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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Articles on New York Divorce Law


NEW CHILD SUPPORT LAW POSSIBLY PROVIDING ADDITIONAL SUPPORT FOR ADULT CHILDREN THROUGH AGE TWENTY SIX
November 17, 2022

 

NEW LEGISLATION AFECTING CHILD SUPPORT

 

On October 8, 2021, the Domestic Relations Act was amended to provide possible support for adult children through age 26. See DRL, Chapter 437 of the Laws of 2021)

Also,  the Family Court Act added a like provision in its Section 413-b.

Both provisions provide possibilities for petitions for continued child support for adult children with certain qualifying disabilities.  

The Mental Hygiene law controls the controlling definition of what diagnosis would qualify for purposes of a developmental disability in an adult child.  If you or someone you know has an adult child and is in need of child support it would behoove you to look into this with a New York Family Law Attorney.

By: Your New York Divorce Lawyer Lisa Beth Older  


 
COUNSEL FEES AND EXPERT FEES IN DIVORCE OR CUSTODY MATTER IN NEW YORK
November 9, 2022

 

COUNSEL FEES AND EXPERT FEES IN DIVORCE OR CUSTODY MATTER IN NEW YORK

The behavior of the parties in a New York divorce or child custody matter will affect an award of counsel fees, if an application is made by either party, Normally the monied spouse will pay the majority of the other party’s expenses but there are exceptions to this rule. Each case is fact specific and the Court may consider many factors in fashioning an award, if at all.

In the 2018 First Department matter of M.M. v. D.M., 159 AD3d 562 both parties appealed from the lower court decision  as to counsel fees, and as to other issues, and made the Defendant Husband pay the Plaintiff wife 65% of plaintiffs.  In that case, it should be noted that the parties  spent Seven Million Dollars on counsel fees. The parties paid this out of marital liquid assets on hand. However, rather than make the wife all of her share from her part of equitable distribution the Court noted that the Husband had made a substantially larger salary than the wife.  The Court also noted that both parties engaged in needless litigation which might be why the Court did not award all legal fees against the husband who was perceived as the monied spouse for purposes of this determination.  That was a First Department case.

In contrast, there was a 2018 decision out of the Second Department as to the award of counsel fees. In the case of Greenberg v Greenberg, 2018 Westlaw 3041099 (2d Dept. June 20, 2018) the husband appealed a divorce judgment in the lower court on many issues, one of those issues being counsel fees. There, the Appellate Court held that the lower court properly awarded the Wife counsel fees of $75,000.00 where the husband's "evasive and dilatory actions during the pendency of the action caused an accrual of fees.

In another case where the court took into account the bad behavior of a party during litigation, the Appellate Court upheld the Wife’s counsel fee award of 70% of her legal fees and took into account defendant’s unnecessary accrual of legal fees, wherein he changed lawyers no fewer than nine (9) times, never followed court orders and extended the trial needlessly with “belligerent” behaviors. Behan v. Kornstein, 2018 Westlaw 4223911 (1 st Dept. Sept. 6, 2018).

As a client, you are entitled to receive a bill from your attorney after sixty days. In the case of Greco v. Greco, 2018 Westlaw 2225194 (2d Dept. May 16, 2018),  where the husband appealed from the lower court order granting the Wife ($70,000) to her first attorney and ($37,500) to her second attorney and  $12,700 of expert fees, the Second Department in its ultimate discretion, ruled that it would reverse the award given to the first attorney because the first attorney did not bill his client every sixty days.  The higher court also reversed the expert fees since the expert did not provide the Court with his Affidavit per requirements set forth in Ahern v. Ahern, 94 AD2d 53, 58.

Compare this result with the result of the after trial case of Sheehan v. Sheehan, (2d Dept. May 9, 2018), where the Wife was awarded $25,000 in counsel fees.    With regard to the attorney fee award the Court determined that:  "Considering the parties' relative circumstances and other relevant factors, the award of attorney's fees to the plaintiff in the sum of $25,000 was inadequate."
 

From the recent case law, then,  it appears that the Courts do favor an award of counsel fees where the facts so dictate.  For instance in the case of Greco v. Greco, 73 NYS3d 765 (2d Dept. May 16, 2018), the wife was granted  counsel fees after her appeal on equitable distribution portions of her case  of $12,000. The Second Department stated:  "Under the circumstances, we find no basis to disturb the award."

