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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


PRENUPTIAL AGREEMENTS ACROSS BORDERS
August 23, 2023

INTERNATIONAL PRENUPTIAL AGREEMENTS ACROSS BORDERS

Here are some factors to consider while entering into a prenuptial agreement if you are negotiating the agreement out of the United States or abroad but wish to eventually enforce it in New York State.

Many people ask whether a foreign prenuptial agreement will hold up in other states. A particular concern here is what type of prenuptial agreement will hold up in New York. In general, and this is not legal advice, New York will enforce foreign prenuptial agreement if it is acknowledged in a manner prescribed for the filing of a deed, if it was enforceable in the country where it was entered, if due process is not violated, if it was without overreaching, if it was not made under duress,  or if any other public policy is not violated. That said, it is discretionary within the courts to determine what contracts or what divorce judgements they will enforce, and what they will not enforce, so it is not a guarantee that a foreign divorce judgment, or a foreign prenuptial agreement will be automatically enforced in New York. 

In that regard, the New York courts, in general, will uphold prenuptial agreements for the most part if they are executed in the manner described above and like fairness as defined above. 

A very important New York case to consider in this context, or in any context involving a prenuptial agreement, is Gottlieb versus Gottlieb, published in the NY Law Journal (NYLG January 29, 2016, First Department, State of New York which upheld an Agreement that looked one sided. In the case of Gottlieb the court discussed the New York law contained in DRL section 236 b(3) as it applies to prenuptial agreements and the court held that prenuptial agreements executed properly will be deemed binding as to equitable distribution of property even if the agreement may not be deemed fair by ordinary measures, so long as the parties knowingly entered into the prenuptial agreement, had legal advice, and was not obtained by duress and overreaching.  However, this might vary from Judge to Judge.

As to the provisions of the prenuptial agreement as to spousal support (alimony) or maintenance, a slightly different standard applies since maintenance in spousal support and child support or more closely scrutinized by the courts. The rule of law, as to maintenance and support, is that the award must be fair and reasonable at the time that it was made, and not unconscionable upon the entry of a final divorce judgment. What is important to note here is that the Gottlieb court in New York county said that with respect to unconscionability, that even though the prospective bride and groom owe a fiduciary duty to the other side not to be overreaching, nevertheless the agreement is effective even if it is a one-sided agreement so long as there was no duress, overreaching and was knowingly executed. This was not a unanimous decision and some of the judges concurred but with the exception that they found that couples that are not yet married do not owe each other a fiduciary relationship. 

That said, there are other Counties and judicial Departments that more strongly adhere to the notion that fairness of the agreement is important. For instance, in the Second Department, in the case of Petracca v Petracca, 101 AD2nd 695, the court took the position that the Prenuptial Agreement was not enforceable in that situation, where they excepted the wife’s position that she was bullied into signing the agreement.

The existence of multiple residences of the parties to the prenuptial agreement springs an interesting inquiry as to whether all the multiple states at issue will enforce an otherwise enforceable prenuptial agreement entered in just one of the multiple states of residence.

This is where the Uniform Prenuptial Agreement Act comes into play, if at all. This Act deals with the interplay between the laws on prenuptial Agreements across the United States. New York has not adopted this Act, but 29 other States have. Though many states have adopted this set of laws, New York has departures from it that will impact parties to a prenuptial agreement if the parties travel from state to state so it is important to consult with attorneys in all the states of residence prior to deciding where to enforce your agreement.

 

By:  Lisa Beth Older, Esq.

 

Your New York Divorce Lawyer located in Manhattan.

 

This is not legal advice and is informational only.  Always consult with an independent counsel of your choice before engaging in the drafting of any legal document.


 
PRENUP OR PAY OUT: CONSIDER A PRENUPTIAL AGREEMENT BEFORE MARRYING
August 23, 2023

 

PRENUP OR PAYUP 

 

How does one take the financial risk out of marriage while maintaining a strong and loving relationship? Risk mitigation is a term most commonly used in business practices, which is also referred to  as hedging your bets. For instance, when you are about to buy your forever home,  you make sure that we do our due diligence before signing the purchase agreement. We hire an appraiser and an inspector to go over every nook and cranny of that property to make sure we're making a sound investment.

