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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


How do I get custody if my spouse and I live in different states and how do you determine Home State
July 14, 2017

 

In order to provide guidance as to what is HOME STATE in an jurisdicitonal dispute involving cusotdy and two different states, below provided is a decision was on a case I appeared on that was was publishedin the New York Law Journal as a slip decision and also republished in Justia Law. [*1] M.G. v C.M. 2017 NY Slip Op 50745(U) Decided on June 2, 2017 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. 

Decided on June 2, 2017 
Supreme Court, Kings County 
 
WHAT IF MY SPOUSE LIVES IN A DIFFERENT STATE?
July 11, 2017

CPLR Section 302 B tells spouses in New York whether New York has the power to adjudicate their divorce when one or both members of the family move to another state.

Under CPLR Section 302 B, if the parties were married in New York and if one spouse moves out of State then New York can still hear the divorce case so long as the remaining spouse had resided in New York or was domiciled in New York for a period of one year immediately before the commencement of the divorce action. The difference between domiciliary and residence is critical and will be defined below as it impacts upon the ability of a New York Court to hear a divorce case where the parties were married in the State of New York but have multiple residences, or if one of the spouses are just temporarily out of state.   Residence simply means physically present in the state of New York.  For purposes of Domestic relations Law Section 230 although the statute requires that one party be a residence to New York for one year, “residence” is loosely construed to mean a place of “domiciliary” and will allows for party’s  residential absences from the State of New York where the party absent from the state shows through a set of facts that New York has a vital interest in hearing the  case, such as real property being located within the four corners of the State or a business being conducted in New York from which the parties inure a benefit. That on top of the fact that one of the parties never intended on making another State its forever home. This, if the petitioning spouse has moved out of State but considers New York his or her home, and votes there, and maintains a driver’s license there and has other such showings and indicia of fact showing a permanent intent to retain New York as their forever home then New York may decide to keep jurisdiction over the divorce and hear the case despite the parties being absent from the State so long as they were married in the State. In fact, no other court would have the power to adjudicate a division of real property that is in the State of New York or adjudicate other such equitable distribution of the parties’ assets, and the parties are unable to stipulate to jurisdiction because a court is the only one that can decide if it has power to hear the case.  However, the parties can stipulate to facts and then let the courts decide who has the power to hear their case.

So, what happens if one petitioning spouse is domiciled or resides in New York and one spouse moves away and makes another state their forever home?  Under the New York Long Arm Statute, New York can have power to adjudicate issues of the divorce over a absent spouse so long as prior to their physical separation from each other New York was the matrimonial domicile of the parties. 

As for the power of a court to hear issues involving custody over the parties’ children, that is more complex and is governed by an entirely different set of laws that define residence literally rather than figuratively. The UCCJEA as defined by DRL Section 75-a, and simplified herein by way of example, requires that in order to make an initial custody determination the parties reside in New York for a period of six months, with the child. While certain temporary absences are allowed (as more defined in recent case law) that will not interfere with eh six month residency requirement, if the petitioning party has made a permanent move to another State , then changes his or her mind and returns, that is not a temporary absence according to a new New York case entitled M.G. v. C.M., July 7, 2017, the Hon. Judge Sunshine presiding. I represented Plaintiff in that case and after extensive hearings that culminated in a written slip decision counsel was provided with  more guidance as to what is considered a temporary absence for purposes of the UCCJEA child custody law.

To conclude, jurisdiction is complicated and that is why if you and your spouse live in different  statesit is wise to consult a lawyer in New York before you file for divorce, as the fact is, that the law of jurisdiction is so different in custody cases and divorce cases that it is possible that one state will have to hear and determine equitable distribution and spousal support and one state will have to hear the custody case.  See the case of Vanneck v Vanneck 404 N.E.2d 1278.

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WHAT IF MY SPOUSE AND I LIVE IN DIFFERENT STATES?
July 8, 2017

What if my spouse and I live in different states?

I worked on a case recently and we just had a court decision come down from the Supreme Court in Brooklyn...a very interesting case...and the decision gives lawyers insight as to how to interpret the UCCJEA law as it pertains to custody where the parties are seeking custody at the same time but in two different states. I will publish the case soon on my web site at www.nycdivorcelawyer.net if I get permission from my client! Prior to this case a party living with a child for six months in New York could be temporarily absent from New York but could return to New York if done so within 6 months to sue for custody as the statute was silent as to what constitutes a temporary absence from the state verses an abandonment. Essentially, the case said in part that if you leave the State and make another State your home, you are permanently absent and as such might not be able to sue for custody in New York, depending on the facts. So if you are thinking of suing for custody and you live in New York for 6 months or longer, my personal opinion is, depending on the particular facts, is to file your petition for custody in New York and establish your custodial rights before you plan to move or you might find yourself litigating in a state you have no intention of STAYING in!

