Foreign Divorce | Divorce Lawyer Long Island

Will a foreign divorce be recognized in the state of New York?  The first question that must be answered is what is a foreign divorce?  A foreign divorce is one granted from another state in the union or another country.  With respect to divorces from a sister state, under full faith and credit clause of the U.S. Constitution, New York will give grant full faith and credit to judgments from sister states. What if the judgment came from another country?  That was the issue presented to the Court in Ahmad v Khalil.

In this case, the parties were married in Jordan.  After two years, they moved to New York.  After approximately eight years, the mother moved back to Jordan with the children.  Father continued to provide financial support to his family.  A court in Jordan granted the Wife’s petition for divorce.  That divorce action dissolved the marriage but did not address issues relating to child support and distribution of assets.  The Husband commenced an action in Jordan relating to the custody of the children.  The Wife then starts an action in New York, seeking maintenance and child support.

Courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the Courts to judgments of sister states.   Absent a showing of fraud or some showing that recognizing a divorce from a foreign state would be against some strong public policy.  With respect to public policy, this exception is rarely used and only considered when the divorce in the foreign country is counter to fundamental notions of what is decent and just.  Therefore, for a court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that he decree violates some fundamental principle of justice, some prevalent conception of good morals or some deep-rooted tradition of the common good.  Essentially, Courts will generally look to validate and enforce foreign judgments.

In this case, the Wife attempted to set aside the Jordanian divorce decree by arguing a lack of due process.  She argued that in Jordan, a husband is allowed to obtain a divorce unilaterally without notice or consent of the wife.  The Court did not give much credit to this argument.  It appears that the wife actually started the divorce in Jordan and then withdrew her action there when she discovered that it was to her financial best interests to obtain a divorce decree in the State of New York.   Thus, the Court recognized the Jordanian divorce.

Though the divorce decree was recognized by the Court, there was martial property that was located in New York.  The Court allowed the wife to litigated the issue regarding the equitable distribution of the New York property as this court would be the most convenient court to hear this matter.  The Court declined to hear issues related to child support, maintenance and distribution of property in Jordan.  The Court reasoned that the children had lived and current live in Jordan.  There is Jordanian property to be disposed of and there are procedures in Jordan which the wife can avail herself to address these issues.

When faced with a foreign divorce, the going in position of the Courts will be that the divorce will be enforced absent a showing of fraud in the procurement of said divorce.  If your spouse comes home one day and announces that you have been divorced through a judgment from another country, see us immediately.  Typically we see this issue arise from divorce decrees granted in the Dominican Republic.  Swift motion practice will be needed to protect your rights.

Equitable Distribution Isn’t Necessarily Equitable Distribution

Many people believe that when you get divorced, especially after a long term marriage, your assets are split equally.  This is not true.  New York is an equitable distribution state, meaning that equity, or fairness, will decide how assets are to be split.  Who determines what’s fair or equitable? Well if the parties cannot amicably settle their dispute and come up with an accommodation between them, the Court will make that determination.   If you leave it to the Court, you may or may not get what you deem is appropriate at the parties in Cornish v. Cornish recently discovered.

The parties in the Cornish matter were married in 1991 with three children.  The wife was the monied spouse in this case and the husband was awarded, amongst other things, 30% of his wife’s pension, vice 50%.  He was also awarded 50% of the parties credit card debt.   The husband appeals seeking to modify the trial Court’s ruling increasing his share of the wife’s pension to 50%.  The first thing the husband needed to realize is that the Courts are accorded substantial deference in determining what distribution of the marital property is equitable.  Note the equitable standard which is based upon considerations of fairness and the respective situations of the parties.

The trial Court looked at the marriage.  Here, the husband was a stay at home father.  However, as the wife testified, the once the children reached school age, the wife implored the husband to find employment, which he declined despite the financial difficulties the family faced.  In addition to his refusal to earn a living and contribute financially to the family, it was ascertained that husband was an alcoholic and his alcoholism was contributing to his ability to find employment.  Additionally, the husband had inherited money.  Instead of using this money to assist the family, the Court found that he wasted his inheritance and in a few short months, it was gone.  Finally, the Court did not find the husband’s testimony regarding his job search credible.  Thus the Court, taking all of this into consideration, believed it was only fair that 30% of the pension go to the husband vice 50%.

In the same vein, the Court determined that the family’s finances were compromised by their use of credit cards to pay for family expenses.  However, the Court also found that the credit card was not only used for daily expenses, but that the husband used the cards for unnecessary expenses unduly burdening the already precarious family financial picture.  As a result, the Court awarded half of the debt to the husband.

Your behavior during the marriage is important when it comes to equitable distribution.  Keep in mind that marital property is divided between the parties and that not only will the Court divide property/assets, it will also divide liabilities. If you have a spouse, like in this case, who is wasting marital assets coupled with refusing to contribute to the marriage, the Court will take that into consideration when determining how to fashion an equitable distribution award.

Relocating With Your Child | Long Island Family Law Lawyer

After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party.  After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state.  The appellate department discussed this issue in Batchelder v. Bonhotel.

In Bonhotel, Father and Mother, never married and had one child.  They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father.  Father was entitled to see his son every other weekend and one overnight every other week.  The Father was consistent with his visitation with the Court finding that the Father and son benefitted from a close relationship.  Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure.  Father petitions the Court for residential custody of the child.

As a first step, to change the custody arrangement there must be a significant change of circumstance.  In this case, step one was easily met.   The Mother moving out of the state constituted a significant change of circumstances.  Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child.  In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.  The Court will look at the following factors: (1) the relationship with the parents; (2) the effect of the move on the noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the move; and (4) parents’ motives for seeking or opposing the move.

In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé.  With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence.  It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé.  Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father.  She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son.  Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son.   The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment.  The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother.  He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week.  As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.

In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son.  Here the Mother was actively hostile to the Father and in no way fostered the relationship.  The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse.  One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.

If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent.  In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education. If you face any problems with relocation and child custody make sure to contact a divorce attorney a Long Island family divorce lawyer at Divins & Divins, P.C. for a free consultation.

Imputing Income on Long Island

A common fear some people have when they begin a divorce is that the monied spouse claims to have little or no income.  Essentially, since the spouse either works off the books or takes a lot of the earned money in cash, based on the tax returns, a party can make themselves look cash poor.  When it comes time for the divorce, now the true non monied spouse believes they are in a bind.  While difficult, all is not lost.  Courts will impute income and make an equitable award despite what is shown on the books, as the parties in Sotnik v. Zavilyansky found out.   In that case the husband claimed he made little to no money and thus could not pay for child support and attorney’s fees.  Further because of his income status, he wanted the marital house sold despite the fact that his son was not yet eighteen.

First, addressing the marital estate, Courts are slow to order the sale of the estate if there are minor children who are attending school.  What Courts try to do is allow the custodial parent exclusive occupancy of the estate.   The Court in Zavilyansky correctly stated that when determining the length of time that a custodial parent should be granted exclusive occupancy of the former marital residence,  the Court should balance the need of the custodial parent to occupy the marital residence against the financial need of the parties.  In this case, the Court awarded exclusive occupancy of the residence to the mother until the son turned eighteen, at which point the house was to be sold.  Typically, during this time, the mother will be completely responsible for the carrying costs of the house, i.e. she will pay for the mortgage, utilities and other costs associated with the home.  When her son turns eighteen, the house will be sold. She will first get a credit for all expenses she paid during the time she was in the home.  That money will be returned to her.  After that, any profits left over will then be divided between the parties.  Generally, the Courts will grant the person living in the home the right of first refusal to purchase the home.

Turning to the father’s income, it is well established that a Court need not rely upon a party’s own account for his or her finances but may impute income based upon the party’s past income or demonstrated future earnings.  In other words, the Court may impute income to a person based on his or her employment history, future earning capacity, educational background, or money received from friends or relatives.  How is this accomplished?  As you may be aware, when you institute an action for divorce, the parties are required to file a statement of net worth.  That statement lists all of the expenses that the parties have to pay on a monthly basis.  When you add up all expenses, you come to a number that the household must pay per month.  From that number, at a bare minimum, you can then deduce what the household must earn, as a bare minimum, to meet these expenses.  Once this is done, the Court typically imputes that income to the parties.  So for example, if you have a couple living in Roslyn, in a house with a mortgage of approximately $5,000.00 a month, utilities, food, cable and other  normal every days expenses, and the monies spouse claims they only make $65,000.00 a year, the Court will ignore that party’s yearly income and impute income which makes more sense.

Finally, in the case we’re talking about, child support was awarded.  Typically, when child support is awarded, the payee is required to obtain life insurance to ensure that payments until the emancipation event occurs.  An emancipation event means the child has turned eighteen, moved out and has a full time job; joined the military or graduated college.  Typically, one can calculate the child support obligation and determine the obligation.  Once the obligation has been determined you can determine the amount of life insurance required. Now, you have two options as the one required to purchase life insurance.  First you can simply purchase a policy to cover your obligation.  Second, you can get permission to allow your obligation to slide downward every year.  For example, in this case, the husband’s child support obligation was $140,000.00.  After the first year, clearly, his obligation will be less than $140,000.00.  If you get permission to decrease your obligation every year, you will be allowed to decrease your life insurance policy every year by the amount you have already paid.  This will ensure that the beneficiary does not get a windfall in the event you pass away.

Imputing income is difficult but clearly not impossible.  While you can determine a potential minimum income that the monied spouse may be earning, imputing income is not the best solution however it is better than relying on the monied spouse’s statement of their income. Start gathering all the bills which are paid to keep your household running: mortgage payments, lights, gas, oil, phone, cable, food, car insurance, car payments, camp and anything else that can help give the Court a clearer picture of what your spouse earns. If you’re seeking assistance of any kind with Imputing income, please call a Long Island Divorce attorney at Divins & Divins, P.C. for a free consultation.

Joint Custody & Child Support in New York

Happy Children Playing Kids

Happy Children Playing Kids (Photo credit: epSos.de)

Amongst the hardest things to deal with when getting divorced is providing for the best interests of any children of the marriage.  What some parents immediately think about is child support. The parent who is deemed to be the residential parent is the parent entitled to child support.  While that is easy enough to understand, it becomes tricky when both parents are residential parents, i.e. the children live with both parents exactly fifty percent of the time.  Many parents do this under the misconception that if they split the children exactly fifty percent of the time, child support will not be an issue.  This is not true as the parties in Leonard v. Leonard, found out in June of 2013.

The parties began an action for divorce and the issue revolved around child support.  The father was granted sole legal custody of the children.  This means, that while the parties should endeavor to consult each other regarding major decisions affecting the children, in the event the parties cannot agree, the father is the one who has final decision making authority.  Despite this determination, the parties were granted joint residential custody of the children.  The custody arrangement called for the children to spend exactly half the time with the father, and half the time with the mother.  Father earned approximately $134,000.00 a year and the mother earned approximately $14,000.00 a year, though the court imputed $25,000.00 a year income on the mother.

It is well settled that in a shared residency arrangement, where neither party has the children for the majority of the time, the party with the higher income is deemed to be the noncustodial parent for purposes of child support.  Thus, the father, who made more money, was ordered to pay child support to the mother.  Here is the rational that the law relies on.  An award of child support will best ensure that the children of the marriage will receive the maximum benefit of their parents resources and continue to enjoy, as close as possible, their pre divorce standard of living.  In other words, the Court wants to ensure that the children can enjoy living with both parents as much as possible.

When dealing with custody of your children, people often think about joint custody, sole custody, shared custody and child support.  Here is a simple way to think about these complex issues.  First and foremost, where are your children going to sleep?  Both parents generally want to be the residential/custodial parent, i.e. the parent where the kids will reside.    The benefits of being declared the residential/custodial parent include, having your children live with you, final decision making authority, and child support.   Amazingly, child support is a battle.  It is simply amazing the amount of cases where the issue is simply the payment child support.  One way people try and avoid this is to split the children equally.  As we have seen, this is a misguided approach to avoiding child support.  First and foremost, it requires the children to move from parent to parent practically every week.  Once the children are school aged, this may not be in their best interest.  Additionally, you need to consider whether avoiding or getting child support by disrupting your children’s schedule is what’s best for them.  In all likelihood, it is not.  Considering custody in a divorce and need help? Call a Long Island divorce lawyer at Divins & Divins, P.C., for a free consultation and we’ll help resolve all of your questions and concerns.

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Paying for College After the Divorce

Main Tower of State University of New York Sys...

Main Tower of State University of New York System Offices in Albany, NY (Photo credit: Wikipedia)

Most divorces can be settled obviating the need for protracted and costly litigation.  When the parties reach a settlement it is important that the agreement provides for the well-being of the parties and, if applicable, the children of the marriage.  What parties sometimes over look is what is going to be in their best interests ten or fifteen years in the future.  If you enter into an agreement which is silent on a topic which, ten years in the future, is now important to you, you may have to go back to court.  This is what happened in Grubler v Grubler, which was recently decided.

In Grubler, the parties were married in 1984.  The marriage produced three children. The matter was settled in 1997 and the parties were granted joint custody of the children however, the husband was granted physical custody of the three children with the mother having to pay child support.  The agreement was silent with respect to financing the college education for the three children.  Unexplainably, the wife stopped paying child support and the father brought a petition in the Family Court for child support. Interestingly, and to the wife’s benefit, the husband did not bring an action for college tuition.  The Family Court, on its own, granted the husband’s petition for child support and then ordered the wife to pay twenty-nine percent (29%) if the children’s college education.

