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New York child custody, Manhattan child custody, Brooklyn child custody Lawyer
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Articles on New York Divorce Law


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.    

 

v.

 

 

                             Defendant.                                                   

 

______________________________________________________________________

         

           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 ____________,

It is:

 

SO, ORDERED:

 

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 _______.

 

SO ORDERED:

                                      By:  ________________________
                                            Hon. ______, JSC/Referee

 

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 384reargument denied41 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

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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

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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 
 
WHAT IF MY SPOUSE LIVES IN A DIFFERENT STATE?
July 11, 2017

CPLR Section 302 B tells spouses in New York whether New York has the power to adjudicate their divorce when one or both members of the family move to another state.

Under CPLR Section 302 B, if the parties were married in New York and if one spouse moves out of State then New York can still hear the divorce case so long as the remaining spouse had resided in New York or was domiciled in New York for a period of one year immediately before the commencement of the divorce action. The difference between domiciliary and residence is critical and will be defined below as it impacts upon the ability of a New York Court to hear a divorce case where the parties were married in the State of New York but have multiple residences, or if one of the spouses are just temporarily out of state.   Residence simply means physically present in the state of New York.  For purposes of Domestic relations Law Section 230 although the statute requires that one party be a residence to New York for one year, “residence” is loosely construed to mean a place of “domiciliary” and will allows for party’s  residential absences from the State of New York where the party absent from the state shows through a set of facts that 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. That on top of the fact that one of the parties never intended on making another State its forever home. This, if the petitioning spouse has moved out of State but considers New York his or her home, and votes there, and maintains a driver’s license there and has other such showings and indicia of fact showing a permanent intent to retain New York as their forever home then New York may decide to keep jurisdiction over the divorce and hear the case despite the parties being absent from the State so long as they were married in the State. In fact, no other court would have the power to adjudicate a division of real property that is in the State of New York or adjudicate other such equitable distribution of the parties’ assets, and the parties are unable to stipulate to jurisdiction because a court is the only one that can decide if it has power to hear the case.  However, the parties can stipulate to facts and then let the courts decide who has the power to hear their case.

So, what happens if one petitioning spouse is domiciled or resides in New York and one spouse moves away and makes another state their forever home?  Under the New York Long Arm Statute, New York can have power to adjudicate issues of the divorce over a absent spouse so long as prior to their physical separation from each other New York was the matrimonial domicile of the parties. 

As for the power of a court to hear issues involving custody over the parties’ children, that is more complex and is governed by an entirely different set of laws that define residence literally rather than figuratively. The UCCJEA as defined by DRL Section 75-a, and simplified herein by way of example, requires that in order to make an initial custody determination the parties reside in New York for a period of six months, with the child. While certain temporary absences are allowed (as more defined in recent case law) that will not interfere with eh six month residency requirement, if the petitioning party has made a permanent move to another State , then changes his or her mind and returns, that is not a temporary absence according to a new New York case entitled M.G. v. C.M., July 7, 2017, the Hon. Judge Sunshine presiding. I represented Plaintiff in that case and after extensive hearings that culminated in a written slip decision counsel was provided with  more guidance as to what is considered a temporary absence for purposes of the UCCJEA child custody law.

To conclude, jurisdiction is complicated and that is why if you and your spouse live in different  statesit is wise to consult a lawyer in New York before you file for divorce, as the fact is, that the law of jurisdiction is so different in custody cases and divorce cases that it is possible that one state will have to hear and determine equitable distribution and spousal support and one state will have to hear the custody case.  See the case of Vanneck v Vanneck 404 N.E.2d 1278.

Also see me here


 
WHAT IF MY SPOUSE AND I LIVE IN DIFFERENT STATES?
July 8, 2017

What if my spouse and I live in different states?

I worked on a case recently and we just had a court decision come down from the Supreme Court in Brooklyn...a very interesting case...and the decision gives lawyers insight as to how to interpret the UCCJEA law as it pertains to custody where the parties are seeking custody at the same time but in two different states. I will publish the case soon on my web site at www.nycdivorcelawyer.net if I get permission from my client! Prior to this case a party living with a child for six months in New York could be temporarily absent from New York but could return to New York if done so within 6 months to sue for custody as the statute was silent as to what constitutes a temporary absence from the state verses an abandonment. Essentially, the case said in part that if you leave the State and make another State your home, you are permanently absent and as such might not be able to sue for custody in New York, depending on the facts. So if you are thinking of suing for custody and you live in New York for 6 months or longer, my personal opinion is, depending on the particular facts, is to file your petition for custody in New York and establish your custodial rights before you plan to move or you might find yourself litigating in a state you have no intention of STAYING in!

By #nycdivorcelawyer + #lisabetholder +lawofficesoflisabetholderNewYorkNY 


 
HOW DO I PROTECT MY BUSINESS IN A NEW YORK DIVORCE?
June 30, 2017

 

I want to protect my business before I get a divorce so how do I protect my ownership rights in my business in A New York Divorce case? 

If you have a business be sure you lock it all up by use of a partnership agreement an LLC or as a shareholder.  Also have an agreement between your partners for a buy and sell agreement limiting each partner from transferring stocks to a spouse of another partner.

These sorts of Partnership and operating agreements between members of your company should have special clause in them providing for protection such as the following provisions:  Make sure each partner gets a prenuptial agreement or nuptial agreement, if you can, which waives the other spouse’s interest in your business.  This not only protects you it also protects your partners. Also make sure the agreement has a clause in it prohibiting any partner or shareholder from transferring or gifting shares in the company to others and in this way, you manage more effectively and maintain control over your business in the event of a divorce of any of the partners. Paying a hefty salary to yourself is also very important as you do not want to pay into your business during a divorce and have it grow in value only for your spouse to claim a larger share in it.

No matter how you cut it, if your business was started during the marriage or if it appreciated in value during the marriage your spouse has a claim to it, but it is not necessarily an equal share. For instance, if your spouse was employed by your company and helped build the company her contribution would be larger so his or her interest in same will be larger.

So. Let us say you protected your business with an operating agreement: does that mean your spouse will not get a share of the business in proportion to contributions? Unfortunately, the answer is that the business will be valued and your spouse will have to be compensated in one way or another.  Just because he or she cannot own shares in the business does not mean she or he will not be compensated by a New York divorce court.  That is where you can do a tradeoff and buy the spouse out through other assets that were acquired during the marriage such as retirement accounts, savings, real estate or promissory notes paid off over time.

Sometimes the sale of the business or parts of it are the only way to pay off the spouse but you can also liquidate some of the items and still try to keep your company afloat. 

Also see me here.