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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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