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News about Divorce Law in New York State
Articles on New York Divorce Law
Nov 2017WHAT IS A HIGH NET WORTH DIVORCE?
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
HOW TO APPEAL A CHILD CUSTODY CHILD VISITATION OR CHILD SUPPORT CASE
January 19, 2018
Family courts and Supreme Courts rule on child custody and visitation cases. They rely on the best interests of the child rule set forth in the case law to rule on what custody arrangement they think is best for the subject child. The trial courts evaluate many different considerations and may fashion a joint custody ruling that includes a parenting schedule. They have an enormous amount of power and discretion to fashion their custody order.
The Courts also rely on the testimony of each respective parent and the witnesses called at trial, the representation of the child’s attorney as to preference of the children, and forensic court appointed experts who perform evaluations. Sometimes, a court might appoint a second expert if the first expert opinion is tainted or unreliable. It is up to your divorce or child custody attorney to ensure that the forensic report rendered by the court appointed expect is thorough, and your attorney should further ask to see the notes as well as the forensic report upon which the expert relied to arrive at his or her opinion as to the parties’ fitness.
It is not easy to overturn a custody determination and it requires more than just an adverse ruling against you. When you are the losing parent in New York you have the right to appeal on certain circumstances but you must show that it is more than just your disagreement with the Judge. You must show that there was an error in law or that the record does not substantially support the factual findings of the Court.
Another consideration is timing-in New York you have thirty days to file your Notice of appeal. If you run the time to appeal you will not be able to appeal without leave of court.
You must also consult with the Appellate Division in whatever department your case is heard as each department has its own rules as to what they need in order to perfect your notice of appeal in the appellate division. Your first stop is usually the trial court. They get the first Notice of Appeal that you file. Be sure to attach the Decision you are appealing from along with an Affidavit of Service proving that you served your notice of appeal on your adversaries.
But the Appellate Division also has its own rules as to how to go about filing the Notice and typically the rules require that you to file a copy of the Notice of Appeal as well as the Decision and Order with the Appellate Division as well, along with the Affidavit of Service.
The Appellate Division will also have you file what is called a Request for Appellate Division Intervention, which is a form requesting additional information about your case and the issues you wish to appeal.
After the Notice of Appeal is properly filed in both courts and if it is filed correctly, the Court will issue a scheduling Order to let you or the attorneys involved know when they must file their appeal briefs. If your case was tried in Family Court in New York the Court will often times assign your case to a case manager.
Usually, each Appellate Division in New York has its rules of procedure listed on their respective website, and these rules are also applicable, really to any appeal you might take.
Another consideration other than timing is that you be sure that the Order you are appealing is a final order rather than a temporary order as you can not appeal a temporary order without first making a motion for leave or permission to appeal. You might ask, what is a final order. The answer is that the Order is usually final if it includes a determination after trial of all the related issues in the case. It will also usually state Final Order and Decision in the upper right-hand corner of the Decision,
Appellate practice is complex and you should consult with an attorney before endeavoring to file an appeal. It is also an expensive venture and the cost is often times dependent upon the number of dates of trial, the number of transcripts involved and the number of pages of transcripts to be reviewed. There are also printing charges that might be prohibitive. If the Decision just does not make sense given the testimony then you should consult with an attorney to see if it can be appealed. If you are indigent and cannot afford an attorney you can make an application to the Appellate Division for appointment of a free lawyer and for costs
Before you file an appeal brief you must settle the transcripts on the opposition counsel and attorney for the child. You should always order the transcripts of the Fact Finding from the stenographer as soon as possible as you cannot file a brief without submission of said transcripts.
In your child custody and visitation brief you cannot introduce new evidence and the Appellate Court will rely upon the various briefs and the transcript record and evidence admitted at trial in making its decision. If they find the court erred the Appellate Division can reverse the decision, affirm the decision or send it back to the lower court for reconsideration.
By Lisa Beth Older
This information is not legal advice and you are recommended to seek legal counsel as each case is very different.
