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News about Divorce Law in New York State
Articles on New York Divorce Law
Jun 2018What is Mediation?
May 2018What will happen in Divorce Court?
Apr 2018What is the Appellate Division Like
Mar 2018What is a Separation?
Feb 2018HOW DO I GET AN ORDER OF PROTECTION
Feb 2018WHAT IS CHILD SUPPORT?
Jan 2018CAN I GET ALIMONY?
Nov 2017WHAT IS A HIGH NET WORTH DIVORCE?
Sep 2017What to expect in a custody case
Sep 2017WHAT IS A CONFESSION OF JUDGMENT
What is Mediation?
June 9, 2018
What is Mediation?
Make no mistake about it. Divorce is a rough process altogether but when you and your spouse are not in agreement on a variety of issues the process quickly becomes more unspeakably onerous and uncivil.
For some people, the Court Room is the only way to air out and settle differences by having a neutral party, the Judge, who points out to the parties and their lawyers how a case will likely be determined after a trial and if that does not happen, to try the case. But that is not the only option. You can also choose mediation. If you are a private person you might like to keep your dirty laundry out of the public eye and opt for mediation or collaboration instead in a setting that is more relaxed. If you are living in Manhattan, mediation with our law firm is a good choice. Though this firm has over thirty one years’ experience in litigating new York divorce cases, we also find that mediation or collaboration is just as highly effective if not more so. Manhattan residents will find qualified attorneys who can work with both spouses to achieve a just result and arrive at an agreement and you would probably want a Manhattan divorce lawyer or Manhattan custody lawyer to accomplish this as each county in New York has a somewhat different take on the law that governs your case.
After a mediated agreement is reached you do not have to sign it as yet. Then, teach party has the agreement reviewed by independent counsel to ensure that the agreement arrived at in mediation comports with their understanding and you will save a lot of time, money and aggravation in proceeding thus since the second attorney is only hired for the review process, not tear it apart.
By Lisa Beth Older, your NYC DIvorce Lawyer
Manhattan Divorce Lawyer discusses the best divorce case scenerio
May 20, 2018
The Best divorce case is one that never has to go to Court. If you and your spouse feel it is necessary to divorce then you both should try to hire collaborative divorce lawyers that know how to compromise and make deals for your family that will best preserve your assets and your mental health. As a divorcing couple you may not feel fondly toward one another but if you are required to co-parent then in that circumstance it is best to keep the heat down during the divorce proceeding and try to settle your differences through compromise. +lawofficesoflisabetholderNewYorkNY or https://plus.google.com/+LawOfficesofLisaBethOlderNewYork
How do you calculate sousal support and child support in New York?
May 20, 2018
The New York Courts.gov website has a valuable tool you can use to estimate and calculate your support obligations and rights.
I provide the link for you here, but be sure you consult with a divorce attorney before accepting any result as you might be missing legal information needed to make the right calculation. This is provided for informational purposses only.
Come see me on line.
What will happen in Divorce Court?
May 6, 2018
This is a very generalized statement for educational purposes only as to what a divorce looks like if the parties are contesting the divorce. This guideline set forth below under New York State Law is what you might expect to see but no guarantees are to be read into this article as litigation is hazardous for both parties and wrought with uncertainty. Also, variations will occur as each couple’s divorce is different from the next. However, the steps are pretty much the same. Any divorce, is covered under the umbrella terms of a “Matrimonial Action”, that is, a divorce affects the marital status of the parties involved as well as the financial settlement of support and assets. Whichever spouse begins it is irrelevant. When an action is commenced an “Index Number” is assigned to the case for record-keeping purposes. Starting an action and “Purchasing the Index Number” are sometimes used interchangeably. We have already done this part.
After service of the Summons, and after settlement talks fail, the parties usually file a request for judicial intervention, or a motion, or both. The parties appear in court for some kind of OSC or motion for immediate or temporary relief. The relief requests may include a request for exclusive occupation of the parties’ home, payments for support, restraining orders, counsel fees etc. while these “Motions” may award only temporary relief, they are highly important to the outcome of the action. Courts like to continue patterns. If the “Motion” made by either party is necessary for some financial matter, then the parties will need to disclose (show the court) relevant financial documentation, including pay stubs, bills, bank information and / or recent tax returns. The Court has 60 days to rule on Motions. Sometimes it can take up to three to four months or more before they decide the motion, however, depending on the Judge and you never want to rush a judge or they might hold it against you.
During the first court appearance, the Court also holds a PRELIMINARY CONFERENCE. This first appearance is long as the court maps out a time line setting forth dates that the attorneys must follow to complete financial exchange and possible depositions. The parties’ attorneys and Court must all sign it. On this date the court also holds a conference with the attorney to narrow down the issues and try to solve them, and to encourage the parties to settle. The Court will impart how they see your case and how it should settle but you are not required to follow their suggestion.
