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News about Divorce Law in New York State
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Articles on New York Divorce LawRecent Entries
Jan 2023 Family Law and Estate Planning Dec 2021 Can I withdraw my Divorce? Apr 2020 Are the Courts open?Mar 2019 Can I sue for Adultery?Jan 2019 WHAT DO I TELL THE KIDS?Dec 2018 CHANGES IN DIVORCE LAW Dec 2018 Family Offense Oct 2018 Can I apply for Custody?Oct 2018 Must I sue for custody? CHILD CUSTODY HIGHLIGHTS IN NEW YORK March 25, 2023
Child custody and visitation in New York is an area of law that requires an attorney that understands the importance of the day to day life of the party and children while litigating custody and visitation. The difference between litigating a custody case, successfully, and losing a custody case depends upon how you navigate the issues between you and the non-custodial parent. This is where an experienced divorce lawyer or child custody lawyer can be invaluable since they are usually equipped to guide you through the choices you must make during the litigation that will strength or weaken your case.. Clearly, if there is abuse or neglect of the children, mental illness of either party, or domestic violence the Court will favor an award of custody to the parent who is deemed best fit. You can also lose custody if you are a substance abuse her or if you fail to coparent or fail to follow court orders as all of the above factors would negatively impact the best interests of the children. Please note that initially if there is no custody order, either of the parents can keep the children. But disputes arise when the parties are unmarried and there are no formal custody orders. That’s why it’s important to file for a custody order, either in a divorce case or a child custody case in Family Court. That said, New York is not a 50-50 state as to child custody laws and a Court will not always require the parties to split their time with the children on an equal basis. Rather, since 1970, New York has used a certain test in determining who gets custody in a child custody dispute. That is, the New York Court will decide custody matters based upon all factors that consider the best interest of the children. In determining the best interest of the children, the courts will take into account the following. For instance, they will consider which parent fosters a meaningful and robust relationship with the other parent and which parent is best fit to care for the children. Other factors of consideration are measuring how long the children have resided with one or the other of the parents, where the child has been residing, primarily, if the child has certain needs that one parent can best meet over the other, instances of domestic violence, the existence of siblings, better parenting skills, and work schedules that are conducive to providing direct care for the children. A child’s preference is also considered in a custody matter. When we speak of child custody in New York, there are distinct types which must be considered. Joint custody is when both parents may decide the major legal decisions as to the children. These legal issues normally entail decisions as to medical religious or educational matters relating to the children. The other terminology that best describes child custody matters in New York has more to do with physical residence. For instance, if one party has joint physical custody, that means that the children go back-and-forth between the parents. However, if one parent has sole physical custody, that generally means that the child lives primarily with one parent over the other, and that the child’s primary residence is with that parent. So, theoretically, the parties can have joint legal custody with a shared parenting schedule or the parties can have joint legal custody, but one of the parties can have primary physical custody. These issues are generally negotiated between the parties, or if the parties cannot agree, then a judge will decide these issues at trial. Generally a Court will allow a child who is over the age of 18 to refuse to visit with the noncustodial parent in most cases, but it’s always best to get a judicial determination as to this issue. Self-help is discouraged by the courts. For instance, if a non-custodial party takes the child out of the state or country without the permission of the other parent, or against a court order, then this is usually considered parental kidnapping and the guilty party can be charged with a crime. Many parents want to know what happens if one parent does not allow the children to visit with the other parent. In those instances, it is best to go to court to plead your case because liberal visitation is favored in New York, absent aggravating circumstances, such as those discussed in the paragraphs above. Courts want to see the children have both parents participate in their lives. Parents who discouraged the children from visiting with the other parent, because the children are telling them they do not want to go, will be discouraged to learn that it is not up to the child to decide who has child custody. Only a judge can decide who has child custody. The courts will listen to the preferences of the child but that is not the determining factor since the judge’s decision entails consideration of a multitude of factors outside preferences. As for your choice in choosing a child custody lawyer, you want the lawyer you choose to have vast experience in family law. You want a custody attorney to be able to advise you as to day-to-day decision making because you might make a mistake in a decision that can negatively impact your case. That is why hiring a lawyer who is available to talk to you is important. Also keeping a diary is very important so that you are documenting facts that may be helpful to your case. Keeping a diary also helps you communicate better with your custody lawyer, so that at each court appearance, your custody lawyer will be prepared to relay to the judge these circumstances in support of temporary relief pending the fac-finding or trial. I hope this has been helpful to you. This is not legal advice and is intended to be informational in nature, and so it is always best to fact-check with an attorney of your choice.