How the New Tax Law Affects Your Divorce
January 12, 2018
Divorce cases will now be more complicated than before with the advent of the new tax bill. And the incentive to settle a divorce or custody case is now lessened under the new bill. Under the new law, spousal support paid by one spouse to the other spouse will not be a tax deduction whereas the recipient spouse no longer has to pay taxes on it. Under the present system, the payer of alimony got to deduct the full amount and the recipient spouse paid taxes on the amount. No longer so!
Custody, custody agreements, and relocation of children in a divorce
November 4, 2017
How does a Court decide who gets custody of the children?
It is well settled that in making a child custody decision the Courts are required to inquire and analyze the best interests of the children through a review of the totality of the circumstances. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017). “The best interests of the child[ren] must be determined by a review of the totality of the circumstances” Matter of Preciado v. Ireland, 125 A.D.3d 662, 2 N.Y.S.3d 594; Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Boggio v. Boggio, 96 A.D.3d 834, 835, 945 N.Y.S.2d 764).
In making a determination of the best interests of the child, the Courts must take into account many factors, including but not limited to the quality of the home environment, the parental guidance the respective parties provide, the contrasting ability of each parent to provide for the children’s emotional and intellectual welfare and development, the financial status and financial ability to provide for the children, the relative fitness of the parties, and how the effect of the decision of custody might have on the children’s relationship with the other parent. Mohen v. Mohen, 53 A.D.3d 471, 473, 862 N.Y.S.2d 75; see Matter of Moran v. Cortez, 85 A.D.3d 795, 796, 925 N.Y.S.2d 539.
However, a different policy of this Court and a higher threshold must be met before there can be a modification of a court-sanctioned agreement. While it is true that “No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260), it is equally true that a more stringent standard of review controls where there exists a court Sanctioned custody agreement.
So, as to the “best interests” analysis when dealing with modification of an existing court sanctioned agreement, in order for the Court to modify it, it can only do so upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]” Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658, quoting Matter of O'Shea v. Parker, 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903; see Matter of Bodre v. Stimatz, 150 A.D.3d 1228, 1229, 52 N.Y.S.3d 872).
If the Lower Court errs and awards the child to the wrong party you have the right to appeal to the higher court. It is well settled that this Court may set aside a Lower Court custody determination if it lacks a sound and substantial basis on the record or is contrary to the weight of the evidence adduced at trial. (Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636; see Matter of Selliah v. Penamente, 107 A.D.3d 1004, 1004, 968 N.Y.S.2d 177; Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273). And in the Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137 the Court held that “while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we ‘would be seriously remiss if, simply in deference to the finding of a Trial Judge,’ we allowed a custody determination to stand where it lacks a sound and substantial basis in the record” Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137, quoting Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see Matter of James A.—S. v. Cassandra A.—S., 107 A.D.3d 703, 706, 967 N.Y.S.2d 99; Matter of Moran v. Cortez, 925 N.Y.S.2d 539.
In a relocation case it is well settled that the movant must prove that the child will benefit from being relocated and that somehow your circumstances are so much better that the child's best interests are to allow you to relocate. Perhaps you have better employment prospects, or more family support in another state? In weighing all factors, the Court will consider these factors as well.
If you are the moving party you must make a showing that the child would benefit from being uprooted from all of his or her school friends and activities enjoyed in New York. It is well settled that, in a relocation case, a court must consider the loss of benefits the child would have and the harm which would ensue if the move is permitted. In the Second Department case of Martino v. Ramos, 64 A.D.3d 657 (2009)the court held in pertinent part, that …”there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted” (id. at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145).
If you are planning to get a divorce in New York and you want to relocate to another state it is best to speak to a New York Divorce lawyer who has experience in this area of divorce. Deciding custody is one thing, but if you are asking the court to allow you to relocate to another state or county with the children there are specific facts that you must show to convince the Court it is in the best interests of the children and if you cannot do so then you probably will not be allowed to relocate the children.
WHAT IS A HIGH NET WORTH DIVORCE?