As a practical matter, however, many divorce lawyers will require that each client be responsible for their own counsel fees since there is no guarantee that a lower court will award counsel fees that cover their full bill, nor is there a guarantee that the higher Court will affirm a lower court order.

In the Matter of Monique B. v. Anthony S., 2018 Westlaw 3232613 the First Department appellate Division held in 2018 that the attorney fee awarded in the lower court of $250,00  was inaccurate   "that inasmuch as respondent was found to have willfully violated a child support order the issuance of attorney fees was proper under Family Court Act §§438(b) and 454(3)," since the lower court has failed to consider "the parties' ability to pay, the nature and extent of services rendered, the complexity of the issues involved, and the reasonable of the fees under all of the circumstances." W1488759.1 ) 22 30 F.

Post judgment counsel fees may also be awarded in some circumstances, especially if the behavior of the party that is being charged is in violation of a court ordered parenting agreement.   In a post judgment  child custody case attorney’s fees may also be awarded. In the case of  Boukas v. Boukas, 2018 Westlaw 3451549 (2d Dept. July 18, 2018), the mother appealed a lower court decision that denied attorney fees where the Father was in contempt of Court for failing to abide by the parenting time access Order. There, the Second Department modified the lower court order and gave the wife a counsel fee award of $15,000, finding that the mother was  "was entitled to reasonable counsel fees in connection with this matter, as the plaintiffs conduct in violation of the stipulation of settlement caused these fees to be incurred…. An award of counsel fees in the sum of $15,000 is supported by the record."

 


 
IS YOUR CHILD CUSTODY EVALUATION VALID IF CONDUCTED VIRTUALLY
August 28, 2022

If you are in a child custody battle and the parties were sent out to do a psychological evaluation during the pandemic you may have grounds to challenge that report.  In order to determine whether an expert report can come into evidence the Court must weigh the reliability of that evidence before it can consider it.  In my view, remote testing is not generally accepted by the scientific community as yet for purposes of arriving at an expert opinion as to custody so that it may be challanged. Historically there are two tests that Courts rely upon in doing so, those being Daubert and Fry, but New York follows the Frye test for the admissibility of expert witness testimony, opinions and reports. 

The Frye test is the “general acceptance test,” providing that expert opinions grounded in a scientific theory or technique are admissible in evidence only if the theory or technique used is generally accepted as reliable by the scientific community in which they practice. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Parker v. Mobil Oil, N.Y.3d 434, 824 N.Y.S.2d 584 (2006); People v. Wesley, N.Y.2d 417, 611 N.Y.S.2d 97 (1994); People v. Brooks, N.Y.3d 939, 96 N.E.3d 206 (2018); Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63, 933 N.Y.S.2d 323 (2d Dept. 2011); Lugo v. New York City Health and Hospitals Corp., A.D.3d 42, 929 N.Y.S.2d 264 (2d Dept. 2011)  State v. David D., 37 N.Y.S.3d 685 (N.Y. App. Div. 2016). In other words, the Court must consider the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); see also, Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006). The scientific principle "must be recognized" [widely] and "sufficiently established to have gained general acceptance in the particular field in which it belongs" . Wesley, at 422–424, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion' " . Id., at 439, 611 N.Y.S.2d 97, 633 N.E.2d 451(Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007).

Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 A.D.3d 42, 44, 812 N.Y.S.2d 535 (2d Dept.2006). General acceptance can be established through "texts and scholarly articles" , expert testimony and judicial opinions. People. v. Wernick, 215 A.D.2d 50, 52, 632 N.Y.S.2d 839 (2d Dept.1995), affirmed, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 (1996)..

