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News about Divorce Law in New York State
Articles on New York Divorce Law
Oct 2020What if my husband does not pay me my spousal support under a court order during a New York divorce case?
Jun 2020New York Divorce News
Jun 2020What is child custody?
Apr 2020Are the Courts open?
How does COVID-19 impact deadlines to serve and respond to New York divorce papers
November 3, 2020
How does COVID-19 impact deadlines to serve and respond to New York divorce papers
On March 7, 2020 the Governor of the State of New York issued a state disaster emergency Order which basically suspended the rules of civil procedure to the extent of tolling certain deadlines. However, on October 5, 2020 the governor stated that as of November 4, 2020 all suspension of civil procedure deadlines would be lifted, and that compliance would be necessary. That means, if you were served with a divorce action, subpoena or divorce motion, or if you must serve a divorce action, now is the time to attend to it. For more information contact us at www.nycdivorcelawyer.net.
You might ask, how does Covid 19 and the subsequent emergency Governor’s orders affect your divorce case?
It is important to follow the New York State website www.nygov.com in order to learn more about how the state is dealing with divorce cases in New York. Because the situation of Covid 19 is very fluid, the rule of law changes almost on a weekly basis depending on the status of the pandemic.
For instance, if you were served with a Summons with Notice for an action for Divorce, or if you were served with a summons and verified complaint on April 1, 2020, then normally (pre-Covid 19) you would have had to file a Notice of Appearance or Verified Answer within twenty days.
However, the Governor, recognizing the impediments and challenges that people faced during COVID-19, extended the times in which client had to file and serve legal documents. The statute of limitations was also tolled for other kinds of civil actions. Similarly, if you filed a summons with notice normally you would have 120 days to serve the summons with notice for divorce but because of the Governors order that time was extended and the Plaintiff had more time to serve it onto the other party. In fact, the time was extended indefinitely. That said, on October 5, 2020 the governor stated that the suspension would be lifted on November 3, 2020. That means that if you were served with anything, including a subpoena or a motion, now is the time to attend to it. You cannot delay responses to noticed pleadings or motions beyond November 3, 2020 and you should consult with an attorney to ascertain the actual deadlines for the filing or service of any divorce documents you might have concerns about as they are in a better position to ascertain the particular deadlines attributable to your case.
However, with winter coming, and with predictions of higher numbers of COVID-19 cases, the governor could issue new rules spending time deadlines for the filing of litigation in your divorce case so it is important that you check the New York government website to see and stay up-to-date on the governors executive orders.
Because the court system was on hold for an exceptionally long time, the courts are working hard to catch up. However, do not expect a trial date anytime soon. The courts are still struggling with handling backlog. If you have a deadline and you have missed that deadline be sure to contact the court or the other attorney and let them know that you need more time to answer. In A NY divorce case, dates are important so do not ignore any legal paper that you are served with that requires you to respond by a date certain.
To conclude, client compliance with court orders has been made very difficult during COVID-19 and the Governor of the State of New York has taken note of this in several of his executive orders. That is why it is important to stay abreast of the latest executive orders as said Orders may again in the future impact your New York divorce case. There is no doubt that the winter will bring record cases of Covid-19 and unemployment rates will likely soar. It was the high unemployment rates that caused such great financial difficulties that it interrupted the flow of cases now pending in Supreme Court as it prohibited many clients from complying with such court orders that may require them to pay for such things as forensic psychological experts, forensic expert accountant and real estate appraisers. More urgently, the pandemic had a terrible effect on child support cases and child custody cases. However, you can expect that pursuant to the Governor’s latest executive Order, that after November 3, 2020 the courts will likely start requiring clients to comply more stringently with that expected of them under the New York Rules of Civil Procedure, at least as to extending time for clients to adhere to filing and service deadlines.
Lisa Beth Older
Your Manhattan Divorce Lawyer
What if my husband does not pay me my spousal support under a court order during a New York divorce case?
October 15, 2020
What if my husband does not pay me my spousal support under a court order during a New York divorce case?
