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News about Divorce Law in New York State
Articles on New York Divorce Law
Jun 2020New York Divorce News
Jun 2020What is child custody?
Apr 2020Are the Courts open?
Nov 2019What is a separate property credit?
Oct 2019Can I modify my New York Divorce?
Oct 2019How to get a Divorce in New York
Sep 2019Divorce Overview
Custody Decisions: Remote verses actual attendance?
September 12, 2020
New York City has been the epicenter of the COVID-19 virus and this is had an extreme impact on child custody cases in New York.￼ As parents ready themselves to take the children back to school, parents involved in a child custody or divorce case are up in arms against each other when having to decide whether learning will be remote versus in person versus a blended curriculum.
The Family Court and the Supreme Court in child custody cases and divorce cases involving children are very anxious to have children back in school for variety of reasons. One of such reasons is that children need socialization as well as education. This issue has caused an uproar in Family court because many times the parents cannot agree on how to venture forth with the education of their children. In cases where custody is at issue and where both parties await a judicial determination after trial as to decision making,￼ The courts are often faced with motions by one or the other of the parents to determine temporary legal decision making with respect to the above decision as to schooling.￼ The arguments for and against remote learning versus in person learning are obvious. Some parents prefer that the children study at home, especially if they do not agree that the schools taking adequate precautions to ensure the safety of the children. Other parents, particularly those of younger children, have concerns that keeping the children at home will deprive them of the socialization that they need to move forward in their lives and in their education.
COVID-19 has challenged families in ways that they can never imagine. Family court is likely to see a surge of cases because of the re-opening of New York schools this month. Moreover, we will see a challenge to court orders affecting child support and spousal support due to a potential payor’s loss of income. Another problem that is anticipated in Family Court in New York is that it will take a considerable amount of time before the Family Court and the Supreme Court get back to a regular schedule. The mandated closures of the courts have caused a backlog and judges are reviewing cases that take precedence over other cases that have more serious issues at stake. As a result, thereof, parents are using self-help whereby one parent in enrolls the children in remote learning classes only to find out that the other parent has unenrolled the children from the remote learning classes. Try to arrive at a solution or compromise or the court might do that for you,
Child custody cases are overly complicated. However, with the onset of COVID-19 now, more than ever, it is important that parents utilize mediation and use common sense to sort out their differences. It is highly unlikely that the court system will be able to attend to all the cases that have this pressing issue prior to the opening of schools in September 2020.
Another issue the courts face in Family Court is the fact that the courts are now accepting new filings and petitions based upon a change in circumstances due to COVID-19. Courts will accept petitions but there may be a time lag before you are heard, absent an emergency. Moreover, the courts expect the parties to use common sense and will not let the parties use Covid as an excuse for not obeying court orders.
As to existing child custody and visitation agreements or court orders, the courts are expecting the parties not to violate these orders. In fact, the police are enforcing these orders even though one parent or the other might have a good reason to protect her child from the spread of the disease.
other issues that have arisen have to do with the employment of one party versus the other. If one of the parties is an essential worker and has to go to work in a hospital and is potentially exposed to COVID-19, the other party might see this as a risk to the child and make a motion to the court for protective order or for a change in custody. These motions have a mixed result. Some courts do not wish to punish the parent who is a front line worker while other courts put the children’s best interest first, as they should, and change custody to the parent who is the least at risk.
To conclude, the unprecedented hardship caused by COVID-19 to our court system will not be remedied quickly. However, the courts are taken great strides to write the wrongs that have been caused by COVID-19. For more information go to www.nycdivorcelawyer.net.
By: Lisa Beth Older, your Manhattan custody lawyer
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COVID-19 UPDATE ON MANHATTAN DIVORCE CASES
August 20, 2020
My experience in New York City with respect to post Covid operations has been remarkable. It is truly incredible that the court system has adapted so well in such trying times to accommodate the needs of party litigants.
