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A family offense petition, or order of protection, can be filed in New York on the behalf of a child when a parentsuspects, or has evidence of an act of abuse or neglect initiated by another family member. To act within a child’s best interests, the New York courts must consider who should be permitted to file a family offense petition on the behalf of that child. The court inherently recognizes that a parent will always have the standing to commence a proceeding of family offense on the behalf of his or her child, under New York Family Court Act Article 8. However, grandparents and other individuals who share the same family home do not always have the same rights.

When dealing with cases that ask the court to re-consider issues of child custody and visitation, it’s important to remember that, in an effort to act in the best interests of the child, the court will not make changes to pre-existing custody orders unless there is evidence of a substantial change in circumstances that requires a need to look at whether modification is in the best interests of the child. As such, when it comes to family offense petitions made on the behalf of the child, the court must also be equally stringent about who it believes to be an appropriate individual to launch a complaint on the behalf of that child.

Usually, only a parent of the child, as recognized by the law, will be able to act on the behalf of that child when presenting an issue in court. For instance, in a case entitled Hitchcock v. Kilts, 772 N.Y.S.2d 386 (N.Y. App. Div. 3d Dep’t 2004), the family court awarded sole custody of two children to the mother during the divorce, but gave the father visitation rights. During the visitation, the oldest child told his father that his mother had slapped him, dragged him by the hair, and poured Tabasco sauce into his mouth. Those allegations led the father to file a family offense petition which was heard by the court because the father was recognized as an appropriate person to act on the behalf of the child. Though a temporary order awarded custody to the father for a short time, the order was reversed and the original order was reinstated after evidence from both parties had been presented. Continue reading ›

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In the state of New York, it is possible for a spouse to request maintenance, or a modification to maintenance that has already been awarded under very specific circumstances. Crucially, anex-spouse cannot simply request additional maintenance because they believe that the first award was unfair. During my time as a family and divorce lawyer, I have seen cases in which an ex-spouse has requested a modification of maintenance payments without the correct proof to show that such an alteration is necessary. If a plaintiff cannot produce any evidence that they are suffering from financial hardship, or that their income, assets, or job status have changed, then there is often no need for the court to hold a hearing regarding a change in maintenance. According to how the  Domestic Relations Law is applied in New York, if a party wishes to modify a maintenance obligation that was set forth by stipulation that was incorporated, but not merged into the judgment of a divorce, that party is responsible for showing a substantial change in their circumstances that warrants such modification, ie:  extreme hardship.  The standard is slightly relaxed when the obligation comes from a court order or judgment.

People are free to alter what the default law is by including specific language in their agreements.  For example, without specifying that maintenance is to continue upon remarriage of the recipient spouse, maintenance should end upon the new marriage.  Where either the ex-husband or wife wants to change or modify the amount or duration of the alimony, now known as maintenance, set forth in a divorce, that person needs to demonstrate a substantial change of circumstances that merits the consideration of maintenance again.  The cases stand for the proposition that the change can be financial hardship, but extreme financial hardship is usually what must be shown.  The desire to get more or pay less money alone is not enough.

The New York court considers changes in circumstances by measuring the scenario that a spouse is in at the present time, against the situation that was presented during the original court order. When no evidence representing a significant change has been provided, then a court does not need to have a hearing on maintenance, as there is nothing to evaluate.  A situation that might qualify to look at maintenance again is a financial emergency such that one of the parties is at risk of becoming a “public charge”.   The presence of sudden huge medical bills or another disaster that requires additional support or a decrease in the support to be paid might be a factor to consider modifying the prior award. Continue reading ›

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In the world of family law, many issues regarding everything from divorce, to maintenance, and even child custodywill depend on the unique factors that exist behind a particular case. For instance, whether child support is appropriate and how much should be awarded, though guided by a formula, will ultimately be determined by the circumstances of the parents, parties or spouses involved. However, one matter that always remains the same in cases concerning children is that New York courts are supposed to place the “best interests” of the child at the head of their considerations in making a decision about custody and parenting time. In deliberating about child custody, the New York Courts will endeavor to make a decision for the future of the child that will be most beneficial to the development, and future of that individual. However, as the needs of a child can change over time, the fact that an order is marked “permanent” doesn’t necessarily mean it cannot be changed under the right circumstances. There are two primary situations in which child custody orders are modified:

  1. When a parent violates court orders
  2. When one or both parents suggest a significant and material change in circumstances.