The spouse in a Divorce case that has the right to receive support or preserve marital assets during a divorce case has many remedies of which to avail themselves . This article deals primarily with the enforcement of an Order of the Court. A spouse also has the right to depend upon courts to enforce their orders.
There are steps to be had in order to secure your rights under an extant Court Order in a NY Divorce case, First, you can draw it to the attention of the court when you were in court. Next, if your spouse still does not pay, your attorney can make a motion to the court asking that he or she be compelled to pay. Once an order is given the courts have full discretion to enforce it in any way they feel is necessary to protect the right of the litigation. As per Judicial Rule section 753 the court has the power to imprisoned somebody for not obeying an order of the court. So, Since the spousal support award is a right you have in a divorce case, if it is defeated or impaired by failure of your spouse to pay pursuant to that spousal support Order, the Court may punish your spouse by a fine or imprisonment or both to remedy the misconduct.
There are two types of contempt. There is civil contempt and there was criminal contempt. First, you must have an actual lawful order to enforce that has been served and in effect. Next you must be able to show the court that the order has not been followed. Then, your spouse must be shown to have had some knowledge of the court order. That means he does not necessarily have to have been served with the order, but he hast to have knowledge of the order. Lastly, the moving party that they are prejudiced if the order is not enforced￼.
The remedy of civil contempt is also useful where the court orders that certain property be held in an escrow account during your divorce case so that one or the other of the parties do not squander that asset or try to hide that asset. For instance, let us say that your husband or wife purchased a piece of property during the marriage with marital assets and then sold the property and hit the proceeds. In that instance, you can apply to the court for an order that the money be returned and held in an attorney escrow account pending trial. If you find yourself to be in this sort of situation, speak to a Manhattan divorce lawyer to see if you are eligible to seek the remedy of civil content. It is not uncommon for parties to divorce action to ignore “orders. It is also not uncommon for parties to transfer assets during the marriage. So, there are certain Orders in place that are called automatic orders and as to these orders you no longer must apply for them to ensure compliance. in 2009 the New York Congress passed a law that provided for an automatic stay between the parties of transferring or disposing of marital funds or other assets. This automatic stay order is attached to the summons and complaint and the parties are deemed to have notice of it when it is served upon them. There is an exception to this order, that Being that the funds may be used for reasonable and necessary expenses or counsel fees. Still, it is important to keep a diary of these expenditures so that they are not challenged later down the line and so that you are not held in contempt of an automatic court order.
There is a difference between criminal contempt and civil contempt. What really serves to decide that there has been criminal contempt of court￼ rather than Civil contempt of Court, it is a matter of degree. If the contempt was willful then this will support a finding of criminal contempt. However, if the violation of the court order is not willful, then it is usually determined to be civil contempt of court. Another distinction that can be drawn between criminal contempt versus civil contempt is the fact that a civil contempt finding is used as a way of vindicating the right of a party and compensating the party. On the other hand, criminal contempt is range at punishing a party for disobeying an order of the court because it is deemed to be an offense against the justice system in the public at large that trusts that the court will do equity on the parties.
Before you can get an order of civil contempt or criminal contempt lost against you, you are entitled to a hearing. During a hearing on civil contempt, you may not take the fifth amendment to insulate yourself from potential liability. ￼ if you decide to take the fifth amendment and remain silent during your hearing on the civil contempt motion, the court control a negative influence against you and punish you through jail or a fine.
The lesson and take away from all of this is that if you find yourself to be in a position where you have been ordered by the court to pay spousal support or not to dissipate marital assets, and you find yourself not being able to fulfill the terms of the order, then you should make a motion to modify the order rather than just ignore the order. As described above, there are significant consequences for ignoring court order in a New York Divorce case.
To conclude, a New York divorce case is not different from any other civil case and the remedy of civil contempt is well within the reach of the Supreme Court that is hearing your case. if you are held in contempt of court and if you are incarcerated, be sure that the order of content imposes a jail term certain and an opportunity to purge the content by complying with the order. If you are held in contempt and incarcerated, you can cure the contempt by doing what the court says and paying with the court says. In other words, the keys to your own release are in your own hands.
