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News about Divorce Law in New York State
Articles on New York Divorce Law
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?
Jun 2018What is Mediation?
Do grandparents have visitation rights in New York
September 24, 2018
GRANDPARENT VISITATION IS WITHIN THE SOLE DISCRETION OF THE COURT WHERE NO PARENTS HAVE DIES IN THIS CASE
In a Second Department case in New York the court held that the grandfather lacked standing to petition for visitation where the children's mother had never frustrated his visitation. There, the court found that Grandfather lacked standing to petition for visitation with his grandchildren, since the children's mother had never frustrated his visitation with them ab initio; rather the mother merely set forth the conditions of the visitation with the grandfather by asking the grandfather to not bring the grandmother along on the visit. Moreover, in another case called Ordona v. Campbell the court held that grandparent visitation needed to be terminated where the grandmother had failed to obey court orders and exhibited a strong animosity toward the Father and the grandmother tried to undermine the father’s relationship with the child.
That said, this should not discourage a grandparent from filing for visitation if the parents are both denying contact with the child after you have formed a positive and substantial bond with the child. This precept was demonstrated in an interesting New York Third Department case of Monroe v. Monroe, decided in 2017. There, the court suggested that Grandparents would have the right and standing to bring a petition for visitation if they could establish that they have a long substantive existing relationship with the grandchildren, or in cases where the parents are frustrating their contact with their grandkids. On those facts a court can likely intervene in the interests of the best interests of the child.
Moreover, in another Second Department case in New York the court held that a grandmother had standing to ask for visits with the grandkids where she showed the court that she had a long-standing relationship with the child and where the child's father unexpectedly died.
The lesson to be learned here is that while grandparents do not always have automatic standing to sue for visitation, where equity permits and you can prove your relationship should be continued in the child’s best interests the court might grant it.
By: Your Manhattan Custody Lawyer Lisa Beth Older
Who will get custody in New York?
September 23, 2018
What is Child Custody Law in New York?
Child custody law in New York City is complicated and diverse because the Courts have ultimate discretion as to who gets custody of a child. Firsts, the Court has to decide whether it has power to hear and adjudicate your case which can be complicated where the parties live in multiple states. In order for any court to hear your case, absent an emergency, your children will have had to have lived in that State for a consecutive period of six months.
It used to be that Mothers would always get custody, especially if they were the primary caretaker, that is not the state of the law presently. This is because gender of the parents does not determine who gets the children. If child custody has not been formally decided yet, then either of the biological parties may keep the child but it is not wise to alter the pattern of habitation and leave the state with the child using self-help. This is because the State of New York will likely order you to return the child. Rather, go to court and file a petition for a formal adjudication of custody, and state the facts as to why you are more fit to parent.
What are the factors the court use to determine custody?
The courts use the best interest analysis in determining who gets custody of the children. There are two types of custody one is physical custody where the courts determine the primary residence of the child. The second type involves decision making which is called legal custody the court favor joint legal custody but if the parents cannot get along then the courts will sometimes order sole custody since decisions about children sometimes cannot be made jointly where there is a high level of animosity between the parents,
There is also something called “spheres of custody decision-making, We see this a lot in Manhattan cases, where the courts will divide up the kinds of decisions one parent should make over the other, For example, if one parent has always made good medical choices for the children, they might get final say as to medical decision making whereas if one party is more religious then the other they might be awarded decisions related to religion.
Courts like to continue patterns in the interests of promoting the stability of the child and that factor weighs in heavily in any judicial determination. The courts also want to see who will likely foster a good relationship between the child and other parent, and you could be deemed per se unfit if you alienate the child against the noncustodial parent. The Court will also consider the child’ stated desire to live with one parent or the other and whether the child has other siblings in the household. The court will also see who they think is the primary caregiver, who has more time to devote direct care to the child, and who is the parent best able to guide the child through all aspects of the child’s life. The respective financial resources of each parent are also considered but in my experience is not at all determinative. Custody cases are generally determined after a hearing where the parties call witnesses and produce evidence or else settled between the parties by written settlement or stipulation. Most cases settle out of court before it gets to that point.