Accordingly, to determine if said evidence is accepted, the court must, as gatekeeper, analyze whether the expert has used “accepted techniques” to arrive at his or her opinions.   State v. Ralph P., 39 N.Y.S.3d 643 (N.Y. App. Div. 2016). Moreover, it is important for the Court to identify which scientific community’s opinion of acceptability  is relevant in assessing the reliability and general acceptance of the  methodologies used to arrive at an expert opinion.  In the context of this case, the scientific community would be the American Psychological Association

In order for expert opinions or reports to be admitted into evidence there must be a judicial finding that said evidence was arrived at by the use of proper acceptable procedures condoned by that expert’s  scientific community as being reliable through scientific findings, sufficient testing,  treatises, published books or other such papers  demonstrating acceptance of the scientific principle within the applicable scientific community. In order for a piece of expert evidence to be admissible, then, the “principle, procedures and tools of discovery used by the expert must have passed the mere experimental [nascent] stage and become demonstrable scientific knowledge generally accepted as valid within the relevant scientific community.” People v. Bullard-Daniel, 42 N.Y.S.3d 714 (N.Y. Ct. Cl. 2016). The court does not determine whether the expert’s findings are correct, but rather, the court determines whether “those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” State v Ralph P, 39 N.Y.S.3d 643.

Due to the pandemic, many psychological forensic evaluators have been made to rely largely upon remote interviews, remote testing and remote questionnaires, despite cautionary advise by their community to revert to standardized testing as soon as they are able.  

In an article espousing the view of the psychological community on the validity of evaluations conducted remotely during covid,  the American Psychological Association warned that practitioners cannot guarantee a valid equivalency between conducting an assessment remotely and conducting one in person, stating that…”  Replications of studies are needed, and evidence needs to be amassed…” because these assessment methods have always relied on interpersonal procedures that require personal contact and interaction, such as standardized interactions between the forensic examiner and party, and clinical observation of the party in their office.  See,  American Psychological Association. (2020, May 1). Guidance on psychological tele-assessment during the COVID-19 crisis. https://www.apaservices.org/practice/reimbursement/health-codes/testing/tele-assessment-covid-19

As stated above, the consensus of the psychological scientific community is that there is a lack of sufficient scientific literature that would legitimize expert opinions derived from remote evaluations as reliable. 

As such, it is my legal opinion that all such reports should be challenged as inadmissible. 

 

By: 

 

Your New York Divorce Lawyer 

 

Lisa Beth Older, Esq. 


 
DOMSTIC VIOLENCE AND FAMILY COURT
July 4, 2022

As a New York divorce lawyer and Manhattan Family Law lawyer I run into domestic violence cases more than I would like.

This is an article about domestic violence in New York and how it impacts you and what your legal rights are to ensure protection against domestic violence in matrimonial and Family Court cases. 

When you are seeking protection the first place to look is the law in New York.  You start with New York CPL section 530. 11 and 530. 12. You may also look at the family court act section article 8.

The relief sought is based on penal law but usually does not end up in criminal court unless you file in criminal court or unless you violate an order of protection. Violating an order of protection is a serious offense and a Court can refer the case for prosecution. 

There are certain people that can utilize an article 8 proceeding for protection or be subject to the rules of an article 8proceeding. If you are married, formally married, have a child in common, or you are not related by blood or marriage but have an intimate relation in the past,  you can seek in order of protection.

Most people do not know this, but you can speak relief in both New York family court and criminal court. You can and should do this and both courts at the same time especially if the offense is serious. 

If you allege a violation of an order of protection or if the offender commits a new offense there is a mandatory arrest of the perpetrator if it is a felony.  If it is a misdemeanor, you can only escape arrest if the victim requests no arrest. In that case You can still pursue your petition and family court.

If the police officer ascertains that there was no family offense or that one or more of the parties committed one misdemeanor, then the police might not make an arrest, but they are required to give you a domestic incident report. You can then attach the domestic incident report to your petition and Family Court under article 8 of the family court at.

If the perpetrator of a crime continues to regularly violate the law, then you can ask the criminal court Judge to revoke bail if you can show clear and convincing evidence of this.

If the perpetrator of the crime against you has a weapon in plain view, then police are allowed to seize it and you should ask them to do so as this lessens the likelihood of further harm against your person.

Both civil and criminal Orders of Protection can have different provisions contained in them and so it is important to ask the Judge for these protections to ensure they are included in your Order of Protection,

The Court, for instance, can ask that the perpetrator stay away from you person, your residence, your place of work, or your child’s person, school or camp.