We then go back to court every month or so as the court controls its calendar to ensure attorneys are making progress along the terms set forth in the preliminary conference Order. The Judicial Guidelines say this process should take 9 months max, but often it goes on beyond nine months This can go on for months to years depending on the complexity of the issues. In your case, though, depending on the Judge assigned, with no children I would say the range is 9 months to 1.5 years but do not hold me to it as I do not have a crystal ball. At any time during each court appearance the court will put enormous pressure on the parties to settle reasonably. Whoever caves in first and gives away the case at the demand of the other spouse usually loses on his position, so you need fortitude.
As stated above, the parties may choose to settle the action, at any stage, if it is at all possible for them to agree to the distribution of assets, property, and support matters, and any other outstanding issues. If such a resolution is possible at any time, the parties will sign an agreement known as a Stipulation of Settlement or Separation Agreement, which will dictate the terms of the parties’ separation. The terms of the agreement may be incorporated with the terms of any divorce granted and you no longer have to go to court, the lawyers do the rest. This can happen at any stage of the proceedings, whether in or out of court. Often life intercedes and one party or the other caves in and settles for a multitude of reasons.
If no settlement of the action occurs, or if wither party is unsatisfied with the financial documents produced and exchanged, the Court adjourns the case for two to three times more for the attorneys to exchange all the financial documentation they need from the other party. If dissatisfied the attorneys have the right to insist upon depositions or EBTs, which stands for Examinations Before Trial. During an EBT, each is asked to give testimony regarding the marriage, including any alleged grounds for the divorce, and the financial affairs within the marriage. The Defendant’s attorney asks the Plaintiff questions, and the Plaintiff’s attorney asks the Defendant questions. EBTs are recorded through a stenographer, who is present to transcribe a written record of everything that is said by each person in attendance.
Through motions, EBTs, and production of documentation regarding the marriage, each parties’ attorneys try to determine the manner in which the marital property ought to be awarded by the court, and the amount and duration of support, and they argue to the judge their respective positions. In NY, the marital property is divided pursuant through a process known as "Equitable Distribution", which divides the marital property based on a number of factors, including the parties’ current financial status, their health, and ability to be employed, among other items.
If after Depositions or during this process your action is not resolved through negotiations or settlement, you will go back and forth to the Court for what is called COMPLIANCE conferences. After a period of time the Judge loses patience and then the action moves into pre-trial court conferences and further negotiations before the assigned judge. This can go on for months to a year and a half, sometimes longer but only if the issues are complex. Again, no guarantees on time lines. If, once again, there is still no resolution to the parties’ disputes, then the case will proceed to a judicial trial, where you present your evidence and make your legal arguments wherein a judge or Referee will make a decision regarding any outstanding issues. Even at this stage, there is still opportunity for the parties to agree upon a settlement, which is “read into the record” before the court. The judge will then sign off on the terms of this agreement, which will make the parties bound to the terms of the divorce. Of course, the judge still retains the right to make any decisions regarding the divorce if no agreement is reached.
Every Divorce Case is Unique
Unfortunately, while this description may offer a simplified outline of a contested divorce proceeding, it cannot predict the course of your own divorce case. While some divorce actions are resolved in a period of a few months, others are not resolved for several years if the case involves complex issues of finance or custody. In general, the duration of any divorce action is dependent upon numerous factors, including the parties’ willingness to compromise, the financial assets of the parties, support, and the court’s ability to hear the action within a given timeframe.
Law Offices of Lisa Beth Older
What is the Appellate Division Like
April 14, 2018
As an attorney, working at the Appellate Division level on New York divorce and custody cases is a wonderful experience. This work allows attorneys to delve into the law in a heightened manner so that the very best case law is used to bolster your arguments for error performed at the trial court level.
It is also a unique opportunity to have four seasoned judges listen to your arguments for ten to fifteen minutes, allowing the Justices the opportunity to ask questions about your case and pay attention to the case in order to ascertain if the lower court made a mistake in law or findings of fact.
As an attorney in New York who has appeared before the Appellate Division Second Department on at least three occasions I can honestly say that the attorneys and clients, all., were treated with the utmost respect.
Sometimes, trial level courts just do not have the time to try each and every case properly. The courts make mistakes, too. And that is where the appellate divisions come in. This unique judicial body is often the last place a litigant has to be heard on their case because very few cases can be appealed to the next level which is the Court of Appeals.
Your New York Divorce Lawyer
And New York Custody Lawyer
WHAT IS FINANCIAL DISCOVERY IN A DIVORCE CASE
April 14, 2018
What is discovery in a New York Divorce case?
One of the most feared part of a divorce case is the time-consuming task of what is called financial discovery where the parties must investigate each other’s assets to assess the economic issues pertaining to their divorce case.
