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Egregious conduct affecting equitable distribution in divorce

As a matrimonial and family law attorney, my clients regularly ask me various questions about the factors that may have an impact on their divorce, or the determination of equitable distribution. Some partners believe that they should be entitled to an unequal distribution of assets during circumstances where one party within the relationship was involved in an affair, committed acts of abuse in an emotional or physical sense, or engaged in examples of domestic violence. Unfortunately, the response I often give to by clients is that in most cases – issues of “marital fault” are rarely considered to be a relevant factor in deciding equitable distribution.

The law of Domestic Relations in New York provides guidance for the factors a court should consider when making decisions regarding equitable distribution. Although that statute doesn’t actually offer a distinct provision for consideration of fault, it does allow for some flexibility in the form of a catchall provision permitting the court to analyze “any other factor” that can be determined as both proper and just in considering equitable distribution, maintenance (aka alimony) or child support. Unfortunately, most courts reject the idea that marital fault can be considered as a proper and just factor for consideration, except for in very specific or “egregious cases” which have a direct impact on the court conscience. The fundamental aspects of this rule center on the idea that marriage – in all of its many forms – is a type of economic partnership, meaning that martial estates should always be divided in an accordingly “fair” (equitable) manner. It’s also worth noting that many courts suggest that assigning fault in any particular circumstance can be incredibly difficult, and introducing such an issue into court procedure could make cases far more time consuming than they currently are. After all, New York now has No-Fault divorce, in addition to the fault based factors which still exist as grounds. Continue reading ›

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This blog article will discuss some, but certainly not all, of the features and reasons for or against having payments going through the New York Support Collection Unit. Any recipient of child support has the right to ask that the court order provide that the payments be made through the Support Collection Unit. Payments could initially be made by the payor sending payments to the Support Collection Unit in Albany, New York. As long as the payments are sent on a timely basis, in that case an income deduction order or income execution order might be avoided. One disadvantage to the custodial parent or payee of child support for payments going through the Support Collection Unit is that it takes longer for the payments to be received by that parent. The payments need to go through Albany, get processed, and then distributed.

The Support Collection Unit, however, will keep a clear record of payments received. In the event of a “violation” case, in court, a representative from the Support Collection Unit can be summoned to the court room to provide a statement and report of payments received and balances due, if any. A lot of non-custodial parents like this idea as well since it eliminates debate about what was paid or not. Something for everyone to keep in mind when payments are ordered through the Support Collection Unit is that payments made in some other fashion might not get credited as child support. For example, if someone gives a direct payment of cash there is a danger that the recipient would not acknowledge it or that it would be called a “gift” instead of child support. Usually the question is asked to the custodial parent whether there have been any direct child support payments, even though the payments should have been through the support collection unit, but paying in some other way can be dangerous territory. Continue reading ›

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In New York family law, often whether or not travel by one parent to a foreign nation with the child(ren) should be permitted is an issue that arises. I often look to whether the other country is a signatory to the Hague Convention or not when looking at the issue. The Hague Abduction Convention in law is a form of treaty or accord that was developed by the Hague Conference. Treaties are a method of establishing international law. The concept offers a method for returning a child who was taken from one country that is a member of the Hague convention, to another. In other words, the purpose behind the convention is to offer protection to children against the potential damage that may be caused by international abduction by another parent or other person, prompting the quick return of any children involved back to their habitual residence country. The convention also helps to secure and organize the rights associated with access to a child in parental time or visitation.

The concept centers on the fact that matters of custody and visitation should be determined by the court in the residential or habitual country of the child, meaning that the Convention champions the best interests of the child, and provides the opportunity to access a civil remedy that is shared with the other member nations. Legal parties use the Hague Convention to preserve an existing child custody arrangement that was created before the child was wrongfully removed from a place or circumstance. This deters parents from crossing over international boundaries in an attempt to avoid the court orders of the home nation. Individuals often wonder why they may need to access the convention if they already have an order of custody, and the answer to this is that, firstly, alternative countries may not recognize New York or United States court orders. Continue reading ›

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Special Immigrant Juvenile Status in New York                                                         

 

Immigration and family law come together in this area of law. Some children living in the U.S. without a legal immigration status may need to access humanitarian protection for reasons of abandonment, abuse, or neglect. Special Immigrant Juvenile Status (SIJS) is a classification that may allow for vulnerable children to apply for permanent and lawful residence in the United States. To qualify for SIJS, the child must meet the following criteria:

  • Applicant must be under 21 years of age
  • Applicant must be unmarried
  • Applicant must be declared dependent within Juvenile court (this is where a family law attorney can be of assistance)
  • Reunification with one or both of the applicant’s parents must be considered not viable due reasons of neglect, abandonment, abuse, or a similar basis under the law
  • The court must determine that it is not in the best interests of the applicant to return to their last country of residence, or country of nationality.

