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

Articles on New York Divorce Law


Celebrities do not get Special Treatment when it comes to Divorce in New York
May 17, 2020


Celebrity divorce in the impact of the coronavirus

 

According to news reports by CNN and Fox News, Mary Kate Olsen made an emergency application to the New York County Supreme  Court and requested permission to file an emergency divorce case against her husband Olivier Sarkozy.  That application was denied by the judge. Judge Michael Katz did not believe that it was an essential matter that needed to be addressed during the pandemic. Right now, the courts are only hearing Essential matters.  In order to file a new case that is deemed an emergency in the New York supreme court you must attached to your application and emergency affidavit which is available from the New York court website. The Courts are presently trying to deal with only emergencies as well as their current caseload of non-essential matters.  

 

Accordingly, at this time you can expect that the courts will not be excepting new divorce filings unless you are alleging domestic violence or some other emergency such as failure to provide health insurance coverage or arrears in child support or else some other emergency. That was for Family court, that court is also dealing with emergencies such as juvenile delinquency cases and ACS cases.

 

In the Olson matter, Judge  Katz was likely sending a message to the public that the family law courts of New York will not be hearing anything, but emergency matters given the present ongoing coronavirus pandemic. This message also speaks loudly to the integrity of the court and not giving special treatment to celebrities. In my practice, I have seen that the judges in Manhattan are very fair that way and do not get preferential treatment to celebrities.

 

According to the administrative judge, the court system in New York is putting together a plan to make it safe to reopen the courts. They are watching the statistics as stated by the health department and as stated by the governor of the state and they are considering staggering cases throughout the day so that not too many people are congregated in the same court room. They are also considering taking peoples temperature, masks, and other accommodations and re-fittings of the courthouse. Attorneys are given almost weekly updates which you can also read on the NY government website. 

 

For more information as to alternate ways of achieving a settlement in your divorce case feel free to call my office at 212-786-0901. Thank you.

 

By: Lisa Beth Older  

Your Manhattan Divorce Lawyer


 
WHAT IMPACT WILL THE CORONA VIRUS HAVE ON MY PENDING DIVORCE
April 19, 2020


 

 

 

 CORONA VIRUS: WILL IT AFFECT MY DIVORCE CASE?

 

The biggest question right now is whether the coronavirus pandemic in New York will affect your pending divorce case.  As a Manhattan Divorce lawyer and a Manhattan custody lawyer I can provide you with the following information.

As you know, most court rooms are closed indefinitely until further direction from the government.

However, do not expect the court system to be close forever. Such a consequence would potentially put people in danger as it would force parties who are nor altogether compatible to stay in close quarters for long stretches of time. As such, an alternate plan will be put in close to deal with such cases.

The first question becomes,  when the courts do re-open, how will this delay affect your ongoing divorce case.

The governors order that New York is on pause does not require everyone to stay in their homes but rather requires us to wear masks when we are out. When the courts re-open it will be interesting to see whether attorneys and litigants will be required to wear masks and the impact that might have on zealous vocal representation. However, you might expect that the government will institute safety precautions for when the court opens again, masks might be required when you go back to court, or more advocacy will be required to be submitted in writing.  

Other courts or judges will likely hold telephone conferences on emerging issues or will have attorneys appear virtually through zoom or FaceTime or telephone.

The next question is whether the coronavirus will affect the substantive parts of your case. For instance, if you had already undergone real estate appraisals and business appraisals prior to the virus, these appraisals will have to be redone to reflect the current financial status of the parties given that real estate prices and business valuations will have gone down, (or perhaps up) and given that the employment situation of the parties will likely have changed.

Next, if the parties were close to negotiating a settlement agreement, the agreement may be far from an execution date given that so many things have changed.

As far as custody cases go, if one or the other of the pier and acted unreasonably during the coronavirus and exposed the subject children to unnecessary or unreasonable risk of exposure, you can expect that the aggrieved party will raise this as an issue for modification of the current child custody order or agreement. On the other hand, it is unlikely that the court will allow one parent over the other to use the coronavirus as a basis for keeping the children from the primary custodial parent during the virus. All parties are expected to abide by current agreements and court orders until the courts reopen. In fact, the police departments have been instructed that until further notice all child custody orders and visitation orders should be enforced.