Yet when we fall head over heels in love, and romance blossoms between two parties, it is as if all logic goes out the window. All we can see is that wonderful, intelligent, funny, and caring person in front of us and we tend to forget that marriage is a business partnership and contract between two parties, so why should we treat that any relationship differently than any other contract? You're looking to make a lifelong commitment towards your spouse to be, to build a future together, and to invest in your marriage. As much as you like to think that you know everything about this person, and that you have the same ideas about your future together, statistics show a divorce rate of anywhere from 30-70% depending on numerous factors. These factors could be age difference, educational background, income, respective assets, children, ambition levels, cultural differences, financial differences, political views, socio economic background, among others. 

Based on statistics marriage, unfortunately, is considered a high risk "investment". With that in mind wouldn't it be wise to "hedge your bet" and protect yourself and your interests against potential liability, financial exposure, and the unknown, to avoid unnecessary damages when faced with a divorce? 

If both of you are young and coming into this marriage with nothing, with no preexisting assets, and with smaller income expectancies maybe a prenuptial agreement is not for you. Nevertheless, it is highly recommended in New York since New York Court favor prenuptial agreements.

 You might be coming into this marriage with preexisting assets, such as a house, an inheritance, a retirement fund, and  significant savings. There might be a huge disparity in income. You might have children from a previous marriage. You might own a business. You might have spent years furthering your education to become a professional, an expert in your field, with speaking engagements, and book deals. You might have to sacrifice your high paying job to take time off to become a stay at home parent to raise your children, losing out on income, savings, retirement money, promotions. 

In any of the above scenarios a prenup serves an important role in the event of a divorce. Without a Prenuptial Agreement you might have to pay up, perhaps giving away huge amounts of money that was  derived from appreciation in value of preexisting assets,  or enhanced earnings, that you or a previous generation worked so hard to gather to provide you with financial security.

A prenup is really an excellent opportunity to sit down before tying the knot to test the strength of your relationship. It's also an opportunity to set forth your expectations for this marital partnership and romantic union. If you can't work out your differences and come to an agreement at this early stage of your relationship, it's not going to be any easier 10-15 years from now.

My name is Lisa Beth Older and I'm a successful Family Law Attorney with over thirty years of experience in this field of law.  I have appeared on several major news networks as a commentator on these sort of issues.  If you're contemplating marriage and believe a prenuptial agreement is something that would benefit you, please contact my office to schedule a consultation to go over your specific situation and what would be most beneficial to you.

By: 

 

Your Manhattan Divorce and Child Custody lawyer 

*This is not intneded as legal advice and is for informational purposes only.



 
Fathers' Rights in New York
June 19, 2023

Fathers' Rights in Custody Matters in the State of New York


Father's rights have come to the forefront when it comes to custody battles in Court. These battles are emotional for both parties as well as for the children at issue. 

Fathers have always faced a difficult challenge ahead of them but especially now as the law on father's rights evolves.  Historical data suggests that mothers had a greater chance to prevail on a custody case then fathers, but in recent years, fathers' rights have become more recognized and protected by law.

For instance, the “tender years” doctrine has become outdated, and it is no longer [presumed that the Mother should have the children during infancy. In New York for instance, custody decisions are decided on what is in the best interests of the child. They are decided in the context of a divorce action in Supreme Court or in a Family Court action. You do not necessarily have to get a divorce to fight for your custodial rights because Family Court can hear your case. 

However, once you file a New York divorce action you must alert the Family Court to your divorce filing and then move to consolidate the Family Court action with the Supreme Court divorce action. In either court, the Court uses the same standard in deciding who will be the custodial parent. In this regard, Courts consider a myriad of factors before deciding what is best for a child, such as the child's relationship with the parents, which parent has the superior ability to provide for the child's physical, psychological , educational, and emotional needs, and a potential history of abuse, arrest, or neglect.

If you go to a custody trial or fact-finding, and if you disagree with a lower court’s decision and are sure that the lower court made a legal error you can appeal your child custody case to a higher court.  But in my opinion and experience the Appellate Courts do not customarily reverse trial court decisions since a trial court has the firsthand knowledge of the witnesses, the parties, and the proceedings.

Despite a nonbiased standard of best interests, fathers’ rights have been challenging as they have often faced bias as Courts used to assume somehow that mothers were better caregivers to children, and fathers were better financial providers. This has now changed dramatically and Fathers who sue for custody now stand a very good chance of obtaining custody if they can show that it is in furtherance of the best interests of the children that they be appointed the custodial parent. In many cases, the court looks at the bond that is established between the Father and child, and the nurturing of the child, in order to determine where the child should live. As such, if you are looking to secure custody make sure you have spent sufficient time and energy on the child so that you have established a good bond that would further the child’s best interests.

