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News about Divorce Law in New York State
Articles on New York Divorce Law
Mar 2019Can I sue for Adultery?
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?
What happens if I can not afford a lawyer?
July 21, 2019
What happens if you cannot afford an attorney in your New York Divorce or Child Custody case?
The basis for a counsel fee award is predicated on the fact that the Law favors leveling the playing field so that one party does not benefit in the litigation by having more money to fight the case.
If you cannot afford an attorney and you are engaged in a divorce action, then you or your lawyer will have to make an application to the court for attorney’s fees. It is in the discretion of the court to award you fees, but the presumption is that you are entitled to counsel fees if you are the less moneyed spouse. The application must be a formal one and you must set forth the law that permits you to an award of counsel fees and the facts that support your application. Also, be sure to attach your sworn net worth statement and your tax return to the back of the application along with the anticipated amount of legal work that you believe your case will take, through to resolution or trial, together with an invoice, if any, of any legal work performed in advance of the application.
For interim motions if the attorney’s fees be granted, they are granted only temporarily. If the less moneyed party gets a hefty equitable distribution award the court may order reallocation of the funds paid out.
Counsel fees may also be applied for if there is a Court Order and your spouse is not abiding by the Order.
If you are in Family Court and you are the non-moneyed spouse or litigant for child custody you can ask the Court to appoint you someone from the 18B law guardian panel.
Your Manhattan Divorce Lawyer Lisa Beth Older!
DO I HAVE TO TURN OVER MY BUSINESS RECORDS IN A DIVORCE?
June 29, 2019
Do I have to turn over my business records?
In a divorce action the Courts no longer focus on fault. However, a great dal of time is spent on learning about the other party’s assets, particularly if the other party has hidden assets and earnings from the other spouse or if the marriage is a high net worth marriage involving complex business ventures.
A complex set of laws and regulations and court rules will dictate what documents must be turned over to the other side. At the outset you will have to exchange net worth statements listing your monthly expenses and income as well as your debts and liabilities. These statements must be sworn to under oath and from a good platform for the attorneys to double check to ensure that the numbers represent the true net worth of each party. After that, the parties exchange demands for documents in the form of a Notice of Discovery and Inspection, Interrogatories which are informational demand requesting that statements made about your financial situation be sworn by the party answering them, and depositions.
Typically, personal bank statements ranging back to at least three years or more are required to be turned over, but if the marriage is of longer duration then the divorce lawyer for your spouse might ask for additional years of documents. Credit card statements are also the subject of discovery as are personal tax returns, loan statements and pension or retirement account statements, and a wide array of other such documentation.
Discovery in a matrimonial case is exhaustive and entails a lot of paper gathering. It is also mandatory that you comply with the requests and if your spouse does not comply then the other attorney may render a deficiency notice as to the items that you failed to turn over. If you continue to resist the exchange of documents requested of you then the remedies are harsh, such as precluding you from presenting a financial case at trial. You may also be held in contempt if your behavior is contumacious and unrelenting,
Thys, it makes sense to start collecting the data needed before you file for divorce so you can give your attorney an idea as to what is at stake.
Where discovery in a New York divorce becomes complex is where one or the other party owns a business with partners or investors that expect confidentiality of their records or where one of the spouses is running a real estate venture with other parties or corporations. Sometimes a spouse will try to hide behind a corporate veil and not disclose business tax returns and business banking accounts because they are privileged under the Federal Privacy laws of New York. However, if the spouse is the sole shareholder of the corporation the Courts will pierce the corporate veil and make your spouse turn over all these records.
If a spouse is working in the other spouse’s business or if the spouse is at home making indirect contributions such as raising the children, holding corporate parties, or entertaining perspective investors or buyers, then the spouse typically would have an interest in the business but the interest in the business is fractional and depends on how much you contributed to the business.
You can expect that if a business was started during the marriage or increased significantly during the marriage that the Court will appoint an independent evaluator to review the records, he or she needs to decide as to the value of the business. It would then be up to the court to apply the law to arrive at your fractional interest in the business, if any.
