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People dealing with allegations involving domestic violence, concerning family, as defined under New York law, whether as the victim or the accused, have different forums in New York that they might find handling their case.  Family can be blood relations, people with children in common, and people in intimate relationships.  Please call or see our other blog entries or website for more information on what is defined as a family under New York Law.

Orders of protection may be granted to protect a spouse and/or children by the Supreme Court as part of a divorce or matrimonial proceedings.  An order of protection case, aka a Family Offense, might be started in the Family Courts.  Unlike when someone receives an order of protection through a criminal court, a Family Offense proceeding is not about crime and punishment.  The Supreme Court, Family Courts and the Criminal courts, however, can order incarceration if orders of protection are violated. Continue reading ›

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Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.

We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method. Continue reading ›

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I wear different hats now in my career since I am a litigator, certified mediator, certified collaborative law attorney and a lawyer negotiator. This blog entry will focus on divorce mediation v. divorce litigation as I do both. Overall, my belief is that the couples that I have worked with in divorce mediation are happier with the process than the people involved in the litigated cases.   I have not given anyone tests to measure their happiness either after the completion of a litigated case or mediation, but this is how I feel.

What makes me say that? It’s the little things and the big things. Most couples that I work with in mediation walk out of the process together. Many of them walk out of each session together. One mediation in particular sticks out in my mind as I saw the couple hug in the parking lot after settling the case and getting in their respective cars. Although the parking lot hugging might be the exception rather than the rule, I don’t think it is such a rare occurrence for mediating couples. And why shouldn’t this be? After all this couple, at one time in their lives, were probably closer together with each other than they were with any other person in the world. Yes, the relationship did not work for whatever reason. They fell out of love, grew apart or something else, but at one time they shared something special. Why shouldn’t they part as friends or at least without bad feelings? Continue reading ›

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Over time, the role of attorney for the child in custody and parenting time (visitation) cases has evolved and developed in New York. Their name has changed as well since they are properly called attorney for the child(ren) now whereas the job used to be known as “law guardian”. While many used to believe the role of the attorney for the child was to determine what’s in the best interests of the child, it is clear now that this is not supposed to be their job. The attorney for the child’s role is defined in Rule 7.2 of the Chief Judge in New York.

The rule requires the attorney for the child, like an attorney for any other party in the case (such as mom or dad lawyer’s), to advocate for their client’s position with zeal. If the child is mature enough to be capable of making a knowing, intelligent and voluntary judgment, even if the attorney for the child believes the child’s wishes are not in his or her best interest, they should advocate for what the child says theywant. The trier of fact, be it a judge or a referee, however is required to make decisions on what they determine is in the child’s best interests. So the best interests standard still controls, it however is not the attorney for the child’s job, usually, to advocate for the best interests. Continue reading ›

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Adult couples involved in romantic relationships in New York, whether opposite sex or same sex, now both have the option to choose to get married in New York or in certain localities enter into a domestic partnership. This blog article will highlight some of the benefits and differences with each. The Marriage Equality Act became law in New York in the summer of 2011 and allowed for gay or same sex marriages to be performed in this state. Prior to the passage of the law, New York recognized same sex marriages performed in other jurisdictions that legalized them, but would did not allow the marriages to take place here.

The Domestic Partnership laws are local laws in many various jurisdictions within New York. This law allows couples, depending on the locality in New York in which the couple works or resides, to register as a domestic partnership if they meet certain criteria. Some localities extend domestic partnerships to only same sex couples or to both opposite sex and gay couples. But, what are the differences between marriages and domestic partnerships? Continue reading ›

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Today’s blog will be a break from my typical legal analysis of family law issues. Here I focus on tips, facts and suggestions pertaining to the children of the transitioning families that I have picked up in my time working as a matrimonial, family law attorney and mediator in the great state of New York. As usual, when I veer off my exact topic of expertise, I like to throw in a disclaimer that I am not an expert in psychology or sociology. Therefore, I recommend speaking with trained and licensed therapists that specialize in children and family matters about your questions and to verify the accuracy or inaccuracy of anything in this article.

One statement that I am qualified to make is that parents or parties involved in a child custody and parenting time or visitation case, whether it is pursuant to a divorce or family court custody case, are advised not to talk to the kids about the case. In most instances the court will assign an attorney for the child(ren) who has training and experience in speaking with the kids about the matter. Ultimately the court might hold what is called an “in-camera” interview with the child or children before issuing a decision on custody and parenting time. Continue reading ›

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Let me start this blog by stating that this blog entry is not to be considered tax advice. Everyone is advised to seek the advice of an appropriate tax professional, such as a CPA, regarding tax questions. This blog, however, is intended to identify some issues and language to be considered when trying to address the tax issues that commonly present in divorces. These matters should be considered when planning, drafting and negotiating a divorce settlement with your divorce lawyer or mediator.