Unlike the obligation to provide support for a child’s basic needs, support of a child’s education is not mandatory.  Pursuant to Domestic Relations Law §240(11-b)(c)(7), a court may direct a parent to contribute to a child’s education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the Court’s discretion is not improvidently exercised.   In Grubler, the appellate court overturned the Family Court’s decision with respect to college tuition, holding that the husband didn’t petition the Court for tuition assistance thus it was an abuse of discretion to order the wife to pay for part of college.

When negotiating your settlement agreement, if you have children, college is something you should absolutely include in your agreement, even if you are not going to pay for it.   If you do not provide for it in your agreement, you are leaving yourself open to come back into court years later.  Generally speaking, Court’s like to provide for the children’s education, especially if both parents are college graduates.  However, you can limit your financial exposure in the agreement. Typically what you will see in an agreement is that the parties will agree to pay their pro-rata share of college up to the cost of attending the State University of New York (SUNY).  So, for example, if your child gets into Harvard, you are only responsible to pay your pro-rata share of what it would cost if you child were to attend a SUNY school.

How do you determine your pro-rata share?  That depends.  The first option is to base it on the parties income at the time the agreement is being drafted.  If your income is steady and you do not expect it to increase much in the future, that may be the best option.  If you think your spouse’s income may significantly increase in the future, you may want to provide that the pro-rata share is to be determined based on the tax returns for the year prior to your child entering into college.

If you do not provide for college in your agreement, your spouse may be able to drag you back into court years later to have you provide for it.  In the Grubler case, the wife was fortunate that the husband did not petition the court for college assistance as it seems clear that the Court was predisposed to granting college tuition assistance to the father.  If the parties do not intend to pay for college, a one or two line sentence in your agreement expressing this can save both parties the costs and uncertainty that comes with litigation. If you’re facing a similar situation make sure to call a Long Island divorce lawyer at Divins & Divins, P.C., for a free consultation to solve your potential problems.

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Annulments in New York | Long Island Divorce Lawyer

Annulments are commonly sought when a marriage has lasted for a short period of time and there are no children of the marriage. With the passage of the “no fault” grounds for a divorce, annulments are less sought out.  However, if you do wish to pursue an annulment, here is what you need to know.

There are five grounds for an annulment of a marriage. (1) failure of a party to have reached the age of consent; (2) lack of understanding of our actions (generally seen when one party is mentally challenged in some fashion); physical incapacity to consummate the marriage; (4) consent to marry was obtained by force, duress or fraud; and (5) an incurable mental illness for five or more years. The important thing to remember here is that you need more than you and your spouse to agree to an annulment.  You will need corroborating evidence to bolster your case. In other words, you’ll need third party testimony to assisting you in your annulment action.

The Court of Appeals in Brillis v. Brillis, addressed an action for an annulment based on fraud.   In this case, the husband was an immigrant and his visa was about to expire and he had to leave the country.  He convinced his wife to marry him with promises of returning and remarrying within the Greek Orthodox Church, to which they were both members. He also promised to provide for her and live together as husband and wife.  The parties then married in a civil ceremony.  Upon the husband’s return, he did not follow through on his promises to get married in the church.    The Court held that when a person, in order to induce a marriage, makes a promise of a subsequent religious ceremony, without intending to keep it, an annulment will be granted where there was no cohabitation and consummation of the marriage.

Annulments are hard to obtain, especially where the marriage was consummated.  The previous example shows how it may be done however, as one would imagine, there will rarely be a scenario which fits the Brillis fact pattern.    If you are contemplating an annulment, call a Long Island Divorce Lawyer at Divins & Divins, P.C. to make an appointment to see us immediately.  With the no fault divorce statutes, and the stringent requirements for an annulment, you may not satisfy the grounds for an annulment and may be better off seeking a divorce through the new no fault grounds.

False Accusations Against a Spouse Can Lead to Losing Custody of Your Child

Often in divorce cases, the parties lose focus of the big picture and turn to a “win at all costs” strategy.  As any attorney will tell you, this seldom, if ever, works out the way you think it will.  This type of scorched earth policy tends to come out when fighting over custody of the children.  A prime example of how this tactic can back fire is found in the case of Carnike v Kasson.

In the Kasson matter, the parties had  one child.  The parties divorced and the Court awarded joint physical custody as it was clear both parents were loving responsible people.  The order directed the child moving from mother to father on a weekly basis. Right before the child, a little girl, was to start kindergarten, the wife made accusations that the father was sexually molesting the child, abusing alcohol and as a result of his job, rarely if ever home to take care of his daughter.   As a result, she petitioned the family court to have physical custody granted to her with the father only having supervised visitation.  Based on these accusations, father crossed moved for sole custody claiming that these accusations were only made to pull custody away from him and destroy any relationship he had with his daughter.

To warrant a modification of a pre-existing custodial arrangement, there must be sufficient evidence to support a change of circumstance reflecting a real need for a change in the order to continue the best interests of the child.  Courts have held that starting school is enough to warrant a change in circumstance requiring the establishment of a residence for the child.   Additionally, Courts have held that the lack any ability of the parties to communicate with each other concerning the needs of the child does not advance the best interests of the child and that it in itself is enough to establish a change in circumstances which may be enough for the Court to change the custodial arrangement.  Had the wife in this case stopped at that, simply saying that her daughter was beginning school and having her change her residence every Saturday evening was not in the best interest of the child, this case might have been decided differently.

At the hearing, the evidence showed that despite being seen by six different doctors there was no evidence of sexual abuse.  Additionally the court took note that there were no outstanding child protective service investigations nor any reports made by the mother to the police department.  The Court found that the mother in this instance was purposely attempting to interfere with the father’s parental rights.  Finally, despite the mother’s attempts to curtail visitation and custody, the father testified that he was willing to continue to promote the relationship between the mother and daughter.  As a result, the Court granted the father full physical custody of his daughter. Unexplainably, the Court declined to grant sanctions against the ex-wife for her accusations and actions.  This is the only part of the case that is surprising.  One can only assume that after losing physical custody of her daughter the Court deemed sanctions as unduly “piling on.”

False accusations and parental alienation is the fastest way for you to lose physical custody of your child.  Remember, divorce is hard enough for children to adapt to, the last thing they need is for you to ruin the relationship with your former spouse for no other reason that you are employing scorched earth tactic.  The best interests of your child is always to have a loving relationship with both parents.  It is imperative that you always foster such relationships and not interfere.  While you may no longer wish to speak to your ex-spouse, for the sake of the children, until they are emancipated, you must have at least a cordial relationship where you can discuss your child’s up bring.  It is to your peril if you are unable to keep such a relationship going. If you’re facing such problems, call a an experienced Long Island divorce attorney at Divins & Divins, P.C. for your free consultation.

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Grandparents Rights to Visitation | Long Island Divorce Lawyer

If you are a grandparent, what rights do you have to visit your grandchildren?  Can you get a Court to grant you visitation with your grandchildren if the parents forbid it?  The Court of Appeals for New York addressed this issue in its decision of In the Matter of E.S. v. P.D., in 2007.

In that case, husband and wife were married and had one child. Unfortunately, the wife was diagnosed with cancer.  When the diagnosis was made, wife’s mother moved in to help her daughter with daily errands and other things like cooking, cleaning and caring for the couple’s son. The wife passed away and the decision was made that the grandmother would stay in the house to help raise the child while husband worked.  For the next five years, the grandmother helped raise the child.  At some point, arguments between the father and grandmother began regarding the best way to raise the child.  As a result, the father asked the grandmother to leave and severely curtailed the visitation between the child and his grandmother.  As visitation became less and less frequent, grandmother petitioned the Court for visitation.  The father’s position was that the grandmother was not raising his son the way he deemed fit and was usurping his role as the father.

Domestic Relations Law §72(1) states that where either or both of the parents of a minor child, residing within this state, is or are deceased, or where circumstances show that conditions exist which equity would see fit to intervene, a grandparent may apply to the supreme or family court, and the court, by order after due notice to the parent or any other person or party having the care, custody, and control of such child, to be given  in such manner as the Court shall prescribe, may make such directions as the best interest of the child may require, for visitation rights for such grandparent in respect to that child.

When a Court is faced with a petition from a grandparent requesting visitation, it first must find that the grandparent has standing to come into court in the first place.  There is no automatic right for a grandparent to see their grandchild.  The Domestic Relations Law only provides a vehicle for a grandparent to seek visitation.  In order for a grandparent to have standing the Court must find one of two things exist.  First, if one of the two parents has passed away, then the grandparents have standing.  The other test is a more of a catch all which states that the grandparents have shown equitable circumstances which dictate that they should at least be heard as to why they should have access to their grandchild.

In this case, since a parent passed away, the grandmother had standing and was able to petition the Court for visitation.  Based on the facts in this case, specifically a five year relationship with the child where the grandmother was assisting in raising the child, the Court held that it was in the child’s best interests to continue this close relationship with the child.  Despite this ruling, the Court was mindful of the father’s wishes and right to raise his son in a manner which he deemed proper. However, in this case, the Court found that the fights and other allegations in which the father leveled against the grandmother were unsubstantiated.

In the circumstance where both parents are alive, the grandparents have a harder time establishing standing.  In order to have standing when both parents are alive, the grandparent would have to show that equity dictates that they be heard in Court.  What should a grandparent be able to show? Their best bet is to establish a long and close bond with the grandchild.  The fact that there is an acrimonious relationship between the parents and the grandparents are not enough to establish or deny visitation.  The key will be the relationship between the grandparent and the child before visitation is curtailed or denied.  Even if you are able to establish standing, grandparents normally have a high hurdle to overcome in forcing visitation.  The parental right to make decisions for their children and raise them in a manner they deem fit is paramount to raising children and will not be lightly disregarded.

Grandparent visitation is a complicated matter which should not be entered into lightly.  Your case will depend on the facts and circumstances of your particular case.  Assuming you have standing, preparing for the hearing is crucial.  If you cannot amicably settle this matter and must seek judicial intervention regarding grandparent visitation, seek our advice from one of our Divorce attorneys at the Long Island Divorce Law Firm of Divins & Divins, P.C., immediately so that we can begin preparing your case for the best possible outcome.

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Separate Property and Maintenance on Long Island

On June 13, 2013, the appellate court decided the case of Owens v. Owens.  At issue in this case was the maintenance awarded to the wife.  The parties were married in 1985 and had two children.  Before the parties were married, the husband owned, through an inheritance, an apartment building in New York City.  He sold this property during the marriage netting six million dollars.  He promptly placed that money in separate account however the parties were living off the proceeds.  Further, the husband owned the marital residence which the parties shared throughout the marriage.  The couple divorced and the wife argued that the husband had wasted his inheritance and the separate property he owned.  As a result, the wife wanted the Court to take into consideration this wasteful dissipation of assets when awarding maintenance.

When dealing with property in a marriage, the first step the Court will take is to classify all property.  Domestic Relations Law defines separate property as that acquired before the marriage or by bequest, devise or descent or gift from a party other than a spouse. Separate property also includes the increase in value of the separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.

The crux of the wife’s argument wasn’t that she was directly entitled to the separate property, she argued that the Court should consider the husband’s willful dissipation of his assets when determining what if any maintenance she is entitled.  The Court agreed.  The Court held that evidence of egregious economic fault in mismanaging, dissipating and wasting separate assets can and should be considered under the statutory catchall “just and proper” factor for equitable distribution and maintenance.  In addition the Court will take into consideration separate property as part of a spouse’s income, property, present and future earning capacity and ability of each party to become self-supporting.  Thus, the Court, in determining a maintenance award—with an eye to her ability to be self-supporting—must take into account her pre-divorce standard of living, which in this case, was provided mainly by the separate property income of the husband.

Separate property on its face may be a simple determination, however as this case illustrates, classification of property is only the first step.  How that property was used and the effect on the marriage can and will be used as a factor when the Court is contemplating a maintenance award.

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Litigating a Matrimonial Case

When seeking a divorce, you should always attempt, in good faith, to settle your matter if possible.  By entering into a separation agreement, you are able to control some if not all of the terms.  If settling is not possible, then you are leaving your fate to the Court.  Lets look at the recent case of Musacchio v. Musacchio, which the appellate division recently decided on June 27, 2013.

Here the parties were unable to settle and went to trial.  They were married in 1990 with three children.  If you are a follower of my blog posts, you know by now,  in a custody battle normally, a law guardian is appointed to represent the best interests of the children.  While appointing a law guardian is strongly encouraged such an appointment is discretionary and not mandatory.   In this case, the Court decided not to appoint a law guardian.  Without a law guardian the court must decide custody without the benefit of an attorney representing the children.  The wife in this case was awarded physical custody of the children. The Court relied on all relevant factors including the parents’ ability to provide a stable home environment for the children, the children’s wishes—though without a law guardian one can only surmise what their wishes are after perhaps through questioning by Court and having them put in the uncomfortable position of choosing—the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.   In this case, the wife was a stay at home mother and the husband worked long hours in the financial industry with frequent travel.

When it came to distributing the property, the Courts fashioned a distribution which was not necessarily 50/50.  When you leave it to the Court to distribute assets remember that there is no requirement that the distribution of each item of marital property be on a equal or 50/50 basis.  A trial court has substantial discretion to fashion awards based on the circumstances of each case and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors.  In this case, the Court considered the  needs and circumstances of the parties.  Here the husband made over $200,000.00 a year while the wife barely made $10,000.00.  While the Court did not list the equitable distribution award, I am hard pressed to think, after the rationale given by the Court, that the husband and wife split all the assets 50/50.

Finally, the Court awarded maintenance to the wife for seven and half years.  The Court considered the parties’ financial circumstances, their respective ages, the length of their marriage and the wife’s loss of income while she was a stay at home mother, and the wife’s ability to increase her earning potential taking into account her age and prolonged absence from the work force.  In other words, maintenance was left up to the Court.  Unlike the temporary maintenance formula, there is lacks a guide that one can look to even attempt to figure out what, if any maintenance will be awarded and for how long.