As and for visitation, it must be meaningful and it must occur regularly so the court will frequently award liberal visitation to the parent who is not living with the child. How much and how frequently the visitation will occur is determined usually after a fact-finding hearing.
Try to get a consultation with a New York custody lawyer before you try to represent yourself in a hearing because custody cases are complex.
By: Your Manhattan Custody Lawyer
What will a divorce cost and how long will it take?
September 11, 2018
What will a divorce in New York Cost?
The most frequently asked question I get from prospective clients is “how much will a divorce cost in New York?”. The second most frequently asked question is “how long will it take to get a divorce?”. This article will deal with both questions because one question is inextricably tied to the other. My canned response to these questions is that it always it depends on the case because there are multiple variables that come into play and an attorney can not really guarantee a fee as litigation is hazardous.
For instance, if the attorney on the other side is aggressive, or if your spouse is unfair, pushy, or just plain vindictive and spiteful, then in order to secure a fair disposition of your case you might have to take your case all the way to a trial or even to an appeal if you do not like the results of the lower court because the lower court erred in its decision.
But there are statistics on hand that might be able to give you a better prospective as to costs but you can not always rely upon them. In my experience only, however, typically a divorce that has not too much at stake can be resolved for under $15,000.00, but if there are multiple issues of property distribution, child custody and support then your fee can sky rocket from there. If you are going to trial and your issues entail child custody, and distribution of multiple complicated properties and funds, then expect to add on at least $100,000.00 to your bill for trial preparation and the trial itself, and it could be more. In a Forbes article in 2006 I read once that divorces that are contested range anywhere from $15,000 to $30,000.
Then there are the added costs of court expenses such as expert evaluations of real property, pensions and businesses, stenographic costs, and courier fees.
Lastly, you have the added expenses of court filing fees, such as the purchase of an index number which is $210.00, the RJI fee of $95.00 and payment for the Note of Issue fee. If you file a motion each filing fee for each of these motions cost $45.00. To obtain certified copies of any document you will have to pay the clerk of the county by the page, and you will certainly want a certified copy of the divorce Judgment.
Attorneys charge by the hour, and the number of hours they spend on the case will determine your ultimate fee. The hourly rate of each attorney depends upon their geographical location and their experience in matrimonial law. The rates vary dramatically but surveys tend to suggest that the hourly rate of a divorce lawyer in New York spans between $300.00 per hour to as high as $850.00 or $900.00 per hour. Because attorneys charge by the hour, you will tend to find that a Manhattan divorce lawyer charges on the higher end of the spectrum because their overhead is higher than an attorney in a more rural location.
As to duration, the average divorce case will take under a year to complete but if your spouse is recalcitrant in turning over documents you need to settle your case it could take longer. Furthermore, if there are children in your family and you have to decide issues of child custody or visitation then these cases tend to be costlier because it takes a lot longer to sort out.
Another factor is the size of the marital estate. The more money there is to fight over the more attorneys’ fees you can expect to pay because you want a fair and just financial settlement and the way to get there sometimes results in the exchange of not only net worth statements but also back up financial materials that you must either get from your spouse or else subpoena. These discovery processes take time and money before they are completed. Once this part of your case is completed the attorneys will exchange settlement proposals and argue over the details.
If nothing can be resolved between counsel then the Court likes to either settle cases through court conference meetings or else send them to trial after nine months and there are judicial guidelines that the courts follow to ensure that your case does not linger. In my experience, most of my cases settle under or about the one-year mark but I have seen cases go as long as three years, or longer. The more issues you can resolve with your spouse the shorter and less costly your divorce will become because there will be less attorney involvement.
From this article you can see that if you can find attorneys who accept flat fees it might be the way to go, but it is not always a feasible option.
Given the expense of a contested divorce you might also consider alternative approaches such as mediation or collaborative divorce.
Lastly, avoid fighting over grounds from divorce. It rarely impacts the financial or custody settlement and you will find yourself trying a case for nothing.