Obviously, if you are facing a contempt of court it is a good idea to speak to a New York divorce attorney before trying to represent yourself
By: Lisa Beth older, your Manhattan divorce lawyer
This article is not legal advice, and its purpose is not to provide legal counsel but merely is provided as a courtesy for informational purposes only. Be sure to speak to an attorney and do not rely upon this information except for the purposes intended as stated in this disclaimer.
What Should You Expect from your New York City Divorce Lawyer?
October 9, 2020
What should you expect from your divorce lawyer?
Divorce lawyers are professionals that provide advice, counsel and strategy and performance on your divorce or child custody case so of course they are invaluable partners when you are going through a divorce in New York. Although you might expect to need them to appear with you in court, their function is more deliberate than that. Day to-day decisions can impact the result of your divorce so you want an assessable attorney that you can trust to make themselves available to you in a time of urgency or during difficult periods where your spouse is doing something you might think is unlawful. For instance, if you are moving out of the marital residence you would want to speak to the attorney before you do that because it has legal consequences. It also has practical consequences such as how do you remove your personal belongings, how do you enter the house again without risking your security, etc, not to mention the custodial concerns you might have, and these are just a few of the concerns that arise when you separate from your spouse. The most serious issue is obviously your children. If there are children of the marriage and you are seriously considering filing a New York divorce case, your custody issues will be decided in that context.￼ If you’re not married you can file a custody petition and Family Court. However, if you are contemplating divorce in New York, you do not want to make any mistakes and an experienced divorce lawyer will guide you through the most difficult time in your life.
Some divorce attorneys are more approachable than others. As you interview lawyers ask whether the attorney will be representing you in court or whether the attorney will be sending a younger associate.
Also, do not be afraid to ask your Manhattan divorce lawyer how much trial experience they have and how many cases they have filed through to an appellate decision.
You want to hire a divorce attorney who will be responsive to your needs because these day-to-day decisions seriously impact your case moving forward. Divorce cases tend to take a long time and many highly conflictual litigants will find themselves waiting over a year before they start seeing a resolution of their matter and if the matter is rather complex, the case can go on for years, depending on what county in New York your case is pending, whether child custody is an issue, the case load of your judge, and other unanticipated contingencies that may arise.
Because the case can linger on for a while, you want an attorney who can advise you of your rights moving forward. These rights are often referred to as pendente lite rights. You can secure temporary relief through the filing of a motion or through stipulations between the attorneys. While equitable distribution is never done temporarily, issues involving day-to-day problems, such as custodial scheduling and spousal support and child support can be dealt with on a temporary basis until the case goes to a trial or settles.
With respect to equitable distribution, the court will attempt to distribute the property in a fair and equitable manner however equitable does not mean equal. That is why when you separate from your spouse it is important that you speak to an attorney before you lock out your spouse, which is illegal. And if you are the living spouse, it is important to speak to an attorney so that you may safely remove your clothing and personal belongings out of the house.
Why? The reason is simple.
Since the Supreme Court will not get involved in matters of equitable distribution, until trial, you will rely on your attorney to counsel you as to what items you can take, what items you should photograph, and what items you should leave. The supreme court justices that preside over your divorce case cannot order equitable distribution of your assets before trial or settlement.
Therefore, you would want to seek legal advice from your attorney as to what you can take, and how best to secure your clothing, personal affects, jewelry, laptop, hard drives, and other paper files.
If you do not seek the advice of a New York divorce attorney prior to leaving the home, you might have already made many tactical errors in your face.
In some instances,￼ you might find yourself waiting for your personal belongings till the attorneys can figure out a way to box up your materials or until your attorney requests a court order.
￼Another question that arises during the start of a divorce case is who gets temporary custody of the children, who gets the car and who gets to stay in the marital residence. For all of these reasons, and more, you want to consult with a New York divorce attorney to plane your exit strategy, one who is well experienced in these matters and one who can guide you in these matters because the best ultimate results can only be obtained by strategic planning and counsel.