By #nycdivorcelawyer + #lisabetholder +lawofficesoflisabetholderNewYorkNY 


 
HOW DO I PROTECT MY BUSINESS IN A NEW YORK DIVORCE?
June 30, 2017

 

I want to protect my business before I get a divorce so how do I protect my ownership rights in my business in A New York Divorce case? 

If you have a business be sure you lock it all up by use of a partnership agreement an LLC or as a shareholder.  Also have an agreement between your partners for a buy and sell agreement limiting each partner from transferring stocks to a spouse of another partner.

These sorts of Partnership and operating agreements between members of your company should have special clause in them providing for protection such as the following provisions:  Make sure each partner gets a prenuptial agreement or nuptial agreement, if you can, which waives the other spouse’s interest in your business.  This not only protects you it also protects your partners. Also make sure the agreement has a clause in it prohibiting any partner or shareholder from transferring or gifting shares in the company to others and in this way, you manage more effectively and maintain control over your business in the event of a divorce of any of the partners. Paying a hefty salary to yourself is also very important as you do not want to pay into your business during a divorce and have it grow in value only for your spouse to claim a larger share in it.

No matter how you cut it, if your business was started during the marriage or if it appreciated in value during the marriage your spouse has a claim to it, but it is not necessarily an equal share. For instance, if your spouse was employed by your company and helped build the company her contribution would be larger so his or her interest in same will be larger.

So. Let us say you protected your business with an operating agreement: does that mean your spouse will not get a share of the business in proportion to contributions? Unfortunately, the answer is that the business will be valued and your spouse will have to be compensated in one way or another.  Just because he or she cannot own shares in the business does not mean she or he will not be compensated by a New York divorce court.  That is where you can do a tradeoff and buy the spouse out through other assets that were acquired during the marriage such as retirement accounts, savings, real estate or promissory notes paid off over time.

Sometimes the sale of the business or parts of it are the only way to pay off the spouse but you can also liquidate some of the items and still try to keep your company afloat. 

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WHAT IS EQUITABLE DISTRIBUTION IN A NEW YORK DIVORCE CASE? WHAT IS FINANCIAL DISCLOSURE?
June 25, 2017


EQUITABLE DISTRIBUTION VERSES COMMON LAW DISTRIBUTION OF MARITAL ASSETS

Prior to the passing of DRL 236 B we had the concept of common law property which meant when you got a divorce the property in a divorce was granted to the title holder. But women got alimony.

In 1980n the New York law changed, and it became gender neutral, opening the door for men to get spousal support under circumstances that called for it.

 

New York is now an equitable distribution State and we divide marital property regardless of who is on the title. DRL 236B (5) allows for equitable distribution of marital property "in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage." This provision allows any NY court to equitably distribute marital property where there has been a change in the marital status brought about through a divorce or an annulment.  The court may not distribute marital property under any other context other than in certain special proceedings usually brought after a foreign divorce judgment has been registered in New York, but never addressed the marital property therein. "Equitable distribution of…..marital property, unlike maintenance, custody and child support, is only available in actions where the marital relationship is terminated by divorce, dissolution, annulment or the declaration of the nullity of a void marriage, or in a proceeding to obtain a distribution of marital property following a foreign divorce judgment (Domestic Relations Law § 236 [B] [5] [a][6] [a]; § 240 [1];"

 

Accordingly, a New York Divorce Court may not entertain a pendente lite application for equitable distribution of property since a change in the marital status that is required by DRL 236 B (5) (a) is had only when  the Court determines the final divorce decree. The Appellate Division held in the case of Adamo v Adamo 18 A.D.3d 407 (2nd Dept. 2005) that "It is well settled that before some alteration in the marital relationship, courts lack the authority, absent the consent of the parties, to direct the sale of the marital residence owned by the parties as tenants by the entirety."  Therefore, absent a situation where the parties stipulate to something that is agreed upon by the court, do not expect a court to distribute marital property during a divorce case as and for temporary relief and do not expect the court to order a sale of the marital residence while your divorce case is still pending.

