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News about Divorce Law in New York State
Articles on New York Divorce Law
Jan 2019WHAT DO I TELL THE KIDS?
Dec 2018DO I NEED A LAWYER IN FAMILY COURT
Dec 2018CHANGES IN DIVORCE LAW
Dec 2018Family Offense
Oct 2018Can I apply for Custody?
Oct 2018Must I sue for custody?
Oct 2018WHAT IS A RJI
Sep 2018Who will get custody in New York?
Aug 2018Can I sue for abandonment?
Jun 2018What is Mediation?
What is jurisdiction in a New York Divorce Case?
February 4, 2019
A court in a matrimonial case may only begin to assert its power over persons in a divorce case once it has been shown that service of process was perfected in accordance with DRL 232.
Before a court may entertain a matrimonial action the Courts in every case derive their power by Statute, and while a Court has vast discretionary powers, one power it does not have is to confer jurisdiction onto itself. As such jurisdiction amply means the power of the court to act. There are many types and definitions of jurisdiction and they all mean different things,
As such, before a court will take your divorce case several hurdles and steps must be met and satisfied before a court can act.
One of those Statutes is DRL Section 232. DRL Section 232 governs service of process in matrimonial actions and is very explicit when it comes to how a court assumes personal jurisdiction over the body of the Defendant. The statute expressly sets forth that pleadings must be served upon the actual person of the Defendant, or, in the alternative, and upon the application of Plaintiff Defendant be served by substituted service in a manner prescribed by the Order. Also, you must show that no more than 120 days have elapsed since the filing of the divorce action.
Then, there is a second step that a court analyzes before it decides to keep your case. These concepts are especially important in a divorce in New York where children or property are at stake and where the spouses now reside in different states.
There are two additional forms of jurisdiction, in rem over marital status and in personam over individual spouse, where the Defendant was properly served with service of process pursuant to statue. As to in rem jurisdiction a court may not entertain a divorce action unless one of the applicable provisions regarding residency requirements is satisfied.
There are five residence requirements that must be met before you can have a divorce heard in New York. DRL Section 230 expressly sets forth when an action for divorce may be maintained in New York:
DRL Section 230 states as follows:
“An action to annul a marriage, or to declare the nullity of a void marriage, or for divorce or separation may be maintained only when:
1. The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
2. The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or
3. The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or
4. The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or
5. Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.”
DRL § 230 is an additional requirement which is imposed that requires that the court have a proper basis for exercising rem or personal jurisdiction over a nonresident. However, durational residence requirements contained in DRL § 230 are “merely substantive elements” of the matrimonial cause of action and not a limitation upon the subject matter jurisdiction of the Court to hear the case. Since DRL Section § 230 does not limit the power of the divorce court to adjudicate your matter, if the court does not dismiss on the grounds that Section 230 of the DRL was not met, you may not use that defect to appeal the divorce judgment. However, the Plaintiff must later prove that DRL § 230 has been satisfied, so it makes no sense to litigate a divorce in New Yok unless you have satisfied the residency requirement of DRL 230.
Once these questions are addressed, if you have children you must also look to the UCCJEA for guidance as to where a child custody case should be commences or entertained. For more information on that you should consult UCCJEA.
In general, the UCCJEA vests continuing jurisdiction" for child custody litigation in the child’s "home state," which is defined as the state where the child has resided with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then the courts of two competing states must look at the child’s significant connections with the state.
You should consult with a New York Divorce lawyer since the statute and the requirements which must be met in competing jurisdictions is complex.
WHAT DO I TELL THE KIDS?
January 17, 2019
Getting a divorce in New York? What do I tell the kids?
It is important that you keep your children in the loop about all life changing circumstances such as a change in school, a change in residence or a change in teachers. So, it is not surprising that parents should inform their children about their change in marital status.
Depending upon their age, children are smarter and more attuned to their environment then you might guess. Children may even know that you and your spouse are headed toward a divorce.
Even so, you should prepare the children well in advance of the move. Sit down with the children at an appropriate time and do so as a couple if at all possible. The children need to see you are united in your decision.
Spend a sufficient amount of time talking to them and listening to their concerns. It is important to stress that you love them at that nothing will change that. However, it is also important to listen to them. They will most likely have a lot of questions for you and you might expect them to ask about where they will live and who will be taking care of them. Expect that the children will have questions of worry or concern. Address them with assurances. Also expect the unexpected questions because children have their own ideas about what a divorce will look like because often times, they have had talks with their friends who have had very different experiences with divorce.