If you are planning to divorce find an attorney who is approachable. Find an attorney who will get back to you within a reasonable amount of time with answers to any questions that you might have. However, a divorce attorney’s role is not be there for you to listen to your personal problems, as it is not their professional responsibility. However, a good attorney will tell you to seek a therapist especially since the therapist will charge you less money per hour than an attorney.
Of course, experience is an important component to retaining counsel. You don’t want a divorce attorney who has never tried a case, it is preferable that you have an attorney with a good reputation and you would also like one who is familiar with the appellate division rules in case you need to appeal an improper ruling. Most cases involving divorce settle before trial. However, if your attorney is well known to be a trial attorney, this fact in and of itself will help your case settle quickly.
Decisions regarding equitable distribution are complex. Some of the things the court will look at would include but are not limited to the length of the marriage, whether or not there were children, what financial arrangements need to be made for the children, whether or not each party has a pension, a retirement life insurance or inheritances, the age of the parties, the needs of the parties, the earning abilities of the parties and the health of the parties. Another consideration is that if you have a business, or have some property earned prior to the marriage it is important that you do not co/mingle, which means do not deposit this money in the joint bank account of the parties or add your spouse to the title of the deed.
You can also expect that your Manhattan divorce lawyer will know what tools are necessary to implement for you to secure your equitable interest in your spouse’s business, assets, and pensions. Obtaining or securing the correct paperwork before you decide to divorce is critical and you should rely upon good counsel to lead in in the right direction with respect to the gathering of these documents. This advice, alone, will end up saving you time and money when it comes to the financial discovery stage of your case.
Again, the role of the divorce attorney in a contested divorce is to get you through one of the most horrible times in your life using the professional tools made available to him or her through the law. They are not miracle workers and they are not your friends, but they can engage you in the process and in a rewarding manner. With all the complexities involved in the court system you want to have an attorney that you can get along with because this attorney will be your advocate as well as your advisor in decisions impacting your divorce or custody case.
No attorney can tell you what you can expect out of your divorce and be wary of anyone that can guarantee you results because litigation has hazards and no one can really say for sure how your divorce will turn out because there are so many factors the court can consider in dividing up property, deciding custody and providing support. Also, the divorce courts in New York have an enormous amount of discretion to do what they need to do to come up with a fair result for all parties. But how you behave and what choices you make during the pendency of your divorce case will affect the way the Court perceives your case so you need good counsel, should you decide to retain an attorney.
For more information go to my website at www.nycdivorcelawyer.net or give us a call at 212-786-0901 and we would be happy to give you a free 15-minute consultation. Thank you.
Lisa Beth Older, your Manhattan Divorce Lawyer
What happens if my Divorce case goes to Court?
October 2, 2020
What happens if my case goes to court?
When one party asks for divorce, the customary thing to do is to retain counsel and that attorney contacts the other party and asks them to retain counsel to negotiate a settlement. If you cannot afford an attorney, then it is advisable to at least consult with one before trying to secure your divorce on your own.
Often this can result in an amicable process where the attorneys negotiate a settlement. However, this is not always the case and sometimes you have to go to court. Most of the time you must go to court if there are substantial differences in the positions of the parties. For instance, if the parties have different ideas about how to parent their children, the court is the only one who can decide those differences.
Besides settling your case out of court, a divorce trial is the only way that court can decide your case.
Going to court does not necessarily mean you are going to trial. Once one of the attorneys files the request for intervention in your New York divorce case, the judge will set down a preliminary conference￼￼￼ date so that the parties and attorneys can meet with the judge and map out the way the case will proceed in court. In New York, the guidelines set forth by the administration expect that your case will be handled within a nine-month period. However, that is sometimes impossible, and your case may stretch on even longer than that.
After the preliminary conference, the court and attorneys will sign a preliminary conference order which also requires the signature of the parties. This preliminary conference order will dictate how the case will proceed forward. This preliminary conference stipulation and order will deal with such issues as child custody, child support, spousal support, and equitable distribution discovery. The preliminary conference order in New York will also advise the parties as to the availability of mediation services and will address other concerns that the attorneys might have as to deadlines and expert appointments that might be necessary for resolution of your case.