By: New York Child Custody lawyer and Manhattan Divorce lawyer Lisa Beth Older, Esq. Can a Party Modify a prior Custody and Visitation Order or Agreement March 12, 2023
A parent can move to modify a prior order of custody and visitation upon a showing of a change in circumstances and that a change in said Order would be in the children’s best interests. In the 2020 case of Matter of Epstein v Soler-Epstein, cited as 188 AD3d 1052 the Supreme Court Appellate Division, Second Department, upheld the lower Court ruling that where the Father went through an extensive treatment for alcohol abuse, his visitation could be enlarged to overnight access so long as certain precautions were in place such as a Sober link device and a weekly reporting service. The Court noted that the evidence showed that the Father learned to recognize that he had a problem and needed to refrain from the use of alcohol. In the case of Matter of Stepan K. v. Marina M., 188 AD3d 600 (1st Dept. Nov. 24, 2020) the Appellate Division, First Department affirmed a lower court hearing for modification of a prior custody agreement by holding that the Father had shown a change in circumstances warranting a change of custody. The Father was granted custody because the Mother refused to share information regarding the child’s school, traveled with the children without informing the Father or letting his speak to the children in his absence. The Mother had also made false reports that the Father had sexually abused the children. On these sorts of facts, the Court felt that the Mother was not fit to be a custodial parent and awarded the Father sole Legal and physical custody of the subject children. In the case of Tsung v. Tso, 2021 Westlaw 189198 (1st Dept. Jan. 19, 2021), the mother appealed from a lower court Order made in Supreme Court which granted the Father’s application to modify their parenting agreement and awarded shared custody such that each parent had the exact same number of days with the children. This decision of the Court was based upon the fact that the children had expressed an interest in shared custodial time. The Court based its decision largely upon the Fact that the Father had established a change in circumstances after proving that the mother regularly interfered with his time and access with the children, that she utilized the services of a nanny when the children could have been with their father, and that she refused to coparent with the Father. Domestic Violence is also another factor that a court may consider in modifying a custodial Agreement or prior Court Order. In the case of Matter of Paul Y. v. Patricia Z., 2021 Westlaw 55019 (3d Dept. Jan. 7, 2021), after an eight-day trial, the Family Court modified custody when the Mother showed the Court that the parties’ relationship was so broken down that co-parenting was now impossible and was against the best interests of the children. In that case, the Appellate Division granted the Mother sole legal and physical custody of the children and agreed with the Family Court ruling that the father had committed domestic violence against the Mother. The Court went on to conclude that the Mother was kind and nurturing and that the Father, that the Attorney for the child advocated for the change in custody, and that the Mother had made a showing that the Father had done at least four acts of domestic violence including but not limited to the fact that the Father had grabbed the Mother’s hair, sat on her, pushed her, kicked her and threatened her with a knife, and twisted her arm. The Court also alluded to the fact that the Family Court's issued an order of protection against the Father for acts of harassment in the 2d degree.
By: Your Manhattan Divorce Lawyer Lisa Beth Older
Family Law and Estate Planning January 18, 2023
Estate planning and Family Law
Whether you are getting a divorce or staying married, every party should seek the advise of an estate planning lawyer because it can have significant tax consequences for you There are several considerations that your New York Divorce lawyer should take into account and often times that involves estate planning and referrals to a tax attorney and certified public accountant. For instance, regardless of your last will and testament, your spouse will always be able to elect to take his or her elective share against your will. That is, you can not “will out” your wife or husband’s interest in marital assets. There are also tax benefits for gifting assets to your spouse which are tax free because interspousal gifts made during the marriage or at the time of death of one of the spouses as provided in a trust are tax free events. If you do not utilize these tax benefits, then you could owe the IRS a lot of money you never planned to pay. Other tax considerations have to do with retirement plans. If you have a retirement plan you should have it valued by a forensic expert since the present day value is less than the actual value and this factor will come into play when you divide up the assets between the parties and you might be able to get more of a cash payout on your divorce if you take this factor into consideration. Also, there are tax consequences as well which the other spouse might be responsible for. To be smart, consult with your accountant before you settle your divorce action.
By: Lisa Beth Older Your Manhattan Divorce Lawyer
NEW YORK EQUITABLE DISTRIBUTION LAWS AS AMENDED January 13, 2023
CHANGES IN EQUITABLE DISTRIBUTION
ANIMALS AND EQUITABLE DISTRIBTION There have been exciting New Developments in Equitable Distribution law in New York. The latest factors include the impact of domestic violence on distribution of marital property and the distribution, so to speak of domestic companion animals. The factors for EQUITABLE DISTRIBUTION are as long as they are divorce but the below list is a current list of what a Judge may consider in dividing up the marital estate in the event of an unfortunate divorce. DOMESTIC RELATIONS LAW §236B(D) allows the Court broad discretion as to how to divide marital property. They consider the following statutory factors, as well as anything else deemed just and proper. The below list has been amended and companion animals have now been provided for in this equation.
That said, it is well settled law that “While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible in a divorce case.” Eschemuller v. Eschemuller, 167 A.D.3d 983 (2d Dep’t 2018). That means that in order to have a strong case for equal distribution of the marital assets you would want to have a long term marriage with relative contributions by both the husband and wife. This is because the Courtin New York views marriage as an economic partnership. For instance, In the case of Sogloff to Cravo v. Diegel, 163 A.D.3d 920, 83 N.Y.S.3d 91 (2d Dep't 2018) the Court affirmed the lower Supreme Court’s award of 45% of the marital residence and funds despite the long length of the marriage because the husband did not make a comparable contribution to the Wife’s contribution, Whereas in other cases, the Court split the marital assets equally because the parties were able to demonstrate both a lengthy marriage and significant contributions.