Many times, the Father might face false allegations of child abuse or neglect. Watch out for these allegations as a child can be coached by either parent to say things about the other parent.  The Courts are very wary of such conduct and see it with a jaundiced eye.  If a parent continues to make such false allegations, they are sometimes deemed “per se unfit” because in doing so they are not able to foster a good relationship between the child and the noncustodial parent. Another thing to do is join father rights groups who will share with you what they have gone through and what has helped them in their custody case.

To conclude, the Courts these days favor involvement of both parents in the lives of the children, as it should b. But if you feel you are being cut out from the life of your child seek a top New York divorce lawyer who can assist you in Court to secure your rights as a parent.  It is key to have a lawyer help you navigate as child custody matter often involve day to day decisions that can impact your case. I hope this helps you in assessing what to do if you are a Father who is trying to secure legal or physical custody. This article is not deemed legal advice and is solely for informational purposes. Thank you.

By Lisa Beth Older
Your New York Divorce Lawyer 

 


 
The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York
June 1, 2023

The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York

Here is the state of the law as to counsel fees in Divorce and child custody cases.  The Courts are designed to not permit an unfair playing ground when it comes to a huge disparity in wealth between spouses. Accordingly, a non-monied or spouse with low income may apply for counsel fees against the other spouse in a divorce action in New York State under the following circumstances’ set forth in Domestic Relations Law Section 347(B). This is the same as where a spouse’s wealth vastly exceeds the other spouse‘s wealth because the Court wants everyone to be adequately represented. When you make an application for counsel fees there are certain legal requirements and documents that must be attached to the application so check with a New York divorce lawyer before filing any such application to ensure it is complete. .

Pursuant to DRL Section 237 (B):

            “….upon any application by writ of habeas corpus or by petition and order to show cause concerning custody, visitation or maintenance of a child, the court may direct a spouse or parent to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse or parent to enable the other party to carry on or defend the application or proceeding by the other spouse or parent as, in the court's discretion, justice requires, having regard to the circumstances of the case  and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements, or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in counsel's own name.

Also, see the below case citation.

In the First Department case of Brookelyn M. v. Christopher M., 161 A.D.3d 662 (2018) the Court held, in pertinent part, that “….The purpose of awarding counsel fees is to further the objectives of “litigational parity” and prevent a more affluent spouse from considerably wearing down the opposition (O’Shea v. O’Shea, 93 N.Y.2d 187, 193, 689 N.Y.S.2d 8, 711 N.E.2d 193 [1999] ); see Gottlieb v. Gottlieb, 138 A.D.3d 30, 25 N.Y.S.3d 90 [1st Dept. 2016], lv dismissed 27 N.Y.3d 1125, 36 N.Y.S.3d 880, 57 N.E.3d 73 [2016] )…..”

 

Article by New York Divorce Lawyer Lisa Beth Older 

 


 
Geographical Relocation Cases involving Child Custody
April 29, 2023

Geographical Relocation Cases involving Child Custody

At some point in time a divorced couple or a party to a Child Custody Order may run into the problem of having to relocate the subject children to another location and cannot gain the consent of the other parent.    Geographical Relocation cases vary, they are tough going, and it often creates great difficulties where the parents are sharing joint residential custody.

The relevant factors on a modification petition to family court asking to relocate requires the court to consider whether there has been an unanticipated change in circumstances so as to permit relocation of the children in the best interests of the children.

In this sort of case, the courts will consider many factors, such as the reasons the party sets forth for the move, the status of the quality of the relationships between the child and the two parents,  the impact  the move might have on the children’s quality of life, whether the move will interfere with the relationship between the noncustodial parent and the child or children, and whether it is possible to alter the current visitation time to provide near or equalization time between both parents to spend with the subject children.    

Other important factors to consider are whether the move will improve or enhance the wellbeing of the children, such as a better job, more family contacts, or financial hardships that make it impossible to stay in the present local. For instance, the moving party has the burden of showing to the Court that, in addition to not affecting the relationship between the children and the noncustodial parent and extended family, that a move will enhance the child economically, emotionally, and educationally.