If there are custody issues involved, the preliminary conference order will set forth in writing and will indicate whether it is anticipated that an attorney for the child will be appointed to represent the children, or whether a forensic evaluation of the parties must be had. The PC order will also try to have the parties agree to a parenting scheduling agreement pending final resolution of the case.
The preliminary conference order will also indicate what issues are resolved and what issues are not resolved.
If there are financial issues at stake such as equitable distribution or support, the law requires, and the court will allow the parties to exchange formal demands for financial information.
As to these demands, a strict schedule is put into place for the timing of the exchange of demands and responses to demands. Documents will have to be exchanged and no one is exempt from these demands. However, and experience New York divorce attorney will be able to guide you through and help you formulate your responses to any sort of demand that the other attorney might serve. These demands come in the form of notices of discovery and inspection, interrogatories, and depositions. Sometimes demands may also be phrased in request to admit or deny.
All these formal legal instruments and papers are designed to procure information from you to share with your spouse so that both parties have full knowledge of the financial status of the other party.
Once these documents are exchanged, the court will hold status conferences from month to month to try to assist the parties in settling their matter. If after several of these court appearances the parties cannot come to terms with their issues of support equitable distribution in custody, the court will set the matter down for a trial. In my experience, most cases do not go to trial but you still nevertheless need to be ready for one in the event that one of the parties is not willing to negotiate a fair financial settlement or is not living up to their financial or custodial agreements, or if one of the parties is not amenable to any resolution of all of the issues.
If the case cannot be resolved after some time, your attorney will file what is called a note of issue and certificate of readiness for trial. Shortly thereafter, the judge will set the matter down for a divorce trial.
In a New York divorce trial, you do not have a jury unless you are trying grounds for divorce. The courts discourage the parties from having trials on grounds. Most of the time, the courts will encourage the parties to proceed with their divorce on the grounds of your retrievable breakdown of the marriage.
The issues to be determined in a divorce trial in New York State are primarily grounds, child custody, child support, possession of the marital residence, and equitable distribution of assets and debts. The trial court will also decide how to divide up retirement accounts and pension plans. The court will also decide what interest you may or may not have in any business the parties may have started during the marriage and in any pension or retirement plan regardless of whether some or all of the plan’s value was earned before or during the marriage. For instance, even if you earned a part of your retirement before the marriage, your spouse may still be entitled to an equitable share of that part of the retirement earned during the marriage.
Whether or not you will go to trial depends on several factors. However, if it turns out that you were going to trial, you want to be prepared by an attorney who is experienced in trying cases. That means in New York you want an experienced professional divorce lawyer who has experience in trying cases so that they might assist you in preparing and putting on your case in an effective manner.
In my experience, preparation is the most important part of a trial. At a trial, a court will swear in the parties to tell the truth and each party will be able to present evidence, testify and call witnesses in support of their positions. Normally, certain pieces of evidence are stipulated into evidence such as the parties’ statement of net worth and tax returns. More complex matrimonial trials, however, may require the parties to retain experts to compile detailed reports and to testify to certain complicated financial matters pertaining to businesses that ran or were opened during the marriage.
In most instances, to avoid duplicitous testimony, the court will appoint a forensic expert to evaluate the martial business. It does not matter if the business is in your spouse’s name, such that you still may have an equitable interest in it, depending on your direct and indirect contributions. That is why it is important to evaluate the business. This forensic accountant will render a report to the court and that often helps to settle a case. But if the report does not settle the case then it is up to your attorney to call that expert as a witness to testify in court. Without a stipulation from the other side, the expert report will not come into evidence unless the expert is in the court room and takes the stand to authenticate the report and to render an expert opinion. if one of the parties does not agree with the conclusions of the expert’s opinion, they will have a chance to cross examine the expert. There are also times where it might be good to retain your own expert to rebut the findings of the independent expert. This is a matter of judicial discretion.