The circumstances that are deemed to be within the “best interests” of a child are subject to change in accordance with the elements surrounding that child at any given time. Therefore the New York court may grant custody modifications if circumstances change significantly since the time the original order was put in place. Modifications, however, must be made based on a change that was not obvious or present during the time of the original order. Examples of a substantial and material change in circumstances might include the use of illegal drugs, a felony conviction, or evidence of child abuse. If the needs of the child changes – such as a changing need in medical attention or schooling, the courts may also consider modification, but only if enough evidence is available to determine that such an alteration is in the child’s best interests.

Defining a Material Change in Circumstances

Continue reading ›

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The first thing to understand about divorce – is that no matter how you go about it, you’re probably going to facesome emotional complexities and other personal difficulties. Divorces are a difficult process – after all, most couples enter a divorce after years of trying to make it work with their spouse, and find themselves suddenly considering the prospect of single life all over again. It can be extremely difficult to regain your confidence, find financial stability, and make sure that you’re ready for the change in lifestyle that lies ahead, but that doesn’t mean that everything about divorce is negative. As I often tell my clients – it’s up to you to decide when your marriage is over. If you simply can’t be happy in the relationship that you’re in – for any reason, then divorce may well be the answer.  My last blog article discussed some of the negative, as well as positive aspects of divorce and separation.  This article will focus on the up sides.

After you receive those final divorce papers, it’s easy to find yourself mourning the loss of your relationship, but it’s also important to focus on the positives that could come your way now that you’ve removed yourself from a potentially toxic situation.

Divorce Could Make You Happier

I often find that it can be difficult for some clients to believe that they may enjoy a happier life after their divorce is over, but I frequently see ex-spouses moving on to live more peaceful, fulfilling lives once their divorce is settled. Though the initial feelings that you experience during the onset of a divorce may center around a fear of the unknown, that anxiety and sadness will in most instances eventually get better. Continue reading ›

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Nobody gets married with the belief that a few years, or even decades, down the line they’ll be considering visiting adivorce lawyer. In fact, most couples get married with enthusiasm and hope for an ever-lasting relationship. Unfortunately, marriage can be a difficult construct to maintain, and can break down in ways that we are unprepared to deal with. While some problems in a relationship can be overcome, others lead to the dissolution of a marriage that is impossible to repair. Rather than continuing to live in a painful or unhappy situation, this is when many people consider divorce.

Of course, no matter how bad the situation may seem, there’s always a nagging question in the back of your mind when you’re considering divorce – a question that many of my clients ask me: “How can I know for sure that divorce is the right choice?”  This is not a question that I can answer for them.  Many clients may hope for a checklist of features that can convince them whether divorce is the right step forwards or not, the truth is that dissolving a marriage will always be a personal decision. Only the people within a marriage can know whether it is right for them to divorce or not.  In many instances chances are you’ll have a lot of considerations to address regarding whether to divorce or not.  This article will touch upon some of the more negative aspects and mention the positive.  My next article will enumerate the benefits that many find from moving on from what they view as a negative marriage.  Continue reading ›

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When it comes to using the process of mediation to settle disputes in divorce, I believe in meetings with both sides ofthe dispute together with the neutral mediator.  Therefore caucusing is not the first method I would employ if I do at all in resolving issues with a couple. A caucus in family law and divorce mediation takes place when private meetings between each participant and the mediator are held. Depending on the circumstances, a caucus may be a one-time occurrence, something that happens several times, or something that takes place throughout the full course of the mediation. In my opinion, usually separating the clients involved in a dispute resolution is a disruptive and problematic process that removes some of the empathy and understanding that goes into making mediation work. On top of that, the use of private sessions can frequently make clients feel as though they are being conspired against, as during high-conflict divorce cases, emotions are often running high, leading to feelings of anger and paranoia.