This process is a court mandated procedure requiring that both parties voluntarily and honestly exchange financial documents so that both parties have a realistic portrayal of what assets are to be divided.
At the commencement of your action you will be expected to fill out what is called a net worth statement and sign and notarize it. This document will list your income, expenses, liabilities and assets and both parties will need to exchange it. In New York, you are also required to file a copy of that and your retainer agreement with the county clerk’s office If the marital estate is small and both parties know what is entailed this net worth statement can often times settle your case.
Financial disclosure and discovery becomes more important when there are more assets to divide and when valuation issues arise. Discovery entails the procedures involved in securing documents and information.
There are different vehicles used for financial discovery. These are called depositions, interrogatories, Notices of Discovery and Inspection and Notices to admit. There are also other such demands such as Demand for Expert Witness Lists, and subpoenas and more. This process begins once your divorce action is commenced or as soon thereafter as you are in court. In Manhattan divorces and in most divorce courts throughout the state of New York, as per the uniform rules, your trial court promulgates what is called a preliminary conference order that sets the state for deadlines for the exchange of financial documents.
Exchange of documents can occur up to and including the filing of the Note of Issue which is when you inform the court that all discovery has been completed.
If one party does not act in good faith and refuses to produce the documents you need to assess your financial issues then the attorneys are permitted to make an application to the court for court ordered discovery.
That said, discovery should not be overly broad or designed to harass the other spouse and measures may be taken to prevent that as well such as motions for a protective order.
What is a Forensic Evaluation in a custody battle?
March 21, 2018
In many child custody cases in family court or in a divorce case, often times where there are important issues as a to relative fitness of the parties the trial court will order forensic evaluations of the parties where the parties and their children are interviewed and tested by a court ordered psychologist or psychiatrist. Often times the parents are required to pay for these interviews and more importantly the courts tend to rely upon the results of these evaluations.
In an important recent case promulgated by the New York State Supreme Court, Appellate Division, Third Department in November 2017 the court gave New York divorce attorneys a new perspective on how the trial courts should handle these reports in child custody cases and how they should persuade the court to give due, but not absolute, deference to these report in arriving at their ultimate decision as to custody and visitation.
In the case of Montoya v. Davis, 156 A.D.3d 132 (2017) the Court held, in pertinent part that ”…. We emphasize that “[t]he recommendations of court[-]appointed experts are but one factor to be considered” and, although entitled to some weight, such recommendations are not determinative and should not usurp the trial court’s independent impressions of the evidence and conclusions drawn from that evidence (Matter of Nikolic v. Ingrassia, 47 A.D.3d at 821, 850 N.Y.S.2d 539…” In doing so the Court reversed the lower court decision for relying too heavily on the psychological report, which it found to be biased, holding that “…the court improperly delegated its fact-finding role and ultimate determination to the forensic evaluator (see generally Matter of Millett v. Millett, 270 A.D.2d 520, 522, 703 N.Y.S.2d 596 ….”
This is an important holding since historically divorce and family law lawyers have relied in large part on these reports in order to settle cases. Now, from this decision, and similar decisions before this one, it is re-confirmed and shown that it is equally important for the court not to rely solely on these reports at all, but rather to rely on the evidence at trial as well and consider all of the factors that go into a best interest’s analysis. In fact, the decision expressly warns against lower courts delegating its fact-funding to a forensic evaluator. Included in this best interest’s analysis, is the courts need to weigh many different factors and render a decision based upon these factors. Some of these factors are the parties’ ability to foster a good relationship between the noncustodial spouse and the child, each parent’s past performance as a parent, the home environment each parent can or has provided, the financial ability to care for the child, the ability of each parent to provide guidance and to promote the intellectual, emotional and psychological needs of the child, and who was the primary caregiver for the child. Other factors the Court will consider, but are not bound by, is the existence of any prior agreement or custodial order entered into by the parties, the parties and to foster the stability of the child in the continuance of prior orders or agreements. These factors can be proven by the testimony of the witnesses and the documentary evidence adduced at trial such as school records and medical records.
This above information is important because if you are undergoing a custody matter and if the court is leaning in the direction of appointing an independent psychological expert to conduct an evaluation it is important for your attorney to review the qualifications of the forensic evaluator before consenting to have that particular person conduct the evaluation because in all evaluations there is room for human error and subjectivity. May evaluators are held in high esteem, however, and a seasoned practitioner might have past experience or knowledge of that expert’s reputation so it is important to ask these questions if you are engaged in a custody battle.
By Lisa Beth Older
Your New York Divorce and Child Custody Lawyer
This is no legal advice and is just informational in nature. Consult your own divorce or matrimonial lawyer in New York before attempting to represent yourself as these are complex issues.