As you can see, if you and your spouse cannot come to a settlement, the Court will decide.  Once the Court decides, if the decision is supported by the evidence presented at trial and well-reasoned, it is unlikely that the awards will be disturbed.

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Sale of the Marital Estate in New York

One of many issues which must be dealt with when getting divorced is what to do with the marital estate.  For purposes of this article, we are going to assume the martial estate was purchased during the marriage from marital funds.  Future posts will deal with a marital estate that was either originally separate property or separate property was used to purchase the estate.

The marital estate is marital property and must be disposed of in accordance with the Domestic Relations Law.  The first option is to simply sell the home. Once the sale is complete, any profits or losses are to be shared equally between the parties.  If you have been following these posts you know by now that nothing is that simple.  The other option is to have one party buy the other party’s interest.  You simple decide on a fair price and the party wishing to remain in the home must buy the other party’s interest in the home.  Yet another option is to trade your interest in exchange for other marital property or responsibilities.

For instance, we recently had a case where our client, wife, was to retain physical custody of the children.  The husband did not want to pay child support and we were heading straight to a trial.  We began discussing the marital estate.   There was significant equity in the house.  We agreed to have the husband waive his interest in the house in exchange for his child support obligation.  We simply calculated what his child support obligation would be and compared it to his equity in the house.  As both numbers were close, this was a creative way to have the wife keep the marital residence, the children stay in the home they were used to and dispose of the marital estate.

The most challenging aspect of the marital residence is when one party does not want to sell the asset yet wants to be divorced.  Fear not, the house will be sold however if you cannot get the parties to agree, then you must look to the Court for assistance.  In our example, the marital estate is own by the parties as tenants by the entirety.  Therefore, the Court will lack the authority, absent the consent of the parties, to order a sale of the marital estate while the parties are married.   If your spouse stands their ground, the Court can order a sale after you are divorced.  The Court can and will order how the net proceeds or liabilities are to be split.

Then there is the hybrid case, where both parties want to sell the house but there are young kids involved.  Another possibility that is often used is to allow the spouse who retains physical custody of the children to remain in the house.  That spouse will be responsible for all the bills related to the marital estate and will agree to indemnify the spouse who is moving out in the event any liabilities relating to the house arise.  Normally in the separation agreement, there is language which provides that the spouse who remains in the house shall pay all bills relating to the estate and that in the event the mortgage is not paid for a certain amount of months, the house will be automatically put up for sale.

Disposing of the marital estate can be complicated and is not as easy as simply selling off the estate.  If you are contemplating divorce and you believe the marital estate may be an issue, contact us immediately to begin preparing your matter.

Modification of Child Support

English: MANAMA, Bahrain (Feb. 10, 2010) Instr...

(U.S. Navy photo by Mass Communication Specialist 2nd Class Aramis X. Ramirez/Released) (Photo credit: Wikipedia)

Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce.  This separation agreement which is normally incorporated but not merged into a judgment of divorce is a contractual obligation on the parties.  Thus, when entering into such an agreement, you must make sure that the terms are something that you can live with.  It is assumed, upon execution of this separation agreement that you have anticipated and have adequately provided for the child’s welfare.  If you later on decide that you want to change the terms of the agreement, the Courts will first look to the agreement and will only deviate from the terms of the agreement if the needs of the child are not being met.

Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance?  That will be decided on a case by case basis.  The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support.  If you have a child support obligation and you purposefully or intentionally quit your job, you will still be liable for child support at the amount in which you agreed in your divorce.

What if you lose your job due to no fault of you own.  That’s where the facts and circumstances of your matter come into play. Lets suppose you lose your job because the factory you were working at closed down.  Clearly, not foreseen nor anticipated.  You are not allowed to sit home and not work.  You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job.  Of course you can petition the Court to modify your child support, but you have to show the Court that you are actively searching for a job.  We advise our clients to immediately start looking for a job.  Go on interviews, attend job fairs do anything that can show that you are actively looking for work.  If you can show the Court that due to no fault of your own, you have lost your job but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.

What if after your search, you immediately find a new job but it is substantially less than what you were making?  Again, it depends on the facts of your case.  If you were a doctor, and you took a job as a waiter, the Court will not look kindly to that as you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant.  Depends.  Were you a waiter and Ruth’s Chris and now you are at a local diner?  Maybe you’re underemployed, maybe you’re not.  Did you take this job pending other interviews?  Again, it all depends on your facts and circumstances and what you are doing to obtain employment.

If you are the one receiving child support and your spouse has stopped paying, you want to look into why.  If your spouse intentionally quit their job, then move for contempt.  The best interests of your child dictates that your spouse should not be allowed to quit a job to avoid child support.  What if the loss of employment was clearly not your spouse’s fault?   The best thing would probably agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that doesn’t exist. A temporary adjustment will give your spouse time to get a new job and shows that you are reasonable to the Court should you go that far.  Second, if you have to go to court, while you have tools to compel enforcement of child support orders, if there is a legitimate change in circumstance, how will spending time in family court help you get child support?  It won’t.  Thus, you have to know the reasons for the lack of support.  If there are valid reasons, we recommend working with your ex-spouse.  If there are no valid reasons, then Court may be your only solution.

If you need to modify your child support, or if you are being asked to modify child support obligations, contact us immediately so we can prepare the best case possible based on your unique set of circumstances.

Calculating Child Support

Contrary to the common perception, the child support calculation is really a black and white issue.  The Child Support Standards Act (“CSSA”) found in Domestic Relations Law §240 (1-b) explains exactly how child support is to be calculated.  Pursuant to the CSSA, child support is a percentage of combined parental income, minus FICA /Social Security taxes, capped at $136,000.00.  The relevant percentages are:  17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children. So when considering what the child support obligation is going to be in any particular case, the first thing the Court will do is determine what the obligation is pursuant to the CSSA.

For example, if Spouse A earns $60,000.00 a year and Spouse B earns $50,000.00 a year, and there are two children of the marriage, the following calculations apply

Spouse A: Gross Income is $60,000.00. Subtracting FICA/Social Security, for CSSA purposes, Spouse A’s income is $55,410.00.

Spouse B: Gross Income is $50,000.00.  Subtracting FICA/Social Security, for CSSA purposes, Spouse B’s income is $46,175.00

Next, the Court combines the incomes: $55,410.00 + $46,175.00 for a total of $101,585.00  As there are two children in this example, the percentage set by the CSSA is 25%.  Thus, the child support obligation in this example is $25,396.25  a year.  Now that the obligation is determined, that number is split between the spouses on a pro rata basis.

Spouse A: $55,410.00/$101,585 = 55%.  So Spouse A’s obligation is $25,396 * .55= $13,967.80 a year, or  $268.61 a week ($13,967/52 weeks a year) or $1,155.00 a month ($268.61 * 4.3—the average weeks a month).

Spouse B: $46,174/$101,585= 45%.  So Spouse B’s obligation is $25, 396.25 * .45 = $11,428.20 a year or $219.77 a week ($11,428.20 / 52 weeks a year) or $945.02 a month ($219.77 * 4.3—the average weeks a month).

Here is where the battle usually occurs.  The spouse who has residential custody of the children will get child support.  So, in our example, if Spouse A retains residential custody, Spouse A will receive $945.02 a month in child support.  If Spouse B retains residential custody, Spouse B will receive $1,155.00 a month in child support.

If the combined income of the spouses exceed $136,000.00, then the Court will decide on what number to use to determine child support.  It is completely in the Court’s discretion and the Courts  look at a variety of factors in determining where to cap the child support obligation.  However, this will give you the basic idea on how child support is calculated.  There are numerous other factors which can come into play which will effect a person’s income for CSSA purposes.  For example, what if Spouse A must pay child support, but the reality is, even though Spouse A makes $55,410.00 for CSSA, that spouse is already paying child support to another child?  What if Spouse A’s income is not sufficient to provide child support pursuant to the CSSA and be above the poverty line?  These are common questions which need to be addressed when contemplating child support obligations.  Call for an appointment and discuss your options to ensure you are either receiving or paying the proper amount for child support.

Inheritance Rights in a Divorce on Long Island

A common question raised by clients of long term marriages—generally longer than ten years—is what happens with my inheritance which I received during the marriage?  The answer is: it depends what you did with said inheritance.  When the Court looks to make a distributive award of the assets of the marriage, the first thing it does is it defines marital property.  Marital Property, pursuant to DRL§236, is defined as all property acquired by either or both spouses during the marriage and before the commencement of an action for divorce or the signing of a separation agreement.  So, the initial question becomes, when did you receive this inheritance?  If you received your inheritance during the marriage, the presumption is that it is marital property.  Thankfully, there are four exceptions to this general rule.

Relevant to this issue, if property is received by bequest, devise or descent it is considered separate property.   So it seems as if your inheritance is protected as separate property.  Yet, nothing is that simple.  Once you received your inheritance, the question now becomes what did you do with it?  Did you open up a separate bank account and deposit said inheritance in that account which is strictly in your name?  If you did, then the Courts will probably consider this separate property.   If you’re like most people, you placed your inheritance in a joint account, and there lies the problem.

Once you placed your inheritance into a separate account, you have comingled funds, and thus the money is now marital property.  (The subject of another blog is the comingling for convenience—all is not lost if you comingle—however the presumption will be that the comingled account is now marital property).   A far more complicated and common issue is what happens when you take your inheritance and purchase a house?  Is that house now marital property?  Probably.  Lets say that you received a three hundred thousand dollar inheritance and you placed it all as a down payment for the martial estate.  Did you lose the inheritance?  In this scenario, you will get a separate property credit of $300,000.00.  If you sell your house and there is a profit of $600,000.00, you can then petition the court to designate the first $300,000.00 as separate property, the money being an inheritance and originally separate property.  The balance of the estate will then be split by the parties.  Of course, what if the house is sold and you break even?  What if you sell your house and there is only a $50,000.00 profit?  Arguably, that money should be designated as separate property.  Either way, your spouse will not be responsible for paying back the down payment.

Inheritance issues are not black and white and can be tricky.  If you are contemplating a divorce and you have concerns about your inheritance, contact us for a free consultation.

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How Much Maintenance Will a Court Award?

In 1980, New York moved from an “alimony” state to a maintenance state with the enactment of the Equitable Distribution Law.  Unlike child support and temporary maintenance, which one can look to a specific formula to determine how much money you can expect to be awarded, the legislature has not delineated a specific way to determine maintenance. Maintenance may be awarded in such amount as justice requires having due regard for the standard of living of the parties established during the marriage, whether the recipient lacks sufficient property and income to provide for his or her reasonable needs, and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.   So how is a judge to determine whether maintenance is appropriate and if so, in what amount?  There are twelve factors for a court can use.

The factors are: (1) income and property of the respective parties including marital property distributed; (2) the duration of the marriage; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to be just and proper.

While all factors are theoretically given equal weight, the overwhelming consideration by the courts is the rehabilitative aspect of maintenance.  Thus, the Courts will lean heavily on the duration of the marriage and the recipient’s ability to become self-supporting.  In other words, the first thing the Court will look to is the length of the marriage.  So if you were marred twenty-two months, the Court is almost guaranteed not to award maintenance.  On the other hand if you were married twenty-two years, the Court will continue its analysis. What about a seven year marriage?  How about a ten? Again there is not set rule and the Court can essentially rely on any factor it deems relevant to make its determination.

Next the Court will look to the finances of the parties.  If the length of the marriage is such that the Court is considering maintenance, the income of the parties will be the next factor.  Was one spouse living at home while the other spouse worked?  Are they both working?  Are they both working but one spouse makes $40,000.00 a year and the other makes $200,000.00 a year?  These are the factors which the Court must balance and your attorney must argue.

As mentioned above, there are twelve factors the Court will consider however, each case will bring its own set of circumstances and facts which will be weighed by the Court.  As of today, there isn’t a set formula for maintenance.  Your attorney will have to make your argument based on the circumstances of your case.

Equitable Distribution of Veterans Disability and Social Security Benefits

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(Photo credit: bfishadow)

An undecided question in the Second Department (covering Nassau and Suffolk Counties) is how to distribute benefits earned by a military member. The departments are split on this issue and the Court of Appeals, the highest court in New York, has yet to definitively rule.

The fourth department has held that while disability benefits obtained from other sources may be considered for purposes of maintenance, veteran’s disability payments are precluded from consideration. 10 U.S.C. § 1408. The third department held the opposite, stating that veterans benefits can be considered when deciding on equitable distribution. With respect to social security benefits, it is well settled that Social Security Disability Benefits are separate property and are not subject to equitable distribution. DRL § 236(B)(1)(d)(2); Miceli v. Miceli, 78 AD3d 1023 (2d Dept.2010). However, Social Security Disability Benefits, unlike veteran’s disability benefits, are to be considered by the Court when determining a payor spouses ability to pay maintenance.

In Alvarado v. Alvardo, a case decided January 15, 2013, the trial court in Richmond county, dealt with the issue of what should happen to veteran’s and social security benefits. Mr. Alvarado, served in the U.S. Marines from 1965-1969. As a result of his service, he was awarded veterans benefits. The parties were married in 1980 and now seek to dissolve the marriage. Ms. Alvardo seeks to have her husband’s veteran’s benefits as well as the social security he is entitled considered part of the marital property for equitable distribution purposes.

The easier issue is that of the Social Security benefits. Clearly, the benefits he gains from social security will not be considered for purposes of equitable distribution, however, if the Court were to deem maintenance appropriate, the Court will consider the husbands benefits as part of his income when determining his ability to pay maintenance. Addressing veterans benefits, a topic which is hotly contested, the Court held that absent a contractual agreement otherwise, veteran’s benefits are not to be considered when distributing assets as part of equitable distribution.

