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News about Divorce Law in New York State
Articles on New York Divorce Law
Sep 2017What to expect in a custody case
Sep 2017WHAT IS A CONFESSION OF JUDGMENT
Sep 2017What Does a Default Mean?
Aug 2017WHAT IF I CAN'T SERVE MY SPOUSE?
Aug 2017What is Jurisdiction?
Aug 2017What should I say to the Judge?
Aug 2017Can I appeal a Custody Order?
Jul 2017How do I get custody if my spouse and I live in different states and how do you determine Home State
May 2017WHAT IS A NEW YORK DIVORCE MOTION?
How do I enforce my divorce Judgment?
October 15, 2017
Enforcing your Divorce Judgment
The power to give a divorce judgment and other forms of relief not mentioned herein is not given to Family Court. So only the Supreme Court retains exclusive jurisdiction over granting a divorce and providing litigants with other forms of relief granted by statute, such as exclusive possession of the marital residence. Civil Practice Law and Rules (CPLR). If one spouse fails to heed the order of the court you can go back to court to enforce it. When you go to enforce the terms of your divorce judgment you must go to the Court that is listed in your divorce judgment to seek relief.
Please note that in order to get your divorce papers signed, as of August 2017 the clerk of the court requires that you include new language in your divorce judgment that seems to indicate that unless you preserve your rights to have the enforcement of the terms of your divorce heard in Supreme Court the parties will be restricted to file in Family Court. So, look to the divorce judgment to determine where you should file your papers.
The New Language on the e-website is as follows:
“ORDERED AND ADJUDGED, that the Supreme Court shall retain jurisdiction to hear any applications to enforce the provisions of said Settlement Agreement or to enforce or modify the provisions of this judgment, provided the court retains jurisdiction of the matter concurrently with the Family Court for the purpose of specifically enforcing, such of the provisions of that (separation agreement)(stipulation agreement) as are capable of specific enforcement, to the extent permitted by law, and of modifying such judgment with respect to maintenance, support, custody or visitation to the extent permitted by law.” See the below link for more firms https://www.nycourts.gov/divorce/divorce_withchildrenunder21.shtml
To conclude, make sure you try to include language in your judgment that allows the Supreme Court divorce judge to retain concurrent jurisdiction with Family Court. Sometimes it is best to go back to the same Judge who is familiar with your case. But if you do not preserve that right in your divorce judgment, then you may have to file only in Family Court.
By: Lisa Beth Older, Esq.
Your NY Divorce Lawyer
What to expect in a custody case
September 26, 2017
What to expect in a custody case
Do not engage in a custody litigation if you do not have to do so or go that route. Custody battles are time consuming expensive and wrought with pitfalls.
The Courts are going to look to see who can foster a good relationship between the child and the other spouse. So, if you are both fighting or not talking to each other which is often the case, it can be self-defeating because the judge will make the decision as to which of the parties is the alienating party.
This rule of law has been accepted as pretty fundamental in every custody case across the board. So, being civil toward your spouse during an ongoing custody case is important and is a plus in the eyes of the court because it will look as though you are the parent who can see that it is in the best interests of the child/children that both parents be a part of the child’s life.
The risk inherent in a custody trial are immense and far reaching. So, try to make a settlement before you go to trial. It sometimes becomes understandably impossible because one side or the other wants sole custody or is being difficult and trying to impede your legal rights to custody or liberal visitation.
If settlement is out of the question then get yourself ready for what you will need in a custody trial. Understand that the court looks for what is in the best interests of the child, which parent can promote a good relationship with the other parent, which parent can further the mental, physical and psychological needs of the child. Which parent is the parent that has shown a performance in the past and the propensity to continue to perform into the future, of guiding the child and promoting their education, medical and cultural development. If there is domestic violence the court will also consider that as a factor in its determination as to which parent will get custody. Unfitness to parent is also always a factor.
Be sure you keep a diary each day as to what is going on with you and the children and your spouse as you can use this as evidence later on in case something happens.
Be circumspect in calling the police if no crime has occurred as the courts do not like the children witnessing such things if no real emergency occurred and it looks like you keep calling the police just to gain an advantage in your case. Of course, if a crime occurs you must call the police.
If you suspect child abuse or sexual abuse speak to your lawyer immediately who will guide you as to how to handle such situations and also speak to your pediatrician.