Once the evidence is in and you have called all your witnesses the trial will come to a close and the court will render a decision. In my experience, and in cases that do not involve children, the Court will appoint a referee to hear the case and report back to the court its findings. In that instance, the court will write a written decision based on those findings. However, the court also allows the parties to stipulate to a hear and determine order which means that the referee can not only hear the case but also make the final decision. And a final decision means just that once the decision is made it is reduced to a final order which is called a divorce judgment. If you do not like the divorce judgment and you have only 30 days from service of the Judgment on Notice of Entry to appeal. You would appeal to the appellate division and you would follow the appellate court rules that appertain to that appellate department that oversees your county court decisions. The rules of the appellate division are extremely strict, and compliance is mandatory. That is, for example, if you do not file your notice of appeal within 30 days and if you do not perfect your appeal in the manner prescribed by the court rules your case will likely not be heard by the Appellate division.
Nome of the above is attorney advise and is provided for informational purposes only. I hope this has given you insight as to what to expect if your case is headed toward trial.
By: Lisa Beth Older
Your New York City Divorce Lawyer
How does a court decide child support in your New York divorce case?
September 26, 2020
How does a court decide child support in your New York divorce case? The first thing the court does is determine what each party earns as far as net income goals. When you determine that income you were looking at your gross income from the IRS return minus deductions of FICA New York City income tax or Medicare or Medicaid. Next, the court will use the formula by adding both parties net income together then they multiplied by a percentage depending on how many children you have such as 70% for one child 25% for two children, 29% for three children and 31% for four children if there are five or more children child-support cannot go above 35% then that amount would be divided in proportion to each parties net income of the combined net income of the parties.
However, Manhattan or New York State child support is calculated on income up to $154,00.00 of combined parental income. Once again, however, the Child Support Standards Act are only guidelines and the case law shows that the court can deviate upward from this amount depending on the circumstances of the case, the ability to pay and the needs of the children.
If you need to calculate Child support, there is a child support calculator online which can be found on the New York.gov website.
The above child support obligation is not the only child support you are required to pay If you are the non-custodial parent. There are certain add one to the basic child support as stated in the above paragraph. For instance, one parent or the other must contribute toward health insurance of the children. Next, the parties will likely prorate the amount of child support childcare and child support medical payments that are not covered or included in the insurance coverage. Some courts will also direct that you pay toward your children’s college education and private school, but this is discretionary. Payments toward extracurricular activities is also discretionary with the court.
With Covid 19 affecting many New York divorce cases, you must also understand how unemployment affects your child support obligation. For instance, if you are on unemployment there are consequences. New York State's Social Services Law Section 111-j will work to allow you to ask the agency to withhold child support from unemployment insurance benefits (UIB). However, in the State of New York the maximum they can withhold is fifty percent.
If you feel you are paying too much child support keep paying but immediately think about hiring a New York divorce attorney to file a downward modification of child support. If you reside in Manhattan hire a Manhattan divorce lawyer who is very familiar with the child support laws of New York. Remember that your petition will be retroactive to the date of the filing so keep paying your child support until you file your petition.
The Child support Standards Act which are only guidelines, does not require you to pay for the extracurricular activities of the children, absent a court order or agreement.
However, some courts consider these costs as necessary if the court determines that they need to deviate from the Child Support Standards Act. It is good to keep this in mind when you meet with your lawyer because you might want to add extracurricular activities into the agreement. For more information go to my website at www.nycdivorcelawyer.net or give us a call at 212-786-0901.
When it comes to child support, your status as to marriage is a relevant. If you’re not married, you may file for child support in Family Court.
By: your Manhattan divorce lawyer and Manhattan custody lawyer.
Forensic Psychological Evaluations In New York Custody Cases
September 18, 2020
Often psychological testing and interviews become part of a child custody case in Manhattan. So, it is especially important to familiarize yourself with this process.
The psychological testing is usually referred to as a mental health evaluation or an independent forensic psychological or psychiatric evaluation.