 

 

 

Financial Disclosure is a Necessary Component of Equitable Distribution

 

DRL 236 B (4) controls financial disclosure of the party’s assets.

This means that you must disclose all of your assets in a New York divorce case.

 

This is mandatory as all income and assets must be shown on your sworn statement of net worth and this includes property that you thought was yours, such as inheritance or gifts of income you earned before the marriage. You may mark the fact that you think the property is separate but you must disclose it nevertheless.

 

Just because you disclose it does not mean that it is subject to distribution from you to your spouse. That all depends on how the Court classifies your asset.

 

Once classified as separate or marital, these items may be subject to equitable distribution, even some items you thought were not possible to distribute, such as businesses.  Some of the items are cash, checking accounts and savings mortgages, debt, security deposits, real property and pensions, retirement accounts and intellectual property, but there are many other acquisitions that may be subject to equitable distribution.

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WHAT ARE GROUNDS FOR DIVORCE IN NEW YORK?
June 15, 2017

We are still a grounds state in New York divorce.

 

There are many grounds, that can be alleged in a New York divorce case. However, in a divorce action since October of 2010 New York State we are now the very last to become a No-Fault divorce state.  It is likely that all future divorces cases will be founded on the ground of the fact that the relationship between husband and wife has broken down irretrievably for a period of at least six months, this as long as just one party has so stated under oath. In fact, the matrimonial judges encourage it so the parties save money. The grounds are:

 

 (1) Cruel & inhuman treatment;
(2) the abandonment of the Plaintiff by the Defendant for a period of one or more years;
(3) the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage;
(4) the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage;
(5) living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
(6) living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement;
(7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.

Still, there is more than just grounds for divorce.  Before a divorce judgment can be had, all of the ancillary issues must be decided, such as custody, support and property settlements.  Seek legal advice before filing for a divorce.

 

Divorce attorney Lisa Beth Older 


 
RULES OF EVIDENCE AND YOUR DIVORCE IN NEW YORK
May 27, 2017

RULES OF EVIDENCE AND YOUR DIVORCE IN NEW YORK

 

Often times a custody or divorce case in New York will go to a trial, a fact-finding or a hearing.

This means that your case will be heard by the Judge on the facts, that testimony will be taken from the parties and documents and videos and electronic data may be admitted into evidence for consideration by the court.

As for fault, grounds for divorce are rarely at issue in a New York Divorce since the advent of the new change in the law allowing for parties to proceed on a no-fault ground of irretrievable breakdown of a marriage. That said, the traditional grounds for divorce may still be raised and if so you are allowed to hear your case, as to fault, by a jury.

In the interests of judicial economy however your divorce Judge will emphasize the importance of settling grounds for divorce early on because it will cost a fortune to try fault and nothing is gained except to fuel the flames of an already inflammatory situation. So, unless the fault of one spouse is flagrant and egregious misconduct, it is best to plead grounds under the no fault statute.

When I say that nothing can be gained, I mean that unless the fault is unconscionable it rarely affects the result of your case.  That is, the court will not first require either party to plead a fault divorce in order that it might fairly distribute property under equitable distribution, or order support, or order a custodial schedule.

There are times when fault becomes relevant in a divorce trial, however.  For instance, in a custody case the court must under the law consider domestic violence allegations in its determination of custody and it is also allowable to argue domestic violence as it pertains to spousal support.

Most cases are settled before they go to an evidentiary hearing. But your attorney should always be trial ready because you never know when a court might require you to take the stand and give testimony.  But more often than not you will be given adequate time to prepare

A hearing usually pertains to temporary orders, such as modification petitions and contempt petitions or Pendente Lite motions for custody. But a trial usually refers to the taking of testimony so the Court can have a full hearing on all of the issues of the marriage or the custody case so that it can make an informed final decision.

 

Every hearing or trial usually will start with an opening statement by the attorneys for the spouses. This opening statement is not evidence but is rather a road map to explain to the Judge what the attorney proposes to prove through evidence.

Once the trial start, inn New York we have rules of evidence that require lawyers to follow certain procedures before asking a Judge to consider your documents or other pieces of evidence.

This might lead one to ask what types of documents or items can be introduced into evidence.

In general, all evidence is capable of being offered for consideration so long as it is relevant to prove your case and so long as opposition counsel does not pose an objection. Of course, there is also the issue of reliability of the evidence and as to that issue the law provides guidelines and rules of evidence that lawyers must follow before a document can be admitted into evidence.  For instance, hearsay is inadmissible such that a person cannot take the stand and testify to what he or she heard another person said they saw because that testimony is not based upon firsthand knowledge. So, since that third person is not in the court room to be cross examined, that person’s testimony cannot come into evidence as it is inherently unreliable.

