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

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.

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.

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.

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Byron Divins, Jr., Esq. | Long Island Divorce Attorney

long island divorce attorneyByron Divins graduated law school in 1996 and immediately joined the U.S. Navy. He spent thirteen years on active duty serving as a prosecutor, defense counsel and advisor to Commanding Officers throughout the world. He served in Yokosuka, Japan; on board the air craft carriers USS KITTY HAWK and USS THEODORE ROOSEVELT; Manama, Bahrain; Pensacola, Florida; Groton, Connecticut; and Norfolk, Virginia. During his active duty career, Mr. Divins prosecuted and defended Sailors and Marines accused of crimes against the Uniformed Code of Military Justice. In addition to his tremendous litigation experience, Mr. Divins served as a Legal Assistance Officer where he helped Sailors and Marines with issues of divorce, custody, orders of protection, child support and visitation.
At Divins & Divins, P.C., Mr. Divins concentrates his practice on Family Law and Criminal Law. He has successfully represented clients in Nassau, Suffolk and Queens counties on issues varying from orders of protection, divorce, custody, visitation, modification of child support, and child support. He consistently produces positive results for his clients. As a defense attorney, he has expertly represented clients accused of felonies and misdemeanors. His fifteen years of court room experience is an invaluable resource whether you are fighting for your freedom or a divorce.

Byron Divins knows the importance family; in his spare time, he enjoys spending time with his wife and two children, and he also manages to find time to coach his son’s little league team.


  • Florida State University, MBA (2006)
  • Touro Law Center, JD (1996)
  • State University of New York at Albany, BA (1993)

Bar Admissions

  • New York
  • New Jersey

Court Admissions

  • Court of Appeals U.S. Armed Forces
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Northern District of New York


  • Nassau Bar Association

Divorce Attorney Long Island