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News about Divorce Law in New York State
Articles on New York Divorce Law
Aug 2018Can I sue for abandonment?
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?
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.
HOW DO I GET AN ORDER OF PROTECTION
February 6, 2018
HOW DO I GET AN ORDER OF PROTECTION?
You can file for an Order of Protection in Family Court in the County where you reside if you are related to the person or married to the person who harmed you. This is called an Article Eight Family Offense Petition.
You may also apply for an order of protection if you have an intimate relationship with someone or a child with someone, whether or not you are living together. You may also file for an Order of Protection in Criminal Court. The Criminal Court is usually open at night so you can go there at any time. Do not be afraid to call 911 as the police will assist in protecting you from immediate harm.
In Family Court, you do not need a lawyer to get an Order of Protection, although it is always advisable to speak to an attorney before you go to court, if circumstances permit.
In Family Court, you can go to a room that is entitled Petition Room. There the clerk of the court will assist you in filling out all the forms you need. You will have to list all the reasons why you need an Order of Protection and the dates and times and ways you were threatened or harmed.
It costs nothing to file for an order of protection.
Do so if you are at risk of harm only or if your children are at risk of harm. The Court is there to help you.
As an aside, do not make up false allegations thinking you can get a leg up in a custody case, as this will come back to haunt you!
WHAT IS CHILD SUPPORT?
February 3, 2018
How can I get child support? In New York, child support is an amount of money paid to the parent who is the custodial parent. This includes the basic child support amount that is based upon each parent’s income and the special needs of the child and in addition, includes health insurance obligations, day care if the parent is working, and unreimbursed or uncovered medical dental and other reasonable health costs for your child. The Family Court, upon an application under Article Four of the Family Court Act, or the Supreme Court, will configure the obligation in the form of an Order if you apply for it. New York has a child support enforcement department, and for the most part every state has an equivalent service to help each parent collect wat is owed to them.
Any parent who has a child can apply for child support and enforcement services.
The Child Support Enforcement agency will help you collect your child support through automatic deductions from the payor’s paycheck or from tax refunds and the like.
CSE can also assist you in locating the noncustodial parent so that you can collect your child support award.
The CSE agency can also help you prepare your petition for child support.
You do not pay taxes on child support.
Even if the child is born when the parties are not married you are entitled to child support. However, in that regard, you must first establish the paternity of the Father by filing a petition for paternity in your Family Court
Child support is automatically adjusted every two years, to account for increases in the Consumer Price Index but you can also apply for higher amounts or lower amounts of child support based upon a serious or important change in circumstances from the last order, unless you have opted out of that right in a divorce agreement.
The amount of “basic” child support you are entitled to is usually based upon a statutory formula under the CSSA guideline’s. Usually it is 17% of gross income, less certain deductions) for one child, 25% for two children, 29% for three children 31% for four children and 35% for five or more children. As to the add-ons such as medical and day care, this is usually awarded pro rata to the income of the parties.
Lisa Beth Older, your New York Divorce Lawyer
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.
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!