By: Lisa Beth Older
Your Manhattan Divorce Lawyer
Disclaimer: The ideas espoused in this article are solely the opinion of this writer and should not be relied upon in deciding on your divorce case. Seek your own attorney for estimates as to your case.
What are the rights of parents as to artificial insemination?
September 3, 2018
What are the rights of parents as to artificial insemination?
If parties are married to one another and one party becomes pregnant through the procedure of artificial insemination then for purposes of New York Divorce Law, in most instances the child born of this marriage is the legitimate child of both parties to the marriage.
This law as to artificial insemination is in concert with New York law and the notion that any child born during a marriage is deemed the legitimate offspring of both parents.
In cases of artificial insemination a child born through artificial insemination that is performed by a medical doctor is deemed the child of both husband and wife so long as the doctor has the written consent of wife and husband and the written consent must be executed by not only the parties but also the doctor performing said insemination. The typical example is when an infertile husband consents to allowing his wife to be artificially inseminated because he consented to the procreation during the course of his marriage and should be estopped from denying parentage.
Some of the legal issues that arise in cases involving artificial insemination are the storage of the egg, the custody issues surrounding the birth from an egg, the inheritance rights and various other parentage issues concerning donors of the egg and sperm. It is important to note that he laws surrounding this area of law are different depending on the State where you bring the action.
In New York the Supreme Court ruled that a child born of a same sex marriage is the legitimate child of the marriage and that a sperm donor has no rights to the child. This is because under NY DRL Section 73 any child born in the manner described above is the legitimate child of both parents and that presumption may not be rebutted in court so long as the procedure is performed by a doctor.
Recently however, a case was decided in the Second Department that held that if an insemination is not done by an authorized doctor the presumption could be challenged in a court of law.
If you are planning to undergo a procedure of artificial insemination in New York it is important to seek legal advice because said consent has serious legal consequences into the future, such as presumptions of custody and child support.
CAN FAMILY COURT HELP ME IF I CANT AFFORD A LAWYER?
August 30, 2018
Family Court is a place to seek immediate relief if you are undergoing a crisis in your family. There is a family Court in every county in New York State. Family Court is user friendly for family members that need help quickly, Some examples where Family Court can help you are in the following areas are filing for an Order of Protection if you are being abused at home, which can result in a stay away order in your favor, seeking custody of your child, seeking visitation of your child or establishing paternity if you suspect you are the father of a child and you are unmarried or else your spouse is disavowing responsibility.
In Family Court the other issues they deal with and they can help you with are Adoption, foster care, guardianship.
You will find that they are a very helpful and user family. You simply enter the court house and ask for the help desk. If you have no money to hire a lawyer then Family Court will assist you in filling out the paperwork. The laws change so it is good to know what are in the forms. You can familiarize yourself with the flattest forms by visiting the nygov web site at https://www.nycourts.gov/courts/nyc/family/. They list the approved forms you will need in order to petition for assistance.
When you file for relief in Family court there are rules of procedure you must file or your case will not be docketed properly and you may never get to see the Judge or Support Magistrate.
First, be sure you prepare your form and notarize it at the bottom. Make sure you set forth the assistance you need and the relief sought in the body of the petition. Be sure you make a few copies and then have the court clerk review them. You can find the court clerk’s office by asking the court officer as you enter the building. You next must serve the Respondent with the papers you filed with the court clerk. This will be standard procedure as you go through the various stages of your case. The last part is very important. After you have personally served your paperwork on the Respondent you must then have the process server fill out an Affidavit of Service that you must file with the court by bringing it with you to the next court date as that will be the first thing the court will ask of you. I find the Judges to be very civil and even helpful so do not hesitate to go to court alone if you have to. But it is recommended that you take an experienced New York Divorce or Custody lawyer with you to court.
Can I sue for abandonment?
August 2, 2018
Abandonment is still grounds for divorce in New York. The Courts will try to steer away from having you proceed on these grounds because it is expensive, and might require a jury trial. Instead they will encourage the parties to proceed under the ground of irreconcilable difference.
There are different types of abandonment such as the New York courts recognize "constructive abandonment" which is when one spouse or the other refuses to have sexual relations with the other spouse for a continuous period of one year.
