Long Island Family Law and Mediation Blog

Material Misrepresentation of Assets During Mediation in New York

March 25, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

During a separation or divorce mediation in New York, couples are expected to honestly disclose their assets. Dishonesty during this process can result in a case being set aside.

In the 2015 case Moore v. Moore, an ex-husband tried to subpoena financial records from his ex-wife so that he could use them to challenge a separation agreement negotiated two years before. The couple had divorced in 2013 based on a mediated settlement agreement.

Both parties had provided financial disclosures in order to reach the agreement. They both provided warranties that they had completely and truthfully represented their current assets. They also agreed that if they divorced, they would have to produce all documents necessary to enforce the agreement terms. The agreement was incorporated into the divorce judgment.

Modification of a New York Child Custody Order Parental Alienation and Interference

March 17, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When making custody determinations, a court is likely to consider whether a custodial parent is likely to encourage the child’s relationship with the noncustodial parent. It is considered in a child’s best interests to have a relationship with both parents. This means that a court will not look favorably upon a custodial parent who interferes with children’s relationship with the noncustodial parent. The noncustodial parent may have grounds to request a modification of a child custody order if the custodial parent tries to harm his or her relationship with the kids.

In Musachio v. Musachio, a New York married couple stipulated to a child custody settlement that was supposed to survive and not be merged into any divorce judgment that followed. The parties had agreed that they would have joint custody of their four children. The defendant (the mother) would have residential custody.

In 2008, the court granted the father’s application to get temporary sole custody of the four children. It also suspended his child support obligations based on information that the mother had interfered substantially with his relationship to their children.

Why Select a Divorce Attorney to be your Divorce Mediator?

March 7, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In some cases, divorce mediation can be the best solution for a couple who want to find an amicable way inwhich to end their relationship. It allows individuals the opportunity to settle disputes that typically arise in the instance of divorce, outside of the discomfort of a court-room setting, and promotes a less formal, yet often effective way to overcome and negotiate differences. However, the success of your mediation will not only depend on your willingness, as a party of divorce, to negotiate, but also the skills, techniques, and experience of the mediator you are using to guide you through the process.

Although in most mediations, the legal system only has a minimal amount of involvement, it is still a legal process that benefits from the use of a professional with extensive knowledge of matrimonial and divorce law. Ultimately a court needs to review the papers, approve the agreements and sign off on any divorce judgment. Mediation should provide a structured format in which friction can be minimized during a spousal settlement conversation. Mediators are not judges, arbitrators, or referees, and they cannot make decisions on any party’s behalf about important concerns. However, what they can do is offer insight as a neutral and impartial third party, helping disputants to reach a compromise that they both find acceptable. Continue reading ›

Can You Include Child Custody and Support Terms in a New York Prenuptial, Postnuptial or Separation Agreement?

March 1, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

New York Domestic Relations Law § 236 (B)(3) sets forth that prenuptial and postnuptial agreements are valid and enforceable if they are in writing, the parties subscribe to them, and they are proven in the way required to entitle a deed to be recorded. The difference between these types of agreements is that prenuptial agreements are entered into before marriage, while postnuptial agreements are entered into after marriage.

The agreement can include, among other things, provisions for the custody, care, maintenance, and education of the parties’ children, subject to Domestic Relations Law § 240. § 240 provides that the court has the discretion to enter custody and support orders as justice requires, based on the circumstances of the case, the parties, and the child’s best interests.

In other words, prenuptial and postnuptial agreements in New York can’t conclusively establish child custody or child support. Postnuptial agreements, made after a child is born, may be influential when they address education, child support, and care. However, judges make a final determination on child custody and support based on the child’s or children’s best interests. The terms of an agreement are only enforced if the terms serve a child’s best interests and needs at the time of the divorce. A separation agreement, however, which is in proper form, can deal with child custody and child support terms. The difference between a separation agreement and a postnuptial agreement in this context being that either when the separation agreement is made or very soon thereafter the parties must being living apart and intend to do so. Of course custody, parenting time and child support terms are properly included and should be part of a stipulation of settlement settling a divorce.

What Are the Automatic Orders in a New York Divorce?

February 17, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

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 ›

Restraining Orders and Orders of Protection in New York

February 10, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Restraining Orders for protection of a person in New York Family Law are called Orders of Protection. It’shelpful to know the proper legal names under each state of what it is people are seeking. Restraining order and orders of protection (aka protective orders), for example, can mean different things.