As and for child support, this issue is particularly troubling since the payor spouse may not have access to the court system right now and they will likely have a change in their financial situation as a result of unemployment and will need to seek modification. The coronavirus pandemic does not automatically change your obligations under an extant  child support order. Therefore, if you cannot afford child support because  of the virus, it will become necessary for you to file a modification petition. This might be viewed as an emergency application since failure to pay child support could subject you to contempt of court. Each court will handle this on a case by case basis.

The basis for a modification petition is, three years have passed from the date of the order, a change in other parties’ income by 15%, or a change in circumstances which is substantial. Although the parties can waive off on a couple of the bases for a modification petition, neither party under operation of law is allowed to waive the right to modify a child support order under a substantial change in circumstances. On the other hand, if you are the person receiving child support and you were not receiving child support it may be appropriate for you to make an emergency application in Family court or in supreme court for enforcement of that order. Do not wait until last minute to apply for emergency relief. What the courts will do during this this pandemic with  respect to enforcement of ongoing child support orders will be interesting because this pandemic is unprecedented. However, it can be expected that the courts will be flexible with helping the parties in reaching an agreement until the financial circumstances stabilize.

Each County Court is handling open or pending cases differently. Some courts are entertaining telephone conferences if the attorneys haven’t been able to settle difficulties between themselves. Other courts will not entertain an application for relief unless it is an emergency.

Be that as it may, you can expect that you may not file a new divorce petition until the courts re-open unless it entails an emergency and even then a special affidavit is required to be executed before you do that or the court clerk will not entertain your application.

That does not mean that you should not retain counsel to start preparation of your divorce complaint. A very common problem and issue that has arisen is whether or not a  child should be sent to a daycare center. If you are an essential worker, and you have no other alternative, of course you will have to look into daycare centers that are practicing social distancing and other hygiene practices. However, if the other spouse is available to take care of your child during the pandemic when you are working the courts, when they eventually open, will likely look favorably upon the party that shows that they have been working closely with the ex-spouse or ex-partner in attempting to provide direct care for the child in the home of one or the other spouse or partner.

Of course, if there is family violence, the Family court is always open to addressing a family offense petition. In addition, if there is neglect or abuse of the children, the child protective services will become involved and it is likely that a petition will be filed by them in Family court which will be entertained by the court. If Child protective services does not get involved, then you should file an emergency petition for relief in instances of abuse or neglect.  Other than that, there’s not much that can be done until the courts reopen. I hope this information has been helpful. Thank you.

By: Lisa Beth Older, your Manhattan divorce lawyer.

 THIS INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT TO BE USED AS LEGAL ADVICE


 
Are the Courts open?
April 6, 2020

 

 

 

 

 

 

 

 

In March of 2020 itbecame evident that the corona virus would inevitably cause courthouses throughout the State of New York to close indefinitely.

The coronavirus has affected the court system in a dramatic way in New York State. As of yesterday, the state of the law has two cases pending in the court of appeals in the state of New York will not be heard for oral argument in April and May.

As far as divorce cases go, the only court filings that will be entertained will need to be accompanied by an emergency affidavit.

During the coronavirus, the New York State courts, including but not limited to those cases involving New York Divorce lawyers and Manhattan Family Court Lawyers,  will be instituting various measures of relief in order to reduce thenumber of people in the court room.  As of today’s, writing the Supreme Court of the State of New York is closed to the public.

However, there are some exceptions to the rule.  For instance, beginning on March 25 and March 26, 2020 New York City criminal court and New York City Family Court will begin listening to cases by virtual court hearings performed through video or telecommunications. The types of cases the court will hear by telephone or video R child protection cases, juvenile delinquency cases, family events cases, and emergency writ applications as to custody and parenting time. As a result of Governor Cuomo’s executive order, new court filings that are not essential will not be excepted by the court clerk.

it appears as though each New York county will be handling their caseload differently. Therefore, it is important to call the court if you already have a scheduled court appearance to ascertain whether your case has been adjourned and to what date. If you are going through a custody or divorce appeal, and you had filing deadlines that we are set by the court hearing your appeal, then all filings and deadlines are being suspended until further notice of the court. That is, any cases that were pending on March 17, 2020 will be

indefinitely adjourned until you hear otherwise from the court.

