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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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Legal name changes are an important topic for transgender individuals. Today, the world has begun to grow increasingly aware of individuals who identify as transgender. Those who recognize themselves to be transgender do not confirm unambiguously to the conventional notions of female and male gender roles. According to Kidshealth.org, when we consider ourselves to be either a female or male, this can be known as our “gender identity”. Everyone, no matter how young or old has a gender identity – it is the inborn and innate sense of ourselves as a male or female entity.

Transgender awareness has been made more explicit in the news recently too, as Bruce Jenner changed the history of gender awareness through an interview conducted with Diane Sawyer.  According to Jenner, “For all intents and purposes, I am a woman”. Jenner commented that people “look at me differently” seeing a “macho male”, however, “my heart, and my soul and everything I do in life, it is part of me, that female side is part of me. It is who I am. I was not genetically born that way”. Continue reading ›

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Preparing for Divorce Mediation

Hopefully your mediation won’t look like this picture (at least because the mediator should be in the picture too), but following these suggestions might help for a smooth process.  For some people, mediation will be the preferred legal process that they can take to access the results that they want, while maintaining an agreeable relationship with other parties involved. Mediation can be a possible way to ensure that your relationship ends in a healthy way, promoting an easier future for yourself, and any children involved. However, even if you have decided that professional mediation is the ideal option for you, this doesn’t mean that you won’t be nervous about your first session. The chances are you’ll find yourself wondering what you should expect, how you should prepare, and what might be expected from you.

The first thing to recognize is that the mediation process is intended to help people manage or resolve disputes by reaching mutual agreements about a situation. In order to reach an agreement with the other party involved, you will need him/her to cooperate with you on the pursuit of conclusions that are beneficial to both of you. Mediation is not a debating practice that requires individuals to prove that their stance is the right one. You don’t need to convince the other party to think differently or ignore what he or she thinks is important. The mediation process is not intended to assign blame, find fault or punish any party, and it must be done on a voluntary basis, otherwise it is less likely to end in a successful outcome. Continue reading ›

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Challenging an Indicated Finding by Child Protective Services

If you ever discover yourself within a situation wherein you have been made the subject of a report made to the New York Child Protective Services or Administration of Children’s Services (CPS/ACS), it is important to ensure you know your rights. Although an experienced lawyer can be your first line of attack when challenging an indicated finding, it can be useful to learn as much as possible at the process of dealing with such situations. This information is primarily based on the New York Social Services Law.

First of all, it is worth noting that the subject of a report to ACS/CPS retains the right to avoid cooperating in their investigation. The subject is not required to allow the caseworker into their home, and they are not under any requirement to speak with the caseworker, either. If the subject in question refuses to cooperate in these circumstances, then the protective services do not have the ability to force their way into a home. Instead, caseworkers must approach the Family Court and request a judge to evaluate the situation and decide whether there is sufficient evidence to order that the subject allow child protective services into their home.  Please do not take this entry as advice not to cooperate when Child Protective Service is trying to make an investigation as not cooperating with the investigators might have its own negative consequences.  Also, many, if not most investigations, result in an “unfounded” determination.  The information that one does not have to cooperate without a court order is simply to inform about rights that a lot of people do not know about.  Continue reading ›

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Approaching and Understanding the Emotional Aspects of Divorce

In the materials from my mediation training at the Center for Mediation and Training (which this blog article summarizes and is based upon), and as my years of practice as a matrimonial attorney and mediator confirmed, I learned there are the following emotional parts of a divorce. Divorce can be a significant life event in any circumstance. Statistics have frequently shown that even in a divorce that appears to be relatively peaceful, the parties involved can take between three and five years to recover from the ordeal and feel comfortable in their lives again. Just like any other life crisis, divorce can be a process that stirs up unresolved issues and feelings from the past, adding them onto present emotions and creating an intense experience which can translate into outward behavior.

Adjusting to divorce can happen in a number of predictable stages that cannot be rushed or avoided. Similarly to any other developmental process, the successful resolution of each stage will depend fundamentally on the resolution of the preceding one. An important thing to keep in mind when you are dealing with the impact that a divorce has had on you, is that your whole family system will be affected. What’s more, the process of adjusting to a divorce can differ depending on where your current family is in its life cycle. For example, a divorce can feel a lot different to a family with adolescent children than it would to a family with very young children. Continue reading ›

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In a recent case decided by the New York County Supreme Court, Baidoo v. Blood-Dzraku, 2015 N.Y. Misc. Lexis 97 (New York County S.Ct. 2015), service in a divorce case through Facebook was ordered as valid service.  Previously, I have blogged about service problems in divorces and service by newspaper publication and other alternative methods. To recap, most people are familiar with the concept of the in-hand delivery of court papers as it has been frequently depicted in movies and television shows throughout popular culture. Generally, courts prefer this form of delivery, as it is often the most reliable way of ensuring that the individual in question has received the papers as intended. In New York, under the Civil Practice Law and Rules (CPLR) Section 308(1) this service is enumerated, and the process server swears an affidavit that they did deliver the paper by hand. After an action has begun, the CPLR permits 120 days for the service to be made.

Unfortunately, the issue with personal service is that in order for it to be accomplished successfully, the plaintiff must have some method of locating the defendant. Even in circumstances where the location of the defendant is known, there are times when it is logistically difficult for a server to gain the proximity required for a personal delivery. Fortunately, the Domestic Relations Law offers a solution for individuals who face these circumstances, permitting plaintiffs to utilize alternative methods beneath the CPLR that does not require an “in-hand” delivery but only if the court orders alternate service is permissible. Despite this, some people still believe that the alternatives expected in these legal proceedings are not current with the modern practices of the times. Continue reading ›

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Comparing Divorce Litigation, Collaborative Law, Mediation and Negotiated Settlements

In the process of a divorce or case involving family law, you will often find that there are many different routes available to you. As a trained mediator, litigator, collaborative law attorney and legal professional, I have had experience with all of these varying paths, and have noted that what may be the ideal course of action for one couple or individual, may not be the right direction for another. Neither mediation, nor collaboration, litigation nor negotiation will be the worst, or best choice in all cases. The choice of which approach to use will depend on a deep consideration of your personal circumstances, your individual preferences, and your legal needs.

Litigation

The first, and perhaps most well-known option for divorces to consider, is that of litigation. Litigation is the term that is used to describe the proceedings that may be initiated by two opposing parties in an effort to defend or enforce a given legal right. Cases can settle at any time before or during a trial, but ultimately litigation will be decided by a court after the argument has been heard and decided by a judge or jury on the issue of grounds only. The process of initiating litigation proceedings is voluntary for the plaintiff, but mandatory for the defendant once selected and served, and the formality of the case typically surrounds a formal process bound by a number of crucial rules. Continue reading ›

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