In addition to the vague guidance given by the Courts regarding this issue, if you are military member, you are entitled to many benefits which civilian courts are not accustomed to seeing. BAH, OHA, special pays etc. will be foreign concepts to most Courts. If you are a military member and are proceeding with a divorce in New York, be sure your attorney is prepared to explain all of these benefits so that you are not being held responsible for monies that you are not actually receving.

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Carrying Costs and Temporary Maintenance in a Pendente Lite Application

Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending the litigation. Typically one asks for temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers. Recently, in Woodford v. Woodford, a Second Department decision, the Court attempts to shed some light on temporary maintenance.

In Woodford, the wife moved pendente lite, for temporary maintenance, 100% of the carrying costs of the marital estate and for her attorney’s fees. The Supreme Court ruled that the husband was to pay 100% of the carrying costs, temporary maintenance and to pay $10,000.00 as and for attorney’s fees, with leave to apply for more money should the need arise. As you may know, carrying costs are essentially the costs associated with maintaining and running the household. It includes the mortgage or rent, utilities, cable, internet, phone, the other costs associated with the home. Husband appeals to the Second Department arguing that temporary maintenance should include the carrying costs, thus he should not have to pay both carrying costs and additional monies for maintenance.

Domestic Relations Law §236(B)(5-a) sets for formulas in which the Court is to use to determine the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover. The Court held in this case, that it is reasonable and logical to think that the temporary maintenance statute was intended to cover all of the wife’s basic living expenses. Therefore the Court vacated that part of the ruling which ordered the husband to pay for both the carrying costs and temporary maintenance and directed the Supreme Court to reconsider the wife’s motion.

This ruling seems to say that carrying costs are part of temporary maintenance. One would think then that the Court, if it wants to award both temporary maintenance and have the “monied” spouse pay for the carrying costs, the Court would then award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. Ultimately, since the statute is vague and ambiguous as to this point, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.

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Qualified Domestic Relations Order “QDRO”


It is well settled that pension plans are marital property subject to equitable distribution. Thus, when divorcing, it is important to ascertain what, if any, pension plans exist. The Court of Appeals has held that because marital property is that which is acquired after the marriage and before the execution of a separation agreement or commencement of a matrimonial action, it is necessary to separate from the plan what interests a spouse may be entitled. This is accomplished by comparing the number of months from the date of the marriage to the date of the commencement of the action against the total number of months of employment.

Once this is figured out, how does the pension plan administrator know to pay a former spouse? The answer is the Qualified Domestic Relations Order, commonly referred to as the QDRO. This court order requires that the plan administrator separate a designated portion of the employee spouse’s account into a separate account for the non-employee spouse. A QDRO must: (1) recognize the existence of an alternate payee’s right to, or assigns to an alternate payee the right to receive all or a portion of the benefits payable with respect to a participant under a plan; (2) meet certain technical requirements. These requirements are: (a) the order must specify the last known mailing address of the participant and each alternate payee covered by the order; (b) state the amount or percentage of the participants’ benefits to be paid by the plan to each alternate payee or the manner in which the amount or percentage is to be determined; (c) the number of payments or period to which the order applies; and (d) each plan to which the order applies. In addition to the above, the QDRO must not: (1) require a plan to provide any type or form of benefit not otherwise provided in the plan; (2) require the plan to pay increased benefits; and (3) require the payments of benefits to an alternate payee which are required to be paid to another alternate payee under another QDRO.

An important provision in a QDRO that must not be over looked deals with when the non-employee is allowed to collect benefits. Make sure that the Court directs that the alternate payee be entitled to receive pension benefits upon the employee’s actual retirement eligibility date vice the day the spouse retires. This avoids a spouse waiting for the ex-spouse to actual retire. For example, if your ex-spouse is able to retire at 62, but decides to keep working past that date, you want to make sure that you are able to collect at 62 vice some date in the future. Additionally, as a practical measure, you want to make sure that the plan has a survivor benefit in your favor. That way, in the event your ex-spouse passes away, your benefits are protected.

LEARNING POINT: When dealing with pension plans, it is important to have them evaluated and if appropriate, have a QDRO entered. Of course, in negotiating a settlement, you may want to waive off your rights to a pension in exchange for a lump sum payment or some other asset. As the owner of the pension, you may want to offer a buyout of benefits. For example, if you are divorcing it is possible that sometime in the future you may want your pension to go to someone other than your ex-spouse. In that case, you may want to figure out a way to offset the rights your soon to be ex-spouse is entitled. These are complicated matters which we will be happy to guide you through.

Qualified Domestic Relations Orders

How Much Maintenance Will A Court Award?


To begin, maintenance may be defined as payments made from one spouse to another at fixed intervals in accordance with an agreement between the parties or as a result of an award by the Court. In determining whether maintenance is appropriate and the amount and length of such maintenance, the Court will rely on factors set forth in the Domestic Relations Law § 236, Part B. When considering the twelve factors set forth in §236, the Court will analyze all the available information having regard for the standard of living of the parties established during the marriage, whether recipient lacks sufficient property and income to provide for his or her reasonable needs and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.

The factors the Court must consider are: (1) the income and property of the respective parties including martial property distributed as part of equitable distribution; (2) the duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary thereof; (5) reduced or lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to by just and proper.

Essentially, maintenance is awarded to a party to allow them time to get on their feet. You are not entitled to, nor are you obligated to pay, maintenance to keep the awarding party in a life style on par with the pre divorce standard of living. However, maintenance will be awarded to a party to allow them to “get on their feet.” So for example, if one spouse is a doctor making $300,000.00 a year and the other spouse was not working at all, it is clear that the Court should award maintenance. What if, in contemplation of the divorce, the unemployed spouse gets a job? What if that job pays $70,000.00 a year? Maintenance will in all likelihood still be awarded. First, in this example, the new job just began. The Court will recognize the fact that the nonworking spouse, who just obtained employment, is probably not in the position to rent another place to live. The Court will consider the fact that instead of working and saving money, the spouse was financially dependent on the doctor. Therefore, things like paying for the first month, last month and security deposit will be challenging at best. How about a car to get to this new place of employment? Second, the Court will consider, not only the pre divorce standard of living, but will also consider the disparity of incomes between the two parties in fashioning an award. Because the spouse has obtained employment, the duration of the award may not be as long, nor as much, however with a $230,000.00 gap between the two parties, a maintenance award in all likelihood be awarded.

LEARNING POINT: Maintenance is a complicated matter. The “reasonable needs” of a party is hard to define. The disparity in incomes and other factors will be considered by the Courts in fashioning a just award. The one to be most aware of is the twelfth factor, “any other factor which the court shall expressly find to by just and proper.” This is the catch all which allows Courts the discretion to make a decision based on anything they want! Contact us immediately to allow us to give you the best legal advice possible.

How Much Maintenance Will A Court Award?

Valuation of Businesses


A typical scenario which some clients have concerns about is their “share” of a business which they helped their spouse build during the marriage. A client will come in and tell us that they provided tangible and non-tangible support to their spouse while they built a business and now that they are getting divorced, they are interested in how much of the business they are entitled.

The first step is to determine the value of the business. Generally, the business is valued as of the date of the commencement of the action, though there are some courts which will use the date of trial. One would think that the Court of Appeals would have rendered a decision as to which date should be used when valuating the business. One would be wrong. Regardless of the date used, valuation is a complicated matter normally requiring independent experts. While there are many different approaches to valuating a business, most trial courts favor the comprehensive approach recommended by the Internal Revenue Service. This approach uses eight factors to determine the value of the business. The factors are: (1) the nature of the business and the history of the enterprise from its inception; (2) the economic outlook in general and the condition and outlook of the specific industry in particular; (3) the book value of the stock and the financial condition of the business; (4) the earning capacity of the company; (5) the dividend-paying capacity; (6) whether or not the business has good-will or other intangible value; (7) sales of the stock and the size of the block of stock to be valued; and (8) the market price of the stocks of corporation engaged in the same or similar line of business having their stocks actively traded in a free an open market.

The valuation is the easy part! Once the valuation is complete, the Court must fashion an equitable way in which to distribute the business. In fashioning an award, the Court will try to avoid a liquidation of the business or making the estranged spouse a partner of the business. Typically, if there are sufficient non-marital assets, the Courts will offset the business interests and other marital assets. For example, if the Court determines that a spouse is entitled to $50,000.00 as that spouse’s fair share of the business, and there is $50,000.00 of marital property, there is a natural offset (it is never that simple!).

LEARNING POINT: Valuating a business with respect to equitable distribution is a complicated process which even the Court of Appeals hasn’t fully addressed. Experts will be needed and various factors will be analyzed, to include the business owners statement of net worth. If the spouse in question is only a partner of a business, the valuation becomes even trickery. Contact us for a free consultation to discuss this and other equitable distribution questions.

valuation of business

Enforcement of Maintenance of Child Support


A common question which clients have been asking deals with the enforcement of a court order to pay child support and/or maintenance. Once a Court issues an order, one would hope that the party to which the order has been directed would follow it to the letter. Unfortunately, this is not always the case. Sometimes, a party simply cannot afford to make the payments as ordered. This usually happens when there is a legitimate loss of income. On the other hand, sometimes people simply do not pay. If this is the case, your remedy may be to seek a contempt order.

The remedy of contempt is available to punish the defaulting party. Domestic Relations Law (“DRL”) allows the matrimonial court to invoke contempt sanctions of Article 19 of the Judiciary Law as a means of enforcing the directions contained in its orders and judgments. The contempt order is the most drastic form of relief because the consequences of contempt can be either a fine or incarceration. Thus, courts view this remedy as a tool of last resort and as such, the Court must first find that the default was willful.

Failure to follow a Court order and pay maintenance and /or child support does not conclusively prove that you are in willful default; however, it is prima facie evidence of willful disobedience. Once this presumption is established, it incumbent on the defaulting party to overcome this presumption and show that their failure was not willful.

Before the Court will find a party in default, it must be shown that payment cannot be obtained in any manner, i.e. income execution, entry of judgment etc. As mentioned, willfulness is linked to the defaulter’s ability to pay. If the defaulting party raises his/her inability to pay, there must be hearing to determine the facts and circumstances of that person’s inability to pay. The typical defense to default is the defaulting party’s loss of their job which creates a financial hardship. When this is the defense, the Court will look to see if the loss of employment was willful. If you purposely quit your job or do something which causes you to be fired, you may be held in contempt. The Court may find your willful loss of a job should not allow you to escape your financial responsibilities.

LEARNING POINT: Contempt of Court is a drastic tool available for those who willfully disobey the Court’s directions. If you are subject to such an order or you are the beneficiary of such an Order, there are things you can do to either enforce the order, or defend yourself from contempt charges. Adequate preparation is key. Call us for a free consultation and allow us to prepare the best possible case for your situation.

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Relocating With Children After Divorce


After a divorce is final, the issue of child custody and visitation may be renewed. Typically the noncustodial parent will be allowed to see their child(ren) once a week, and every other weekend, with provisions for summer breaks and holidays. Trouble may arise when the custodial parent wants to relocate to a locale which may interfere with the noncustodial parent’s visitation. Though it is well settled that the residential parent is free to relocate where ever they so desire, this does not necessarily mean that they can also take the child(ren) in question.

In New York, relocation cases are no longer measured by a particular formula or a set of presumptions which must be proven. Instead, each case must be considered on its own set of facts and circumstances with the overriding concern being the best interests of the child(ren). The rights of the child(ren) in question will be accorded the greatest weight in the Court’s determination as to whether the residential parent may be allowed to move. When defining what is in the best interests of the child(ren) in question the Court will look at numerous factors. First, the Court will look at the relationship between the child(ren) and the noncustodial parent with an eye towards continuing to foster the relationship. Perhaps there is an easy solution. For example, if a move will inhibit the weekly mid-week visit but the residential parent is willing to allow extended weekend visits, this might be a situation where the all parties might benefit.

Obviously, economic concerns are a factor and when the move is being made in good faith and for a better paying job, the Courts will take a hard look at allowing the move. Another factor the Court will consider is the suitability of the noncustodial parent to become the custodial parent. A solution may be a simple as changing the residential custody arrangement to the parent who is not moving. Before changing the residential custody arrangements, the Courts will also take into consideration the effect that the relocation and/ or transfer of custody will have on the child and the child’s wants and needs. Ultimately the Court will have to determine, based on all the facts presented, by a preponderance of the evidence, whether the relocation is in the best interests of the child.

LEARNING POINT: Even though residential custody may have been settled in your divorce, circumstances may arise where relocation of the child(ren) of your marriage once again becomes an issue. Whether you are for or against the move, the standard is the best interests of the child(ren) and you must be in a position to present your wishes to the Court. Contact us immediately if relocation of the child(ren) is now an issue for you. Effective representation is the only way to ensure that your wants and needs are effectively communicated to the Court.

relocation of children after divorce

Pensions Are Marital Property Subject To Equitable Distribution


The Court of Appeals has held that vested or matured rights in a pension plan, whether the plan is contributory or not, is to be considered marital property subject to equitable distribution. The basic rational for this decision is that the money that went into the pension, during the marriage, is money that would have been given to the marriage but for the diversion to the pension plan. In distributing the pension benefits, the Court may order the employee spouse to grant the nonemployee spouse survivorship benefits. Should the Court direct this course of action, the non-employee would receive the increased benefits upon the death of the employee.