Additionally, as reported in the New York Law Journal on March 20, 2020, The court is asking that if you tested for the COVID-19 virus and visited the courthouse between March 6 and March 20 to call the court immediately to report that so that the court can then trace their personnel and other attorneys who may have been at risk as a result of exposure to the virus. I will keep you updated as to the latest developments in the court system as this horrific pandemic continues. If you need further information, I refer you to the court website at www.nycourts.gov/alerts/ front.

Stay healthy and for now stay home!

 

Your Manhattan Divorce Lawyer Lisa Beth Older, Esq. 

 

 

 


 
WILL THE CARES ACT HAVE AN IMPACT ON MY DIVORCE PROCEEDING
April 3, 2020

Hello my friends.  This information is from the law office of Lisa Beth Older. During these days of the devastating corona pandemic, families are wondering how they’re going to make it through the end of the week. For those of you who are going through a contested divorce case, child custody case, or child-support enforcement case, these days can be especially brutal. This article is for information purposes only and is intended to give you an insight as to what is contained in the $2 trillion corona virus package that can help you help yourself and empower your former spouse to honor his commitments under the divorce or support order.

If you are the payor of the support at issue and are having trouble keeping  your small business going, you should be aware of the provisions in this act.

There is also state aid available in your state that is peculiar to your state. In New York State, for example, we have special unemployment rules that now allow not only small businesses but solo practitioners to request relief in the form of unemployment benefits.  The Federal government will also kick in additional sizable sums in an effort to bring you almost whole, at least through this pandemic, if you are unemployed as a result of this virus.

You should also know that in New York State you may enforce child support orders and Family court even though the rest of the courts may be closed for other matters. You should also know that you can still apply for Snap relief (or food stamps relief.).

But, getting back to the Care’s act. in this federal bill, if your spouse tells you that they can no longer afford to pay under court orders, you can inform them that there is protection under this act and that they should apply for it right away. As for those parents that rely on childcare centers, the Care’s act provides for immediate assistance to childcare centers so that parents can stay at work if they are essential workers. As for grants and loans, there are programs such as the payroll protection act which provides loans which, if applied towards payroll, can be forgiven in whole or part.

 

If you have children that are in college and you are paying for college under your divorce decree, students who have to drop out of college as a result of this virus will not have time from school taken from their limits on taking out  future loans. Those students that have to leave as a result of the coronavirus will also not have to pay back any other forms of student aid or grants already received by them.

 

There are other programs that your children can benefit from such as funding for the arts, and educational institutions such as universities in college. It is worth your while to read the Cares Act.

 

If you are a parent that is charged with supporting your children apply for disaster relief that is provided under the Cares act. I will detail them for you below.  But you can receive low interest loans for economic disaster relief through the Cares act and through the small business administration.

 

For individuals that are unemployed as a result of the coronavirus, there was an expansion of unemployment benefits and for individuals that are self-employed or have employees, and the new rules will allow employers to be incentivized to keep their employees in place and their businesses ongoing.  So if you are currently undergoing a divorce and the payor ex-spouse claims his business is failing or closing, and hence cannot pay under the court order, this information will be useful to you when the courts reopen if you told your spouse about these programs and he or she failed to participate in them.

 

If you are obliged to pay child support or spousal support under your divorce decree, it might be important for you to know that the following relief will enable you to meet your financial responsibility under the applicable court order or divorce judgment.

 

There are three main Cares Act programs to look into right away. 

1•            Paycheck Protection Program the government will pay the business owner 2.5 times his or her monthly payroll expense if they keep employees paid during this crisis and keep employees for eight weeks, and you will not have to pay all of it back.

2.            The Economic Injury Disaster Loans (EIDL) at 3.75 percent which will be used to assist the payor spouse on a temporary or final Order in meeting payroll, pre-existing debt, rent, utilities and operating costs. There is also a very sizable operating grant you can also get up to $10,000 for businesses that have applied for the loan.

3.           Tax benefits: Your spouse may also benefit from receiving certain valuable tax benefits such as a large one time check from the government  and an employee retention credit.  There, the business must show that its operation was suspended by due to COVID-19 during the calendar quarter while under government mandate. Or that they lost 50% of their revenues.  Wages paid after March 12, 2020, but before January 2021 are eligible for this sizeable credit. Moreover, the SBA will have to under this law be responsible to pay principal, interest, and fees for these pre-existing SBA loans for up to a duration of 6 months.