Keep your attorney apprised of major developments in your case and make a list of all witnesses you might call to attest to your parenting skills and be sure as the trial date approaches that said witnesses are available to come to court to testify as just their affidavit is not enough.
WHAT IS A CONFESSION OF JUDGMENT
September 22, 2017
Confessions of Judgment in New York
In a divorce case in New York you might be asked to file a Confession of Judgment in order to secure your payment plan for a debt owed to you under your equitable distribution plan. If you fail to pay as agreed upon then a Judgment can be entered by your spouse against you just like any other judgment.
A confession of judgment is a tool that allows a party to obtain a judgment against you without bringing a lawsuit. It can last for up to three years and then it is not enforceable unless you execute a new one.
If you fail to pay as per the terms of your settlement and you confessed Judgment then you will have to pay the whole amount listed in the judgment.
This method of working out settlements can be effective where one spouse does not trust the other to make good on their payments.
In order for it to be enforceable against you there must be an accompanying notarized wet ink Affidavit and it must be signed under penalty of perjury. It must include the amount owed upon which judgment may be entered, the State and County authorized to enter the Judgment, what facts caused the debt to arise. It must be used within three years, and it must be accompanied by the applicable Affidavit by the debtor. Do not try to do this yourself-consult an attorney as to the intricacies of this method of protecting your payment plan in equitable distribution.
One a judgment is entered you can also file it in any other State if the debtor subsequently moves.
What Does a Default Mean?
September 3, 2017
What does a default mean in a New York Divorce Action? There are two different meanings of default.
In the first instance, the most common one, is where a person to an action for divorce declines to answer the complaint within a certain period of time, usually 20 days but 30 days if out of state. This is when that party is in default.
In the second instance, a default is when you are preparing a judgment roll, to wit, finalizing an uncontested divorce. This kind of default is discussed in another article.
If your spouse fails to answer the complaint then your lawyer will file a request for judicial intervention and move the court for a default judgment. You will have to go to court and explain what happened. You will also have to show that you served your spouse in accordance with the law. The Court will usually require you to show that you made all efforts in your power to try to notify your spouse that a divorce action is pending. If you are petitioning for division of property then the Court will require you to file a Statement of Net Worth and perhaps make you try to serve your spouse one more time.
Be sure you consult with an attorney before you attempt to do these steps yourself and good luck.
By: Lisa Beth Older, Esq.
Am I entitled to a trial in my custody case?
September 1, 2017
I have set forth a recent case from the highest court in New York, which is called the Court of Appeals.
As a general rule, custody determinations must be rendered only after a trial. And while most Courts grant child custody fact-finding hearings (trials) on a regular basis New York State Courts have held, in the past, that if a Court has enough information before it they can deny a trial and make a determination. This rule has all but been almost struck down now. (S.L. v J.R. NY Slip Op 04442, 2016. In this case, the court held that "adequate relevant information" standard applied by the courts is too risky a standard and fails to adequately protect fundamental rights of the parents to raise their children.
Still, the Court of Appeals declined to fashion a "one size fits all" rule mandating a hearing in every custody case statewide, so I guess there might be exceptions to the rule.
Now, it is well established that custody decisions must be based upon the best interests of the child, and neither parent regardless of sex, has some prima facie right superior to the other to custody of the child (see Domestic Relations Law § 70; Friederwitzer v Friederwitzer, 55 NY2d 89, 93; Matter of Zaratzian v Abadir, 105 AD3d 1054). Although a custody decision must generally be made following a hearing (see Obey v Degling, 37 NY2d 768, 769-770; Matter of Savoca v Bellofatto, 104 AD3d 695, 696; Matter of Peek v Peek, 79 AD3d 753; Matter of Nalty v Kong, 59 AD3d 723), no hearing is necessary where, as here, "the court possesses adequate relevant information to enable it to make an informed and provident determination as to the child's best interest" (Matter of Hom v Zullo, 6 AD3d 536, 536; see Lazo v Cherrez, 121 AD3d 1002; Matter of Zaratzian v Abadir, 105 AD3d at 1054; Matter of Schyberg v Peterson, 105 AD3d 857).
So, the general rule used to be that a court did not err if it made a custody determination without a trial.
WHAT IF I CAN'T SERVE MY SPOUSE?
August 19, 2017
What if I can’t serve my spouse?