How do Courts treat non-vested pension plans? The Court of Appeals held that non-vested plans do not preclude equitable distribution. The rationale is that your right to the plan is continually accruing during the years. There are two approaches to the valuation and distribution of a non-vested plan. The first is to calculate the present cash value of the pension, with a discount since the plan has not vested. The discount will take into account factors such as the pension not actually vesting due to termination of employment or other issues which will terminate the pension. The second approach is to allocate a portion of each future payment to the non-employed spouse. The Court of Appeals suggested that the second approach is best only in the event that the present value cannot be determined.

Another concern that must be addressed is how much of the plan is subject to equitable distribution. There are cases were the marriage will terminate as a result of the divorce yet, the plan will continue to grow in value. What you can generally expect is that the Court will consider at the total amount of months from the date of the marriage to the date of the commencement of the action against the total amount of number of months of employment. Therefore, where a spouse continues to work after the commencement date, which is typical, the benefits earned after the commencement date will not be subject to marital distribution.

How is the administrator of a plan to know to make payouts to your spouse and in what amount? You will need to obtain a Qualified Domestic Relations Order, better known as a “QDRO.” The QDRO must specify the name and last known mailing address of the participant and of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each alternate payee or the manner in which the mount of percentage is to be determined; the number of payments or period to which the order applies; and each plan that the order applies to.

LEARNING POINT: Evaluating a pension plan is a complicated process which one should not attempt alone. There are many different approaches in evaluating the plan and if necessary protecting your assets. If you are getting divorced and either you or spouse has a pension plan, contact us immediately to begin preparing your case.

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Grandparent Visitation Rights


Domestic Relations Law §72 grants grandparents the right to petition for visitation with their grandchildren. This is different than granting grandparents the right for visitation. Simply put, grandparents, in certain circumstances, are allowed to request through the courts visitation with their grandchild. The first step in petitioning the Court for visitation as a grandparent is establishing that you are the grandparent of the child in question. Once this is established, the Court must determine whether one of two grounds has been satisfied. First, a grandparent can make an application for visitation where either or both of the parents of a minor child, residing within this state is or are deceased. If this is not the case, then the Court may allow you to petition for visitation where “circumstances show that conditions exist which equity would see fit to intervene.”

There lacks a specific test or set of criteria which would assist a Court, or grandparent, in determining what equities exist to grant visitation. As a starting point, the Courts have recognized a humanitarian concern that visitation with a grandparent is often an important part of a child’s experience, an experience that cannot be duplicated. Therefore, it is helpful if the grandparent(s) had a pre-existing relationship with the child in question. It is helpful but not necessarily essential. For instance, if the grandparent(s) are able to establish that they have attempted to have a relationship with the child however the parents have prohibited the relationship, a Court will take that into consideration when making its determination. This is an important fact. Even if both parents are in agreement that they do not want the grandparent(s) in question to see their child, a Court may allow visitation in the right circumstances.

Once the grandparent(s) are able to establish that they have the right circumstances in which equity would make sense for them to have visitation, a hearing is conducted. The hearing will determine whether the grandparent(s) may exercise visitation. The determination lies strictly in the Court’s discretion. In making its decision, the Court will rely on what it believes is in the best interest of the child.

LEARNING POINT: Grandparent visitation is a complicated matter with obstacles which have to be cleared. If you are seeking visitation as a grandparent contact us immediately to begin preparing the best possible case. The key will be showing that it is in the best interests of the child to allow such visitation.

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Fighting For Custody of A Child

Child Custody Lawyer Long Island

If the parties in a divorce cannot agree on who should have residential custody, a full hearing will be needed. At said hearing both sides and the law guardian, the child custody lawyer appointed to represent the children’s interests, will be allowed to present evidence. These hearings are lengthy and may last a couple of days.

To assist the Court in determining what is in the best interest of the children and thus, which parent should retain residential custody, the Court may appoint an expert to assist. The Court may direct the parties to submit to a forensic examination. §251 of the Family Court Act expressly empowers the Court to subject a parent or other person legally responsible for the care of a child to submit to an examination by a physician, psychiatrist or psychologist. The examination is limited to the purpose of assisting the Court in resolving child custody. Non-parties may not be ordered to attend an examination over their objection without prior notice of a Court application for such relief.

As a general rule, the reports generated by the forensic expert will not be admissible unless both sides agree. Generally, the expert must testify and be subjected to cross examination. The expert fees will be paid by the parties on a pro rata basis. The Court is not necessarily bound by the opinions and recommendations of said expert if the Court determines that the recommendation was based on inadequate information, there is a clear bias for or against a party, or the expert ignored significant conduct of one of the parties. In addition to the forensic report, a Court may order a “home study.” Much like it sounds, this is a study to observe the conditions of the home.

Finally, in determining what is in the best interest of the children, their opinions and thoughts will be taken into consideration by the Court. The law guardian is there specifically to ensure their concerns are adequately represented. The law guardian is paid for by the parents, again, on a pro rata basis. Obviously, the younger the children at issue, the less of an impact their wants and desires will have on the Court. On the other hand, if you have teenage children, the older they are, the more weight the Court will give to their opinions.

LEARNING POINT: Custody battles are long and expensive and should not be entered into lightly. You and your children will be subjected to questions by experts. The best practice, if possible, is to amicably settle child custody issues. However, if settlement is not possible, you must be ready for a protracted battle in which you will need top notch representation. Call us immediately for a free consultation to map out the best strategy for your case.

Child Custody Lawyer Long Island

Deviating From Child Support Guidelines


Under the Child Support Standards Act, when determining child support the Court will combine the parental income and multiply that sum, up to $136,000.00, by the appropriate percentage based on the amount of children there are in the marriage. The percentages are: (1) 17% for one child; (2) 25% for two children; (3) 29% for three children; (4) 31% for four children; and (5) 35% for five or more children.

If the Court decides that the amount of the child support dictated by the Child Support Standards Act is unjust or inappropriate, the Court may, in its discretion, deviate from the guidelines. The Court may increase or decrease the amount of support ordered. However, before the Court can take such action, it must first determine what the guidelines call for and then specifically explain in its order the reason for the deviation. In deciding to deviate from the guidelines, the Court must consider the following nine factors: (1) the financial resources of the parents; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child would have enjoyed but for the dissolution of the household; (4) the tax consequences; (5) the non-monetary contributions that the parents will make toward the child; (6) the educational needs of the either parent; (7) a determination that the gross income of one parent is substantially less than the other parent’s gross income; (8) the needs of other children that the non-custodial parent is supporting, if not already taken into account, and the financial resources of the person also obligated to support such other children, provided that the resources available to support such other children are less than those available to the children for whom support is now being considered; and (9) provided that the child is not on public assistance, extraordinary visitation expenses of the non-custodial parent or expense incurred by the non-custodial parent during extended visitation that reduce the expenses of the custodial parent. Finally, in addition to these nine factors, the Court may consider any other factor it deems relevant.

What if the combined income is greater than $136,000.00? The guidelines are mandatory up to $136,000.00. For income above the $136,000.00 guideline, the Court may apply the guidelines or it may apply discretionary factors provided for use in determine whether application of the guidelines is unjust or inappropriate. So the bottom line is that if parental income exceeds $136,000.00, the Court may either apply the guidelines or may base its determination on previously mentioned nine factors or a hybrid of the two.

LEARNING POINT: Child support is a complicated. There are tax consequences to be considered and once income exceeds $136,000.00, being able to articulate to the Court how you would like the Court to determine the amount of child support is of paramount importance. Call us today for a free consultation to discuss your options and begin preparing your case.

Filing For Divorce: On The Grounds of Adultery


With the passage of “no fault divorce”, New Yorkers rarely need to rely on other grounds for divorce. Invariably, I have clients who want to file for divorce based on adultery. Adultery is defined as the voluntary commission of an act of sexual intercourse or oral sexual conduct with someone other than your spouse. Thus an act of sex with someone other than your spouse qualifies as grounds for divorce. Technically, Adultery is a crime. See Penal Law §255.7 where in a person is guilty of adultery if he/she engages in sexual intercourse with another person while married. Adultery is a Class B misdemeanor. This crime is rarely, if every prosecuted.

If you want to file for divorce using adultery as the basis, consider how you intend on proving your case. As most affairs are usually conducted in secret, your case may need to be made on circumstantial evidence, i.e. proof of opportunity, inclination and intent. Not an easy road to travel. What constitutes good proof? Eye witness testimony from a private investigator or another person who can be a witness to the sexual conduct between the cheating spouse. A spouse’s confession can also be used as evidence however there are some caveats to this. First, this confession must be corroborated. If the confession was made to you, that may not be enough. Your credibility will be tested during cross examination. Thus, I advise that you obtain other forms of evidence along with your spouse’s statements. In addition, you cannot force a spouse to testify. Remember, the burden to prove adultery is on the moving party. You will need to prove your case with clear and convincing evidence.

There are defenses to adultery that you should be aware. They are: (1) the offense was committed by the procurement or connivance of the other spouse; (2) You forgave the cheating spouse, which can be established by the voluntary cohabitation of the parties with the knowledge of the fact (though in today’s economic times, an argument can be made that despite knowing about the adultery, the economics would not allow one party to move out of the marital estate. I have a few clients who remain living together pending the outcome of the divorce as they simply cannot afford to move out of the house. A word of caution, if you engage in sexual intercourse while living together after the discovery of adultery, then the court might take that as proof that you have forgiven your spouse); (3) the offense happened more than five years ago, in other words, you have five years from the discovery of the adultery to bring an action and (4) where the cheating party is entitled to a divorce as a result of your adultery. In other words, you cheated on your spouse and had they filed for divorce upon discovery they would have been entitled to divorce on the grounds of adultery, then neither of you might be entitled to a divorce based on adultery.

Finally, adultery, generally, has no bearing in equitable distribution of the marriage. It is also not a factor in the determination of maintenance. Thus, I end where I began, there really isn’t an advantage in filing for divorce based on the grounds of adultery. You derive no strategic advantage in your case plus, proving adultery may be more difficult than you may have originally thought.

LEARNING POINT: If you insist on filing for divorce based on adultery, be sure you have the proper evidence lined up. Consult us immediately to begin preparing your case. Keep in mind, even if we are able to prove the adultery, it will have little to no bearing on equitable distribution and/or a maintenance award.

Temporary Order of Protection


In an effort to help victims of domestic violence, either the Family Court or Criminal Court may issue orders of protection. These orders may be temporarily granted ex parte. In other words, a temporary order of protection may be granted without the offending party present. The Court will consider the following when deciding whether or not to grant a temporary order: what is the alleged condition and will this order alleviate said condition; were there previous orders in place; were there previous incidents of abuse; the nature of the threats; are drugs or alcohol a factor in the alleged abuse; and does the alleged offender have access to weapons.

When presenting your case to a judge, you must be ready not only to articulate what the offenses are in which you are seeking protection, but you must clearly articulate the abuse occurring and be as specific as possible with dates and times. Remember, after the Court grants you a temporary order, its just that, temporary. The offending party will be served with the order and given an opportunity to rebut your allegations.

If the Family Court determines upon initial review of your petition that physical injury to the victim has been caused by the respondent or that other aggravating factors exists, the Court may immediately issue an arrest warrant. The Family Court Act authorizes the Family Court to issue arrest warrants and to set and accept bail for respondents. If the Family Court is not in session and a magistrate judge isn’t accessible, the local Criminal Court will arraign the respondent under §530.11 of the Criminal Penal Law.

After the temporary order is served, a hearing date is scheduled.Both sides are entitled to an attorney to represent your respective interests. Testimony is taken and you have the opportunity to cross examine any witnesses presented to rebut your position. After the hearing the Court will render its decision.

LEARNING POINT: The key to obtaining or defending against an order of protection is preparation. While you are able to obtain a temporary order by simply walking into the family court and presenting your side to a judge, you will need to thoroughly prepare for the hearing. Call us immediately so that we can adequately represent your interests.

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Ground For Divorce In New York – Cruel and Inhuman Treatment


There are multiple grounds for divorce in New York. This article will briefly describe what you must be able to show to file for divorce pursuant to DRL §170(1), cruel and inhuman treatment. Cruel and inhuman treatment can be defined as such conduct that so endangers your physical or mental well-being making it improper or unsafe to cohabit with your spouse. So the question becomes what constitutes conduct which so endangers your physical or mental well- being.

The easiest example will be repeated physical abuse. Clearly, if your spouse is physically assaulting you, that would be a strong argument for cruel and inhuman treatment. Must it be “repeated?” Depends- here are two extreme examples. Say your spouse slaps you once. Doesn’t slap you again, and never has before. Is that enough to grant a divorce under DRL §170(1)? Probably not. That does not mean this behavior is excused or that you cannot get divorced if you so choose, but under the cruel and inhuman provisions, this is probably not enough for a Court to grant you a divorce under this section. On the other hand, say your spouse physically assaults you one time, however this one time lands you in the hospital with serious injuries. Your spouse hasn’t done something like this in the past. This may be enough to qualify as cruel and inhuman treatment and the Court may grant you a divorce.

What about mental abuse? Acts of verbal abuse and torment have been held sufficient to establish grounds for cruelty where they have been of a serious nature and where a pattern of such behavior could be shown. Courts have granted divorce based on this section where a spouse was able to show be subjected to constant denigration followed by lengthy bouts of outright ignoring causing severe depression requiring psychological therapy. Flaunting extra marital affairs and refusal to return to the marriage, coupled with taunting a spouse about their physical appearance and shortcomings have also been deemed enough for a Court to grant a divorce.

Courts have also held that intoxication and/or drug abuse, in the right circumstances may qualify. For example, if your spouse is an alcoholic and when your spouse is drunk engages in either physical or mental abuse, the Courts have granted a divorce based on cruel and inhuman treatment as a result of your spouses habit.