If you intend on filing a geographical relocation petition in family court, it is always best to do so either after you have a custody order in place or while you are in the process of suing for custody. In the instance where you are in the middle of a child custody case, if you plan on relocating, address this in the context of your custody case so that the Court can decide as to how far you may move. However, if you already have a set custodial plan in place, you must show an unanticipated change in circumstances.  If you anticipate a move in a custody case but you have no specific plan in place it is best to file a geographical relocation petition when custody is resolved and when you have a comprehensive plan in place which sets forth the actual address of the planned move, the actual employment opportunity that is available upon executing the move, and the fact that you have a plan to ensure that the noncustodial parent will have the same amount of time to spend with the children that he or she has under the old Order.

Always have a plan to present to the court.  The more specific the plan the more likely a Court will seriously consider your petition to relocate.  If you are moving on a whim and are using the move to shorten the time the noncustodial parent will spend with the  children your plan will surely backfire.

Also, the radius in which you wish to relocate is also relevant. Of course, if you are trying to move out of state your burden of proof in that sort of instance is you must show by a preponderance of evidence that this move is clearly in the children’s best interests.

In settlement negotiations which occur out of court, always ensure there is a radius clause in your agreement. While not ultimately binding,  because you still have to file for permission to move, it is one factor a court will consider in allowing the move to another location.

I hope this information was helpful.  Remember, this is only information from my perspective as a New York Divorce Lawyer of over thirty years and you should never depend on this as advice since every case is different. Rather, consult an attorney of your choice who is well versed in family law.

By: Your Manhattan Divorce Lawyer

Lisa Beth Older, Esq. 


 
CHILD CUSTODY HIGHLIGHTS IN NEW YORK
March 25, 2023

Child custody and visitation in New York is an area of law that requires an attorney that understands the importance of the day to day life of the party and children while litigating custody and visitation.

The difference between litigating a custody case, successfully, and losing a custody case depends upon how you navigate the issues between you and the non-custodial parent. This is where an experienced divorce lawyer or child custody lawyer can be invaluable since they are usually equipped to guide you through the choices you must make during the litigation that will strength or weaken your case..

Clearly, if there is abuse or neglect of the children, mental illness of either party, or domestic violence the Court will favor an award of custody to the parent who is deemed best fit.  You can also lose custody if you are a substance abuse her or if you fail to coparent or fail to follow court orders as all of the above factors would negatively impact the best interests of the children.

Please note that initially if there is no custody order, either of the parents can keep the children. But disputes arise when the parties are unmarried and there are no formal custody orders.  That’s why it’s important to file for a custody order, either in a divorce case or a child custody case in Family Court. 

That said, New York is not a 50-50 state as to child custody laws and a Court will not always require the parties to split their time with the children on an equal basis.  Rather, since 1970, New York has used a certain test in determining who gets custody in a child custody dispute.  That is, the New York Court will decide custody matters based upon all factors that consider the best interest of the children.

In determining the best interest of the children, the courts will take into account the following.  For instance, they will consider which parent fosters a meaningful and robust relationship with the other parent and which parent is best fit to care for the children. Other factors of consideration are measuring how long the children have resided with one or the other of the parents, where the child has been residing, primarily, if the child has certain  needs that one parent can best meet over the other, instances of domestic violence, the existence of siblings, better parenting skills, and work schedules that are conducive to providing direct care for the children. A  child’s preference is also considered in a custody matter. 

When we speak of child custody in New York, there are distinct types which must be considered. Joint custody is when both parents may decide the major legal decisions as to the children. These legal issues normally entail decisions as to medical religious or educational matters  relating to the children. 

The other  terminology that best describes child custody matters in New York has more to do with physical residence. For instance, if one party has joint physical custody, that means that the children go back-and-forth between the parents. However, if one parent has sole physical custody, that generally means that the child lives primarily with one parent over the other,  and that the child’s primary residence is with that parent. So, theoretically, the parties can have joint legal custody with a shared parenting schedule or  the parties can have joint legal custody, but one of the parties can have primary physical custody.  These issues are generally negotiated between the parties, or if the parties cannot agree, then a judge will decide these issues at trial.

Generally a Court will allow a child who is over the age of 18 to refuse to visit with the noncustodial parent in most cases, but it’s always best to get a judicial determination as to this issue.

Self-help is discouraged by the courts. For instance, if a non-custodial party takes the child out of the state or country without the permission of the other parent, or against a court order,  then this is usually considered  parental kidnapping and the guilty party can be charged with a crime. 

Many parents want to know what happens if one parent does not allow the children to visit with the other parent. In those instances, it is best to go to court to plead your case because liberal visitation is favored in New York, absent aggravating circumstances, such as those discussed in the paragraphs above. Courts want to see the children have both parents participate in their lives. 