By Lisa Beth Older
Your New York City Divorce LawyerPracticing in Manhattan
WHY CAN'T I GET AN UNCONTESTED DIVORCE?
April 29, 2019
People often ask me whether they can get an uncontested divorce. That is a very complex question because while both parties may want to get a divorce, they do not realize that securing a divorce means that you must have both parties settle all ancillary issues in your divorce judgment. The grounds for divorce are probably the easiest part to consent to but is not the last part. There are many aspects to a marriage that must be resolved before a court can issue a judgment of divorce. If you have children, you must consent to all terms of legal custody and joint custody and custodial taxes to the children. This can become very complex when parties live in two different states are two different countries. It is just as complex if parties live in the same neighborhood because you must come up with a detailed schedule as to which parable have custodial axes on what days and on what holidays. As for child support, where there are children you must provide for a child support order in your divorce Judgment. That is also complicated because there is a uniform child support standard act guideline that you must follow unless there are reasons to deviate therefrom. And there are a lot of variables to consider before setting child support such as the income of the respective parties, the needs of the children and the ability to pay. And then there is spousal support. In New York since 2016, we now have a standard spousal support guideline that the courts often follow, and it sets a chart for the parties to understand whether they need to pay spousal support and how much and for how long. There are also issues involving property that is acquired during the marriage. This becomes difficult if one party or the other owns property prior to the marriage but contributes to the down payment on principal during the marriage. Furthermore, several of my clients don’t understand that pension rights and for one K plans are marital property if a portion of that plan is earned or accrued during the marriage.
These are only a few of the problems that must be addressed in detail in a signed agreement and knowledge to be for notary in a formal manner which is required for the filing of a deed. Indeed, even if the parties have managed to come to terms, the execution of the agreement is also a complex and should involve a lawyer reviewing your agreement to make sure it is binding.
There’s also the issue of counsel. Often if there is an attorney on the other side of the case there will always be issues to resolve because the parties may not have discussed points of law that must be in the agreement.
I am often heard to say that if there is an attorney on the other side it is not an uncontested divorce. That is only partially true! If the Attorney on the other side is reasonable and experienced and not out to change the deal of the parties, then you can have an uncontested divorce. But in my experience if there’s an attorney on one side of the case there will always be additional work other than filing closing documents and getting an uncontested divorce.
Without solving the above problems in a formal document, a court cannot get you a judgment of divorce. In fact, it would be error to do so.
As you can see an uncontested divorce is not as easy as you might think. That is why it is important to retain an experienced New York Divorce Lawyer familiar with divorce and child custody matters.
By Lisa Beth Older
Your Manhattan Divorce Lawyer
Can I sue for Adultery?
March 21, 2019
As a New York Divorce Lawyer, my clients ask me oftentime whether aultery is still a crime in New York State and whether they can sue their spouse for cheating on them. This article is designed to lend clarity to this issue because spouses that are hurt by a cheating spouse need answers to this. Penal law section 255.17 states that you can be found guilty of adultery if you or your spouse has sexual intercourse with another person during that time that you are married. However, you cannot actually depend on the State to prosecute anyone for adultery because the state of New York usually does not act against the perpetrator. There have been only approximatley 13 convictions for adultery over the last forty odd years and these convictions were attendant to and related to other more serious underlying crimes. This is because New York chooses not to prosecute adultery as a crime as a matter of public policy.
As for divorce in New York we have several grounds upon which to seek a divorce and again, one such ground is adultery. So, you can still sue for adultery but that does not always mean you will prevail because there are higher standards of proof that must be met for divorce courts you get you relief under those grounds. Also, while you can sue for adultery, since New York State has added irretrievable breakdown of the marriage as a ground for divorce the courts favor this as ground and you will be encouraged to proceed forward on this ground because it alleviates the court from having to have a trial on grounds. This is encouraged because, quite frankly, grounds no longer impact decisions on equitable distribution and support and child custody unless the factual basis of said act is so severe and egregious that it warrants special equitable relief.