Next, look at your New York laws whcih have been expanded to provide relief during these trying times.

Next, now is the time for ex-spouses to try to work together to protect and provide for their families.

And if all else fails, there is always Family Court which is open for enforcement of prexisting support orders (and for domestic violence and criminal matters the criminal court is always an option.)

I hope this has been useful and stay safe and healthy and God Bless you.

Together we will get through this.  

By:  Lisa Beth Older

Your NYC Divorce Lawyer

 


 
Can I get a divorce during the Corona Virus Pandemic?
March 19, 2020

 

 

 

 

Should I seek a legal separation while quarantined?

 

During this terrible pandemic of the coronavirus parties that had once contemplated a divorce before the spread of the virus now find themselves trapped in the same living quarters as their soon-to-be-estranged spouse. They also find themselves in the predicament of facing

Court House closures.

 

It is important to note that you have options. One of these options is to seek mediation telephonically.  You might also consider entering into  a separation agreement remotely with a New York Divorce Lawyer. 

 

If you are a victim of domestic violence you still have the same options as before.  Of course, you may also call the police, but you should also consider calling an attorney who can file an emergency family offense petition for you with Family court.

 

It is also important to note that in New York City, the Family court is open for parties that need to enforce child support orders or need protection under family offense proceedings.

 

With respect to emergencies of this nature, the court is open. However, if you are seeking nonessential services such as a divorce or a separation, while an attorney cannot file that for you at this time, there is hope.  As the virus gets under control, the court clerks will resume their duties and obligations to accept filings and  courts will re-open, at least to the extent of filing your divorce electronically.

 

Furthermore, during this time when you have the time on hand you can negotiate a post nuptial agreement or a separation agreement with  the help of a New York City divorce lawyer either on the telephone, through FaceTime, or even in a private interview at some of the offices that remain open.  However, should New York become subject to a mandatory quarantine, all customary manners of action will change dramatically, and you will need to contact your matrimonial lawyer through electronic devices.  

 

Moreover, a well versed matrimonial lawyer with tested professional associations with bar associations throughout New York State is best equipped to provide and can be counted on to provide courtesy information as to the status of local changes in the court administration  That said, instead of fighting with your spouse it might be a good time to sit down and work out the terms of your agreement as best you can so that you can call in the terms of your divorce and have a divorce lawyer draft same and have another divorce lawyer for your spouse review it. Once you live pursuant to a duly executed separation agreement or settlement agreement that will serve as a template for a divorce action later on once we get the virus under control and the courts re-opened.  As  discussed in prior articles in this blog, living separately pursuant to a separation agreement is also grounds for a divorce.  I hope this helped you understand how to proceed in the event that a divorce just can’t wait.

By Your New York City Divorce Lawyer Lisa Beth Older.

 

 

 

 


 
What do I do if I can not locate my spouse to enforce child support?
March 16, 2020


The Office of Child Support Enforcement or the office of the administration for children and families is a federal government department that makes sure the child support is being paid on a national level.

While this agency does not give direct services, the agency works with state child support services agencies to make sure that parents provide their children with well needed financial and medical support. if you need help in forcing your child support order, usually you can get that by going to your local Family court office and they will assist you in preparing the documents

Or, you can hire a New York City divorce lawyer or child custody lawyer to help you.  

State child support agencies may be able to help you locate noncustodial parents.  This is important because without a location of the noncustodial spouse you will not be able to ask the court for assistance to make determinations as to paternity, determine child support orders, make modifications to child support orders, and even collect child support payments on your behalf.   Also, the federal Office of the Administration for Children and Families can provide you with a handbook as to how to go about locating the proper local, state and tribal agencies who can assist you. So, if you need help finding a noncustodial parent, the above stated agency can help.