In a divorce action, after you file your divorce you have to be able to personally serve your spouse. If you cannot do so then you have to get an Order from the Judge to allow for substituted service of process.
In New York you do so by way of an Exparte Order which you file with the matrimonial support office. They have a special Request for Judicial Intervention for that you pick up from that clerk of the Court.
You actually prepare the Order yourself. Below is the form you can use. Consult a lawyer before attempting to file any form and do not rely upon it as it is provided for informational purposes only and not for legal advice. Be sure you fill in the County you filed your divorce action and the name of parties in the upper caption of the case. Also put in the index number which is located at the upper left-hand side of the Summons with Notice. In the Ex Parte Order, you must refer to all documentation that supports your order and include and Affirmation of the attorney for the Plaintiff or the Plaintiff showing how you attempted service, an Affidavit by the process server showing how many times you attempt to serve the Defendant and your own Affidavit as to what other measures you took to apprise the Defendant of the divorce action.
STATE OF NEW YORK SUPREME COURT
COUNTY OF ___.
Ex Parte Order
Plaintiff, Index No.
WHEREFORE, in matrimonial actions, this Court has absolute discretion to Order alternate service of process pursuant to the provisions of 232 of the domestic relations law and pursuant to CPLR Section 308 (5) in such manner as the court may decide, this without notice, if service is deemed impracticable under CPLR 308 (1, 2 and 4) and where Plaintiff has made such showing;
WHERFORE, this Court may Order substituted alternate service by email where 1) other methods could not be conducted with due diligence pursuant to Civil Practice Law and Rules CPLR 308(1), (2), and (4) cannot be made after due diligence. DRL 232(a),
and where Plaintiff has made such a showing;
WHEREFORE, pursuant to the recent Appellate Division Second Department case of Florestal v. Coleman-Florestal, 124 A.D.3d 578, 2015 WL 161618 (2d Dep’t 2015), affidavits of the plaintiff's process server attesting that he made numerous attempts to deliver the summons and complaint to the defendant at her residence were sufficient to establish, prima facie, the due diligence requirement and where Plaintiff has made such a showing;
WHEREFORE, in a matrimonial action, DRL 232(a) requires that the order authorizing such substituted service must prescribe the method of service and must give notice of a matrimonial action, and that Plaintiff has made such a showing;
WHEREFORE, pursuant to Alfred E. Mann Living Trust v. ETIRC Aviation S.a.r.l., 78 A.D.3d 137 (2010), service by email is deemed “reasonably calculated” to apprise defendant of action, and thus comports with requirements of due process, and where Plaintiff make the requisite showing herein that service by email in this case is “reasonably calculated to actually apprise defendant of the pending lawsuit;
WHEREFORE, Plaintiff has authenticated the Defendant’s email and text accounts by attaching recent, regular and multiple incoming and outgoing electronic mail as recently as April 2017; and that the following addresses are: email: _____ text number ______, phone number ________, mailing address of Defendant______.
WHEREFORE, where Plaintiff has shown this Court that the Defendant has ACTUAL KNOWLEDGE of these proceedings.
WHEREFORE Plaintiff has attempted personal service on four occasions as noted in the Attached Affidavit of Attempted service through the following company located at ____________,
That leave is hereby granted to Plaintiff to serve the Defendant with the summons, verified complaint, by substituted service of process, to wit, through text, email, and telephone, (or through whatever other means this court deems just and proper) within thirty (30) days of the execution of this Order through the below provided and authenticated email, text, and phone accounts of Defendant, ___at the above mentioned addresses text numbers and email addresses and through the below provided telephone and electronic accounts; to wit: email to _______ text ________and Phone call or leaving message on voicemail to ________ at phone number located at _______.
Dated: April ___2017
What is Jurisdiction?
August 18, 2017
What is Jurisdiction in a Divorce and Custody matter?
The analysis for jurisdiction under UCCJEA is VERY different from the analysis as to jurisdiction over a divorce. The analysis is very complicated and fact-specific but I will discuss what I can here.
The measure for jurisdiction under the UCCJEA is residence, BUT the legal measure for divorce jurisdiction under CPLR 302 B and Domestic relations Law Section 230 is domiciliary or residence.