Of course, there are exceptions to the rule in most cases, and in some circumstances, caucusing may be considered as a useful solution to a divorce mediation problem. For instance, one goal that I try to keep in mind while working as a divorce mediator is to help de-escalate conflict and assist clients in overcoming difficult emotions. Ideally, this would mean allowing each spouse to discuss their issues face-to-face, however in some instances one spouse may refuse to reveal something in the presence of the other client – particularly when physical violence has existed in the past or other threats may be in place. Sometimes, even when communication appears to be honest and open, divorcing spouses may struggle to break free from old patterns of communication, which leaves them unable to speak up about important concerns.

When Do Mediators Consider Caucusing?

When divorce mediators choose to utilize caucusing, I believe that they should only do so because they have considered all of the circumstances and determined that it’s the best approach for making progress. After all, providing a caucusing opportunity opens up possibilities for suspicion developing amongst parties – thereby risking the appearance of neutrality and transparency of the mediation process. Continue reading ›

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In the world of divorce and family law issues, there are many different types of dispute resolution available, fromclassic negotiations, collaborative law, litigation, and of course – mediation. When a couple opts for mediation as a way of settling their divorce concerns outside of the courtroom, they generally come together as two opposing parties with one neutral party in the middle – the mediator. However, some people perform the mediation process differently – offering their clients the opportunity of “caucusing”.  In caucus-style mediation, the mediator provides separate meetings for both parties involved in the divorce – while the other party is absent. Some professionals use this method once or twice during the mediation to help resolve significant issues, whereas others maintain the caucus format throughout the full mediation, shuttling backwards and forwards between clients.

For the most part, I have not employed caucus mediation (although in next week’s blog I will discuss times when mediation by caucus might be a good idea), but I do believe it can have some utility to handle certain situations which can arise with mediating couples.  This week’s blog will outline the reasons I initially approach a divorce mediation without the thought we will have separate caucus sessions to work through the issues that need to be settled in a legal separation or divorce mediation.     In my mediation sessions, I explain that everything is done with reference to both parties, both parents, or both the husband and wife – together. This helps the people I work with to see me for what I am – a neutral party within their dispute resolution that is there to help them iron out an agreement which can be used to make a binding legal contract.  In most instances (we can mediate issues other than just divorce, such as custody, support, etc.) that contract is a settlement agreement that can allow them to get an uncontested divorce either right away or at some future date.  While there may be instances wherein caucusing is the right move (something I’ll address in my next blog), I am wary to employ the caucus approach at least initially.

Caucusing Can Raise Issues

Perhaps the most significant problem with caucusing is that it removes the intimacy from the negotiation technique. Rather than allowing for both of the parties to be directly involved in the resolution of their various arguments and concerns, the mediator is forced to run back and forth conveying offers and suggestions. There’s no room here to discuss matters thoroughly and examine the different opportunities for negotiation – which means that by the end of the mediation, one or both spouses might leave with questions. At the same time, the caucus method of mediation can shift the position of the mediator so that he or she no longer appears to be neutral within the case. When all of the conversation with the other side of the divorce takes place out of sight of the other client, most clients can begin to feel as though the mediator and ex-spouse are plotting behind their back. Even if this isn’t true, it’s worth noting that divorce and family law issues are emotional and can prompt feelings of paranoia and anger. Continue reading ›

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When it comes to equitably dividing the assets that have been gathered during the course of a marriage in a divorce –retirement assets from pensions to IRAs to Annuities are important ones. Though many couples are busy fretting about who’s going to get the house or how custody agreements are going to be determined – there’s also something to be said for the importance of properly splitting retirement accounts and plans. After all, depending on the income of either spouse and the age of those spouses when the divorce takes place, retirement savings can frequently be one of the most valuable assets that any person owns. As such, we regard them as a very important matter to consider when figuring out which assets should go where for the best interests of both parties.