They will provide you with a child support handbook where you will find information. In most cases, you must know where the other parent lives or works. If you were having difficulty getting that information, then the child support office in your state our county can try to ascertain that. The most important bit of information that you may need to provide is the noncustodial parent’s Social Security number and any other identifying information such as last place of employment, last place of residence, or any prior history of employment. This information is critical because you cannot get a custody order enforcement of a custody order or modification of a custody order from a Court unless you serve the non-custodial parent with these papers. Due process requires that the noncustodial parent has actual written notice and opportunity to be hears.  The good news is that state child support agencies have access to information that you cannot readily get ahold of from state governments, and from the federal government where applicable.  They can best legally access state tax return files, real property titles, personal property records, public aid agencies, motor vehicle departments, and law-enforcement agencies.  Your local child support enforcement agency can assist you in this regard. If you find that your local child-support agency is not assisting you as much as you would like or as quickly as you would like then you can try to obtain records yourself from the department of motor vehicle by doing a motor vehicle search. To conclude, your local child support enforcement services agency should be able to help you locate the non-custodial parent. They have access to records that the ordinary individual does not have access to while providing due process and safety precautions at the same time. I hope this information has been useful. After obtaining that information you can go ahead and file your child support application in New York.

 

By your New York City divorce lawyer Lisa Beth Older


 
What if my spouse is turning our children against me?
March 12, 2020

Parental alienation has a huge impact on child custody cases

 

The New York courts considers parental alienation in its decision as to which parent shall obtain custody over children. When a quart feels that a child is refusing to have any relationship whatsoever with the other parent a quart then explores reasons as to why that is happening. In the absence of and fitness or abuse it is not unreasonable to imagine that parental alienation is occurring. The courts take parental alienation very seriously. The concept of parental alienation is not straightforward and at one time was discredited. However, the term parental alienation is seeing a comeback in the courts and has found new scientific legs upon which to support the theory.

 

If, for no apparent reason, your child is no longer talking to you or is expressing hatred towards you, the chances are the other parent could be saying bad things about you to the child. In other words, the child is merely mirroring that parent’s hatred of the other parent. Parental alienation often occurs in the middle of a divorce case. However, it can also occur under other circumstances. If children are around too many negative statements made by one parent about the other parent, they experience something called parental alienation. There are experts in the field who can ascertain whether the child is being alienated against one parent. For instance, when a child displays anger and fear not grounded in any rational basis these feelings of anger are usually planted in the head of the child by the opposite parent. This psychological twisting of a child is detrimental to the child and his or her family relationships because children try to trust and need to rely upon both parents in order to develop in a healthy manner, but when one parent poisons the child against the other parent it is not only detrimental to the child but it can also have dire consequences on the injuring party's case.

 

It unjustifiably causes the child to have negative feelings toward the aggrieved parent. An example of parental alienation is when a parent blames the other parent by having an adult conversation with the child as to the finances of the parties and why they cannot longer enjoy certain activities they used to enjoy prior to the divorce, y blaming the child’s lack of enjoyment of said activities on the fact that the other parent is the bad guy. Sometimes this happens purposefully and many times I see it happen unintentionally, but it can happen nevertheless and should be voided in any New York Custody case. Any good Manhattan Custody lawyer will warn against it and will be on the lookout for it. There is a lot of case law that developed in the state of New York that deals with parental alienation. One of the accepted principles of law is called interference with the noncustodial parent's relationship with the child. If the court finds that one spouse has intentionally interfered with the relationship of the child and the noncustodial parent, the court finds that that parent is per se unfit to parent. You can imagine the consequences of this in a custody case that goes to trial. The lesson from all of this to be learned is do not speak badly about the other parent in front of your child. If you need to speak badly about your spouse, hire a therapist to vent or speak to a friend or another adult. Involving a child in your divorce and financial problems is the worst possible thing you can do for your child and will likely have negative consequences in your case.

 

If you feel that your spouse has alienated your child against you, then argue in court that you have been the victim of intentional alienation and that as a result your spouse should not be awarded custody. It is a very strong case, but it’s also a difficult one to prove without expert testimony. If you suspect that you are a victim of parental alienation, then ask your attorney to request the appointment of an attorney for the child and forensic evaluations of the parties.  After all parties and the children have been interviewed, if the forensic evaluator feels there are sufficient facts for showing a parental alienation, this factor will play a large role in what the judge will do in your New York custody case.

  

By: New York divorce lawyer Lisa Beth Older
 
What are the substantive issues in a divorce action
February 18, 2020

What to think about when you are getting a divorce?

Divorces are expensive.  That is because lawyers typically get paid by the hour.  If you live in a densely populated city, it is likely that the hourly rate will be higher than you would expect.

You need a divorce lawyer if you are going through a hotly contested divorce or child custody matter.