Proving cruel and inhuman treatment can be challenging. Generally speaking, such acts which rise to the level of cruel and inhuman treatment happen in the marital residence behind closed doors. Rarely are there witnesses. That being said, while the Court of Appeals (the highest court in the State of New York) has not specifically ruled on this issue, the second, third and fourth departments have expressly held that corroboration is not required to prove cruel and inhuman treatment. Clearly, medical documentation would corroborate abuse or witnesses to said abuse would strengthen your case however, as just mentioned, it not always possible. The final point to be made is that while it is necessary to draft pleadings with enough specificity to allow your spouse to defend the action, the Courts have recognized that an abused spouse rarely if ever keeps a log if every separate incident of abuse, however, generally speaking you need to narrow the times of the abuse enough as to give your spouse an ability to defend the claims you are making. Additionally, claims of abuse should be no more than five years old. Once you start making claims more than five years old, while it might be useful to show a pattern, you may run into a statute of limitation problems. Generally, misconduct occurring more than five years prior to the commencement of the action may not be used to support the cause of action.

LEARNING POINT: Getting divorced pursuant to DRL§170(1) is a complicated matter, which thankfully isn’t necessary because New York has recently allowed for no fault divorces (to be discussed in later blogs) however, if you do want to pursue getting divorced under this provision of the statute, you must be ready to discuss the various forms of abuse you were subjected to and be ready to prove them in Court. Contact us for more detailed information on how to secure a divorce under this provision of the DRL.

Which Spouse Retains Residential Custody?

Child Custody Long Island

When deciding which spouse will retain residential custody, the Court will have to determine what is in the best interest of the children in question. Until recently, NY followed the “tender years presumption” which stated that mothers were inherently better suited to assume the custody of young children. This presumption has been abolished and the law is currently gender neutral. Thus, there is no prima facie right to custody of a child to either parent. The Court will consider a host of factors when deciding what is in the best interests of the child. Factors the Court will contemplate include: (1) the parent’s physical and mental health; (2) the use of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or emotional abuse and (7) the parent’s relative economic status. These are just a few of the examples which the Court will consider. The Court will not give more weight to any particular factor it considers. Instead the Court will consider the totality of the circumstances when making a determination.

In evaluating what is in the best interests of the child, the home environment and ability to meet the child’s needs will need to be ascertained. The Court will consider the quality of the home environment each parent is able to provide for the child. Thus, the Court will be looking not only to the physical safety of the home, but each parent’s ability to provide for the child’s emotional, social and intellectual development. The Court’s prefer for the direct guidance and care of the child vice a third party like a baby sitter or nanny. So you may be thinking now, how does the financial resources of a parent effect the Court’s analysis?

A parent that makes more money may be able to provide a “better” home and nicer environment however Courts take into consideration the fact that if you are the non-monied spouse, you will also be entitled to child support which will level the playing field. On the other hand, while a third party is not necessarily looked on favorably by the Court, an argument can be made that in today’s environment, both parents need to work and someone may need to watch the child. If you have the financial resources to afford a nanny or day care, that will also be factored into the equation.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

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Joint Custody

Joint Custody In New York

Domestic Relations Law §240 grants the Court authority to award custody of a child to both parents, otherwise known as joint custody. What does this mean? If it works, it can mean equal custody. I’ve seen it done two ways. First, the parents keep the marital home and the children live in there. The parents swap in and out of the house. Second, I’ve seen it where the children split the week between the two parents. This of course normally lasts only until one of the two parents move on and begins a new relationship. Thus, the joint custody arrangement is fragile at best, even if both parents are working together in good faith. An easy example of how this arrangement may break down is if one parent needs to relocate just far enough making joint custody impracticable. In order for joint custody to work, both parents have to agree. If one party does not agree, the Court will not order joint custody especially where it can be shown that the parents cannot work together.

When thinking about joint custody, there are two components. First, there is joint legal custody. Joint legal custody refers to joint decision making in such things as health care, education, religious upbringing and discipline. Then there is joint physical custody. Physical custody is concerned with the child’s day to day residence. Thus, joint legal custody does not necessarily equate to joint physical custody.

Another way to think about this is as follows. Joint legal custody deals with life decisions for your child. Normally, absent Court intervention, you will always have a say in raising your child. You will have input on all major decisions. What you are really concerned about is residential or physical custody. In other words, where will your child sleep at night on a regular basis? Normally, the parent who is awarded residential custody will have final say on major decisions regarding the child. So, if you do not have residential custody, you still have input on major decisions however, if an agreement cannot be reached, then your ex-spouse will ultimately have the final word. All of this will be spelled out in an agreement and or Court order.

LEARNING POINT: Custody is a serious issue which can be hard to navigate, especially if parents cannot get along. While joint physical custody is an option, it is rarely used because of the difficulties in maintaining such an arrangement. Call us for a free consultation regarding what steps you need to undertake and what factors you need to consider when contemplating a divorce with children.

Modification Of Child Support


As a general proposition, child support can be modified either upward or downward, only if an unreasonable or unanticipated change in circumstances has occurred. The primary concern with regards to child support is the best interest of the children in question. Thus, even if there is a Court order, either in the form of a separation agreement which was merged into an order, or simply an order regarding child support, a parent can petition the Court for a modification. When considering whether to modify child support, the Court will consider the assets, earnings and obligations of the supporting spouse as well as the financial status of the custodial spouse. Unless there has been an unanticipated and unreasonable change in circumstances, the Court will not change the support order. Factors to be considered by the Court include whether increases of expenses were foreseeable at the time the Court originally made the support order. If the expenses were foreseeable at the time the order was decided and the Court deems that the order was fair and equitable at the time the order was made, you may not get a modification.

What will the Court use to determine if a modification is appropriate? The Court will look to: (1) whether the increased needs of the children are due to special circumstances or to the additional activities of growing children; (2) whether there is an increased cost of living which results in a greater expense for the children; (3) was there a loss of income or assets by a parent or substantial improvement of the financial condition of a parent; and (4) the current and prior life styles of the children. If after the Court considers these factors, it deems that there should be a modification of child support, the Court will utilize the Child Support Standards Act to calculate the appropriate level of child support, and whether there should be a deviation of said support. A downward modification of child support is carefully scrutinized since the primary concern is the best interests of the children. Thus, if you are attempting a downward modification, you must show an unanticipated and unreasonable change in circumstances otherwise the court will in all likelihood deny your request.

Word of caution: If you lost your job through no fault of your own, i.e. you were terminated as a result of cut backs, or your boss simply let you go, the Court will take that into consideration when calculating child support. If however, you purposefully lost your job, i.e. you quit or you took another job to lower your income and thus lower your child support payments, the Court may impute income to you. In other words, you were making $100,000.00 and you quit your job and now you are making $50,000.00. If the Court determines that you did this to lower your child support obligations, the Court may award child support award based on the $100,000.00 salary regardless of what you are currently earning. The key determination surrounding your loss of income will be how it happened. If you simply quit your job or, as in a recent case of mine, decided to follow your passion and embarked on a new career, one that decreased your salary by $40,000.00, the Court may not grant your modification request.

Learning Point: Modification of child support will be considered keeping the best interest of the children in the forefront of the Court’s mind. Adequate preparation in showing the Court that there has been a significant change in circumstances warranting the Court to modify a current order providing for child support. A downward modification will be given close scrutiny. Preparation and presentation will be crucial in your attempts to convince a Court to modify your current child support order.

Statement of Net Worth


The Domestic Relations Law (DRL) requires compulsory disclosure by both parties of their respective financial states in all matrimonial actions and proceedings in which maintenance or support is an issue. This is normally done through a net worth statement. Net worth means the amount of total assets including income that exceed total liabilities, including fixed financial obligations. Your Net worth statement must include all income and assets of any kind, wherever they may be located, as well as any assets transferred out of your name within the preceding three years or the length of the marriage, whichever is shorter. Transfer of money for the routine maintenance of your daily life is not necessarily included.

Your net worth statement includes the disclosure of the details of the general family data, expenses, gross income, assets (joint and separate), liabilities (joint and separate) assets transferred during the preceding three years, any support requirements- attorney fees, forensic accounts, valuation experts and the such. In addition to this data, the statement of net worth should include a copy of your most current paystub and the party’s most recently filed state and federal income tax returns. These documents are required to check on the accuracy of the representations in the net worth statement. As you may have read in previous blogs, the tax return is just the starting point. There are many situations in which the tax return may not be the final word. For example, if lost your job right after your taxes were filed, you would not want the Court to make decisions based on income that you no longer earn. On the other hand, if your spouse started a new job in the new year, you would not want the Court basing its decision on numbers that are inaccurate and to your detriment.

A party in a matrimonial action must provide a sworn statement of net worth within 20 days after the receipt of a notice in writing demanding such a statement. Normally, your attorney will make such a demand within days of being retained. This is important. If you are the non monied spouse and are in need of pendente lite relief, you will need your spouse’s last tax return and pay stub to adequately craft your motion.

LEARNING POINT: As you know from our previous blogs, New York is an equitable distribution state. To equitably divide all the assets and liabilities of the marriage, a Statement of New Worth is crucial and a good starting point. In preparing for a divorce and a statement of net worth, gather your tax returns for the last three years, and your last three pay stubs. This will give us a good picture of your financial situation and allow us to adequately represent your needs.

Calculating Child Support Factors


The starting point for the calculation of child support is the previous year’s tax returns. This is simply the starting point, there are many factors which may lead the Court to enhance or adjust your income when determining the proper amount of child support. Courts will also look to your most recent pay stubs. The Court may look at the most recent pay period or the year to date figures. Why? There may have been a dramatic change in your income since the filing of your latest tax return. It is easy to foresee two quick examples where using the last tax return will provide a child support award that is inadequate or unjustified. If you lose your job after your tax return, clearly the award based on job you no longer have will be unduly burdensome (more on this later). If you receive a significant pay raise after your taxes are filed, you may not be paying enough.

When calculating child support the Court will investigate to determine whether or not the non-custodial parent receives a bonus that is not reflected on the tax returns. Such bonuses may be reflected on pay stubs or in an employment contract. The Court will include these bonuses to the child support calculation. Other factors the Court will consider include but are not limited to: (1) investment income; (2) workers’ compensation benefits; (3) disability benefits; (4) veteran’s benefits; (5) pension and retirement benefits; (6) fellowships and stipends; and (7) annuity payments. A personal injury settlement may also be considered when calculating child support payments, especially if part of the award was granted for future and/or loss wages.

Imputation of income: I began this topic with what happens if you lose your job and thus your tax returns may not accurately describe your income. While true, the Court will look into the facts and circumstances of the loss of income. If you lost your job through no fault of your own, i.e. you were terminated as a result of cut backs, or your boss simply let you go, the Court will take that into consideration when calculating child support. If however, you purposefully lost your job, i.e. you quit or you took another job to lower your income and thus lower your child support payments, the Court may impute income to you. In other words, you were making $100,000.00 and you quit your job and now you are making $50,000.00. If the Court determines that you did this to lower your child support obligations, the Court may award child support award based on the $100,000.00 salary regardless of what you are currently earning. This also comes into play when the non-custodial parent owns his/her own business and the tax returns do not adequately reflect the true income to be used in the calculation for child support.

LEARNING POINT: The tax return is simply the starting point in the child support calculations. There are many considerations that must be taken into account to determine the proper child support award. Contact us to help guide you through this process.

calculating child support, factors

 

New York Child Support Guidelines


In 1989, New York passed the Child Support Standards Act (CSSA). The main purpose of this legislation was to establish minimum and meaningful standards of obligations on the premise that both parents share the responsibilities for child support. The CSSA brings a sense of uniformity and predictability with child support. Child support can be generally defined as the amount of money to be paid for the care, maintenance and education of an un-emancipated child.

NY defines basic child support as the sum derived by the application of the child support guidelines formula, as increased by obligations for health, child care and education expenses. So what does all that mean? Basic child support is the regular periodic payment of support made by the noncustodial parent to the custodial parent, which payment is inclusive of the noncustodial parent’s obligations for all the child’s needs except for health care, child care, and educational expenses. The obligations for health care, child care, and educational expenses are commonly referred to as “add-ons.”

The question clients often ask is how much can I expect to pay or receive in child support? The procedure required by the guidelines which the Court will abide is as follows: First the Court will combine both parents income. A base line is used which has been recently changed. The base line was $80,000.00 however has been changed to $136,000.00. In other words, the incomes will be combined but the Court will use $136,000.00 as a baseline in its calculations in the event the combination of salaries is greater than $136,000.00 (I will discuss what happens if the combined salary exceeds $136,000.00 later).

Once the salaries are combined, that number is multiplied by the statutory percentage which is a function of how many children there are in the marriage. (The percentages are: 17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children.) Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis. Under the guideline, the only payment that is made is made by the noncustodial parent.

In the event that the combined salaries are greater than $136,000.00, the Court will use the same calculation but the Court will then decide whether an additional award based on the increased income available. All calculations, regardless of income will be based on the parties’ most recent tax return. The starting point is the gross income minus FICA. If the paying spouse is also required to pay maintenance, then maintenance is subtracted from the gross salary.

Under the CSSA, the Court is to base its calculations on the parties’ tax returns and not on its estimate or approximation as to what the parties’ incomes are. The most recent tax return is the starting point of the child support calculations. If the parties filed joint tax returns, each party must prepare a form, sworn to under the penalty of perjury, disclosing his or her gross individual income. The Court is authorized to look to the amount that a party should have been or should be reported. Distributions from pension and profit sharing plans are reportable as income on tax returns, and thus will be treated as income for CSSA purposes. Maintenance is to be deducted from the noncustodial parent’s income.