After a family Offense petition is filed you will generally get an Order of Protection immediately.  Thereafter, the court will have you return, and you must prove that a Family Offense has occurred, as the perpetrator has the right to a Fact Finding to determine whether you are entitled to a Final Order of Protection. In this instance, you would call witnesses, put on evidence and testify.  

Sometimes there are aggravating circumstances  which you should tell the Court about, such as having an ongoing or immediate risk that the behavior of the perpetrator might make hurt you.  If there are weapons involved or the perpetrator poses an immediate risk of danger the  Court takes these cases more seriously and may even order an Order of Protection that is longer in duration.

You may also file in Supreme Court if you are going through a divorce action as the same rules are applied in a divorce in New York. There are also victim services available.

I hope this article helps you get the protection you need.  

By:  Lisa Beth Older, Esq.

Your Manhattan divorce lawyer


 
Do I have to pay my spouse 50% of my Business?
January 8, 2022

Do I have to pay my spouse 50% of my business?

This article has to do with updates as to New York Divorce Law and equitable Distribution of business interests.

I will try to point out trends that I see in the case law in the various judicial districts and hope that it will provide guidance as to your expectations when you are in litigation over business interests in a divorce action.

In 2021, in the Second department case of Davenport v. Davenport, 2021 WL 1112911 (2d Dep’t 2021) the Wife was only awarded 10%  because of the short duration of the marriage, and because her contributions toward the business was very small.

Compare this to the First Department case of DeNiro v. DeNiro, 2020 WL 3848156 (1st Dep’t 2020) where the Wife got nothing because the court concluded the husband’s business was a gift. In that case there were extenuating circumstances involving the proofs posited at trial. So if you are in the First Department you should be aware of this recent decision.


 
Can I withdraw my Divorce?
December 8, 2021

Can I withdraw a divorce case?

This article is about parties who have filed for divorce but have changed their mind and now want to know whether they can withdraw their case in Supreme Court. The answer is it depends. Whenever you make an application to court it is considered a very formal application. You cannot just ignore the fact that you filed something in New York Supreme Court. So, if you wish to discontinue who are action for divorce it depends on what stage of the proceedings you are in. Obviously, it is easier to stop a divorced before it has been litigated. If a Judge has been assigned it can become more complicated. For instance, if one of the parties has filed a divorce case by way of Summons with Notice, and have not served it, app they do not require the permission of the other party to withdraw the case so long as they did not file a Verified Complaint, and so long as 20 days have not elapsed. In that regard, act of your lawyer in that circumstance would simply file a Notice of discontinuance. The law in support of this  this can be found in the NY CPLR at section 3217. And

However, if you have filed a Summons with Notice for action for divorce in New York Supreme Court and you have served the other party, and more than 20 days has passed then it will require the signature of both parties to discontinue the action. A Stipulation is also required if you filed a Verified Complaint and y would our spouse responds with a verified Answer or Motion. If that occurs the case will move forward. The

So, you might ask, what if your spouse will not sign the stipulation for discontinuance of the divorce action. When this occurs, it will require your Attorney to file a motion in the Court for permission to withdraw the divorce. When this occurs, your lawyer must give reasons and a  basis for your request for withdrawal of your case. Then, it is entirely up to the court to decide whether the case will be withdrawn.

You might also ask what will happen in circumstances where both parties want a divorce but  have settled their issues and do not want to litigate the divorce. In other words, you filed  a verified complaint, your spouse answered the verified complaint, but now you have reached a settlement and you wish to close the case. Be advised that you cannot just close the case. In this situation the best course of action is to draft a stipulation of settlement and file an uncontested divorce. In the uncontested divorce paperwork, you will have the opportunity to withdraw your verified answer and proceed on the verified complaint for to a judgment of divorce.  In this regard, your divorce ends with a formal divorce judgment. But the clerk of the Court  will not allow you to get a judgment of divorce if the spouse who was served does not execute a formal notarized defendant’s affidavit stating that they have either decided not to answer the complaint or have elected to withdraw. At their verified answer.

If you have filed a verified complaint that needs to be amended because you made an error, you also need to file a motion to amend your verified complaint.

The court will be more likely to grant you a withdrawal of your divorce action if the case has not been fully litigated if you provide good basis for your position.

Hope this has been helpful to you.