What is a Separation?
March 17, 2018
If you are contemplating separation from your spouse you are not relegated to filing for a divorce. You may also file for a legal separation. When you file for divorce you are asking to settle all of the financial support and custody issues of your case, as well as asking for a dissolution and end to your marriage. However, in an action for a separation, although you can settle all of the issues that you settle in an action for divorce, a legal decree of Separation does not dissolve your divorce. This avenue is an important way to go if you wish to retain health insurance benefits but still be allowed to go on living separate and apart. Other benefits might be that you can still file joint returns which will result in lower taxes for the parties. However, if you pursue the avenue of a legal separation you cannot re-marry. IN New York you may also sign a separation Agreement which can be filed with the County Clerk. However, this sort of Agreement, if executed properly in a manner required for the filing of a deed while enforceable, is not as effective as a separation decree promulgated by the Court, as it is not a Court Order. As and for a Separation Agreement the parties hire two attorneys who draft a document that outlines the agreement of the parties as to custody, visitation, support and equitable distribution of marital assets and debt and each party agree to be bound by these terms. This is a binding document that can later be incorporated into a Judgment of Divorce and can form grounds upon which to file for a divorce when the parties are ready to proceed after one year.
At the Law Offices of Lisa Beth Older we often strive to settle contested divorces through the negotiation of stipulations of settlement or separation agreements because it best saves the clients time and money in a divorce or separation case and is less acrimonious.
The Stipulation of Settlement can also set forth detailed custodial arrangements which the parties will follow, whether or not they seek a divorce.
By: Lisa Beth Older
Your New York Divorce Lawyer
Will the new Tax Reform Act impact my Divorce?
March 16, 2018
Will the new tax law impact my divorce?
The new tax law which passed congress in December 2017 will impact your divorce.
Starting December 31, 2018, in your New York divorce, any divorce judgment entered after that date that involves spousal support will be impacted in many ways. First, after December 31, 2018, spousal support will become nontaxable to the recipient spouse and no deduction will be able to be taken by the payor spouse. However, should your divorce judgment be executed prior to December 31, 2018 your spousal support or maintenace will be taxable to the recipient and a deduction for the payor.
There are many gray areas in this law however as it is subject to interpretation by IRS opinions and the Tax Court. However, as it stands now, this is the law. And it will impact the amount of disposable income a family has in arriving at a divorce settlement.
Other ways this law will impact your family are as follows. If you have a mortgage on the marital residence, you must be aware that the mortgage interest deduction is limited to $750,000 of the home equity debt. Also, as to a Heloc loan, before the law changed you could deduct the interest on the loan. Now, you can only deduct the interest on the loan if the loan proceeds went toward renovations on the home.
There will be tax rate changes as well and you should consult with your tax attorney about same.
As for dependent exemptions these are now gone. However, it is important that you try to claim your child as a dependent because of the child tax credit you would be entitled to secure.
As for Head of Household status, that is important also as that status remains the same under the tax reform act except that there are lower tax rates and a higher standard deduction.
The good news is that the child tax credit is still applicable and in fact will be increased to $2,000.00 per child for parents earning up to $200,000 and it also allows for a $1,400 refund, if the credit is larger than the income tax liability. However, though the standard deduction has doubled, the bill does away with a whole slew of personal exemptions so that benefit might well be offset.
All of these considerations are important in having your divorce or family lawyer fashion a creative stipulation of settlement that maximizes the tax benefits for each respective party.
++++ This is only informational in nature and you must consult a tax attorney and not rely upon the information in this article
Can I settle my divorce out of court?
February 24, 2018
I have to go to Court to Litigate my Divorce?
In a contested divorce situation there are alternatives as to how to approach your divorce without having to go to court. First, you may want to seek arbitration with a person that has no interest in the outcome of your case. This arbitrator" hears arguments from both spouses and decides on a decision. There is binding and non-binding arbitration and you may also approach your contested divorce through hiring attorneys to approach your divorce case collaboratively.
There is less internal fighting that way and you are guided by experienced counsel to a resolution. This normally works if both parties are calm and collected and can remain rational throughout the process and are ready to compromise.
There is also mediation, where a mediator helps guide you toward a resolution of your divorce and custody case.
In New York County we have a program that utilized professionals with a brad base of experience in this field of law to use their experience to hear arguments from both spouses and review the issues so as to provide both sides with likely court outcomes. It happens to be a useful program for people that do not want to go through the rigors of courtroom litigation and extensive financial discovery.
As to litigation of your child custody case it often helps to ask the court to appoint what is called a parent coordinator. This trained professional will help assist in parenting decision making over the subject children where the parties cannot work these items out through direct communications. These professionals are appointed by the court to promote the best interests of the children to resolve differences of opinions as to education medical or religious decisions impacting your children.