As a Manhattan matrimonial lawyer, we have seen a rise in domestic violence because of quarantine. The latest update, as stated by the chief justice JANET DIFIORE, is that New York City has been able to accommodate 1500 New Yorkers for in person grand jury service and this is very important because Criminal courts need in person face-to-face time because of the right to confront witnesses.
However, in divorce and child custody cases, the movement towards in person appearances at the courthouse is a bit slower. The courts are looking at innovative ways of relying on technology to ensure that there is justice in the court system for child custody litigants and for divorce litigants. In New York City alone, a program has been instituted that allows for virtual trials in civil matters in Supreme court and this would also appertain to matrimonial matters.
This means that actual trials are being conducted via Skype or other technologies. This program is going to be expanded next week.
I also see that Manhatttan Family Court has opened additional virtual courts and the transition is working almost seamlessly. No question about it, there have been delays caused to preexisting cases
However, with the new protocols being put into place daily, more and more of these obstacles are being met by the Office of Court Administration.New rules as to trials have emerged. Those trial affected by these rules are being expedited so that justice can be had sooner rather than later. These rules are designed to expedite the timeframe in which the case may be heard. These trials are conducted by a judge, rather than a with a relaxed set of rules of evidence. This does not affect divorce and child custody cases so much since they were always heard as bench trials. As for evidence, which is usually placed before court and shown to counsel prior to its admission, is being submitted in the form of an electronic delivery system that can be accessed by the attorneys as well as litigants quite easily and I find the system to be quite user friendly.
As to virtual trials and the admission of evidence, the parties under the new rules would have to consent to the relaxation of the rules of evidence but normally you can expect that will happen because the courts will encourage that. This pilot program that is being tested in New York City will likely be extended to other counties in New York if it works in New York City.
During the pandemic the courts have also established a new order that identifies preliminary Order form as to outstanding issues, and said form is meant to identify issues which can or are resolved by the parties, so that the litigants can focus on the remainder of the issues that are in dispute in order to save the Court some time.
I have been to a few virtual court appearances by now, and I have seen them to be amazingly effective. I have obtained orders of protection, I have vacated orders, I have filed divorce papers and I have had successful movement on my divorce cases Via Skype. These conferences have the judge, the attorneys, and the parties on the screen at the same time and the same issues are raised just as though you were standing in front of a judge.
While this approach is very new, it is likely going to become the norm for a while until we see a vaccine until the pandemic is resolved. In fact, as the attorneys and Judges become more acclimated to this new virtual reality, we are likely going to see a movement toward more proceedings being done virtually.
Some of my colleagues have even tried cases on Skype, although this has been challenging because of the problems involved with tweaks in the virtual technology. However, we will proceed as per the court administration’s direction, to try to follow along until/if the courts reopen. So, it is safe to say that the courts are well on their way toward providing a pathway toward a resolution of your divorce or child custody case in Manhattan and beyond. I hope this information has been helpful and stay healthy and Covid free.
By: Lisa Beth older
Your Manhattan divorce lawyer and Manhattan Custody lawyer.
EXPECT CHANGES IN COURT ORDERED FORENSIC EVALUATIONS IN NEW YORK DUE TO COVID-19
August 5, 2020
EXPECT CHANGES IN COURT ORDERED FORENSIC EVALUATIONS IN NEW YORK DUE TO COVID-19
We may very well expect changes in court ordered forensic evaluations of children in custody cases in New York.