By: Your Manhattan Divorce Lawyer

Lisa Beth Older apt


 
Covid-19 and Child Custody in New York
November 7, 2021

 

COVID-19 has made the court system look at divorce, child custody and parenting plans in New York differently. In a recent case in the New York Supreme Court the Honorable Matthew Cooper, known for his groundbreaking decisions of law,  the Court held that visitation can be suspended if a parent refuses to wear a mask and test or is unvaccinated. In that case while it was fact specific, the Court felt that the issue of vaccination was so relevant to a custody case that he suspended visitation when a parent refused to do so.   The Court held that in order to reinstate visitation it was an imperative that the father get vaccinated or else show a negative result on the Covid 19 test prior to visits.  In that case, the Court felt that it would be in the best interest of the child to be sure that the father was vaccinated. To be sure, other courts will see and decide this issue differently. The test is what is in the best interests of the child. The problem is that there are competing interests involved. First, you have to consider protecting the child’s health. Second, you have to consider that both parents should be able to have access to this.

First, you have to consider protecting the child’s health. Second, you must consider that both parents should be able to have liberal access to their children. 

Other local courts have handled this matter differently. For instance, some courts allow for visitation with  the proviso that both parents take the necessary precautions to keep their children safe. 

Other Courts  have restricted visitation when it comes to travel on a plane, or during holidays. This is because small children cannot be vaccinated as yet and becasue the Covid 19 Delta Variant has proven to put children at a higher risk of harm then the prior variant. It is also even more compelling a reason to restrict visitation when one parent or the other refuses  to acknowledge that there is an actual  pandemic at hand or refuses to wear a mask or require their child to wear a mask in public places.

Another interesting issue to take a look at is which parent will decide whether or not the child will be vaccinated once the vaccination is offered to a child. That would seem to go to decision-making which will require a Court to Judge which parent could best make that medical decision for the child.

Expect a multitude of legal challenges to these sorts of rulings.  Liberty rights and the right to choose what you put into your body come in to play. But when it comes to custody, your child comes first and each individual party will have to make the right decision to keep their child safe or face consequences in court.

 

By: Lisa Beth Older, Esq.

Your Manhattan Divorce Lawyer


 
How do I divide our retirement account during a divorce
May 10, 2021

What will happen to my retirement in the event of the dissolution of my marriage?

For a smart financial planner,  in a New York divorce action, a retirement account, pension, or 401k can provide a sense of financial security and stability as you approach older age.  But a divorce, on the other hand, is not usually something you have planned for – and, if it occurs, the equitable distribution of marital assets could complicate or even de-rail your long-standing plans for the future.

 

Is my ex-spouse really entitled to part of MY retirement accounts?

Generally, in New York State, all assets accumulated during a marriage are considered “marital property” and are therefore subject to equitable distribution in the event of a divorce. These assets usually include real estate, bank accounts, and personal property, but can often also include equitable distribution of retirement accounts or pensions accrued by one or both parties.

In a divorce, the share that a dependent spouse takes of retirement savings is dependent on his contributions – tangible or intangible – to the acquisition of the assets. This could include such contributions as providing childcare for the parties’ children and/or and caring for and maintaining the home so that the other spouse may freely work outside of the home. These actions by a dependent spouse establish entitlement to a portion of the funds.

In situations where both spouses have retirement assets, especially where the amounts therein are similar, the parties may simply waive each other’s interests in their respective assets. Even in cases like these where an agreement is come to between the parties, a QDRO (Qualified Domestic Relations Order) is required in order to divide the assets without negative tax consequences that would come from liquidating the accounts.  A QDRO also outlines guidance for what will be done with any appreciation or depreciation of the funds in the time before it is implemented.

The results in any given situation may vary based on your individual circumstances, but there are several general rules used in New York State when it comes to dividing retirement assets in a divorce.

 

  1. Pre-marital Retirement Accounts

If you had a pre-existing retirement account or 401k before entering into the marriage, the balance of the account at the time of the marriage remains your separate property and will not be subject to equitable distribution. A dependent spouse may not claim an interest in the fund’s premarital assets.

Questions may arise surrounding a pre-marital retirement account when it comes to appreciation in value of the pre-marital funds that occurred during the marriage. In cases where a premarital contribution has appreciated significantly during the marriage, it is sometimes necessary to engage an expert to calculate the entitlement of the dependent spouse to a portion of the appreciation.