There are numerous benefits to obtaining Special Immigrant Juvenile Status. Firstly, SIJS waives numerous forms of inadmissibility that could otherwise restrict an immigrant from establishing themselves as a permanent lawful resident. SIJS waives working without authorization, unlawful entry, certain immigration violations, and status as a public charge. Applying for SIJS requires the consideration of numerous steps, with the help of a trained attorney.

A juvenile court is the court within New York that has jurisdiction under the law to make determinations regarding the care and custody of children. In many states, this can refer to delinquency cases, dependency cases, or probate and guardianship matters. Continue reading ›

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The Difference between Family Court and Criminal Court Orders of Protection in New York

An order of protection is an official document issued by the court with the intention to limit the behavior of someone who has been alleged to harm or threaten another person. These orders are used in addressing numerous claimed safety issues, including matters of domestic violence. Supreme courts, family courts, and criminal courts are all permitted to issue orders of protection. So what’s the difference between an order of protection in family court, and one that is issued in criminal court?

First things first, a family court case is not regarded as a criminal proceeding. This means that for an order of protection to be permanently granted in family court, unless an agreement is made for the order, the petitioner would need to prove their case with the assistance of an experienced family law attorney by a “preponderance of the evidence” rather than the higher burden of proof in criminal matters . In criminal cases, if a plea deal has not been made, the case needs to proven “beyond a reasonable doubt” for a final order of protection to be issued. The accused must is convicted of a violation of the Penal Law, which requires a higher burden of proof than is expected in family court. Continue reading ›

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Best Interest Standard

In many legal matters, the focus of a court is often into the past of the parties involved in an attempt to resolve the issues. On the other hand, in a custody case, the court attempts to perceive the future and predict which parent will provide a better environment for the child in question. To this end, the New York courts employ various methods – relying on the use of expert testimony, and examining past behavior to predict future actions. Though the statutory law in custody in New York is somewhat sparse, the Domestic Relations Law 70 provides that there will be no prima facie right to custody for either parent – rather the court must determine solely what is in the best interests of the child.

Though most people are relatively familiar with the “best interests” term, it regularly defies a firm definition. Because cases regarding children are sensitive in their very nature, each case is decided in regards to its own particular merits. However, it’s worth noting that some definitions do remain consistent from one case to the next, and so too do certain factors that courts will consider in an initial custody determination. Following, we will consider a number of factors that are considered by the New York court in establishing the “best interests” of a child. The list that we will discuss is not exclusive by any means, however it will provide a general idea of some of the things courts consider in coming to a decision. Great deference is permitted to the trial court by appellate courts since the trial courts are in the best position to weigh the credibility and testimony in a case(Eschbach v. Eschbach 56 N.Y.2d 167).   This blog will summarize the best interests standard as articulated in the Eschbach case which remains an important case for child custody matters in New York to date. Continue reading ›

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In a previous blog post, we touched upon issues of discretion of judges and other triers of fact (referees, judicial hearing officer and support magistrates), and the ways in which parties in a legal proceeding, and their attorneys may have the ability to shape the decision of a judge or court. In matters of family law, there are a number of discretionary points to consider that may help to change or manipulate the decision a judge makes at the end of a case or hearing. These matters can range from imputation of income, to the determination of what should be considered “equitable” distribution in the dissolution of a marriage.