Also set aside other quiet times to go over with the children what a divorce means. If one or the other parent is relocating it is important to let the children know how that relocation will affect their lives and their access to each parent.
You should also be talking to other critical persons in the lives of the children such as their doctors, their school teachers and their summer camp counselors or therapists. Everyone should work as a team to explain how scheduling will work so that the children will know well in advance as to who will be expected to drive the children to their various appointments and who will attend what activity recital or event. Garnering the support of those people in their lives will help the children in their post-divorce transition.
In my experience it is best if the parents can co-parent the children. Not only is this favored by the New York Courts, it is also very healthy for the children to know that both parents will remain active in their lives.
Before you and your spouse sit down to talk with the children is important that you and your spouse talk to their respective New York divorce lawyers about scheduling access and visitation time. Children like structure and need to know what to expect once the household composition changes.
Once the household becomes two households, things get very expensive. You should talk to your divorce lawyer about how child custody issues will affect your pocket book and budget, and who will be expected to pay for extracurricular activities. If you can, do not disrupt the activities the children are already involved in as this will tend to put stress upon the children. In my experience, children are children and should not be involved in the problems of financing their lives. In New York extracurricular activities are nonmandatory add-ons to child support so you and your spouse should decide in advance as to what activities are affordable and wo will be paying for them. Do not unilaterally schedule an activity and then expect your spouse to approve and pay for it.
By co-parenting that means discussing what is in the best interests of the children and making decisions form them together as it concerns religion, medical attention and education.
Even if the child is residing primarily with one parent the law favors liberal contact with the noncustodial spouse for a reason-the child need both parents, absent a showing of unfitness to parent.
The end result is that if you work together as parents and try not to fight in front of the children the children will not feel like they have to take sides which is known to be detrimental to the children’s best interests. It is generally easier said then done but it is the best possible course if you wish your children to adjust to their post-divorce life.
I hope this has been helpful.
DO I NEED A LAWYER IN FAMILY COURT
December 30, 2018
DO I NEED A LAWYER IN FAMILY COURT?
It is not required that you retain a NY divorce lawyer or NY Family Law Lawyer to go to Family Court or to prosecute your divorce in Supreme Court in a New York Divorce Case, but here is why it is advisable to do so. Family Court is user friendly if you think you can settle your case and if there is not too much animosity between the parties. However, all proceedings are still legally binding upon you and your case will proceed forward in a manner in which you are not familiar.
When you hire a family court or divorce lawyer these attorneys usually have had experience in these matters and can guide you through each step of the way. Each court appearance matters, from the way you dress to the way you conduct yourself in court. A family law lawyer will let you know what to expect at each stage of the proceeding. The lawyer will know how to file pleadings on your behalf, research the applicable law and how it bis favorable to your case and explain to you what a court will likely do or not do given certain facts and circumstances. You do not have this advantage when you represent yourself.
Moreover, the case will normally result in a fact finding or trial where you will be required to call witnesses and present evidence in a manner required under the New York evidentiary rules so if you are not familiar with trying a case you will find it very frustrating to try to get the court to consider your proffered evidence. Also, sometimes the other side might make a motion to dismiss and you may have legal grounds to contest that motion but because you do not have a lawyer to argue your case knowledgably, aggressively and professionally the court might dismiss your case. Lastly, when the Judge rules on your case it is a binding decision that will have far reaching consequences on your life and your children. Moreover, if your spouse or parent of a subject child hires a lawyer you will be at a lose as to how to prosecute your case. If you are indigent or a low wage earner you should ask the court if they can appoint a free lawyer for you. In custody cases in New York you have an absolute right to be represented by counsel so if the court does not appoint a free lawyer then make an application to the Judge to have the other side pay for a lawyer and for all costs associated with litigation of your case, such as forensic reports and risk assessment studies.
CHANGES IN DIVORCE LAW
December 27, 2018
CHANGES IN DIVORCE LAW
As 2019 rapidly approaches, I thought it would be a good time to revisit changes to the law and be sure the proposed papers necessary to get a divorce judgment are up to date and contain the proper language.
Another change was put into effect by Administrative Order that revised forms having to so with income withholding Orders for temporary and disability assistance. These new forms went into effect on August 31, 2018. This change also highlights that unless the parties opt out and provide an alternate way to receive support, the court must order an income withholding order. This Order amends two forms, one for child support and maintenance combined and the other affects income withholding on child support cases only. All of said forms must be submitted with your divorce closing documents and may be found at www.nycourts.gov/divorce. There, you will find all applicable forms as well as detailed instructions as to how to fill out these forms. It is very difficult to fill out these forms so it is advisable to seek legal counsel to conclude your divorce, in this writer’s opinion, and nothing contained in this article should be construed as legal advice.