The forensic evaluation includes more than testing. The attorneys in your custody case will ask the judge to appoint a forensic psychological evaluator for your case and often the judge will allow you to have input as to who will be performing the evaluation. Some judges even request the attorneys to suggest areas of inquiry for the forensic evaluate her to explore. The forensic evaluation entails interviews of the parties, Interviews of the children, interviews of each child with each parent, and interviews with collateral persons who have knowledge about the parties parenting abilities. After the interviews are conducted the psychologist will explore the psychological status of the parties through testing. This is especially true we are there are allegations of mental illness. Some of the tests include the MMPI test, which looks for psychological disorders, the MCMM 1-3 which consists of true and false questions that are designed to identify personality disorders in individuals.
Another test involved might be the TAT Test which the evaluator will use to try to detect a party’s personality. There are several other tests, but the most interesting test is the BPS, or Bricklin Perceptual Scales test, which is designed to find out what the children think about their parents.
The testing might also include IQ testing of the parents. The American Psychological Association has come up with a protocol we are by there is some scientific reliability to these reports and tests.
In fact, there is a protocol for testing and many of the forensic experts use the same tests.
Forensic testing is quite common in child custody cases where the child is at high risk or where there are drug or alcohol issues or mental health issues involving the parties or children. Forensic evaluations are also common if the Court needs some guidance as to scientific issues for which they might lack an expertise.
However, in recent years many of these tests have been met with conflict and consternation by the Bar and by other psychologists and scientists
. After the testing is completed the forensic evaluator will prepare a report as to the fitness of the parents. It used to be that the court would ask the forensic evaluator for a written recommendation as to which party should get custody, but this methodology has been discredited and now the purpose of the reports is to better inform the court of the psychological issues involving the parties so that it can’t make up its mind at trial as to who gets custody of the children.
In a Manhattan divorce case, or in any New York divorce case where child custody is that issue, a forensic evaluator will be appointed if the parties feel it is necessary and the court feels it is necessary
Usually, this forensic evaluation only occurs if one or the other of the parties requests that it be done.￼
In preparation of the interviews of the forensic psychologist, bear in mind that you should be truthful with respect to all allegations made against your spouse. It is also important to focus on the good points of your spouse as well as the bad points, because it bolsters your credibility with the court and shows that you are not apt to not encourage a good relationship between the children and the non-custodial spouse. It is also important not to get angry during the evaluation because you are being judged by your demeanor.
The evaluate may ask you to bring in certain documents and it is best to comply with all requests￼. If the parties make over a certain amount of money they will be expected to pay for the forensic evaluator. Usually, the court will make each party pay the forensic fee prorated to their income.
If it all possible, it is desirable that there be no psychological evaluation if there are no serious mental health issues because you will be putting your child through multiple interviews. However, each case is different and some cases really require that the evaluation a car to get to the bottom of your concerns.in preparing for your interviews with the forensic psychologist, work with your attorney to familiarize yourself with the kind of questions that you will be required to ask. As I stated before, try not to be negative about your spouse but if you must be negative do so in a calm manner. Make sure you arrive at the appointed hour, and bring all the documents necessary that have been requested by the evaluator.
At trial, should there be a trial, the forensic evaluator will likely be called as a witness so that the report can be admitted into evidence.￼ During that time all attorneys are allowed to question the forensic evaluator and confront the evaluator as to certain findings the evaluator made.
It is the forensic report is not favorable to you, your attorney can ask questions and ask for clarification as to how the forensic expert arrived at his scientific opinion. Your attorney can ask hypothetical questions that in formed the forensic expert that he might not know all the facts and that if he did know all the facts his opinion might be different. Do not treat the forensic evaluation lightly. Historically, courts put a lot of emphasis on the forensic evaluation report. However, it is Judicial air to depend solely on the psychological evaluation. The test for a judge to determine custody is to consider all the evidence that he must weigh in deciding the best interest of the child. This would include all the testimony, all the physical evidence and exhibits, and will give some weight to the opinion of the attorney for the child.
If you are contemplating having a forensic evaluation in your case, or if you are looking for a divorce lawyer in Manhattan or custody lawyer in Manhattan and you wish to learn more, feel free to contact us at www.nycdivorcelawyer.net. Or call 212-786-0901. Thank you.
By: Lisa Beth older
Your Manhattan custody lawyer in Manhattan divorce lawyer
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