CPLR Section 302B clearly permits a Plaintiff to file his or her divorce action in New York, even if they have a second residence elsewhere under certain circumstances, so long as it is determined that New York was the domiciliary of the moving party. And CPLR Section 302B also gives the divorce court power over the absent spouse who might have moved out of state, so long as the moving party can show New York has a vital interests in the case. This is called Long Arm jurisdiction and this can be shown for instance, if the parties were married in New York, resided in New York for a lengthy period of time, and have real property in New York, file taxes in New York, and the absent spouse derived some economic benefit from New York.
So, even if the parties no longer live in New York, if the Court decides that the moving party never gave up their domiciliary then New York might be a proper place to file the divorce action. So, since Domicile is a matter of intention changing residences without any intent to change domicile does not affect one’s domicile for purposes of filing a divorce in New York. [ **516 Minsky v. Tully, 78 A.D.2d 955, 433 N.Y.S.2d 276 (3rd Dept.1980); Bodfish v. Gallman, 50 A.D.2d 457, 378 N.Y.S.2d 138 (3rd Dept.1976) ], which has been defined as the location where a person “intends to make his home indefinitely.” Estate of Brunner 41 N.Y.2d 917, 394 N.Y.S.2d 621, 363 N.E.2d 346. See also: Miller v. Police Commissioner of the City of New York, 26 A.D.2d 803, 273 N.Y.S.2d 807 (1st Dept.1966).
The test of domicile has been said to be, “whether the place of habitation is the permanent home of a person, with the range of sentiment, feeling and permanent association with it.” Minsky v. Tully, supra. Without more, the fact that one absents himself from his established domicile for an extended period of time does not prove that a change of domicile has occurred. Estate of Chrisman, 43 A.D.2d 771, 350 N.Y.S.2d 468 (3rd Dept.1973). The “evidence to establish the required intention to effect a change of domicile must be clear and convincing.” Minsky v. Tully, supra. A change of residence lacking the requisite intent to abandon the prior state of residence “leaves the last established domicile unaffected”. Estate of Chrisman, supra. An established domicile in New York is presumed to be continuing, and the burden of proof is upon a party claiming that such domicile was succeeded by a later one. Matter of Lydig's Estate, 191 App.Div. 117, 180 N.Y.S. 843; Matter of Newcomb's Estate, supra, 192 N.Y. at p. 250, 84 N.E. at page 954; Matter of Fischer's Estate, 151 Misc. 74, 271 N.Y.S. 101; Dupuy v. Wurtz, supra. A mere contradictory sworn statement as to “residence” is not binding. And the burden is on the Defendant to prove that the moving party intended to make the state she or he moved in her temporary home.
Some attorneys will tell you that DRL 230 c0ntrols jurisdiction-and they would be wrong in large part. That is because DRL 230 is not jurisdictional in nature. The Court of Appeals, in Lacks v. Lacks, 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384, reargument denied, 41 N.Y.2d 901, 393 N.Y.S.2d 1028, 362 N.E.2d 640, held that compliance with DRL § 230 was not fundamental to the court's subject matter jurisdiction. The Court held that the durational residence requirements of DRL § 230 were “merely substantive elements” of the matrimonial cause of action and not a limitation upon their power to hear their case and not a limitation on their subject matter jurisdiction, and that rather the test for jurisdiction over divorce is whether there was a showing that the parties, or at least one of them, have sufficient roots in New York or that sufficient conduct occurred in New York as to warrant New York in exercising its jurisdiction and applying its law to the parties. Second, although DRL230 requires that one party be a residence to New York for one year, “residence”, where the parties have married and resided in New York for a lengthy period of time is loosely construed to mean a place of “domiciliary” and will allow for lengthy absences from the State of New York and will allow for multiple residences outside the State of New York so long as the moving party spouse makes a showing to the New York Supreme Court that he or she never gave up New York as her intended FOREVER HOME, so long as the parties were married in New York and resided in New York during the marriage, and so long as New York has a vital interest in hearing the case, such as real property being located within the four corners of the State or a business being conducted in New York from which the parties inure a benefit.
To conclude, when it comes to divorce jurisdiction, domiciliary it is defined as the intention of a person to make a new residence her FOREVER home. Despite having SEVERAL residences, domiciliary as defined by law, FOLLOWS the party from residence to residence until the party sets up roots in a new Domiciliary. But when it comes to jurisdiction over custody matters, under UCCJEA the standard is physical residence and presence in the state for a period of 6 months.
By Lisa Beth Older
Your NYC Divorce Lawyer
What should I say to the Judge?