Abandonment can have serious economic consequences for the family especially if there are children involved. For this you may seek immediate relief in Family Court for such items as child support, health insurance, spousal support and child custody. Seek one of the best attorneys you can find.
When filing in Family Court you can expect that the case be transferred over to Supreme Court at some point to be consolidates with your divorce action should your spouse file there after you filed in New York Family Court. This is because the Family Court has no power to grant you a divorce or divide up marital property. But Family Court is a good place to start if you lack resources. Always remember to apply for a free lawyer in both courts if you lack funds to prosecute your child custody case.
Try the Law Offices of Manhattan Divorce Lawyer Lisa Beth Older. We have thirty two years of experience dealing with such matters.
You can read more about her agt www.nycdivorcelawyer.net
THE BEST DIVORCE LAWYER LISTENS TO YOU!
July 30, 2018
THE BEST DIVORCE LAWYER LISTENS TO YOU!
When you are looking for a divorce lawyer you want someone who will listen to you. As a NY Divorce lawyer, I know that my clients will tell me exactly what they need and what I need to advance their case. Whether you are a male or a female matters naught. Each is a person in their own right wo have certain expectations as to what they want out of their divorce and to the extent possible under the law I try to provide that service. That means paying attention to what a client would like to see as an outcome. While a client’s wants list is not always going to be satisfied your divorce attorney should at least try. If you do not not ask or demand you will not get anything out of your divorce settlement.
A skilled and experienced New York Divorce Attorney will give you the best possible legal advice to have you move your case forward at the quickest rate possible without sacrificing professional aggressive and assertive advocacy of your rights and needs.
Matrimonial law is a complex set of laws that involves the immense discretion of the court in determining what is in the best interests of your children and what is fair and equitable. While there are strict guidelines the court applies, there is always room to deviate from those guidelines when the facts so warrant deviation. That is why you need a divorce trial lawyer who is willing to take your case all the way to a trial or even an appeal.
Let us say, for example, that the child support guidelines say that you should only get 17% of your spouse’s income up to $148,000 for purposes of child support. If that amount does not meet the child’s needs you can always apply for additional funds. The guiding light of every case is to meet the needs of the child and there are many statutory factors a court may apply to justify awarding more support.
The same goes for spousal support. Let us say that you are only entitled to three years of spousal support under the statute calculated at the cap of $184,000 per year of your spouse’s income. If your spouse earns one million dollars and if you are disabled., for instance, a court is allowed to lift the cap and perhaps order additional support in terms of amount and duration.
As far as equitable distribution goes, the same rules apply. Remember that the Supreme Court in New York has an abundance of power to fashion relief as to distribution of property. Let us say for example that you contributed more to the marriage, it was a short term childless marriage and your spouse stayed home and did not contribute even to the extent of homemaking, the court could award more than 50% of the assets to you.
So, remember, in closing always tell all the facts and circumstances of your marriage to you lawyer and see if they listen to you or cut you off. If they cut you off and prohibit you from relaying the facts then it may not be the right lawyer for you!
I hope this helps you in your decision as to how to choose the best New York divorce lawyer.
Can I file for Divorce in New York State if I just moved here?
July 24, 2018
I have lived in New York for less than one year. Can I file for divorce in New York?
In New York you can only count on certain residential requirements before filing an action for divorce.
They are specific and set forth in the Domestic Relations Law.
You are permitted to bring a divorce action in New York but the best way to do it is to be sure you comply with the residence requirements or your case could be thrown out of court in which case you will not be granted a divorce.
A court has the power to grant you a divorce, separation or annulment under the below enumerated categories:
1. The Parties must have been married in New York State and also one or the other of the two parties is presently a resident of New York when the action is started for a period of one (1) year entire year contiguously prior to the filing of the divorce, annulment or separation action.
2. Both spouses resided in New York, but not necessarily married in New York, as husband and wife and one of the spouses was a resident of New York State at the time of the filing of the divorce, annulment or separation action for one (1) year period just prior to the commencement of the action.
3. The grounds of the divorce action occurred in the State of New York and either party was a resident of New York State continuously for one (1) year period immediately prior to the filing of the action for divorce, separation or annulment.