Parents who discouraged the children from visiting with the other parent, because the children are telling them they do not want to go,  will be discouraged to learn that it is not up to the child to decide who has child custody. Only a judge can decide who has child custody. The courts will listen to the preferences of the child but that is not the determining factor since the judge’s decision entails consideration of a multitude of factors outside preferences.

As for your choice in choosing a child custody lawyer, you want the lawyer you choose to have vast experience in family law.  You want a custody attorney to be able to advise you as to day-to-day decision making because you might make a mistake in a decision that can negatively impact your case. That is why hiring a lawyer who is available to talk to you is important.  Also keeping a diary is very important so that you are documenting facts that may be helpful to your case. Keeping a diary also helps you communicate better with your custody lawyer, so that at each court appearance, your custody lawyer will be prepared to relay to the judge these circumstances in support of  temporary relief pending the fac-finding or trial.

I hope this has been helpful to you.  This is not legal advice and is intended to be informational in nature, and so it is always best to fact-check with an attorney of your choice.

 

By:  New York Child Custody lawyer and Manhattan Divorce lawyer

       Lisa Beth Older, Esq. 


 
Can a Party Modify a prior Custody and Visitation Order or Agreement
March 12, 2023

A parent can move to modify a prior order of custody and visitation upon a showing of a change in circumstances and that a change in said Order would be in the children’s best interests. In the 2020 case of Matter of Epstein v Soler-Epstein, cited as 188 AD3d 1052 the Supreme Court Appellate Division, Second Department, upheld the lower Court ruling that where the Father went through an extensive treatment for alcohol abuse,  his visitation could be enlarged to overnight access so long as certain precautions were in place such as a Sober link device and a weekly reporting service.   The Court noted that the evidence showed that the Father learned to recognize that he had a problem and needed to refrain from the use of alcohol.

In the case of Matter of Stepan K. v. Marina M., 188 AD3d 600 (1st Dept. Nov. 24, 2020) the Appellate Division, First Department affirmed a lower court hearing for modification of a prior custody agreement by holding that the Father had shown a change in circumstances warranting a change of custody. The Father was granted custody because the Mother refused to share information regarding the child’s school,  traveled with the children without informing the Father or letting his speak to the children in his absence.  The Mother had also made false reports that the Father had sexually abused the children. On these sorts of facts, the Court felt that the Mother was not fit to be a custodial parent and awarded the Father sole Legal and physical custody of the subject children.

In the case of  Tsung v. Tso, 2021 Westlaw 189198 (1st Dept. Jan. 19, 2021), the mother appealed from a lower court Order made in Supreme Court which granted the Father’s application to modify their parenting agreement and awarded shared custody such that each parent had the exact same number of days with the children. This decision of the Court was based upon the fact that the children had expressed an interest in shared custodial time.  The Court based its decision largely upon the Fact that the Father had established a change in circumstances after proving that the mother regularly interfered with his time and access with the children, that she utilized the services of a nanny when the children could have been with their father, and that she refused to coparent with the Father.  

Domestic Violence is also another factor that a court may consider in modifying a custodial Agreement or prior Court Order. In the case of Matter of Paul Y. v. Patricia Z., 2021 Westlaw 55019 (3d Dept. Jan. 7, 2021), after an eight-day trial, the Family Court modified custody when the Mother showed the Court that the parties’ relationship was so broken down that co-parenting was now impossible and was against the best interests of the children.  In that case, the Appellate Division granted the Mother sole legal and physical custody of the children and agreed with the Family Court ruling that the father had committed domestic violence against the Mother.  The Court went on to conclude that the Mother was kind and nurturing and that the Father, that the Attorney for the child advocated for the change in custody,  and that the Mother had made a showing that  the Father had done at least four acts of domestic violence including but not limited to the fact that the Father had grabbed the Mother’s hair, sat on her, pushed her, kicked her and threatened her with a knife, and twisted her arm.  The Court also alluded to the fact that the Family Court's issued an order of protection against the Father for acts of harassment in the 2d degree.

 

By: Your Manhattan Divorce Lawyer

Lisa Beth Older 

 


 
Family Law and Estate Planning
January 18, 2023

 

 

Estate planning and Family Law

 

Whether you are getting a divorce or staying married, every party should seek the advise of an estate planning lawyer because it can have significant tax consequences for you

There are several considerations that your New York Divorce lawyer should take into account and often times that involves estate planning and referrals to a tax attorney and certified public accountant.  