On the above website provided by New York Gov’s website you will also find cakculators designed to give you an idea as to how much child support and spousal support you may have to pay to your spouse. These calculators are found here. It is important to note that these numbers are presumptively correct but that the court has the ultimate right to amend these numbers as equity demands. There are many factors that go into an analysis as to whether or not he court will either stick to these guidelines or deviate therefrom so you should become familiar with these factors before embarking up on a divorce because they are very complicated and have far reaching consequences to your case.
This article is not legal advice and you should thus consult with a NY divorce lawyer before embarking upon a divorce case or support or custody case.
What Happens if I am married and have a case in Family Court?
December 10, 2018
What Happens if you have a case pending in Family Court and one in Supreme Court?
Married couples that have filed for relief in Family Court for a family offense, for custody visitation or support often go to Family Court as a first resort.
However, if that case leads to a divorce then one or the other of the attorneys will typically file a Supreme Court action and will have to notify the Family Court at which point the Family Court will encourage the parties to remove the Family Court cases to join in with the Supreme Court divorce case.
The attorneys do this by filing an Order to Show Cause in Supreme Court under the divorce index number asking the Supreme Court to remove and consolidate all actions under the divorce case.
These motions are typically granted for judicial economy purposes. This also benefits the litigants because now they only have to go to one court appearance per adjournment rather then to have to litigate their issues before two separate courts. Only people who are married can file in both courts.
Unmarried parties with an intimate relationship between themselves must file in Family Court and can do so on all issues that arise other than equitable distribution of property and for a decree of Divorce.
The question often arises as to where to file an action in Family Court and Supreme Court. In Family Court you can seek relief if the children resided in New York for a term of six months whereas in divorce actions in Supreme Court there are different residence requirements which you must meet. If you do not meet these residence durations requirements set forth in the statute then the Court has the power to dismiss your case and often times will so be sure to ask your attorney about jurisdiction.
For example, and there are several different bases for jurisdiction in Supreme Court, under the law as set forth in DRL Section 230 the husband and wife must have been residents of the State of New York at the time the action is started and the Husband or wife must have been living in New York for at least one year. Another basis for jurisdiction which must be met before filing in Supreme Court is that the parties were married in New York and one or the other of the parties has been continuously residing in New York for a period of one year as of the date of the filing for the action for divorce. The third basis is the cause of action occurred in New York and either of the parties was living in New York for one year and the last basis for jurisdiction is that either party has lived in New York for two years. If you do not have jurisdiction under the above four instances then you can still file in Family Court for immediate relief so long as the children have resided in New York for at least six months and if there are no children you might still be able to file for emergency relief in Family Court. But Family Court has its own rules and regulations as to when it is appropriate to file in family Court so you should check that before you go file any petition, especially as it pertains to custody because if you have not lived here long enough the Family court can refer you back to the State where you have lived for the longest period of time. Jurisdiction can be complicated so it is advisable to speak to a New York Divorce Lawyer before filing any petition.
December 7, 2018
Family Offense Proceedings are difficult because it means filing a petition against a family member or intimate partner when you have been the victim of a crime perpetrated against you.
The results you want to achieve from filing a Family Offense petition is an Order of Protection. You generally go to Family Court for relief but you can also file for relief in Supreme Court if you are in the middle of a divorce case.
There are many Order of Protection because the Court may fashion it with its own terms and conditions.
Usually you can go to family court on your own and go to the intake part and fill out a petition. You will also be asked to fill out a vital statistics form giving the court general information such as your name, address, social security and dates of birth of all those members of the family that are involved in your case.
If you do not have a New York Family Lawyer then you can file the petition on your own with the help of a Family Court Clerk. You will be seen by the Court immediately and will be asked to explain the circumstances as to why you need an Order of Protection. Be sure your Family Offense Petition lists the crimes perpetrated upon you with a high level of specificity such as dates, times, injuries sustained and the nature of the offense. If you have pictures that demonstrate the injuries bring them with you.
If the fear of harm rises to a certain level the Court will usually award your order of Protection that day and adjourn the case so you have an opportunity to serve the perpetrator. When you come back to court be prepared to bring an Affidavit of Service proving you have served the petition and Order of Protection properly. Next, the court will generally continue the order of protection and give you a court date for a hearing and trial.