For instance, for adultery to form a basis for any part of an equitable distribution award, you will have to prove in court that the adultery directly impacted that economic issue. An example of this might be that the cheating spouse may have spent some or all the marital assets on his or her paramour. In that instance a court will make an allowance for that amount and in its discretion try to reward the aggrieved spouse that amount which was spent on the extramarital affair. Another example as to how adultery might affect a divorce is has to do with custody. If the adultery was committed in a careless manner in front of the children or in an explicit manner and as such had an upsetting direct impact on the children, then a court might consider that as one of a myriad of factors in its determination as to what custodial arrangement would be necessary in the best interests of the children. Usually, however, a mere affair will not alter the way a court arrives at a custodial award.
Accordingly, if you are staying married because your spouse threatens that you will be punished for your adulterous act it is probably not a good reason. Most New York Courts do not concern themselves with grounds when making rulings for support, custody and distribution of property and it will probably have no impact on the result of your New York Divorce and your New York Divorce Lawyer will likely so advise. If after reading this article you are still convinced that you want to sue for divorce on the ground of adultery, then you must realize that you have a higher standard of proof. You can not just take the stand and tell the Judge you believe your husband or wife had an affair. Rather, in providing adultery you must have a witness other than yourself testify in a compelling manner that your spouse had sexual relations with a person outside the marriage and usually that person will be an investigator with corroborative media evidence such as a video or photographs of the spouse during the act. There are also defenses that your spouse can raise against an adultery allegation such as the fact that you might have agreed to an open marriage where both spouses agreed to extramarital affairs, you might have forgiven your spouse, or you might have cheated on your spouse as a form of revenge.
So, while New York Courts will still hear your case on the grounds of adultery, it is a cumbersome and costly process that involves airing your dirty laundry in a court of law and is unnecessarily expensive.
To conclude if you are looking to file for a New York divorce then the best grounds to precede on would be a no-fault divorce, or irretrievable breakdown of the marriage. Using this ground no proof is required to be had, and the plaintiff merely alleges and states that the marriage has broken down for a period of in excess of six months.
What is a Child CustodyForensic Evaluation?
February 25, 2019
The Role of Forensic Evaluations in Child Custody cases.
In all New York child custody cases that are high conflict the court will usually appoint a psychological evaluator to conduct testing and to render a report to the Court.
Often times these evaluators are referred to as independent forensic psychological evaluators. In such cases, the parties are usually required to pay for these evaluations prorata to their income. In divorce cases in Supreme Court the court usually requests that the attorney submit alternate private names of evaluators and the court will then choose between these names in the appointment of the evaluator. The Court also retains a list of experts that they often rely upon as reliable. However, in family court, you may request that the court order a risk assessment report rather than a full-on forensic evaluation which is less costly and sometimes free of charge. It is sometimes less through then an independent evaluation, but I have seen very good risk assessment reports coming out of Family Court cases in New York County.
Whether or not a court will order these types of evaluations is within the sound discretion of the court. These reports are oftentimes provided free of charge. The opinions of these experts are given substantial weight in court. The risk assessment reports generally involve the expert interviewing the parties and the subject child and witnessing the subject child in the care of both respective parents. This is a process that takes a couple of months to complete. Once the process is completed the forensic evaluator will render a report to the court and the parties.
I find that the risk assessment reports are generally very useful when both parties are of limited resources. The professionals that execute these reports are usually psychologists trained in family court matters of this kind. These Reports, while given substantial weight, are not the end all in the determination as to which party is granted custody.
The risk assessment report is different from the independent forensic psychological evaluation in the sense that the independent forensic evaluation is more comprehensive and is likely to cost more money. However, the goal is the same, which is to provide the court with some insight into the more scientific elements of child custody. The courts also rely upon the attorney for the child. The attorney for the child can make motions and argue for the rights of the child. The court also rely upon the testimony and evidence proffered at the trial. In the end, it is the weight of the evidence that the court is most concerned about in rendering its custody decision.
All parties are encouraged to cooperate politely with all forensic evaluations and attorneys for the children. That means, appear for all sessions required of you and be honest and forthright. It does not help to lie or try to portray yourself as someone you are not because the psychological evaluators will be able to figure that out. That does not mean that you should not be prepared by your New York Custody attorney prior to you entering into a forensic evaluation.
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.