4. The grounds or cause of action occurred in New York and both parties were residents of this State when the action for divorce, annulment or separation was commenced.
5. Either of the spouses were a resident of the State of New York for a period of at least two (2) years or more immediately prior to the filing of the divorce annulment or separation action.
If you take a look at number “4” above it is very interesting because let us say the husband and wife lived in New York for two months but the husband assaulted the Wife and treated her in a cruel and unusual manner. In this example, the Wife does not have to wait for one or two years before filing her action for divorce, annulment or separation, she can do so immediately.
Other than that, the waiting period is usually one to two years, depending on whether all of the other requirements in each of the above paragraphs are met.
Because of the strict residency requirements be sure to tell your New York divorce lawyer about the circumstances of your residency before hiring a lawyer to pursue your divorce as it is critical for the lawyer to know whether you meet the criteria for filing an action for divorce.
Also, just because the parties do not meet the residency requirements it does not necessarily mean you cannot negotiate an amicable settlement with your spouse out of court. You may also opt to file in a State where you meet the residency requirements so long as all of your financial issues, support issues and custody issues are resolved
In thinking about filing for divorce in New York you must also be aware that even though you might be able to get a judge to give you a divorce sometimes the Court in New York has to defer to another State in deciding the ancillary issues of custody and equitable distribution because there are other laws that dictate whether the Court in New York has the power to dispose of all of the issues in your case. For instance, let us say you own real property in another state and you are contesting how to distribute that property. You will then have to file a separate action in that State for equitable distribution since New York would not have in rem jurisdiction to decide that matter for you.
In sum, this is for informational purposes only and shouldn’t be construed as legal advice so you should always consult with a lawyer before making any decisions as to divorce.
Reasons why you might want to finalize your divorce before the end of this year
July 21, 2018
Here are some reasons why getting a New York divorce before the end of the year might be a good or bad idea, depending upon which of the two spouses is on the receiving end for spousal support.
If you are going to be the paying spouse, you might want to start thinking of getting a divorce before the end of this year. That is because the new tax law that went into effect says that all Americans who finalize a divorce Agreement after December 31, 2018 will no longer get a tax break. It used to be that the spouse that was paying the other spouse “alimony, which we refer to as spousal support or spousal maintenace in New York, got to take the amount paid as a deduction on his or her Income tax return while the person receiving the money had to pay taxes on it.
That is no longer the case. So, if you are the wealthier spouse who is likely to be paying support for your spouse, you might want to speed up the process as best you can and get your divorce agreement or stipulation of settlement finalized before the end of this year. After December 31, 2018 you will no longer have this deduction available to you. Also, the recipient spouse will no longer have to pay taxes on the amount received.
By Lisa Beth Older, Esq. A Manhattan Divorce Lawyer striving to give you the best possible information available to her..
WHAT HAS CHANGED IN MATRIMONIAL LAW IN NEW YORK
July 4, 2018
WHAT HAS CHANGED IN NEW YORK MATRIMONIAL DIVORCE AND SUPPORT LAW SINCE 2017
As of March 1, 2018, the revisions in the child support law reflect a mandatory increase in the combined parental income cap used to compute child support under CSSA Guidelines to $148,000, as required by Social Services Law 111(i)(b). Of course, the Court may deviate upwards by lifting the capped income of the parties if the CSSA guideline amount fails to cover the needs of the subject child/children. Furthermore, these revisions also include changes to the Self Support Reserve and the Poverty Income Level.
Other changes are an increase in the annual income cap that can be captured for purposes of calculating the amount of spousal maintenace. It used to be $178,000.00 but has now been increased to income up to $184,000.00 as per the 2015 Maintenance Guidelines Law.
To comport with the changes in the law, and by the Administrative Order of May 21, 2018, the Uncontested Divorce Packets were modified, so adopting these above stated changes. These revisions were made to comply with the changes in the law set forth in 22NYCRR 202.50(b)(2) and 22NYCRR 202.50(b)(4) and effect the forms you are required to file in order to get a divorce judgment.