Long Island Family Law and Mediation Blog

Who Is Responsible for Student-Loan Debt in New York Divorce Proceedings?

July 5, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

When a marriage is ending, unless there is a valid agreement between the parties, it is left up to the judge to determine the financial responsibilities of the parties in what they call in New York equitable distribution. In most cases, this requires the judge to figure out all of the marital assets as well as the marital debts. Student-loan debt is no exception; however, calculating which party is responsible for the payment of student-loan debt may be more complicated that it initially seems.

Student-Loan Debt Incurred Before the Marriage

As a general rule, student-loan debt that is incurred prior to the marriage is not considered a marital debt, and the party who took the loan out will be solely responsible for the payment of that debt. However, student-loan debt that is incurred during the marriage presents a more difficult situation and often requires the court to apply a multi-faceted test to determine which percentage of the debt, if any, is attributable to the spouse who did not incur the debt.

Student-Loan Debt Incurred During the Marriage

Under New York case law that was decided prior to the 2015-2016 updates to the New York Domestic Relations law student-loan debt may be considered marital debt that is subject to equitable distribution, depending on all of the surrounding circumstances. However, prior to the 2015-2016 update to the New York Domestic Relations law this used to also means that the degree or professional license that was obtained through the procurement of the debt may also be subject to equitable distribution. The updated Domestic Relations law, however, specifically changed the law to say that degrees were not subject to equitable distribution. In one of my next blogs we will examine whether the change to the New York Domestic Relations Law about degrees being subject to equitable distribution has altered the landscape about student loan debt.

Spousal Maintenance Payments in New York, and How to Collect Missed Payments

June 28, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

When a marriage is in the process of coming to an end, it is common for one spouse to make payments to the other spouse not just throughout the pendency of the divorce proceeding but also moving forward on a permanent or semi-permanent basis. The term for these payments is spousal maintenance. Payments made during the divorce proceeding are called temporary support payments, whereas payments made after the divorce is final are called post-divorce payments. Spousal maintenance, which is intended for the benefit of the payee spouse, is different from child support benefits, which are intended for the benefit of the children of the marriage.

How New York Courts Determine Spousal Maintenance Payments

Recently, New York lawmakers passed a new law that tweaked the way spousal maintenance payments were calculated. Under the new law, if an agreement is not made between the parties and their divorce lawyers, the judge presiding over the divorce proceeding will use a predetermined formula to calculate both temporary maintenance support payments as well as post-divorce payments. Incidentally, this same formula applies to spousal support proceedings in Family Court. While the formula is somewhat complicated and beyond the scope of this post, it takes into account the following:

Whether the payor spouse is also paying child support payments;
The total income of the payor spouse (under the new law, only the first $175,000 of the payor spouse’s income will be used in the calculation);
Whether the parties entered into a valid written agreement regarding the determination of spousal maintenance payments; and
How long the marriage lasted.

Divorce Mediation Frequently Asked Questions – FAQS

June 17, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

As a divorce lawyer for the regions of Long Island, the surrounding areas and New York, I like to inform my clientsthat I’m capable of offering them a range of solutions when it comes to dissolving a marriage. While some people will find that litigation is their best option (and I do litigate), others will prefer to access the often time, and cost-effective solution of mediation instead. As a trained mediator, I can offer clients a more collaborative experience when it comes to settling divorce issues. I routinely litigate, as well as settle cases under the more traditional system, which is set up as an adversarial system (ie. Plaintiff versus Defendant). I also work as a mediator or a review attorney for those that choose divorce mediation as their process to dissolve their marriage. Here, I’ll address some of the common questions I encounter about divorce mediation.

Question 1: How Can I get My Spouse to Agree to Mediation?