Imputation of Income

In child support and spousal support cases, for example, the court may conclude that an individual involved within a particular case has attempted to diminish their assets or income in an attempt to avoid a child support or spousal support obligation. If such circumstances are found to be true, then a court may choose to “impute” income or calculate someone’s income based on their previous resources or income, lifestyle or based on expenses paid on their behalf by other people. For example, this may happen if the court believes that the individual in question chose to voluntarily leave their previous jobs, were fired for cause, or personally chose not to work either full time, or at all. In combination to previous earnings, a court may consider the education and ability to learn of the party involved. Whether that party has chosen to diligently apply for employment in a manner that is commensurate with their experience, abilities and background could become an important factor when determining income. A judge or support magistrate may consider what people with similar backgrounds and educations are capable of earning when imputing income. Continue reading ›

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When dealing with issues of family law, there are often many considerations to take into account, from the goals that you are hoping to achieve, to the appropriate steps you must take, the way you should present your case in court, and the factors that could diminish your chances of a successful outcome. Sometimes, it can feel as though you are completely at the mercy of the judge presiding over your case when you are in court, as this is the person with the discretion to decide what the results of your legal proceeding will be. However, it’s important to remember that with the right legal guidance, it is possible for parties and their lawyers to influence and shape the result that the judge decides upon. The following information refers to when people need the court to decide the case or want to be guided by the default law. Remember, that many different things can be agreed upon whether in litigation, mediation, a collaborative case or settlement negotiation.

Child support, despite having a formula contained in the New York Child Support Standards Act, still is chock full of a lot of discretionary matters. Calculating the appropriate amount of child support for any given case can be something of a complex matter and certain nuances will apply to particular circumstances. For example, if there is a combined income between the two parents that is in excess of $141,000, there could be discretion on the amount of child support – if any – that should be ordered for the income that exceeds the first $141,000.00. Similarly, the determination of what amount of income to utilize within the formula is also a significant source of debate, as there is discretion about whether certain employment perks should be included in the income or not. Income can also be determined based on the previous employment of an individual, or the expenses paid by other people on that party’s behalf (this is called imputation of income). Once the amount of income has been decided, the combined income will help to determine a rate of child support by multiplying the amount by either 17% for one child, 25% for two children, 29% for three children, 31% for four children, or 35% for more than five children. Then the non-residential custodial parent would be responsible, as a basic amount of child support, to pay their pro-rata share of the combined child support obligation. Currently, the presumption is that the percentages of this formula create the correct level of child support for the first $141,000 of the combined parental income. That threshold number increases from year to year. Continue reading ›

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Family Court In New York

If you find yourself in a position where you need to deal with a family law matter, then you may end up presenting your case at the Family Court in your local county. Venue is usually proper in a County in which one of the parties resides. Regardless of the circumstances, presenting your case within a court setting can be incredibly nerve-wracking and worrisome, which is why I often try to put my client’s minds at rest by discussing the nuances of family court with them beforehand.

A Family Court is the court that is convened to decide upon matters and make orders regarding family law, such as when dealing with child custody and visitation (now called parenting time), orders of protection (family offense cases), support matters, juvenile delinquency cases, abuse, neglect, termination of parental rights, PINS (Person in Need of Supervision), and adoptions. A family court in New York can not get people divorced and do not deal with equitable distribution of marital assets and property claims. Continue reading ›

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What happens in a divorce when someone fails to make financial disclosure or financial disclosure in

divorces?

Parties to a divorce in New York are entitled to complete financial disclosure by the other side. There are a number of ways for a divorce lawyer to obtain this disclosure. Usually one of the first documents exchanged in a divorce is called a Net Worth Statement. In most instances both the Husband and Wife each fill out their own respective Statement of Net Worth. A Net Worth Statement is essentially an affidavit, sworn to before a notary public that is a disclosure by both the Husband and Wife of their respective financial situations.

The Net Worth Statement consists of: the caption of the case; biological or statistical facts such as date of marriage, children names and ages, addresses, occupations, employers, etc.; monthly or weekly expenses like for housing expenses, food, utilities, insurance, car payments, medical payments, taxes to name a few; income from all sources including employment, investments, social security, disability and other areas; assets including cash, checking accounts, securities (notes, bonds, stocks, options), loans and account receivables, cash surrender value of life insurance, business interests, vehicles, real estate, trusts, retirement assets (pensions, IRAS, 401Ks etc.), contingent interests, household furnishings and jewelry among other items; liabilities like accounts payable, notes payable, installment accounts payable, brokers’ margin accounts, mortgages, taxes, loans on life insurance policies and other liabilities; assets transferred in the past three years; support requirements; counsel fee requirements; accountant and appraisal fee requirements, and other financial data that a court or anyone involved with the case might be interested in. Net Worth Statements are sometimes voluntarily exchanged by the parties through their lawyers (I also like to have both the Husband and Wife exchange them in my mediations) before the necessity of court appearances but are required to be produced at the Preliminary Conference. Continue reading ›

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