November 1, 2017
High Net Worth Divorces
High Net Worth Divorces and Prenuptial cases involve a complex financial analysis of family assets and should require not only the advice of a skilled matrimonial attorney but also the advice of tax attorneys and financial advisors, and the New York divorce lawyer you choose should also have some business acumen.
In writing up a prenuptial agreement, if you are the monied spouse, there are asset protection strategies your attorney can employ to protect your business or partnership and to legally minimize tax exposure.
If you are going through a high net worth divorce then it is likely that there has been some sort of estate planning instruments in place such as trusts and off shore accounts that might allow your spouse the opportunity to hide assets or protect them against equitable distribution. There might also be irrevocable child trusts that have been set up for the children or for other of the spouse’s family members. This is why it is important to hire a matrimonial attorney who has experience dealing in such matters.
Furthermore, the division of property in a divorce gets particularly complicated when the asset is partially acquired before the marriage and partially acquired after the marriage. The quantification of a marital asset is fairly straight forward as parties rely upon forensic accountants to evaluate and value the asset, whether it be real estate, cash accounts, stocks or retirement accounts. What is complex is figuring out what value was acquired during the marriage, what part was acquired before the marriage and what part was acquired after the commencement of the divorce action. Usually each asset is valued as of the date of the commencement of the action but real estate is usually valued as of the date of trial or on such other day as the parties may mutually agree by way of Stipulation. However, if you are evaluating a business that was running before the marriage, you would want to get a valuation of the business as of the date of the marriage and one valuation as of the date the parties separated so you can assess what part of the business might be marital and subject to distribution.
Usually inheritances and personal injury recoveries are exempt from equitable distribution and belong to the party that acquired that asset. However, in high net worth divorces this assumption can come undone if the parties comingle that asset into a joint account and that is commonly referred to as comingling or transmutation. In cases where the separate property got mixed in with marital property the property loses its separate property characteristics and becomes marital property subject to equitable distribution.
Also, equitable distribution is not equal distribution. The Courts will often times grant more than 50% of a business to the spouse who is most actively involved in operating a complex business. I guess it is safe to say that it all depends on the role each spouse plays in the asset that is acquired, and the determination as to who gets what is very fact specific. So as to high net worth divorces, no-one’s divorce can be compared to yours as each party has a unique set of circumstances.
LIsa Beth Older
Your NYC Divorce Lawyer
Will my rights in my divorce change if I file after January 25, 2017?
October 23, 2017
What law applies to my divorce in my favor if I file after January 2016?
If you are a business owner, or the monied spouse facing a spousal support award, filing for divorce after January 2016 is beneficial for you.
This is because the divorce law changed and so effective January 2016 if you got a degrees and licenses during a marriage said degree or license is no longer considered marital property subject to equitable distribution.
Bear in mind that not everyone has to pay spousal support. There is a template on line where you can figure out whether you must pay spousal support. In this template you plug in your income and the income of your spouse and if there is a substantial difference in all likelihood there will be a spousal support award. But the formula is complicated because if you are also paying child support that amount is pushed into your spouse’s column for purposes of deciding whether you owe spousal support, and how much. By this law the courts attempt to avoid double dipping for purposes of determining a spousal support award.
As to your obligation to pay spousal support, the law has changed by providing us with guidelines formulas that cap the amount against which spousal support is figured. The cap of your income subject to spousal support will be $175,000 but bear in mind this is a formula from which the court may deviate. Usually the Court will not deviate but if the Court elects to lift the cap, and give additional maintenance based upon the payor’s income in excess of $175,000.00, then it must state its reasons for doing so and cite to the deviating factors set forth in the statute.
You might ask, how long will my obligation to pay spousal support last? These guidelines set different timelines depending upon the duration of the marriage. If your marriage lasted less than fifteen years you can expect that your spousal support obligation will last between 15% to 30% of the length of your marriage. If your marriage is longer than 20 years, than you can expect to pay your spouse for a time equal to 35% to 50% of the length of your marriage. +lawofficesoflisabetholderNewYorkNY
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.