What happens if the CSSA brings you below the poverty level? Where that happens, the basic child support obligation is $25 per month or the difference between the non-custodial parents’ income and the federal self-support reserve, whichever is greater. If the non-custodial income would be reduced below the self-support reserve, but not below the poverty level, then the basic child support obligation is to be $50.00 a month or the difference between the non-custodial parents’ income and the self-support reserve, whichever is greater.

LEARNING POINT: While the guidelines are a helpful tool in figuring out child support, this is only the beginning. Add-ons, such as health care, college, child care and the like must also be factored in. Maintenance, if not permanent will change the amount paid in child support. If you are ordered to pay child support through twenty-one years of age, you may get credit for room and board fees you pay to a college which will lower your child support obligations. Seek out an attorney to assist you in determining the appropriate amount of child support.

How Does Divorce Affect A Business Partnership?


During your marriage, your spouse opened up a professional practice and over the years it has grown. You are now getting divorced and your question is, are you entitled to any part of this business? In New York, it is clear that professional practices (law firm, medical, dental etc.) established during the marriage and prior to the commencement of a matrimonial action or execution of a separation agreement is marital property and subject to equitable distribution. Additionally, even if the practice in question was established before the marriage, the appreciation of value of the practice, where there have been contributions by the non-professional spouse, is marital property subject to equitable distribution. What will not happen, however, is that you are awarded interest in the practice. For example, if your spouse built a law practice and you are not an attorney, the Court will not say that you are now a partner of the practice. What the Court will do is to value the practice and award an offsetting interest in the other property to the non-professional spouse or, if those funds insufficient, order a distributive award to the non-professional spouse.

How will the Court value the practice? The court will analyze the value of the tangible physical assets. In addition, it will look to the good will of the practice including earnings and liabilities. The Court will use the following factors: 1.) the nature and history of the business; 2.) its particular economic outlook and that of its industry generally; 3.) the book value of the stock and the financial condition of the business; 4.) the company’s earning capacity; 5.) its dividend paying capacity; 6.) its goodwill and other intangible assets; 7.) other sales of the corporation’s stock; and 8.) the market price of stock of comparable corporations.

There are many methods of valuing good will and a particular practice. The most common is the capitalization of earnings approach, which is a weighted average of annual earnings received by the professional spouse in excess of reasonable compensation, reduced by the value of the return on tangible assets, and applied to a capitalization rate. The Court will be mindful of abnormally high and low years of earnings. The valuation will also take into account marketability, or lack thereof, of the professional business in question.

LEARNING POINT: There are many methods of valuating a practice which you and your spouse have built while you married. The practice will be part of the equitable distribution of the marital estate. It is important to start the valuation process as soon as possible, so hire an attorney to protect your interests as soon as possible.

Person In Need Of Supervision


A person in need of supervision, or PINS, covers youthful misbehavior which does not amount to a crime. The Family Court Act §712 defines PINS as a male less than sixteen years of age and a female less than eighteen years of age who does not attend school in accordance with the provisions of part one of article sixty-five of the education law or who is incorrigible, ungovernable or habitually disobedient and beyond the lawful control of parent or other lawful authority or who violates the provisions of section 221.05 of the penal law. So what does this mean? Truancy or any other acts which parents and/or local authority are unable to control. Important requirement under PINS is that the acts be habitual. A single act of truancy, incorrigibility or disobedience does not suffice. Essentially a significant pattern must be present before a PINS case may be made. Of course, with most things, there is an exception. Acts involving marijuana need not be habitual and one act will be enough to make out a case for PINS.

A PINS case is formally originated by filing a petition in the Family Court which possesses exclusive original jurisdiction over PINS matters. There is a long list which can be found in the Family Court Act §733 of who can file or initiate a PINS petition. Examples of people authorized to file such a petition include a police officer, a peace officer, a parent or guardian or any person who has suffered injury as a result of the child’s activity. In reality, the overwhelming majority of PINS cases are filed by parents. Before a PINS case can be filed, it must first be referred to probation services. At probation services, a determination will be held to ascertain whether there are treatment programs which the child in question may be eligible. Probation services has 90 days or 180 days with leave of the Court, to assess and enroll a child in specific services. If these services fail, a statement must be filed along with the PINS petition informing the Court of what if any services were provided and the reason for failure. In the event that probation services fail to act within the allotted time frame, then you are allowed to file your PINS petition.

There are specific elements which must be pled in the petition. Specifically, the petition must show that the child in question meets the age requirements as mentioned above. Second, the child in question is in need of services. In addition, the child, and/or their guardian must be notified no less than 24 hours before the initial hearing. Once the petition is filed, upon the child’s first appearance, a law guardian will be appointed. Of importance is that the Court, in its discretion can order the release or detention of the child pending a hearing on the issues.

LEARNING POINT: PINS is a detailed and complicated process for children in need of services. Before filing a petition seek our assistance in preparing the petition and preparing the case. If the petition or case is not properly prepared, there will be a delay in providing the child in question with the services they may need.

My Spouse Wiped Out The Account, What Will Happen To My Money?


joint bank account divorce spouseI recently had a client come into my office wanting to get a divorce. Here was my client’s concern. The spouse in question, who apparently knew that a divorce was imminent, wiped out their joint marital account to the tune of $500,000.00. After this discovery coupled with the fact that my client was not informed where the money went, I was asked what will happen?!

Clearly this is a significant issue with respect to equitable distribution. On its face it is hard for a court to equitably distribute an asset that no longer exists when the action is filed. Automatic orders are meaningless as the money is already gone. Rest assured, the Court cannot and will not simply ignore this missing money. The issue for the Court to decide is whether there was any fraudulent intent on behalf of the spouse that took the money. Normally, the Court will not put itself in the position of second guessing every spending decision of the spouse accused of wiping out an account. There are a multitude of reasons a spouse may have when it comes to spending money from a joint account. Granted, in our example, a spouse will be hard pressed to explain how spending $500,000.00 happens in the routine course of daily bills. Where a spouse cannot provide an adequate explanation for what happened to the marital funds which disappeared on the eve of filing a divorce action, the Court will bestow an award based on the missing asset. Or in other words, my client needs not worry. The Court will equitable distribute the $500,000.00. This may come as credit to other assets, or an outright money award.

Rarely are cases so cut and dry. Here is a more typical example. Wife is a partner in a law firm. On the eve of filing the divorce she is fired from the firm. Husband now seeks to have her partnership evaluated as part of the equitable distribution award. The Court will need to look into the facts and circumstances of the wife’s termination at the firm. If the husband cannot show that the cfamily onduct, the firing, was aimed at depriving him of what would normally be distributed in the due course of the divorce action, the practice will not be valued and distributed.

LEARING POINT: If you realize a divorce is imminent, dissipation of marital assets will not be in your best interest. If your spouse does squander assets you will need to show that it was in an effort to cheat you out of what you’re entitled. Hire an attorney and let them advise you as to how best navigate these issues.

divorce joint bank account money

What Is Child Support?

what is child support?

Child support can be generally defined as the amount of money to be paid for the care, maintenance and education of an un-emancipated child. NY defines basic child support as the sum derived by the application of the child support guidelines formula, as increased by obligations for health, child care and education expenses. So what does all that mean? Basic child support is the regular periodic payment of support made by the noncustodial parent to the custodial parent, which payment is inclusive of the noncustodial parent’s obligations for all the child’s needs except for health care, child care, and educational expenses. The obligations for health care, child care, and educational expenses are commonly referred to as “add-ons.”

The question clients often ask is how much can I expect to pay or receive in child support? The procedure required by the guidelines which the Court will abide is as follows: First the Court will combine both parents income. A base line is used which has been recently changed. The base line was $80,000.00 however has been changed to $136,000.00. In other words, the incomes will be combined but the Court will use $136,000.00 as a baseline in its calculations in the event the combination of salaries is greater than $136,000.00 (I will discuss what happens if the combined salary exceeds $136,000.00 later). Once the salaries are combined, that number is multiplied by the statutory percentage which is a function of how many children there are in the marriage. (The percentages are: 17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children.) Once this number is determined, the amount of child support is then apportioned between the parents on a pro rata basis. Under the guideline, the only payment that is made is made by the noncustodial parent.

In the event that the combined salaries is greater than $136,000.00, the Court will use the same calculation but the Court will then decide whether an additional award based on the increased income available. All calculations, regardless of income will be based on the parties’ most recent tax return. The starting point is the gross income minus FICA. If the paying spouse is also required to pay maintenance, then maintenance is subtracted from the gross salary.

LEARNING POINT: While the guidelines are a helpful tool in figuring out child support, this is only the beginning. Add-ons, such as health care, college, child care and the such must also be factored in. Maintenance, if not permanent will change the amount paid in child support. If you are ordered to pay child support through twenty-one years of age, you may get credit for room and board fees you pay to a college which will lower your child support obligations. Seek out an attorney to assist you in determining the appropriate amount of child support.

child support attorney

What Is Maintenance and How Do I Get It?


divorce alimony temporary maintenanceA common question clients ask is how much alimony am I going to have to pay or can I expect to receive. The answer to that question is easy: none! Most people are familiar with the concept of alimony. Alimony was originally developed as a means of providing support for women after the termination of the marriage when, generally speaking, men controlled family property and opportunities in the work place for women were hard to come by. The amount of alimony awarded was supposed to be enough maintain the standard of living during the marriage and the award was usually permanent.

With the passage of the Equitable Distribution Law in 1980, alimony was eliminated. Maintenance replaced alimony and is now a gender neutral concept. Marriage is now viewed as an economic partnership, which in the event of a divorce, will not favor one spouse over the other. Maintenance can be described as payments to be made at fixed intervals from one spouse to the other as provided by a valid agreement or ordered by the Court. Maintenance is designed to rehabilitate the economically disadvantaged spouse with an eye towards economic independence.

When determining the duration and amount of maintenance, the Court will consider the following twelve factors: (1) the income and property of the respective parties including marital property distributed; (2) the duration of the marriage,the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and if applicable, the period of time and training necessary therefor; (5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the Court shall expressly find to be just and proper

Every case is fact specific. While no one factor may hold significant weight over the others, clearly the duration of the marriage and the ability of both parties to support themselves will be significant. If you were married for five years and both parties are doctors, maintenance will probably not be awarded. If you were married 25 years, you stayed home while your spouse was working, maintenance will probably be awarded. Duration of maintenance is up to the Court. Depending on the facts of your situation maintenance can last a year or for the rest of your life.

LEARNING POINT: Maintenance is a complicated matter with different variables which you and the Court must consider. If contemplating a divorce, call us for a free consultation and discussion regarding maintenance awards and other serious matters.

maintenance divorce child support

Can My Spouse Spend Our Assets Pending the Divorce?


divorce assets and martial propertyYou have decided to get divorced.  You wisely hired an attorney and your fear is that pending the divorce your spouse will spend down the assets and/or get rid of marital property.  While the commencement of a matrimonial action serves to terminate the acquisition of marital property, it might be months or even years before the property is distributed.  Thankfully, Domestic Relations Law (“DRL”) §236 has contemplated this very real concern and has a remedy.

DRL §236 provides for “automatic orders.”  What does this mean?  It is an order restraining parties from dissipating marital assets pending the divorce.  By rule, automatic orders are filed with the summons with notice or summons and complaint.  The order goes into effect, from the plaintiff’s perspective, upon filing of the summons or the summons and complaint.   From the defendant’s perspective, the automatic orders take effect upon service.

What’s in the automatic orders? There are five statutory restraints: (1) neither party may sell, transfer encumber or dispose of any property without the written consent of the other party except in the usual course of business or to pay for the customary and usual household expenses; (2) neither party can transfer, encumber assign, withdraw or dispose of stocks, or other assets in an IRA or other pension plan without the written consent of the other party; (3) neither party may incur unreasonable  debts unless in the normal course of business or for household expenses; (4) neither party may remove the adverse party or any children from existing medical coverage; (5) neither party may change the beneficiaries of any existing life insurance policies and must keep all policies in effect pending the outcome of the divorce.

Essentially, these orders are in place so that neither spouse can spend assets without prior consent of the other party.  Further, assets can only be used in the normal course of business.  The “normal course of business” whether it is an actual business expense, or running a house hold, isn’t actually defined.  A court will need to take into account life styles, the asset used, the purpose and whether, considering all relevant factors, the expenditure was a violation of the order.

LEARNING POINT:  Once a divorce action is filed, automatic orders, which are filed contemporaneously with the action, will prevent either party from either wasting marital assets or incurring significant debt.  If you are in the middle of a divorce and you have not retained counsel, seek out an attorney immediately! They can advise how you can use the marital assets pending the divorce.

divorce assets martial property

Separation Vs. Divorce

What is the difference between a legal separation and a divorce?  Which is better? Which should I pursue?  These are common questions recently posed over the last couple of weeks. Domestic Relations Law (“DRL”) Article 11 authorizes actions for judicial separation of the parties without dissolution of their marriages. Since the passage of “no fault” divorces, the use of legal separations has been on the decline.  Before New York allowed no fault divorces, a party could obtain a legal separation and after a year of abiding by the separation agreement and living separate and apart, could convert that separation agreement to a divorce. Today, legal separations may be a valuable tool for those whom divorce is not an option for religious or personal reasons.

DRL § 200 sets for the grounds for obtaining a legal separation; they are: (1) cruel and inhumane treatment which threatens the physical or mental well being of the person seeking the separation thus making it unsafe for them together; (2) abandonment; (3) neglect or refusal to provide support to spouse where the spouse is chargeable with such support under the provisions of DRL§32 or of §412 of the Family Court Act; (4) Adultery and (5) confinement for more than three consecutive years.