August 17, 2017
What should I say to the Judge?
One of the least talked about things in a New York City divorce or child custody case what you should or should not say in a court room. You are being judged on day one so be sure to be respectful. Watch how you behave, and be respectful as to what you wear to court. Dress appropriately. Let your attorney speak for you and do not interrupt the judge.
The Court is very busy and spends an average of three minutes per case or so, depending on how serious the issues are, so save your arguments for the major issues of your case. Do not start arguing with the judge, and if you have to, then do so respectfully and save that for when you have something really important to argue about. Be respectful in the court room, not only to the Judge but to the other professionals in the court house. What you say and do is noticed and matters.
A judge has a tremendous discretion over your divorce or custody case. There is no jury in a divorce case, so what the judge determines in binding upon you. The Judges at trial will remember the way you behaved in a court of law. And if you alienate the judge then the judge might assume you are alienating your spouse or your children. But sometimes it is difficult to refrain from doing because emotions are flaring.
By: Your New York Divorce Lawyer
#manhattan #divorce #prenup
Can I appeal a Custody Order?
August 15, 2017
Are you thinking of filing an appeal because you are dissatisfied with what happened in family Court? If so you might be able to go to the Appellate Division if you are aggrieved by the Lower Court Decision.
However, you cannot just appeal if you think the court made a mistake, you have to prove the mistake. You cannot just assume the Decision is wrong just because it seems unfair, even if it is unfair. This is because the trial court has ultimate power to judge the credibility of the witnesses that come before it. The trial court has a lot of discretion to decide what it wants to decide. But even the trial court has to follow strict rules and if you think they did not then you can file an appeal.
Appeals are very difficult and they entail a lot of civil procedure that the normal out of court lawyer might not be familiar with.
If you are thinking of an appeal then you should order the trial transcripts right away, do not wait. That is because a trial decision on custody often requires that you act on an emergency basis and file a motion pending the perfection on the appeal. Any if you wait too long to act the Appellate Division, acting on your a motion to stay the Decision will ask you if this is such an emergency why did you wait a month before doing something about it.
You should also consult the Appellate Division Rules of Procedure and speak to an appellate lawyer in New York. The reason for this is that each Division of the Appellate Division has different rules and different ways to go about perfecting your appeal.
The State of New York has four Appellate Divisions. The First Department is where you go if your case was decided in Manhattan or the Bronx. The Second Department covers Nassau County, Suffolk County, Queens County, Kings County (Brooklyn), Richmond County (Staten Island), Westchester County, Rockland County, Orange County, Dutchess County and Putnam County. It is a big and busy department that respects timeliness. The Third Department and Fourth Departments is in upper New York and the Fourth Department generally is far up in the NW counties of New York State.
Appeals are started by the filing of a Notice of Appeal which must be filed in the court of origination along with a Request for Appellate Division Intervention which must be filled out, a copy of the Decision appealed from, and an Affidavit of Service that you served the papers before filing it. You have to do that in 30 days from the date you were served the Decision. After you do that you have to prepare a brief anddo a number of other things to perfect your appeal within the time constraints set out under the law.
Perfecting the appeal entails many things including but not limited to settlement of the record and the printing of briefs that set forth the law and the reasons you believe the Lower Court made reversible error. The time to perfect the appeal is controlled by the State Appellate Department so you should check their wenbn site under Rules and Procedures. The other side of the case gets to answer and you get to submit a reply brief on any new issues the other opposing side raises that were not addressed in your initial brief. Then you get to make an oral argument and then you wait-for your Decision.
If you do not like the Decision then of course you must do a motion for leave to appeal to the highest court in New York which is the New York Court of Appeals. But mostly the Appellate Division is the last stop for your case. Speak to an appellate lawyer in New York if you are thinking of appealing a final order from Supreme Court or Family Court.
By: Lisa Beth Older
#best 3top #spousal + #support #equitable + #distribution
How do I get custody if my spouse and I live in different states and how do you determine Home State
July 14, 2017
In order to provide guidance as to what is HOME STATE in an jurisdicitonal dispute involving cusotdy and two different states, below provided is a decision was on a case I appeared on that was was publishedin the New York Law Journal as a slip decision and also republished in Justia Law. [*1] M.G. v C.M. 2017 NY Slip Op 50745(U) Decided on June 2, 2017 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on June 2, 2017
Supreme Court, Kings County