Orders of protection in New York may be granted to protect the alleged victims of crimes as part of a criminal case against the accused perpetrator. But, without a criminal prosecution going on, if people are “family” such as: blood relations, share a child in common, are defined as family under the law, members of the same household or in intimate relationships, orders of protection are possible to require a person to stay away from another or refrain from communication or doing certain acts against the protected party. Sometimes people simply want orders of protection but do not wish for the alleged abuser to have a criminal case against them. Please see my other blog entries and website for more information about Family Offenses, and Orders of Protection in family law and divorce cases. I have represented many alleged victims and at other times people accused in connection with order of protection matters. Continue reading ›

Paternity, the Presumption of Legitimacy and Equitable Estoppel

February 4, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In cases of paternity in New York, a child that was born during marriage is legally presumed to be abiological product of that marriage, and this presumption historically was one of the most persuasive in law. However, it’s important to note that this presumption is still subject to the sway of reason, though statements have varied regarding the sufficient evidence required to rebut such a presumption. For instance, in the context of a case wherein a child is born during a marriage, the presumption should not fail unless there is evidence to demand reconsideration. In fact, if a husband and wife live together, legitimacy is often presumed, and even if the couple are living apart, the court can provide a fair basis for the believe that a child was born as a product of times the couple were brought together.

During recent years, case law that enunciates the presumption of legitimacy in paternity cases where a child is born during a marriage has been pulled into question. This isn’t necessarily because the reasoning and logic behind that case law has changed over time, but because the passage of time have delivered new updates in technology and science that make determining legitimacy accurately, more possible. In past cases, one of the primary – if not the only determining factor in the application of a presumption of legitimacy in court was access between the husband and wife. However, as we have progressed further into modern times, DNA tests and blood tests have also acquired a new ability to sway reason. Because of this, while the presumption of legitimacy still serves a laudable purpose, it remains to be just another legal presumption that can be used when conclusive evidence to the contrary is not available.

When is it Appropriate for A Court to Order Joint Legal Custody?

January 25, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In the courts of New York and Long Island, as well as legal institutions throughout the world, it’s notuncommon for legal terminology to leave parents confused when it comes to matters of custody. Indeed, in some cases, parents or guardians may be left feeling uncertain about the level of custody they have – and what certain orders imply regarding their decision making authority in reference to their children. Some people even suggest that the statutes employed in New York are harder to understand than those in other states, as they do not necessarily make direct reference to physical or legal custody, but only the word “custody” which can be taken to mean the concept of total custody over a child or children. However, although it can be difficult to understand, most New York custody orders I have been involved with, have addressed the varied aspects of custody, from legal and physical custody, to sole and joint orders, even if the terms aren’t easy for parents to follow.

More often than not, in New York courts, the term “joint custody” will refer to joint legal custody. I try to ensure that my clients know this when going into a case, as legal custody is significantly different to “physical” custody. Legal joint custody implies that both of the parents involved will have the right to decide upon important issues regarding their child – such as educational or medical matters. When a divorce or custody resolution is amicable, parents may voluntarily agree to a joint custody agreement and a judge will almost invariably approve it. However, most New York courts will not force joint parenting on a family. Indeed, when parents must approach the court to have a judge determine what is best for the custody of a child, the implication is that the couple does not get along well enough to make decisions together that are appropriate for their child. Continue reading ›

When Can New York Grandparents Request Child Custody?

January 14, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In Suarez v. Williams, the New York Court of Appeals, the highest court in New York state, very recently considered a child custody dispute between a child’s mother and paternal grandparents. The child in question had lived with his paternal grandparents between the ages of 10 days old and nearly 10 years old. The father had visitation but lived out of state. The child’s mother lived near the paternal grandparents, eventually in a trailer they bought and put in a trailer park across the street from them.

When the child was four, his parents received an order awarding joint legal custody but giving primary physical custody to the mother. However, the child continued to live with his grandparents in a nearby county. The mother then had less contact with her child for two years, until the grandparents again moved her closer to their home. They talked to her about the child daily, and she saw the child on overnight visits and vacations.

In 2010, the mother made plans to live with a boyfriend. Two years later, the father tried to get custody and wanted to terminate child support. She wouldn’t return the child to the grandparents, using the 2006 order that gave her primary physical custody. She told the grandparents that they’d kept the child for years, and it was her turn and they couldn’t see him.

Divorce Mediation Styles in New York

January 6, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

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.