You must also realize that you can go to the police and make a police report and if the crime is serious the police will arrest the family member that poses a risk of harm to you
You can have two cases going at the same time and you can also get an Order of Protection from Criminal Court.
Can I apply for Custody?
October 29, 2018
Can I apply for child custody?
There are many things you need to know before you can apply for child custody in New York.
For one, a court must have the power to adjudicate your case. We call that “jurisdiction”. This is a complex idea of law that involves many factors but the initial inquiry is for a judge is where the children have lived for the past six months, and whether there is a prior order of custody in place. As for the six-month rule, if there has been no prior order of any court from another State, then New York would have jurisdiction to hear your case if the children have resided in New York State for the last six months. If the children were born in New York but are infants under the age of six then New York usually has the power to adjudicate your case. However, if the parties have permanently moved to another state with the children then the parties can apply for custody in that state.
Custody is neutral gender, in other words, either of the parties may seek custody of their children. Usually, the court will decide temporarily as to where the children will live until the final determination after a fact-finding hearing or trial. Usually the lawyers will argue in court that the children should stay with the parent with whom they currently reside except for extenuating circumstances such as unfitness to parent, domestic violence or drug abuse. But a temporary Order does not necessarily mean the court will not order something else after a trial. That is why the behavior of the litigants is crucial as the case progresses because the court will adjourn the case month to month to see how the children are faring with the parents. The courts are people so they judge you every time you go to court and may make informal assessments as to how you are doing. One of the things a court looks at is the ability to foster a good relationship with the parent who is not the custodial parent. Be sure you encourage visits with the other parent unless there is a serious reason why you should not do so. But never act without permission of the court or counsel. For instance, in that instance, if you learn that one parent is abusing drugs or alcohol tell your attorney so they can make a motion to the court to suspend visits or to make visits supervised pending further investigation. Never let a lot of time go by before you act.
If there is an extant order of custody in favor of a parent and there has been a significant change of circumstances you can apply to modify the present order in your favor.
In making a final Order of Custody the courts will look to what is in the best interests of the child and will take into consideration things like who is the primary caregiver, how long have the children resided with a particular parent, which parent can best provide for the children’s emotional, medical and educational needs. While finances do come into play the courts more importantly place emphasis as they should on such factors as which of the parents provide direct care and nurture and guide the children in all aspects of their lives. In some instances, both parents may fit the bill and then a court can order joint custody.
Lastly, there are certain procedures you must follow if the parents were never married. For instance, if you were never married but you are sure that the child is yours then you should go to Family Court and apply for an Order of Filiation to establish paternity, especially of you were not present at the birth of the child in question and you never signed an acknowledgment of paternity at the hospital. Only after paternity is established may you apply for child custody in New York.
Must I sue for custody?
October 23, 2018
MUST I SUE FOR CUSTODY?
Many of my clients do not understand that in order to get a divorce judgment the parties must first settle their issues of child custody. That means when you commence an action for divorce you must include in the Wherefore clause a request for custody. In doing so that does not necessarily mean you want exclusive custody but it is a good idea to start with suing for custody in order to protect your rights moving forward. An alternative might be to sue for joint custody especially where both parties can get along and have no problem with talking about the best interests of the children and making joint decisions.
There are two parts to a custody determination. The first point of inquiry is decision making and the second point of inquiry is the location where the children will the children reside.
That means that the parties need to decide who will be doing the decision-making as to the children and what will the custodial schedule look like. The Courts in New York favor joint custody wherever possible but sometimes the acrimonious relationship of the parties poses a problem such that only one party can be awarded custody.
Many parties think that because their spouse agrees to a divorce that they can get an uncontested divorce. That presumption is patently false is the parties do not deal with the issues of custody and child support and spousal support in the body of the Judgment roll.
If you are having problems deciding the above issues then you will most likely have to seek judicial intervention to move the matter forward. In court the Judge will typically appoint a lawyer for the children and sometimes order psychological evaluations for the children and parties. Parties are cautioned that this can be very expensive but worse, it can cause a lot of stress on the children so if you can solve the issues of custody beforehand, do so. However if there are serious issues of unfitness then it is probably best to ocnduct an investigation.
Many fathers are under the false impression that the Mothers always get custody. This is incorrect because the laws are gender neutral and more and more father s are suing for custody if they feel they are best suited to be the primary caregiver for the children.