 

  1. Defined Contribution Plans

            A defined contribution retirement plan is a retirement account that allows an employee to save a portion of their earnings in a way that has tax advantages. Types of defined contribution plans include 401Ks, 403Bs, IRAs, 457s or TSPs. A defined contribution plan’s value is easily ascertained by the account balance and can be divided however the Court sees fit.

In dividing a defined contribution retirement account, the value of the account is generally divided into pre-marital and marital portions. The pre-marital portion will not be subject to equitable distribution, but the marital portion is. Typically, a defined contribution retirement plan is often divided along the same lines as other accounts and assets during equitable distribution.

It should be noted that “equitable distribution” does not mean equal distribution – rather, equitable means fair and taking into account the contributions of both parties. Thus, a spouse who stayed home and performed certain domestic tasks to allow the other to accrue the funds in the 401K is likely entitled to a portion despite not actually physically earning the money therein. Similarly, though, a spouse who did not contribute in any way to the account holder’s ability to accrue the 401k is not likely to receive 50% just by virtue of the funds being marital.

 

  1. Defined Benefit Plans (Pensions)

Dividing a pension is a bit more complicated than dividing a defined contribution plan, as it is more difficult to ascertain its value – the value of the pension is not equal to the amount of money in the account. A pension is a regular payment made during retirement from an investment fund to which a plan participant or their employer has contributed during their years of service. A pension, however, is not always

A pension earned during a marriage in New York State is considered marital property. The most commonly used equitable distribution formula for a public pension is the Majauskas formula, which provides an ex-spouse with one-half of that part of a pension plan participant’s pension earned during the marriage.[1]  For example, if the plan participant accrued ten years of service during the marriage, but retires with twenty total years of service, the ex-spouse’s share would be 25% of the pension.

It should be noted that the Majauskas formula, though the most common, is not required to be used, and the Court may determine a different computation in unusual or extraordinary circumstances.

 

  1. Possible Effect of Retirement Assets on Spousal Support

It should be noted that money withdrawn from a retirement account is viewed by the Court as income, potentially affecting the maintenance calculation – thus, if one’s retirement assets alone would allow him to continue living a comparable lifestyle to that enjoyed during the marriage on their own, his spousal maintenance award may be reduced or considered unnecessary by the Court.

 

If you are concerned about your retirement plans, consider entering into a pre-nuptial agreement prior to the marriage. A pre-nuptial agreement can spell out exactly what will occur with your retirement assets in the event of dissolution, avoiding potential complications that can arise in equitable distribution of the accounts later.

 

Your New York Divorce Lawyer  Lisa Beth Older 

[1] 50% × years of service credit accrued during marriage (numerator)÷ total service credit at time of retirement (denominator)

 

 


 
How does COVID-19 impact deadlines to serve and respond to New York divorce papers
November 3, 2020

How does COVID-19 impact deadlines to serve and respond to New York divorce papers

On March 7, 2020 the Governor of the State of New York issued a state disaster emergency Order which basically suspended the rules of civil procedure to the extent of tolling certain deadlines. However, on October 5, 2020 the governor stated that as of November 4, 2020 all suspension of civil procedure deadlines would be lifted, and that compliance would be necessary. That means, if you were served with a divorce action, subpoena  or divorce motion, or if you must serve a divorce action, now is the time to attend to it. For more information contact us at www.nycdivorcelawyer.net. 

You might ask, how does Covid 19 and the subsequent emergency Governor’s orders affect your divorce case? 

It is important to follow the New York State  website www.nygov.com in order to learn more about how the state is dealing with divorce cases in New York. Because the situation of Covid 19 is very fluid, the rule of law changes almost on a weekly basis depending on the status of the pandemic.

For instance, if you were served with a Summons with Notice for an action for Divorce, or if you were served with a summons and verified complaint on April 1, 2020, then normally (pre-Covid 19) you would have had to file a Notice of Appearance or Verified Answer within twenty days.  