The primary things that a divorce judge will look at in a New York divorce action:

  1. The Best interests of the children
  2.  Distribution of assets accumulated during the marriage
  3.  Spousal support
  4.  Child support
  5. Grounds

If the marriage has become acrimonious the spouses tend to let their emotions get in the way of good business decisions. As such, before you get into court or, better yet, before you file for divorce it is a good idea for you to sit down and discuss how you would like to divide your assets.  Start with personal items and move on to more important financial accounts. Also, if either of you have a retirement plan through your employment start to discuss how best to divide those retirement accounts. 

Grounds are the least of your concern in New York since the Court prefer that you opt for the no-fault divorce option. 

If you have children, start to acclimate yourself to the fact that courts favor joint custody, at least regarding making decisions about the children that affect their welfare. The courts also encourage liberal custodial access to the children.

As to spousal support, the New York Maintenance Guidelines will help you determine how much support you may be entitled to and the length of time in which  you can expect spousal support to be paid.

As to child support, there are also guidelines in New York called the Child Support Standards Act.

Prioritize what you want in a divorce action. 

Once you familiarize yourself with the basic issues in your divorce action you can better negotiate terms with your spouse.  It is not worth fighting over who gets the bed or who takes the coffee machine. This can often lead to the breakdown of the negotiation.

If you can resolve the above issues, then it is important to let both attorneys know in a letter or email so the attorneys can write it up in an uncontested fashion.

If you cannot resolve these issues, then expect that the matter might end up in court.

By: Your New York Divorce Lawyer Lisa Beth Older

 


 
Can I appeal a Family Court Order Divorce Judgment
November 20, 2019

Can I appeal a Family Court Order or a Judgment of Divorce in New York?

Appeals from decisions and orders of the lower court are complex to perfect.  Not all orders are appealable as a matter of right.  For instance, a temporary Order can not be appealed unless you make  a special motion to the Appellate Division asking for leave to appeal.  You must also know that even if the Appellate division accepts your motion and allows you to appeal the lower court action is still pending at the same time  before the same judge and that judge will be aware of the fact that you appealed its temporary order.  Sometimes you can ask for a stay of the lower court order until the Appellate Division makes its ruling but even after it does make its ruling the court will likely send the entire matter back to the same Judge you had. If you are appealing a Final Order or Decision, then it must be known that if you lose your appeal the case will likely be sent back to the trial judge.  If you prevail on some points but lose on others, then the court will send the case back with instructions to the trial judge to make a ruling consistent with the holdings they made in the Appellate Division Decision.

Just filing a Notice of Appeal is not enough though it is imperative that you file one to protect your rights in the courthouse in which your case was heard and be sure you also serve it on your adversary.

You also need to perfect the appeal by following the Appellate Division court rules of practice which are  very detailed and complex.  These rules can be found on the New York Government website.   This consists of preparation of Briefs which are formatted in accordance with the rules of court.  The rules of practice vary between Appellate Division Departments so be sure to read the rules that appertain to the county in which your appeal will be heard. The form of the brief in the Second Department is governed by rule 50.8.  Even the cover of the brief must be in accordance with the rules of court. The cover must include the titles of the case and in the upper right-hand corner it must ask for how many minutes you are requesting for oral argument and the name of the attorney you select to argue it, along with the name, address, email address, and  telephone number of said attorney.  The brief itself is also highly regulated as to form.  In all departments, the form the brief takes are usually uniform.  But you should check the practice rules before you write and submit a brief. The Appellant’s brief should have a table of contents, and under that should be listed points you wish to make, the contents of the appendix with references to each document you will address by page number   including direct, cross and redirect, a table of case law indicating the page where the case can be found, a express articulate separate Statement of the issues and questions you want the court to address, a two page neutral restatement of the questions involves with the answers directly below, a statement of facts of the case with citations to the record, a certification statement by the submitting attorney, the argument you intend to make as appellant, divided into distinct points,  a statement stating under oath that you are in conformity with printing requirements, a CPLR 5531 Addendum, a copy of the order you are appealing from and a copy of the Notice of appeal.  There exist many other rules which you can find on the government website, but the above  requirements will give you an idea as to how complex appeals really are. The Respondent is required to perfect their appeal in a manner consistent with the above rules, with some deviations therefrom. I always tell my clients to order the lower court transcripts and exhibits admitted into evidence before even retaining our services. Then, of course, you must write the brief consistent with the table of contents so the court may follow your thinking, Moreover, there are printing and filing and service of process rules that need to be followed and that need further filings with the court. An appeal generally takes a month to draft and several months before a court will render its decision. I would strongly recommend that you retain counsel before you try to file an appeal given the above complexities but if that is not an option then the web site will help guide you and the clerk of the court will assist on any non-legal question you might have.