A separation does not dissolve the marriage and it does not nullify it but rather, the marital relationship remains intact and the parties continue to be bound as husband and wife.  Most importantly a judgment of separation does not serve as a cutoff date with regard to the classification of property as marital or non marital for purposes of equitable distribution.  So if you are granted the separation and start acquiring property, that property is subject to equitable distribution.  In the same vein, debts are marital property and if your spouse continues to acquire debt, that may be subject to equitable distribution as well.  Of course, as an equitable distribution state, there will be the analysis regarding the equitable split of this type of debt.

Because the marital relationship is intact, under the Estates, Powers and Trusts Law (“EPTL”) a husband or wife will be considered a surviving spouse despite the existence of a valid separation judgment, unless the agreement was granted against the spouse that passed away.  In other words, if you were the plaintiff in a separation action and it was granted, when your spouse passes away, you can still inherit. If you pass away, your spouse may not be able to inherit.  However, a judgment of separation does terminate a tenancy by the entirety and converts it to a tenancy in common.  Thus, if you pass away, the spouse does not get the entire property and your interest can be passed to someone else.

LEARNING POINT:  A legal separation is most useful for people who DO NOT intend to divorce.  It provides minimal safeguards.  If you are contemplating a legal separation vice a divorce, seek an attorney’s guidance as soon as possible.  The above article was a brief overview of the legal separation however, every case is different and an attorney will be best suited to guide you through this difficult process.

Pendente Lite Motion


pendente lite motion divorce lawA common question that arises when people come in for their initial consultation is: how they are going to survive the process!? Typically, a spouse walks in and has decided to get divorced.  Their first concern is that they have not been working and are one hundred percent reliant on their spouse.  As I’ve written in past blogs, the law is gender neutral when it comes to divorce.  There are only two types of people in a divorce, the “monied” spouse and the “non monied” spouse.  As you can guess, it’s the non monied spouse that walks in with the concern that they will not be able to survive if they file for divorce.  That is when we explain the Pendente Lite motion.  Pendente Lite is Latin for “pending the litigation”.  It is a motion that you can make where you, as the non monied spouse, requests that the monied spouse pay for the following: (1) temporary maintenance; (2) temporary child support; (3) your counsel fees; and (4) exclusive use of the marital property.  There are many other things that you can ask in the Pendente Lite motion.  This blog will focus on the request for the exclusive use of the marital property.

Courts are statutorily empowered in a matrimonial action to award temporary exclusive possession of the marital premises to one of the parties. (Domestic Relations Law §234).  Generally, exclusive occupancy of the marital residence should not be awarded to a party prior to trial without a hearing unless there is sufficient evidence to show an award is necessary to protect the safety of persons or property.  If a spouse has voluntarily established an alternative residence, the existence of an acrimonious relationship between the parties and the potential turmoil which might result from a spouses return may lead to the Court to grant a petition for exclusive use of the marital residence.  The question becomes how one defines the key terms of “necessary and safety?”  The Courts have not given much guidance however, the standard for granting exclusive possession is not so inflexible as to exclude the consideration of different circumstances warranting judicial intervention.

divorce attorney pendent lite motionWhat type of evidence would be persuasive to Court?  The following is a non-exhaustive list which would carry considerable weight with the Court: (1) a police report showing complaints by one spouse about the other; (2) the existence of an order of protection/non harass order; (3) medical evidence of abuse; (4) corroborative third-party affidavits of harassment.  Typically, a hearing is necessary when there exists contradictory affidavits.  When both spouses remain in the same household, it is difficult to show that exclusive possession should be granted to one spouse.  When addressing safety of a spouse, the mental wellbeing of a spouse can be as significant as the physical wellbeing of the moving spouse.  Thus, what typically happens is that one spouse moves for exclusive possession of the marital residence and the other spouse argues that this remedy is unnecessary because he or she is not doing whatever the moving spouse is alleging.

Start keeping a journal. When going through a divorce, you will want to be able to communicate to your attorney and eventually the Courts of all the incidents you believe substantiate your claim to the marital residence pending the divorce.  If you have been abused, file a police report.  Seek medical treatment.  If the abuse is mental, file for a Non Harass Order from the Family Court.  The goal is to amass evidence which can be sued in the motion to help substantiate your need for judicial intervention.

If a Court does grant exclusive possession of the marital residence, a common argument made by the spouse who now must move out of the martial residence is that he or she may not be able to afford two households.  The Courts uniformly hold the same way on this response: the appropriate remedy to resolve an apparent inequity with the Court’s pendente lite award is a speedy trial.

LEARNING POINT: Once you decided to file for divorce, immediately seek the guidance of an attorney.   Your attorney will be able to advise whether you have a legitimate claim to the exclusive possession of the marital residence and whether the pendite lite motion is something you should file.

pendente lite motion

My Spouse Wants A Divorce, Shouldn’t They Pay For It?!


who pays for a divorceA concern that I have been asked about in the last month when giving my free consultation is who pays for the divorce.  Typically, a spouse has been a loving, caring partner who stayed home for years raising children and taking care of the household.  As a result, they lack the financial resources to fully litigate their divorce.

The question becomes, is all lost?! Not necessarily.  First, when a married couple begins the divorce process, generally they are divided into two categories, the monied spouse and the nonmonied spouse.  As you might guess, the monied spouse is the one with the higher income.  You will notice, gender does not play a role in this determination.

Domestic Relations Law §237 provides that there “shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.”  Courts generally attempt to ensure that each party shall be adequately represented and that where fees and expenses are to be awarded, they are to be made in a timely fashion.

How does a court know to give the less monied spouse this award?  A pendente lite motion must be filed.  Granting this motion prevents an imbalance in the parties’ resources from affecting the proceeding’s outcome.  It specifically protects one spouse from dragging litigation out in an attempt to drain resources and outspend their soon to be ex-spouse.

who pays for a divorceShould the monied spouse want to oppose the awarding of such fees, the onus is on them to show why such an award is unwarranted.  Granting attorney fees falls within the sound discretion of the court.  In determining whether or not to grant attorney fees, the court should review the financial circumstances of both parties together with all the other circumstances of the case which may include the relative merit of the parties’ positions.

The court will take into account (1) the parties’ ability to pay; (2) the nature and extent of the services rendered; (3) the complexity of the issues involved; and (4) the reasonableness of fees requested.  The attorneys will file their respective retainer agreements with the court, outlining their fee structure as well as anticipated expenses.

Due to the importance of obtaining fees in a timely matter so as to prevent the monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength, the courts will generally not defer ruling on this type of motion.  Additionally, depending on the complexity of the case, the court will allow the non-monied spouse to return and request more money should the award be exhausted in the normal course of the litigation.

LEARNING POINT: Seek a Long Island divorce attorney quickly once beginning the divorce process. The attorney will be able to quickly ascertain your potential recovery or liability for attorney’s fees. Filing and or opposing a pendente lite is crucial in the protection of your assets.

long island divorce attorney

Temporary Maintenance My Only Be Here Temporarily


temporary maintenance divorce attorney long islandPursuant to Domestic Relations Law §236B (5 a-c), for all divorce actions commenced after October 12, 2011, courts are required to apply a statutory mathematical formula in determining temporary maintenance.  Previous this change, courts created a pendite lite award by considering the reasonable needs of the moving spouse and the financial ability of the other spouse to tide over the more needy party pending the outcome of the litigation.  The award would typically cover maintenance, child support, and counsel fees.  With the change in the law, courts will apply a statutory formula to the parties’ income and calculate a presumptive award.  This award would be ordered unless that award would be considered unjust or inappropriate.

divorce law temporary maintenance

Temporary maintenance, child support and legal fees can be a complex area to navigate

How exactly would a court determine if this presumptive award is inappropriate?  The statute lays out a list of seventeen factors a court can consider to deviate from the presumptive award.  The court will deviate from the award after considering: (1) the standard of living established during the marriage; (2) the age and health of the parties; (3) the earning capacity of the parties; (4) the need of one party to incur education or training expenses; (5) the need of one party to incur education or training expenses; (6) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (7) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (8) acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment; (9) the availability and cost of medical insurance for the parties; (10) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that inhibit a party’s earning capacity or ability to obtain meaningful employment; (11) the inability of one party to obtain meaningful employment due to age or absence from the workforce; (12) the need to pay for exceptional additional expenses for the children, including school, day care and medical treatment; (13) the tax consequences to each party; (14) marital property subject to distribution; (15) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (16) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner, and homemaker, and to the career potential of the other party; and (17) any other factor that the court expressly finds to be just and proper.

If the court concludes that the presumptive award is unjust or inappropriate, the statute requires that the court must put in an order exactly how it came to that conclusion, which factors it considered and the reasons the court adjusted the presumptive awards.

Though just over a year old, matrimonial attorneys and courts have significant challenges to this statute.  By using an equation to determine awards, all discretion has been removed from the court, unless it can justify a deviation within the seventeen factors provided in the statute.  The problem with these factors is that many of them, if not all, will not be fully known until after trial!  Additionally, the legislation does not consider payment of household carrying charges and expenses by the payor spouse nor does it provide for consideration of domestic violence as a deviation factor if the harmed spouse’s ability to work is not impaired.  As reported in the Nassau Lawyer, The Nassau County Bar Association recently forwarded a resolution to the state legislative leaders and to the New York State Law Revision Commission which is reviewing the interim and permanent spousal support legislation and is expected to release its final report this year.

LEARNING POINT: Temporary maintenance, child support and legal fees can be a complex area to navigate.  When seeking a divorce contact an attorney to protect your rights and assets while the legislature decides whether or not to repeal the temporary award statutes.

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Denial of Visitation


denial of visitationOver the past few months I have been frequently asked if a spouse can deny visitation to their divorced partner. In most cases the answer will be no. New York Courts have taken the stance that visitation is in a child’s best interest and that children can benefit immensely if they are guided and nurtured by both of their parents. Typically, the non-custodial parent has the right to significant and reasonable access to their child. What exactly does this mean? In the event that the parents live close to one another, the non-custodial parent should have visitation each week and a part of the child’s summer vacation. Currently there is no clear-cut rule as to how much visitation is significant and reasonable.

Despite what was previously mentioned, under certain circumstances a parent can receive the denial of visitation. Having said that, the parent seeking to deny visitation has to prove that the visitation is detrimental to the welfare of the child, before the court will order the denial of visitation. The court will always take into account the child’s best interests, not the best interests of the parents, as is the case with almost every child custody battle. The court will not entertain a fight between parents that turns into a visitation battle, saving a parent denied visitation without proper approval from the court.

When will the court deny visitation? The denial of visitation may be approved if the behavior of the parents genuine worries about the safety of the child. For instance, if there is strong evidence of neglect, abuse, or mental illness of the parent, the court may deny visitation due to the welfare of the child. However, the court will always look for a less drastic option before deny a parent of visitation rights. For example, the court may order that the visits be supervised. Monitored visits can be sufficient enough to alleviate any worries by the custodial parents and the court.

denial of visitation child custody, divorce attorneyIn the case that you have been denied visitation or there are substantial changes in circumstances, your initial divorce decree isn’t always the final word. Depending on the circumstances, you could always request the court to adjust the visitation agreement, or in must circumstances, implement the visitation rights which you have already agreed upon.  The courts can look at the change in conditions, or in the case of an enforcement proceeding, the reasons why a visitation was withheld and prepare a ruling, once again, determined by the welfare of the child.

LEARNING POINT: If you decide on a separation agreement, obtain the services of a legal professional to help guide and preserve your rights pertaining to visitation.  Visitation is more than one or two weekends a month and a few days during the week.  Who gets the child on their birthday?  What about winter recess?  How many weeks during the summer does the noncustodial parent get custody?  Can I take my child out of the country for summer break?  It is easier to work out an agreement with counsel on your side, than going at it alone and requesting that the court modify the agreement you have in place.

What Happens to Marital Property?

martial property

"anything that is obtained during the marriage may be marital property subject to equitable distribution"

One of the first questions arising from a divorce, after custody of children if there are any, is what happens to the marital property. NY State is an equitable distribution state, and therefore marital property will be divided equitably-not necessarily equally-between the parties. Marital property is defined as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held. Of import is that the extent of spousal contribution to the property is irrelevant in the determination of whether something should be classified as marital property.

Thus, anything that is obtained during the marriage may be marital property subject to equitable distribution.  As you might expect, there are some exceptions.  Clearly, if something is not marital property it is considered separate property.  What constitutes separate property?  First, property acquired before marriage or property acquired by bequest, devise or descent…thus something you inherit will be classified as separate property.  Second, compensation for personal injuries regardless of when received.  Third, property acquired in exchange for separate property….you inherit $50,000.00 and you buy a car….that car is separate property.  Lastly, any property agreed to by the parties as separate property.

So, what’s the practical application?  Absent the four categories just mentioned, property acquired during the marriage is subject to distribution.  When considering this, people immediately think of the marital estate bought during the marriage. Additionally, people think of stocks, bonds, cars, summer homes etc…however, there are other things that are acquired during the marriage that people need to be aware of. Consider the following. Pension plans, 401ks, virtually any and all employment related benefits will be considered marital property.  For example, has your spouse made partner in a law firm? That partnership is a martial asset.  Did you attend and graduate from law school during your marriage? That is a marital asset. On the flip side, is there credit card debt? That is marital property that will also be equitably divided.

Learning Point: Division of marital property needs to be examined carefully by an attorney.  There are exceptions that will come into play when determining what constitutes a marital asset. Quick example….three days after you are married, your spouse graduates from medical school….that in all likelihood, even though obtained during the marriage, will not be considered marital property.  Seek immediate legal advice when you decide to divorce your spouse so that your rights are protected.