However, the Governor, recognizing the impediments and challenges that people faced during COVID-19, extended the times in which client had to file and serve legal documents. The statute of limitations was also tolled for other kinds of civil actions. Similarly, if you filed a summons with notice normally you would have 120 days to serve the summons with notice for divorce but because of the Governors order that time was extended and the Plaintiff had more time to serve it onto the other party. In fact, the time was extended indefinitely. That said, on October 5, 2020 the governor stated that the suspension would be lifted on November 3, 2020. That means that if you were served with anything, including a subpoena or a motion, now is  the time to attend to it.  You cannot delay responses to noticed pleadings or motions beyond November 3, 2020 and you should consult with an attorney to ascertain the actual deadlines for the filing or service of any divorce documents you might have concerns about as they are in a better position to ascertain the particular deadlines attributable to your case.

However, with winter coming, and with predictions of higher numbers of COVID-19 cases, the governor could issue new rules spending time deadlines for the filing of litigation in your divorce case so it is important that you check the New York government website to see and stay up-to-date on the governors executive orders.

Because the court system was on hold for an exceptionally long time, the courts are working hard to catch up. However, do not expect a trial date anytime soon. The courts are still struggling with handling backlog. If you have a deadline and you have missed that deadline be sure to contact the court or the other attorney and let them know that you need more time to answer.  In A NY divorce case, dates are important so do not ignore any legal paper that you are served with that requires you to respond by a date certain.  

To conclude, client compliance with court orders has been made very difficult during COVID-19 and the Governor of the State of New York has taken note of this in several of his executive orders. That is why it is important to stay abreast of the latest executive orders as said Orders may again in the future impact your New York divorce case.  There is no doubt that the winter will bring record cases of Covid-19 and unemployment rates will likely soar.  It was the high unemployment rates that caused such great financial difficulties that it interrupted the flow of cases now pending in Supreme Court as it prohibited many clients from complying with such court orders that may require them to pay for such things as forensic psychological experts, forensic expert accountant and real estate appraisers.  More urgently, the pandemic had a terrible effect on child support cases and child custody cases.  However, you can expect that pursuant to the Governor’s latest executive Order,  that after November 3, 2020 the courts will likely start requiring clients to comply more stringently with that expected of them under the New York Rules of Civil Procedure, at least as to extending time for clients to adhere to filing and service deadlines. 

 

Lisa Beth Older

Your Manhattan Divorce Lawyer


 
What Should You Expect from your New York City Divorce Lawyer?
October 9, 2020

What should you expect from your divorce lawyer?

Divorce lawyers are professionals that provide advice, counsel and strategy and performance on your  divorce or child custody case so of course they are invaluable partners when you are going through a divorce in New York.  Although you might expect to need them to appear with you in court, their function is more deliberate than that.  Day to-day decisions can impact the result of your divorce so you want an assessable attorney that you can trust to make themselves available to you in a time of urgency or during difficult periods where your spouse is doing something you might think is unlawful.  For instance, if you are moving out of the marital residence you would want to speak to the attorney before you do that because it has legal consequences. It also has practical consequences such as how do you remove your personal belongings, how do you enter the house again without risking your security, etc, not to mention the custodial concerns you might have, and these are just a few of the concerns that arise when you separate from your spouse. The most serious issue is obviously your children. If there are children of the marriage and you are seriously considering filing a New York divorce case, your custody issues will be decided in that context. If you’re not married you can file a custody petition and Family Court. However, if you are contemplating divorce in New York, you do not want to make any mistakes and an experienced divorce lawyer will guide you through the most difficult time in your life.

Some divorce attorneys are more approachable than others. As you interview lawyers ask whether the attorney will be representing you in court or whether the attorney will be sending a younger associate.

Also, do not be afraid to ask your Manhattan divorce lawyer how much trial experience they have and how many cases they have filed through to an appellate decision.

You want to hire a divorce attorney who will be responsive to your needs because these day-to-day decisions seriously impact your case moving forward. Divorce cases tend to take a long time and many highly conflictual litigants will find themselves waiting over a year before they start seeing a resolution of their matter and if the matter is rather complex, the case can go on for years, depending on what county in New York your case is pending, whether child custody is an issue, the case load of your judge, and other unanticipated contingencies that may arise.