Often, both spouses need to feel comfortable in a mediation setting for this process to work. As such, my clients often ask me how to convince their spouse to take part in mediation as an alternate source of dispute resolution. Often, I find that the best option is to simply approach the topic from an angle that both of you understand. For instance, if you’re concerned about money, you could acknowledge that mediation is often cheaper than litigation. Alternatively, if you want to defend the children from an emotional process, mediation is often a much calmer approach to divorce. Continue reading ›

Child Custody – Ten Frequently Asked Questions “FAQS”

June 11, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

As a child custody lawyer for New York, and Long Island, I know that people involved with a child custody case oftenhave questions about it. The complexities of best interests and various pre-set standards can make it difficult for parents to understand exactly what they’re getting into when they approach a custody case. With that in mind, I’ve put together this quick introduction into some of the most frequently asked questions I encounter as a child custody attorney.

1. What Is The “Best Interests” Standard

For most legal matters, the court focuses on resolving issues by considering the past and present behavior of the parties involved. However, in child custody, the court must use that information to look towards the future, and predict which parent may offer a healthier, more successful environment for the child in question. By examining past behavior, and sometimes engaging psychological or other expert testimony, New York Courts must determine outcomes based on their opinion of the “best interests” of the child.

2. What does the “Primary Caretaker” mean ?

Divorce, Disability Pensions, Pensions, Retirement Assets and Equitable Distribution

June 4, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

Equitable distribution is one of the matters that I deal with most often as a divorce attorney for New York and LongIsland. Though all the intricacies involved in equitable distribution can be a concept that’s difficult to understand without a background in family law, it can become more challenging when an individual is facing the concerns of splitting unique elements, such as retirement benefits.

It’s relatively well know that the marital portions of retirement plans like 401ks, pensions and deferred compensation plans, are typically subject to equitable distribution in the case of a divorce. However, determining the right course of action can become more complex when it comes to disability pensions. After all, the divorce lawyers and the New York courts in cases of disagreements need to determine whether the asset is one that was accumulated during the marriage and what is appropriate as far as equitable distribution, or something that should be regarded like a personal injury award. Continue reading ›

Five Things You Might Not Know about New York Child Support

May 26, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

Today’s blog is a blend of some of my prior blogs and/or website articles over the years on child support. As a NewYork divorce lawyer and family law attorney, one of the most common types of cases I deal with involves the issue of child support. Under the law of New York State, both parents responsible for a child are required to support their child financially until that child turns 21 years old. Regardless of whether the parents have been involved in a divorce or not, they remain financially responsible for their child.

In any divorce or child support case that I encounter as a family law professional, I find that it’s important to outline the details that go into determining how much child support is possible. Child support is a very complicated matter, and if it’s something that you’ve never encountered before, you might find yourself getting confused, or overwhelmed. Here, I’ll talk a look at a few things that you might not know about New York child support. Continue reading ›

Serving a Summons with Notice in a New York Divorce

May 18, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

Divorces in New York follow many of the same procedures as other lawsuits. The plaintiff spouse filing must provide the defendant spouse with notice consisting of a summons and either a copy of the divorce complaint or a notice describing the nature of the lawsuit. Delivering these documents to a defendant is commonly known as service of process. Failing to do this properly can delay a case or even result in its dismissal. Once the defendant has been served, they must file an answer or else risk a default judgment on some or all of the plaintiff’s claims. An interesting question arises when a plaintiff spouse serves a summons with notice—meaning without a copy of the divorce complaint—and the defendant spouse defaults. Does a defaulting spouse have a right to service of the actual complaint? The scant amount of caselaw on the topic, suggests that notice, without the complaint, is sufficient for a divorce but not for issues like custody and support.

New York law requires a plaintiff to file a summons, along with either the complaint or a notice that describes the nature of the complaint. If a plaintiff chooses the latter, known as “summons with notice,” they must file the actual complaint at a later time. The exact deadline depends on how the defendant responds to the lawsuit.

The New York Domestic Relations Law (DRL) and Civil Practice Law & Rules (CPLR) govern service of process in divorce cases. Section 232(a) of the DRL requires a summons to clearly state that it is for an “action for divorce.” Rule 320 of the CPLR states that the defendant has 20 days to respond if they were personally served, or 30 days if they were served by any other means. The plaintiff can seek a default judgment under Rule 3215 and DRL § 211 if the defendant does not file a response with the court clerk.