There are exceptions to the hearsay rule however and that would include out of court statements made in a document by the party litigant.  This type of evidence is admitted because you can call that party to the stand and ask them about that paper and the contents of the statement contained therein. Also, a dying declaration or a spontaneous utterance or a declaration against penal interests are deemed reliable enough to be admitted into evidence even if it is hearsay.

Business records are another exception to the hearsay rule but there are certain requirements of reliability that must be shown before they can be admitted, and they must be certified by the record keeper who says, among other things, that the record was kept in the ordinary course of business, it was true when recorded, recorded simultaneously to the incident and it was the business of that company to keep said records.

People often needlessly draw a distinction between documentary evidence and testimony.  In reality both testimony and documentary evidence, if believed, can form a basis for a court decision, and in reality, there is no real difference as the court must consider both forms of evidence in the rendering of its divorce judgment or custody determination.

So, what happens if you take the stand and forget how you are to answer a question because you are nervous?  Them the attorney may ask you to refresh your recollection and is allowed to let you take a look at a document that might help you to remember.  Of course, there are complex evidentiary rules that must be followed to perfect his method of testimony.

Each party is allowed to present their case through direct examination and each party is allowed to conduct cross examination of an opposing party’s testimony. And each party’s attorney may object to the form of a question or object on other legal grounds.

It is important for a trial attorney to know how to try a case because if they fail to object to evidence as it is presented in a court of law and the court rules inaccurately based upon said evidence that should have been objected to, then you cannot appeal this as error to a higher court.

At the end of the trial when all the parties rest the attorneys are allowed to make their closing arguments.  However, closing arguments are not evidence and should rather be persuasive in nature and designed to be based upon the evidence.

For the above reasons, if you are headed for a trial, it makes sense to hire an attorney that has trial experience. In interviewing a lawyer for your divorce or custody case be sure to ask the attorney how much trial experience they have. It can make a world of difference.

.

 


 
Do Grandparents have visitation rights?
May 15, 2017

Do Grandparent's have rights in a custody case?

Grandparents sometimes have rights to visitation and custody under certain circumstances. However, they have to file their own petition in Family Court. If a case is already pending then ask that it be joined with the primary petition.

A grandparent may request visitation in Family Court where at least one of the child's parents is deceased or where one of the parents is not allowing the grandparents to visit or under other circumstances. The Courts use the test of best interests of the child as their guiding light

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WHAT IS A NEW YORK DIVORCE MOTION?
May 11, 2017

A Motion is a request filed by an attorney requesting that the Court take action on some matter related to an ongoing dispute.  There are countless varieties of Motions.  Typically, Motions are filed to either enforce and existing court order or to modify a court order.  This comes up in the issues of child custody, child support, alimony, discovery, and every other facet of the divorce process.
Motions may also be filed in an expedited fashion by way of an Order to Show Cause.  Usually this is filed when a party is seeking emergency relief or if the Court rules require it to be so filed in that fashion rather than on Notice of Motion. There are many rules that form a predicate for a motion for relief which can be found in the New York Civil Procedure Rules and Law, the Domestic Relations Law and the Family Court Act.
Speak to and seek out the advise of a lawyer before attempting to file a motion in New York.
 
By: Lisa Beth Older, Esq. Your NYC Divorce Lawyer
http://www.nycdivorcelawyer.net
 

 
What is Separate Property? What is Marital Property?
April 26, 2017

What is Marital property in a New York Divorce case?.
Marital property is anything you or your spouse have acquired or saved during the marriage, such as a car, a house, bank accounts, pensions, and a business.   
 
What is separate property?  Separate property is where one spouse is declared the sole owner of the property under certain instances.  For example, if one spouse owned property before the marriage and kept it separate and did not put the other spouse’s name on it then it remains separate property. Also, any gifts you receive from someone is deemed your separate property as is inheritances or property that the parties agree will remain separate in a formal document acknowledged in a formal writing that meets New York State requirements such as a nuptial agreement or prenuptial agreement. 
property acquired by one spouse using separate property assets with the intention of keeping it separate.  Also keep in mind that portions of a personal injury awards can also be considered separate property such as compensatory awards for pain and suffering verses loss of wages. 
 
By Lisa Beth Older, Esq. 
Law Offices of Lisa Beth Older
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