The Journal of the American Academy of psychiatry and the law recently posted an interesting article By kirk HEILBRUN, Stephanie CBURKE, Amanda NEMOYER, Kelly Durham and Alicia Desia, that dealt with the impact of COVID-19 will have on procedural aspects of forensic psychiatry and forensic mental health assessments. Forensic mental health assessments will be frequently referred to as FMHA for purposes of this article. Because of COVID-19, the quality of the forensic Evaluations of the parties and the children have changed drastically. The public health concerns have limited how forensic psychologist can conduct these sorts of evaluations so that courts can rely on their reports and testimony and guidance at trial. Forensic evaluations are relied upon by courts￼￼ to give them insight into certain medical and mental health conditions that they might not otherwise be privy to or knowledgeable about.￼
The reliability of these reports have always been subject to scrutiny by many New York divorce lawyers in New York in many New York divorce scholars. If COVID-19 disallows in person evaluations to occur the quality and validity of the evaluation will change. Many forensic experts and lawyers believe that video conferencing might be helpful in determining evaluations of children and parties in custody cases in New York, but that we are just not there yet. The challenges cited have been that the parties evaluated will have a hard time developing a rapport with the forensic psychologist because of the distance involved in videoconferencing. Other problems that arise would be that certain studies and tests administered by these experts cannot be administered telephonically. We can naturally expect that changes will have to be made to compensate for the lack of face-to-face contact between the forensic expert and the evaluated party.
Another problem exists because certain aspects of the evaluated party cannot be captured live since only the face and upper body can be seen visually on the Skype or zoom screen. Another problem is that people‘s body language are an important part of the evaluation. The evaluator will not be able to notice for instance if a party is tapping his foot and getting nervous at certain questions designed to arrive at the parties psychological stability. Another challenge is that when you interview a party in person the evaluator used was trained to become acutely attune to very subtle cues given to him by the party such as humor, kindness, and suspiciousness. Arguably, more information will need to come from more third-party information, and this often taints the objectivity in the report. Another problem with retaining psychological evaluations in New York child custody cases is the fact that the forensic experts being used need to obtain an authorization to conduct SMHA either from the court or at the request of an attorney. This might pose a legal challenge due to concerns about confidentiality. For instance, who is in the room with the doctor and who is in the room with the party during the evaluation? Not knowing this will chill free discourse during testing and evaluation talks.
Next, we must evaluate the multiple sources of documents which a forensic expert uses in his or her assessment. The forensic expert usually conducts interviews testing and specialized modules which often require to be performed in a private room with the party face-to-face with the expert. Clinical interviews remotely suffer the consequence of being unreliable because of not only technical difficulties in administering the valuation but also interference occasion by technological failures in communication. As all these factors are taken into consideration, the risk of having in valid test results increases￼￼￼. As far as testing validity goes many measures used by forensics require the use of the party’s hands to either manipulate objects put in their control or to use in their hands. Remotely, this is just impossible to address in remote circumstances. Next, we come to the validity of these clinical evaluations. Clinical evaluations must be reliable and scientifically valid or else the courts cannot depend on them. The scientific evidence on comparing in person evaluation‘s against remote evaluations is just not there yet. As such, there must be much more testing and scientific inquiry into whether these forensic evaluations will be reliable enough for a court to consider.
in a recent ABA article dated June 11, 2020 in title technology, cases outlive COVID-19, points to the fact that they believe that forensic evaluations in custody cases should only be use for high-stakes situations or time sensitive situations. Obviously, the New York State bar will have much to say on this issue as days go on and if the challenges of Covid continues in our lives. I hope this gives you information that is valuable when you are in a Manhattan divorce case or child custody case and when you or your attorney must decide whether to ask for a forensic evaluation
Lisa Beth Older
Law Offices of Lisa Beth older
Your Manhattan Divorce Lawyer
How do I get through a divorce in New York during a pandemic?
July 22, 2020
How do I get through a divorce during a pandemic?
The COVID-19 pandemic has posed numerous problems for clients going through a divorce. However, the courts are innovating and figuring out new ways to prosecute cases through to a final resolution using virtual technology.
The court system is working out alternate ways to have remote hearings and trials but that causes significant problems. The technology hasn’t quite caught up with civil procedure. However, this new way of approaching cases might long be the future of the court system. Actually, traveling to court in order to appear before the Judge is not always a positive experience because of traffic congestion, security checks and having each attorney talk over the other one. Now, the courts are handling cases through zoom or business Skype. In my view, the New York Supreme Court Matrimonial Part Judges can actually mute one party over the other, making oral argument more productive and giving the Judge more control over the Courtroom. The other benefit to virtual court appearances is that most attorneys charge for travel time to court so this translates to big savings for the clients.