Unfortunately, the issue with retirement savings is that they have their own unique intricacies. These packages of money are subject to various complicated factors, such as tax implications, and this can mean that people struggle to handle them appropriately when figuring out how to divide assets. As a family lawyer, I’m left to do what I can to guide my clients carefully when they’re making decisions about financial plans and the potential options that might be available to them during the divorce.

Do You Have to Share Your Retirement Savings?

This is a question that many people have when they approach me with matters regarding the distribution of assets during a divorce.  The short answer is probably yes to the extent that the assets were earned during the marriage.  Portions of retirement assets which were earned before the marriage or after the end date of the marital estate (often the filing date of the divorce), are usually separate property and not shared on the other hand.  People often wonder whether they can avoid sharing their savings with their soon to be ex-spouse in some way. However, most of the time, if you are going through a divorce or legal separation and your spouse or you have some money sitting in retirement savings accounts, then you will be required to share these assets amongst yourselves in an equitable fashion – either through negotiation with collaborative lawyers, an agreement made in mediation, settlement negotiations or through litigation in which a decision will be made for you by the courts of New York if your case is one of the few that does not settle before the ultimate trial. In certain cases, the assets that have built up within a retirement savings account may be awarded to one single party – but this only takes place when specific circumstances are in play. Continue reading ›

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It is a fundamental principle in New York Family law that for a request to modify a custody order to be able toproceed in court, be it Supreme Court or Family court, there needs to be a substantial change of circumstances.  Only if there is a substantial change of circumstance can the court make a determination on what new child custody order is in the best interests of the child or children.  I have previously blogged about the quandary about when should the change of circumstances be measured from?  Is the change of circumstances to be measured from the date the case was settled or in the cases that went through trial from the close of evidence at trial?  Or, in the alternative, should the change of circumstances be measured from the date the order is finally drafted and entered with the clerk of the court?  This can be an important distinction as often there is a substantial lag in time between the two events.

A recent case, Matter of Ladd v Krupp, 136 A.D.3d 1391 (4th Dept. 2016) decide in the fourth department has highlighted this disparity.  One of the issues raised on appeal was if it was error to use one date as opposed to the other.  The court ended up resting its decision on the fact that it believed it did not matter, for that case, which date the change of circumstances was measured from as from either date there was a substantial change of circumstances.  However, clearly, it can matter in other cases.  That case cited various precedents which detailed the different dates that are used to measure the change.  Continue reading ›

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One fact that presents itself to me time and time again as a family lawyer in New York, and Long Island, is thatdivorce and family law can deliver a wide range of different complications. From issues regarding child custody, equitable distribution, to matters concerned with child support, spousal support and at times, orders of protection, each unique family brings with it specific issues to navigate. One of the most common issues that raises conflict in family law is proving the income of the other parent or a spouse.

Child support, in New York is payable to the residential custodial parent until the children are emancipated.  Spousal support is what a court can award, under appropriate circumstances, when a couple is still married.  Maintenance, f/k/a as alimony is the payment that a spouse makes to another spouse after a divorce or during the process of a divorce. The purpose of this payment is to help the less monied spouse get in a position to be self-supporting. In some cases, spousal support can also be useful for giving supported individuals the finances they need to gain the training they need to earn employment in a new job. In New York, as of 2016, there are guidelines now, based on income, for maintenance, spousal support and child support.

The challenge sometimes becomes, then how does one prove income when the other side of the case is being less than forthright?  This might happen when someone works off the books or is self-employed.

Determining Accurate Income Details

If one or more of the parents or spouses within a case is working off the books, self-employed – working as a business owner, licensed professional, or independent consultant perhaps – then the matter becomes even more complex. Not only do you need to work out the details of maintenance or child support, but you also need to find a way to prove the other parent’s income.  Proving the income is essential because it represents a key factor for the courts to consider when it comes to deciding whether to award spousal support, child support, and attorney fees. If your spouse was a standard employee, then getting the information you needed for spousal support would be simple enough – as you’d be able to simply look at his or her paychecks. However, providing the income of a spouse who is working off the books or is self-employed can be dangerous, as many self-employed people are less than stringent with their deductions and may claim a large amount of expenses. Continue reading ›

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