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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 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. 


You can find these revised instructions and forms on the court’s website at the below link:

http://www.nycourts.gov/divorce/pdfs/Divorce-Packet-Instructions.pdf

 

 


 
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 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 [2000]….”

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.

 

 

 

 

 


 
CAN I GET ALIMONY?
January 23, 2018

 

People going through a divorce in New York always ask about the law regarding alimony. When one speaks about alimony in New York we typically refer to that as spousal maintenance or support. 

We no longer call it alimony in New York.  

Spousal support and maintenance is now primarily governed by statutes in New York and case law and it is agreed upon or court ordered. It is actually defined as money being paid from one spouse to the lesser monied spouse especially if there is a substantial disparity in income between the respective parties.

After October 25, 2015 the maintenance and spousal support laws changed and we now have a calculator that will help you determine what you can expect to pay or receive in a divorce action. To access the government calculator for those divorces started after October 25, 2015 click on the government link below:https://www.nycourts.gov/divorce/calculator_05192017.pdf.
In thinking about spousal support, one must also distinguish between the types of spousal support which can be ordered. There is temporary maintenance which will be paid if and after an application is made in Family Court and/or in Supreme Court on your behalf, when the case is pending, and there is also something referred to as post judgment maintenance.
 And there are different types of awards and different amounts awarded depending on whether or not the parties have children.

After October 25, 2015 there is a presumptively correct amount to be paid.  As stated above you can configure that with the help of an attorney with the web site link provided herein. After January 25, 2016 the new laws come into effect setting forth these presumptive amounts and the length of time you will pay or receive post judgment maintenance. If the amount derived from the guideline amount is not sufficient to meet your needs then the court may order a different amount, but the court has to explain the reasons why they have deviated from the guidelines amount.  Once you run the numbers yourself always double check with an attorney who can also run the calculation by hand.

By Your New York City Divorce Lawyer 

 

 

 


 
HOW TO APPEAL A CHILD CUSTODY CHILD VISITATION OR CHILD SUPPORT CASE
January 19, 2018

Family courts and Supreme Courts rule on child custody and visitation cases.   They rely on the best interests of the child rule set forth in the case law to rule on what custody arrangement they think is best for the subject child. The trial courts evaluate many different considerations and may fashion a joint custody ruling that includes a parenting schedule.  They have an enormous amount of power and discretion to fashion their custody order.

The Courts also rely on the testimony of each respective parent and the witnesses called at trial, the representation of the child’s attorney as to preference of the children, and forensic court appointed experts who perform evaluations. Sometimes, a court might appoint a second expert if the first expert opinion is tainted or unreliable.  It is up to your divorce or child custody attorney to ensure that the forensic report rendered by the court appointed expect is thorough, and your attorney should further ask to see the notes as well as the forensic report upon which the expert relied to arrive at his or her opinion as to the parties’ fitness.

It is not easy to overturn a custody determination and it requires more than just an adverse ruling against you. When you are the losing parent in New York you have the right to appeal on certain circumstances but you must show that it is more than just your disagreement with the Judge.  You must show that there was an error in law or that the record does not substantially support the factual findings of the Court.

Another consideration is timing-in New York you have thirty days to file your Notice of appeal.   If you run the time to appeal you will not be able to appeal without leave of court.   

 You must also consult with the Appellate Division in whatever department your case is heard as each department has its own rules as to what they need in order to perfect your notice of appeal in the appellate division.  Your first stop is usually the trial court. They get the first Notice of Appeal that you file. Be sure to attach the Decision you are appealing from along with an Affidavit of Service proving that you served your notice of appeal on your adversaries.

But the Appellate Division also has its own rules as to how to go about filing the Notice and typically the rules require that you to file a copy of the Notice of Appeal as well as the Decision and Order with the Appellate Division as well, along with the Affidavit of Service.

 The Appellate Division will also have you file what is called a Request for Appellate Division Intervention, which is a form requesting additional information about your case and the issues you wish to appeal.  

After the Notice of Appeal is properly filed in both courts and if it is filed correctly, the Court will issue a scheduling Order to let you or the attorneys involved know when they must file their appeal briefs. If your case was tried in Family Court in New York the Court will often times assign your case to a case manager. 

Usually, each Appellate Division in New York has its rules of procedure listed on their respective website, and these rules are also applicable, really to any appeal you might take.

Another consideration other than timing is that you be sure that the Order you are appealing is a final order rather than a temporary order as you can not appeal a temporary order without first making a motion for leave or permission to appeal. You might ask, what is a final order.  The answer is that the Order is usually final if it includes a determination after trial of all the related issues in the case. It will also usually state Final Order and Decision in the upper right-hand corner of the Decision,

Appellate practice is complex and you should consult with an attorney before endeavoring to file an appeal.   It is also an expensive venture and the cost is often times dependent upon the number of dates of trial, the number of transcripts involved and the number of pages of transcripts to be reviewed. There are also printing charges that might be prohibitive.     If the Decision just does not make sense given the testimony then you should consult with an attorney to see if it can be appealed.  If you are indigent and cannot afford an attorney you can make an application to the Appellate Division for appointment of a free lawyer and for costs

Before you file an appeal brief you must settle the transcripts on the opposition counsel and attorney for the child.  You should always order the transcripts of the Fact Finding from the stenographer as soon as possible as you cannot file a brief without submission of said transcripts.

In your child custody and visitation brief you cannot introduce new evidence and the Appellate Court will rely upon the various briefs and the transcript record and evidence admitted at trial in making its decision.   If they find the court erred the Appellate Division can reverse the decision, affirm the decision or send it back to the lower court for reconsideration. 

By Lisa Beth Older

This information is not legal advice and you are recommended to seek legal counsel as each case is very different.  


 
How the New Tax Law Affects Your Divorce
January 12, 2018

Divorce cases will now be more complicated than before with the advent of the new tax bill. And the incentive to settle a divorce or custody case is now  lessened under the new bill.  Under the new law, spousal support paid by one spouse to the other spouse  will not be a tax deduction whereas the recipient spouse no longer has to pay taxes on it. Under the present system, the payer of alimony got to deduct the full amount and the recipient spouse paid taxes on the amount.  No longer so!