If you were undergoing a divorce during the pandemic in Manhattan, you will sign that as to custody matters it has become more difficult to obtain assessments for the children during psychological evaluations. Psychological evaluations that will be done remotely are being recommended only on cases which are highly necessary such as cases involving mental illness or drug abuse.
Another issue the Courts and clients are struggling with is therapy for the children. Especially when it comes to children, keeping their attention to the computer screen during a therapeutic session with a four-year-old is nearly impossible without the assistance of one parent or the other. Often times child therapy needs to occur without a parent in the room. Thus, remote therapy impedes the therapeutic process because a child of that age cannot sustain their attention for more than a few minutes without re-direction. These challenges however have been met with innovations and creative problem solving between the parents themselves because of the need of flexibility due to the lack of easy access to the court system.
New York has recently opened at court system so that we can electronically file new cases in divorce and child custody. The electronic system provides for the filing of a verified complaint in a divorce action and/or verified Answers to same, as well as for the filing of motion practice. The electronic court system also allows you to file post judgment enforcement motions and emergency applications.
even during times when the court system worked methodically, divorce poses challenges for clients. Clients must work hard to prepare net worth statements and gather documents for the exchange of financial discovery. Clients also must sometimes engage other experts to value businesses which must be distributed equitably. In a divorce, where there is money, the valuation of the assets can be difficult. The frantic experts are challenged because a business that was thriving prior to the pandemic may now be depreciating in value. Therefore, it might be timely to file a divorce action if your business is going bankrupt at this time but has a chance of revival after the pandemic.
Another focus of attention in a divorce case is securing a life insurance provision in a settlement or court order so as to protect the recipients of spousal support and child support.
Due to the fact that life insurance premiums are expected to rise in large part because of the COVID-19 pandemic, some parents wont be able to afford it and this will pose a problem in the settlement of this issue because the issue of obtaining life insurance for the benefit of the children is often times a bone of contention.
If you are considering a NYC divorce during these trying times you might want to consider a collaborative divorce because this can be done remotely and might be more efficient at arriving at a settlement agreement then filing during a pandemic when it is likely that there will be a backlog in cases. For more information contact us at www.nycdivorcelawyer.net. Thank you. I hope this information has been helpful.
Lisa Beth Older, Esq.
your NYC divorce lawyer
New York Divorce News
June 22, 2020
On June 10, 2020, the New York County judges and staff return to the various courthouses in all of New York County. And the way that the courts are handling business is that while the judges are in their chambers and the clerks are in their offices and back offices, there is no traffic with respect to litigants coming in and out of the buildings. This will change once the Governor moves us closer to re-opening. Most contacts that the courts will have with litigants will be virtually either by Skype or telephone. However, if you do not have the technology to access the services via Skype the courthouse has set aside a certain amount of space where litigants can access these services.
As to new filings in New York City, the court system has implemented a system whereby new cases may be filed with the state of New York electronically. For more information, feel free to contact an attorney to request whatever services you might need at this time. With respect to divorce and child custody cases, this law firm still at the size is this area of law and would remain available to consult with you with respect to any questions you might have. During Covid, we are providing free 15-minute consultations and we will do so through the end of June 2020.
Another issue that has arisen in days past has been the aftermath of the shocking killing of George Floyd by the police department in Minnesota. Chief justice DIFIORE made an announcement on the New York golf website with respect to how the state will tackle racism and bias in the court system. This area of exploration is extremely important especially in family law where many families are now of mixed race. in order to tackle this very sensitive topic, the judge has appointed Mr. Johnson, of the law firm of Paul Weiss, to conduct a review of the New York court systems internal practices with respect to trying to identify and illuminate any issues of racism. Mr. Johnson is charged with rendering a report by October 2020 which will evaluate how the court system handles claims of discrimination.
if you are a person of mixed race or if you feel you have been discriminated against by the court system as a result of your race, or as a result of gender bias and if you require new legal representation in a hotly contested child custody or divorce case in Manhattan which deals with these issues, please consider our law firm as one that might take your case on. We are not an inexpensive law firm, but we are very familiar with these kinds of issues and can be of great assistance.