Each case and agreement is different, so the following is intended to be illustrative only. Tax filing status is a big consideration when divorcing. Some common language in a settlement agreement might provide that the husband and wife can file taxes jointly or separately if they so choose for any tax year that they are still married at some juncture during the year. In that event any tax refunds received are often designated by the agreement as the Separate Property of the recipient spouse. The settlement can also state that if both sides agree to filing jointly, they may do so only so long as they are able under the tax laws. In what proportion any refunds or taxes owed should be discussed such as whether everything (refunds or amounts due) is going to be shared equally or in proportion to the respective contributions towards taxes or responsibility for any shortfall. Continue reading ›

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Last week, I blogged about temporary or pendente lite maintenance.  This blog will discuss temporary child support or pendente lite (while the case is pending) child support in New York cases.  Pendente lite child support is the child support that is either agreed upon or awarded by a court while a divorce or legal separation proceeding is pending and not yet resolved.  In Family Court child support cases, the amount that is paid while the case is pending and not yet resolved is called temporary child support.

The Child Support Standards Act dictates the presumptive amounts of child support to be applied in both the Supreme Court or Family Court cases.  The law for Supreme Court cases is found in the Domestic Relations Law Section 240 [1-b].  The Family Court Act contains the provisions in Family Court Act Section 413.  Courts may use the Child Support Standards Act in applications for pendente lite or temporary child support but they are not required to do it.  Davydova v Sasonov, 109 A.D.3d 955, 957-958, (N.Y. App. Div. 2d Dep’t 2013). Continue reading ›

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The old law in New York for temporary or pendente lite (Latin for while the case is pending) maintenance, prior to the 2010 revisions, was that temporary maintenance was supposed to “tide over” the spouse with less income (the “non-monied” spouse) while the divorce case was ongoing.  There was no formula for the calculation, rather it was to be based on subjective criteria which was outlined in the statute.  The 2010 law that is in effect now, however, contains a guideline formula, much like we have in place for child support (although the formulas and amounts differ from child support) to give guidance as to what the presumptively correct amount of temporary maintenance that a court should order.  An amount of temporary maintenance can be agreed upon by the parties in a case with the help of their mediator or lawyers.  Often, however, Judges are called upon to decide the amount, and that is where the statute must be considered.  It is important to note, however, that the temporary maintenance amount is not what is ordered at the conclusion of the divorce.  That maintenance, if there is any, is usually durational in nature and does not have a specific formula to guide in its determination.

The temporary maintenance law is in Domestic Relations Law Section 236(B)(5-a).  Each sides gross income, as reported in the most recent federal tax returns, after the deduction of FICA and any applicable local taxes (city only).  The lesser of two calculations is supposed to be the guideline amount of temporary maintenance.  Initially, a cap of of $543,000.00 (this is the cap as of the current date) of the payor’s income is to be used in determining the calculations.  The first calculation involves taking the difference between thirty percent of the income of the monied spouse and 20% of the non-monied spouse.  The next calculation involves taking forty percent of the combined parental income minus the payee’s income (non-monied spouse’s).  The lower number from these two calculations is the guideline temporary maintenance amount. Continue reading ›

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Do divorce filings increase in the New Year? As a family law attorney, I see a general decrease in actual court appearances and new case filings during the latter half of December, but at the same time there are a lot of inquiries and planning for actions that people intend to take in the New Year. What could account for the lull in December and the increase in the New Year? Some of the reasons are obvious such as, that are holiday parties and vacations being taken by lawyers, judges, and the rest of the world at the end of the year. Because of the holidays, there are less court appearances scheduled. Also, a lot of people are reluctant to begin divorce proceedings or their family law cases during the holidays. It makes sense to try to keep the peace until the holidays are over. Not many people want to distract themselves with a battle at the end of December. People tend to have a lot of family interactions at the end of the year which might explain the family law case slow down.

What happens then in the New Year? I think the cases that normally would have been started had it not been holiday season just get delayed until the New Year. I believe that many could be as a result of New Year’s resolutions. Some people decide that they will not tolerate things as they have been for another year. Also, sometimes the holiday seasons can make family difficulties amplified. Continue reading ›

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