For instance, regardless of your last will and testament, your spouse will always be able to elect to take his or her elective share against your  will.  That is, you can not “will out” your wife or husband’s interest in marital assets.

There are also tax benefits for gifting assets to your spouse which are tax free because interspousal gifts made during the marriage or at the time of death of one of the spouses as provided in a trust  are tax free events.

If you do not utilize these tax benefits, then you could owe the IRS a lot of money you never planned to pay. 

Other tax considerations have to do with retirement plans. If you have a retirement plan you should have it valued by a forensic expert since the present day value is less than the actual value and this factor will come into play when you divide up the assets between the parties and you might be able to get more of a cash payout on your divorce if you take this factor into consideration.  Also, there are tax consequences as well which the other spouse might be responsible for.  To be smart, consult with your accountant before you settle your divorce action.  

 

By: Lisa Beth Older

Your Manhattan Divorce Lawyer

   

 

 


 
NEW YORK EQUITABLE DISTRIBUTION LAWS AS AMENDED
January 13, 2023

CHANGES IN EQUITABLE DISTRIBUTION

 

ANIMALS AND EQUITABLE DISTRIBTION

There have been exciting New Developments in Equitable Distribution law in New York.  The  latest factors include the impact of domestic violence on distribution of marital property and the distribution, so to speak of domestic companion animals.  

The factors for EQUITABLE DISTRIBUTION are as long as they are divorce but the below list is a  current list of what a Judge may consider in dividing up the marital estate in the event of an unfortunate divorce.

DOMESTIC RELATIONS LAW §236B(D) allows the Court broad discretion as to how to divide marital property. They consider the following statutory factors, as well as anything else deemed just and proper. 

The below list has been amended and companion  animals have now been provided for in this equation.

  1. Income and property as of the date of marriage and date of filing
  2. Length of marriage age and health of husband and wife
  3.  Who should occupy, own or possess  the marital residence and contents
  4. Any inheritance or pension rights that might terminate after dissolution of the marriage
  5. Health insurance benefits lost after divorce
  6. An award of maintenance
  7. All contributions  made  to any marital property, whether it be direct or indirect contributions made by the nontitled spouse toward acquisition or appreciation in the asset. The court will no longer consider a spouse’s enhanced earning capacity of a  license, or educational degree or career appreciation as something to be divided  but the court can still consider any other type of enhanced earning capacity resulting from direct or indirect contributions of the non-titled spouse during the marriage.
  8. Whether the asset in question is liquid or non-liquid would  be another factors to be considered and taken into account in making the equitable distribution award.
  9. Future financial circumstances of the husband and wife as a result of the divorce
  10. Economic considerations as to selling verses retaining an assert in its present state and separate from interference by the other party.
  11. The effect of tax consequences to husband and wife
  12.   The wasteful dissipation of assets by either spouse
  13. Any intentional transfer of assets done in anticipation of a divorce action to the detriment of the other spouse
  14. Domestic violence and the nature of it the extent of it and its duration, which went into law on  May 3, 2020. WB, LLP – SJP NYSBA FLS 999998.05912/125642013v.1 3
  15. As for companion animals in the end 2021 the New York State legislature decided to amend the law which governs the “equitable distribution” of marital property.  That statute change now directs that “in awarding the possession of a companion animal, the court shall consider the best interest of such animal.”
  16. And lastly, any other factor which the court shall expressly find to be just and proper and equitable.

That said, it is well settled law that “While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible in a divorce case.” Eschemuller v. Eschemuller, 167 A.D.3d 983 (2d Dep’t 2018). That means that in order to have  a strong case for equal distribution of the marital assets you would want to have a long term marriage with relative contributions by both the husband and wife. This is because the Courtin New York views marriage as an economic partnership.

For instance, In the case of Sogloff to Cravo v. Diegel, 163 A.D.3d 920, 83 N.Y.S.3d 91 (2d Dep't 2018) the Court affirmed the lower Supreme Court’s award of  45% of the marital residence and funds despite the long length of the marriage because the husband did not make a comparable contribution to the Wife’s contribution,  Whereas in other cases, the Court split the marital assets equally because the parties were able to demonstrate both a lengthy marriage and significant contributions.

 

By: Your Manhattan Divorce Lawyer 

and New York City Divorce Lawyer Lisa Beth Older 


 
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