Lisa Beth Older
Your Manhattan Divorce Lawyer
How will the Court handle my case during Covid-19?
June 16, 2020
This article is about the coronavirus and how it has impacted our legal community in New York. On June 15, 2020 the court announced certain changes in the court system. Chief Judge DIFIORE made an updated message with respect to these latest developments and posted a video on the court’s website. One such development was a way to file documents electronically. Thus, even though the court system is closed, the court is now accepting new applications for divorce and child custody. The rules are a bit different with respect to Family court however since Family court is dealing with essential cases. However, what is different is that the court is excepting new divorce and child custody cases in Supreme Court. There is a new
Filing system that has been made available to the public called the EDDS. EDDS is an electronic document delivery system that will allow for the transmission of documents by litigants, judges, clerks, and other offices in New York. You can file new cases using this system and you may also file documents emotions in pending cases in New York State Supreme Court.
The chief justice announced on the New York Government website that they are working very diligently to get the courts and courthouse is open. On June 10, 2020, the justices return to their actual posts in the court room to attend to their pending case calendar. However, now, the courts are not open to attorneys arguing their cases except for emergencies. Normally, these applications are heard on Skype. It is hopeful however that we will get back to normal once we have COVID-19 under control. COVID-19 brings many challenges to New York divorce attorneys. First, if you are involved in a pending divorce matter, expect delays. Secondly, if you are already involved in a pending divorce matter you may have to revisit certain valuations as to your business and we are property and assets. This is because the financial situation surrounding these assets has changed and the value may have gone down. This will require new forensic evaluations and you might be able to expect additional delays because of that. on the upside of things, if you are the money spouse this might be a good time to consider filing for divorce if the marital assets have been reduced because of COVID-19. Another aspect to consider is filing for a modification in child support or spousal support if you have lost your job or if your business has gone under because of COVID-19. It is important to know that you should not just stop paying court ordered obligations because all court orders are continuing automatically until the courts set up a new court date for you. Therefore, if you are in financial difficulty You should not ignore your financial circumstances and you should seek relief and supreme court through a modification of child custody or child support obligations.
Ask your child custody, the COVID-19 problem has put a strain on our court system. Parties that have not been used to living together in small quarters for long periods of time are now considering divorce.
As to those parties who have orders of protection in their favor, the courts have issued an order that all orders that were due to expire on March 19, 2020 has been automatically extended which means they’re still in effect.
As such, you are still protected as a matter of law. All custody orders are also in effect until otherwise ordered by the court.
If you are considering a divorce her child custody case you may contact the law offices of Lisa Beth Older for more information. You can reach me on my cell phone at 914-388-7557. Thank you and good luck to you and your family.
By: Manhattan divorce lawyer and Manhattan custody lawyer: Lisa Beth Older, Esq.
What is child custody?
June 16, 2020
Child custody is one of the most horrible negotiations a person can find themselves in. When we speak of joint custody it means several things. You might agree on who will be making decisions, but you still need to work out a visitation schedule and a primary physical residence before you can enter into a written agreement. The written agreement should also include the place and time of all exchanges including a schedule for holidays, summer recess break and vacations.
Wow some of these arrangements are called visitation rights I like to refer to them as custodial time with each parent. Often the parents can work out these issues between themselves however if the exchanges become volatile and even Physical, sometimes you need to help with the court to work it out. Parties often referred to parent coordinators or mediators.