WHAT IS A RJI
October 21, 2018
What is a Request for Judicial Intervention?
An RJI is called a Request for Judicial Intervention (UD-13) or (A-11), and it is a request that must be made in a conflictual divorce or an uncontested divorce if you want a judge assigned to a case. Usually a judge is assigned at the beginning of a case if it appears as though your case can not be settled out of court and you need a Judge to help move things along. This is an important form because without it you will not be able to get a judge to sign an application for support or other interim relief. You or your divorce attorney will file the RJI in the County Clerk’s office and upon payment of a fee the Clerk will send it out for assignment to a Judge.
When you or your lawyer files an RJI for divorce, custody or annulment the case is next assigned to a Judge.
A matrimonial case is considered a special proceeding and that means you will get a judge assigned to the case sooner rather than later.
Once you or your divorce lawyer files the RJI with service of process on your spouse a Judge will be randomly selected to hear your case. You cannot choose which judge you want to hear your case. However, if there is a conflict of interest the Judge will usually take him or herself off the case.
Upon the filing of the RJI the Court will send you or your lawyer a date to come to court. Usually that occurs in 45 days. That first court date is called a preliminary conference where the attorneys fill out documents as to financial discovery and the Judge sets up a time line as to what work needs to be done in order to move the case forward.
There are two different RJI forms. One is for an uncontested divorce and one is for a contested divorce.
Can I sue for Grandparent Visitation?
September 25, 2018
GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE
Grandparent visitation can be had if certain criteria are met. Thus, in New York grandparents’ rights are limited to certain circumstances where a court might grant visitation with their grandchildren. This is because the law recognizes that it is the parents and not the grandparents that have the ultimate right to raise their children as they deem fit and that this right is superior to any third party’s proclaimed right. In essence that means a court might grant you standing to apply for visitation and will perhaps award it if you can show you have a substantial meaningful relationship with the child or children such that the Court can decide that you have standing to bring the actions. Only after that determination is made may a Court move on to decide whether or not to grant visitation and will first be charged with weighing a myriad of factors to see if the court believes it is in the best interests of the children to award visitation. As an aside, and as to standing, please note that you have automatic standing to bring a petition where one or the other parent has died but, in that case, you should know that while you would have automatic standing to apply for visitation that does not necessarily mean you will automatically get it awarded to you. New York applies a variety of factors and stages before determining grandparent rights. First, the court must determine if you have standing to be in court in the first place, which requires a showing that equity dictates that the court intervene. That is usually established by showing the court the nature of your relationship and whether it is long standing and substantial and functioning. After standing is established the court will apply the best interests test that it employs in all visitation cases. Some of the factors the court considers in a best interest’s analysis is what the child desires, and the position of the attorney for the child. Other factors include the rational objections of the parents to grandparent visitation and whether it is advisable for the child to see their grandparents under certain conditions such as mental illness. Notice must be given to the parents affected before you go to court on your petition for grandparent visitation.
In a Second Department case in New York the court held that the grandfather lacked standing to petition for visitation where the children's mother had never frustrated his visitation. There, the court found that Grandfather lacked standing to petition for visitation with his grandchildren, since the children's mother had never frustrated his visitation with them ab initio; rather the mother merely set forth the conditions of the visitation with the grandfather by asking the grandfather to not bring the grandmother along on the visit. Moreover, in another case called Ordona v. Campbell the court held that grandparent visitation needed to be terminated where the grandmother had failed to obey court orders and exhibited a strong animosity toward the Father and the grandmother tried to undermine the father’s relationship with the child. That said, this should not discourage a grandparent from filing for visitation if the parents are both denying contact with the child after you have formed a positive and substantial bond with the child. This precept was demonstrated in an interesting New York Third Department case of Monroe v. Monroe, decided in 2017. There, the court suggested that Grandparents would have the right and standing to bring a petition for visitation if they could establish that they have a long substantive existing relationship with the grandchildren, or in cases where the parents are frustrating their contact with their grandkids. On those facts a court can likely intervene in the interests of the best interests of the child. Moreover, in another Second Department case in New York the court held that a grandmother had standing to ask for visits with the grandkids where she showed the court that she had a long-standing relationship with the child and where the child's father unexpectedly died.
The lesson to be learned here is that while grandparents do not always have automatic standing to sue for visitation, where equity permits and you can prove your relationship should be continued in the child’s best interests the court might grant it.
By: Your Manhattan Custody Lawyer Lisa Beth Older