Law Attorney.

To be able to proceed with an appeal in New York, the person appealing must be a party that was aggrieved by the court order that is being appealed. An aggrieved party is someone that did not get all the relief they requested at the trial court. Once you determine that you are an aggrieved party then you have to make sure the order is appealable at this juncture. The general rule is that temporary Family Court orders, except for a temporary support order, are not appealable. But, even when temporary Family Court orders of support are appealed, the Appellate Divisions will usually encourage the resolution by recommending a speedy trial. Temporary orders issued by the Supreme Court, however, are appealable. Often times the speedy trial recommendation to resolve the temporary order appealed from might still be the solution decided by the Appellate Court. Almost all final judgments are appealable and any temporary orders that necessarily effected the final judgment can be reviewed on appeal of that final judgment.

Consent orders, stipulations, ex-parte orders or default orders are generally not appealable right away. Often times a motion to vacate the order in the trial court would be a required first step. In the case of a default judgment, for example, the defaulting party should make a motion to vacate demonstrating an excusable default and a meritorious defense. If the motion to vacate is denied, then the person might be an aggrieved party with an appealable order. Again, the advice of a divorce or family law attorney familiar with appeals should be sought to help make these determinations.

The rules of the Appellate Division in which the appeal belongs should always be consulted prior to starting the process. New York is divided into four Appellate Divisions. The First Department covers New York County (Manhattan) and the Bronx Counties. The Second Department covers Nassau County, Suffolk County, Queens County, Kings County (Brooklyn), Richmond County (Staten Island), Westchester County, Rockland County, Orange County, Dutchess County and Putnam County.  The Third Department and Fourth Departments cover upstate New York with the Fourth Department generally being the North West counties and the Third Department generally being the North East counties of New York State. Continue reading ›

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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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