Long Island Court Grants Legal Custody of Child to Three People

May 5, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

Laws relating to child custody have gone through a number of significant changes in recent years, which largely reflect the fact that the concept of “parent” can extend beyond biological mothers and fathers. New York law no longer limits legal custody to biological or adoptive parents, although it sets a very high bar for who may assert a claim for custody. In March 2017, a judge in Suffolk County, possibly for the first time in this state, granted custody of a child to three people. The court granted “tri-custody” in DM v MM to the child’s two biological parents and a “non-biological, non-adoptive parent” who had been involved in a relationship with both parents, who had helped raise the child, and whom the child recognized as a parent.

Under § 70 of the New York Domestic Relations Law (DRL), “either parent” of a child may bring suit to determine the legal custody of that child. The law specifies that neither parent has a “prima facie right to the custody of the child.” Instead, in the event of a dispute between parents, a court must make a decision based on “the best interest of the child.” The DRL does not provide a precise definition of this term but notes that it includes “what will best promote [the child’s] welfare and happiness.” A determination of a child’s best interest is therefore highly dependent on the facts of each individual case. Until recently, however, New York law has been clear on who may assert a claim for child custody.

The U.S. Supreme Court ruled in 2015, in Obergefell v. Hodges, that state laws limiting marriage to one man and one woman, and therefore excluding same-sex couples, were unconstitutional under the Fourteenth Amendment. Many states, including New York, had already recognized the legal validity of same-sex marriages, but Obergefell extended this recognition to the entire nation. This ruling arguably led to an expanded legal recognition for “non-traditional” parenting arrangements, provided that they meet the “best interest of the child” standard.

Does Surveilling Someone Using a PI Violate an Order of Protection During a New York Divorce?

April 28, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

In Anonymous v. Anonymous, a husband filed a motion for summary judgment to dismiss his wife’s petition alleging he’d violated an order of protection. The order of protection had been entered without a finding of fault and directed him to stay at least 1,000 feet away from the wife’s residence and job, except for court-ordered child visitation or to go to church on Sundays. It also ordered him not to commit a family or criminal offense against her.

The wife alleged that the husband had retained a private investigator. The PI recorded the wife, and the DVD showed she’d gone into a motel and had an affair with a priest at the church where she worked. The wife claimed the husband gave the DVD to her employers, and this forced her resignation.

She argued the husband had no legitimate purpose in sending a PI to follow her, and his goal was just to cause her to lose her job and humiliate her. She claimed this was a violation of the 2009 order of protection.

What Happens If the Sale of the Marital Home Is Delayed Until After Divorce in New York?

April 21, 2017 | Law and Mediation Office of Darren M. Shapiro, P.C.

When two spouses get a divorce in New York, they must address multiple complicated issues, including the equitable distribution of marital property. This often includes the marital home. A divorce agreement, or a court order granting a divorce, usually includes provisions for the disposition of the marital home. The sale of a home might not be practical or even possible at the time of the divorce for a variety of reasons. What happens when a home is to be sold after a divorce? Should the person paying the mortgage get credit for the full amount of the payments or some other amount? As for the person waiting to receive their share of the sales proceeds, should they receive interest in some form? These questions have no easy answers, but they are worth exploring.

Section 236(B)(5)(a) of the New York Domestic Relations Law requires a court to resolve all issues of marital property distribution in, or prior to, a final judgment of divorce, except for issues regarding which the parties have entered into an agreement. Postponing the sale of a marital residence requires careful planning in the hopes of avoiding a return to court. A court is unlikely to approve the future sale of the home without both parties’ agreement, along with a plan for either selling it or otherwise disposing of one spouse’s marital property interest.

Divorcing spouses have several options when postponing the sale. One spouse may buy out the other spouse’s share of the marital interest, either in cash or with a promissory note. This arrangement, along with most other postponements, creates potential problems with a mortgage lender. Any postponed sale means that one spouse must continue making mortgage payments, while the other spouse remains liable for missed payments.