If you are afraid of your spouse and have reason to be, then make sure you pick a place for the exchange to occur that is in the public. You might also want to bring a third-party with you to bear witness to any possible violence or difficulties. If you wish to effectuate your custodial time, be sure you are diligent about arriving on the day and time that you are supposed to arrive on. You do not want to disappoint the children by not showing up. This can also work to your
Detriment in a court case if you do not do so. Lately, the courts have been issuing parenting guidelines or codes of conduct expected of them in cases involving conflictual custody. These guidelines off and promote the fact that parents should not disparage the other party and should not interfere with the other party’s visitation, but rather should encourage and foster a good relationship between the children and the other parent. In fact, caselaw holds that failure to do so will render you per se unfit and the other parent could win custody over you. This, even despite you are the better parent and all other matters. as to child custody, you have a choice of filing in Family court or Supreme Court. If you were not involved in a divorce action you should probably start with filing a custody case in Family court. If they divorce action is filed, then you always have the option of consolidating the case with the divorce action and removing the Family Court action into the divorce action. If you were in Family court fighting a custody case and you or the other party files for divorce, you are required to report this back to the Family court who will then encourage you to transfer the case to the Supreme Court to join with the divorce action. Many times, parents asked whether they could modify the custody agreement. This is a tricky area because once a Family core issues a custody order this is a binding order that is so ordered by the court. So, it is exceedingly difficult to modify this order. However, some circumstances might arise where a modification of child custody is imperative. Let us say that one party wishes to relocate and simply cannot exercise their visitation at their new residence. The court will entertain a modification petition under these facts. Also, if it can be shown that a modification is necessary to effectuate the best interest of the child, and there has been a substantial change in circumstances, you may move to modify the child custody order. as such, as long as you can find proof that there has been a huge change in circumstances then you may simply ask the court to modify the agreement so long as it furthers the best interest of the child or children. Make sure your agreements include a provision that the two of you can modify child custody between yourselves. If you were able to do that, then it is important that you get a court order that includes the new terms.
Another reason why you might seek modification is because the children get older and their voice gets stronger and they insist on their preference to live with the other party. If the children are 12 or 13 years of age you might want to file for a modification petition to modify the custody order because the children will be appointed an attorney called an AFC and that attorney must advocate for the preferences of the child or children. I hope this information helps you in your attempt to gain custody in your case.
By: Lisa Beth Older, your New York City divorce lawyer and Manhattan Custody lawyer.
Must I pay maintenance when I am over the age of retirement?
June 5, 2020
In a matter recently decided by the appellate division second department, located in Brooklyn, the appellate division reversed the trial court decision in part and held that there was no reason to award the plaintive wife maintenance. The citation for the case is ACHUTHAN versus ACHUTHAN 202, NY slip app 00255, decided this year on January 15, 2020.
In that case, the court reversed the trial court decision awarding the wife maintenance. The appellate division reversed the decision because in part the husband was 80 years old and the wife was 71 years old. Another reason why the appellate division reversed the lower court decision in part was because the marital portion of the retirement account for the wife was increased by $800,000 by the appellate division’s decision from the award stipulated to by the parties at the time of the trial.
In my view, the higher court that due to the large award of equitable distribution there was no basis to award spousal maintenance. This case was based on a filing for divorce prior to year 2016, which required the courts to consider many factors in determining maintenance. Subsequent to 2016, the courts generally follow the presumptively correct spousal maintenance amount awarded under the New York guidelines.
As in for equitable distribution, while the courts have an extreme amount of discretion in awarding distribution of marital assets, in this decision the appellate court self that a 51/49 percent split between the parties was unfair and next modified the lower court decision. In making adjustments to the award, to reflect a 50-50 split of marital assets, the court sided to the case of Spencer Dash Forest versus Forest, 159/83 at page 764.
In my opinion, while the court has a lot of discretion to make a distributive award , usually the lower court’s decision will not be disturbed. However, in this case it is interesting that the higher Court made this adjustment for two reasons. First this was a long-term marriage of 33 years. So, on the facts, the distributive award in my opinion should have been 50-50. Secondly, my take away from this decision is that this decision indicates that the courts are more and more likely to award 50% of the marital assets to the parties and that, apart from distribution of business entities, this should be a starting point in negotiations.
By: Lisa Beth Older Esquire, your Manhattan divorce lawyer.
Celebrities do not get Special Treatment when it comes to Divorce in New York
May 17, 2020
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