I hope this has been instructive, but it is not legal advice,  see a lawyer before you attempt to file any Notice of Appeal or Appeal since any mistake can be fatal to having your case heard in the appropriate court

Your Bronx Divorce Lawyer and Bronx Child Custody Lawyer

Lisa Beth Older


 
What is a separate property credit?
November 6, 2019

What is a separate property credit?

In a New York diovrce case, when a home is purchased with funds acquired prior to the marriage and you put both names on the deed, you may still be entitled to a separate property credit against the sale proceeds of the marital real property if you can trace the source of the fund back to a separate property asset, and if you have not comingled marital funds or marital earnings into that account.

This is because commingled funds, verses mere title transmutation into joint names,  are precepts that are dealt with differently  in their entirety,  under all the case law.  Contrary to merely changing title to the property, the commingling of funds almost always defeats a separate property characterization as well as a separate property credit. 

This is a well settled concept of divorce  law in New York.  The Court must first classify the property at issue as marital verses separate. They next distribute it via equitable distribution at trial.

As to any marital asset acquired with one of the parties' separate funds, even if the asset is classified as marital by the court it is not always distributed equally.  In point of fact, it  is pretty settled law that the person contributing their separate property receives a dollar for dollar credit for any separate property fund.  (see e.g. Juhasz, 59 A.D.3d at 1024, 873 N.Y.S.2d 799; Murphy, 4 A.D.3d at 461, 772 N.Y.S.2d 355; **1044 ***788 Judson, 255 A.D.2d at 657, 679 N.Y.S.2d 465; Heine,176 A.D.2d at 84, 580 N.Y.S.2d 231).. “In these situations, courts have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset …”(see e.g. *168 Zurner v. Zurner, 213 A.D.2d 906, 908, 624 N.Y.S.2d 301 [3d Dept.1995]lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999 [1995]; Burns v. Burns, 193 A.D.2d 1104, 1106, 598 N.Y.S.2d 888 [4th Dept.1993]mod. on other grounds 84 N.Y.2d 369, 618 N.Y.S.2d 761, 643 N.E.2d 80 [1994] ).

Next, in distributing the appreciation in value of the real estate a court may consider any of the several isted factors enumerated in Domestic Relations Law § 236(B)(5)(d) or any other factor that is equitable in their estimation.  (see e.g. Butler v. Butler, 171 A.D.2d 89, 93–94, 574 N.Y.S.2d 387 [2d Dept.1991]Woodson v. Woodson, 178 A.D.2d 642, 642–643, 578 N.Y.S.2d 217 [2d Dept.1991] ), including each of the parties’ indirect efforts and contributions as well as any passive increase in the market value.

For example, in the first department case of Heine v Heine 176 A.D.2d 77  the Appellate Division credited the husband with the amount of the down payment, classifying it as the Husbands separate property and left only the appreciation in value subject to determination as to equitable distribution at trial.

In the first Department case of Klauer, the court there, the parties sold a marital property and then commingled the sale proceeds of that marital real property with plaintiff’s separate 325K trust fund (big mistake)  and the parties next bought a second piece of marital property out of that commingled fund. There, the court also expressed that Plaintiff’s separate trust fund, which was formerly separate, lost its separate property character when it was commingled with the parties  marital real property sale proceeds. Those parties next bought a second property with these mixed, transmuted, commingled funds so the court properly held that the second purchase was marital.     In other words, the court did not award a separate property credit because of the commingled nature of the source of the down payment,  and for no other reason.  The court concluded, in its support of its decision, and held, that the property was marital not subject to a credit since Plaintiff failed to rebut  the presumption of marital property where the source of the down payment was derived from comingled funds.

But even if there was comingling, the court still recognized the plaintiff’s extraordinary monetary separate contributions of Plaintiff in its distributive award, awarding her 70 percent of the sale proceeds, anyway, this despite the fact that the separate property credit was formally obliterated by the commingling.

By Your Manhattan and Bronx Divorce Lawyer

Lisa Beth Older

And also see citations referring to case law.