Because the case can linger on for a while, you want an attorney who can advise you of your rights moving forward. These rights are often referred to as pendente lite rights. You can secure temporary relief through the filing of a motion or through stipulations between the attorneys. While equitable distribution is never done temporarily, issues involving day-to-day problems, such as custodial scheduling and spousal support and child support can be dealt with on a temporary basis until the case goes to a trial or settles.

With respect to equitable distribution, the court will attempt to distribute the property in a fair and equitable manner however equitable does not mean equal. That is why when you separate from your spouse it is important that you speak to an attorney before you lock out your spouse, which is illegal. And if you are the living spouse, it is important to speak to an attorney so that you may safely remove your clothing and personal belongings out of the house.

Why? The reason is simple.

Since the Supreme Court will not get involved in matters of equitable distribution, until trial, you will rely on your attorney to counsel you as to what items you can take, what items you should photograph, and what items you should leave. The supreme court justices that preside over your divorce case cannot order equitable distribution of your assets before trial or settlement.

Therefore, you would want to seek legal advice from your attorney as to what you can take, and how best to secure your clothing, personal affects, jewelry, laptop, hard drives, and other paper files.

If you do not seek the advice of a New York divorce attorney prior to leaving the home, you might have already made many tactical errors in your face.

In some instances, you might find yourself waiting for your personal belongings till the attorneys can figure out a way to box up your materials or until your attorney requests a court order.

Another question that arises during the start of a divorce case is who gets temporary custody of the children, who gets the car and who gets to stay in the marital residence. For all of these reasons, and more, you want to consult with a New York divorce attorney to plane your exit strategy, one who is well experienced in these matters and one who can guide you in these matters because the best ultimate results can only be obtained by strategic planning and counsel.

If you are planning to divorce find an attorney who is approachable. Find an attorney who will get back to you within a reasonable amount of time with answers to any questions that you might have. However, a divorce attorney’s role is not be there for you to listen to your personal problems, as it is not their professional responsibility. However, a good attorney will tell you to seek a therapist especially since the therapist will charge you less money per hour than an attorney.

Of course, experience is an important component to retaining counsel. You don’t want a divorce attorney who has never tried a case, it is preferable that you have an attorney with a good reputation and you would also like one who is familiar with the appellate division rules in case you need to appeal an improper ruling. Most cases involving divorce settle before trial. However, if your attorney is well known to be a trial attorney, this fact in and of itself will help your case settle quickly.

Decisions regarding equitable distribution are complex. Some of the things the court will look at would include but are not limited to the length of the marriage, whether or not there were children, what financial arrangements need to be made for the children, whether or not each party has a pension, a retirement life insurance or inheritances, the age of the parties, the needs of the parties, the earning abilities of the parties and the health of the parties. Another consideration is that if you have a business, or have some property earned prior to the marriage it is important that you do not co/mingle, which means do not deposit this money in the joint bank account of the parties or add your spouse to the title of the deed.

You can also expect that your Manhattan divorce lawyer will know what tools are necessary to implement for you to secure your equitable interest in your spouse’s business, assets, and pensions. Obtaining or securing  the correct paperwork before you decide to divorce is critical and you should rely upon good counsel to lead in in the right direction with respect to the gathering of these documents.  This advice, alone, will end up saving you time and money when it comes to the financial discovery stage of your case.

Again, the role of the divorce attorney in a contested divorce  is to get you through one of the most horrible times in your life using the professional tools made available to him or her through the law. They are not miracle workers and they are not your friends, but they can engage you in the process and in a  rewarding  manner.   With all the complexities involved in the court system you want to have an attorney that you can get along with  because this attorney will be your advocate as well as your advisor in decisions impacting your divorce or custody case.

No attorney  can tell you what you can expect out of your divorce and be wary of anyone  that can guarantee you results because litigation has hazards and no one can really say for sure how your divorce will turn out because there are so many factors the court can consider in dividing up property, deciding custody and providing support. Also, the divorce  courts in New York have an enormous amount of discretion to do what they need to do to come up with a fair result for all parties.  But how you behave and what choices you make during the pendency of your divorce case will affect the way the Court perceives your case so you need good counsel, should you decide to retain an attorney.

For more information go to my website at www.nycdivorcelawyer.net or give us a call at 212-786-0901 and we would be happy to give you a free 15-minute consultation. Thank you.

Lisa Beth Older, your Manhattan Divorce Lawyer