By: Your Manhattan Divorce Lawyer and New York City Divorce Lawyer Lisa Beth Older NEW CHILD SUPPORT LAW POSSIBLY PROVIDING ADDITIONAL SUPPORT FOR ADULT CHILDREN THROUGH AGE TWENTY SIX November 17, 2022
NEW LEGISLATION AFECTING CHILD SUPPORT
On October 8, 2021, the Domestic Relations Act was amended to provide possible support for adult children through age 26. See DRL, Chapter 437 of the Laws of 2021) Also, the Family Court Act added a like provision in its Section 413-b. Both provisions provide possibilities for petitions for continued child support for adult children with certain qualifying disabilities. The Mental Hygiene law controls the controlling definition of what diagnosis would qualify for purposes of a developmental disability in an adult child. If you or someone you know has an adult child and is in need of child support it would behoove you to look into this with a New York Family Law Attorney. By: Your New York Divorce Lawyer Lisa Beth Older COUNSEL FEES AND EXPERT FEES IN DIVORCE OR CUSTODY MATTER IN NEW YORK November 9, 2022
COUNSEL FEES AND EXPERT FEES IN DIVORCE OR CUSTODY MATTER IN NEW YORK The behavior of the parties in a New York divorce or child custody matter will affect an award of counsel fees, if an application is made by either party, Normally the monied spouse will pay the majority of the other party’s expenses but there are exceptions to this rule. Each case is fact specific and the Court may consider many factors in fashioning an award, if at all. In the 2018 First Department matter of M.M. v. D.M., 159 AD3d 562 both parties appealed from the lower court decision as to counsel fees, and as to other issues, and made the Defendant Husband pay the Plaintiff wife 65% of plaintiffs. In that case, it should be noted that the parties spent Seven Million Dollars on counsel fees. The parties paid this out of marital liquid assets on hand. However, rather than make the wife all of her share from her part of equitable distribution the Court noted that the Husband had made a substantially larger salary than the wife. The Court also noted that both parties engaged in needless litigation which might be why the Court did not award all legal fees against the husband who was perceived as the monied spouse for purposes of this determination. That was a First Department case. In contrast, there was a 2018 decision out of the Second Department as to the award of counsel fees. In the case of Greenberg v Greenberg, 2018 Westlaw 3041099 (2d Dept. June 20, 2018) the husband appealed a divorce judgment in the lower court on many issues, one of those issues being counsel fees. There, the Appellate Court held that the lower court properly awarded the Wife counsel fees of $75,000.00 where the husband's "evasive and dilatory actions during the pendency of the action caused an accrual of fees. In another case where the court took into account the bad behavior of a party during litigation, the Appellate Court upheld the Wife’s counsel fee award of 70% of her legal fees and took into account defendant’s unnecessary accrual of legal fees, wherein he changed lawyers no fewer than nine (9) times, never followed court orders and extended the trial needlessly with “belligerent” behaviors. Behan v. Kornstein, 2018 Westlaw 4223911 (1 st Dept. Sept. 6, 2018). As a client, you are entitled to receive a bill from your attorney after sixty days. In the case of Greco v. Greco, 2018 Westlaw 2225194 (2d Dept. May 16, 2018), where the husband appealed from the lower court order granting the Wife ($70,000) to her first attorney and ($37,500) to her second attorney and $12,700 of expert fees, the Second Department in its ultimate discretion, ruled that it would reverse the award given to the first attorney because the first attorney did not bill his client every sixty days. The higher court also reversed the expert fees since the expert did not provide the Court with his Affidavit per requirements set forth in Ahern v. Ahern, 94 AD2d 53, 58. Compare this result with the result of the after trial case of Sheehan v. Sheehan, (2d Dept. May 9, 2018), where the Wife was awarded $25,000 in counsel fees. With regard to the attorney fee award the Court determined that: "Considering the parties' relative circumstances and other relevant factors, the award of attorney's fees to the plaintiff in the sum of $25,000 was inadequate." From the recent case law, then, it appears that the Courts do favor an award of counsel fees where the facts so dictate. For instance in the case of Greco v. Greco, 73 NYS3d 765 (2d Dept. May 16, 2018), the wife was granted counsel fees after her appeal on equitable distribution portions of her case of $12,000. The Second Department stated: "Under the circumstances, we find no basis to disturb the award." As a practical matter, however, many divorce lawyers will require that each client be responsible for their own counsel fees since there is no guarantee that a lower court will award counsel fees that cover their full bill, nor is there a guarantee that the higher Court will affirm a lower court order. In the Matter of Monique B. v. Anthony S., 2018 Westlaw 3232613 the First Department appellate Division held in 2018 that the attorney fee awarded in the lower court of $250,00 was inaccurate "that inasmuch as respondent was found to have willfully violated a child support order the issuance of attorney fees was proper under Family Court Act §§438(b) and 454(3)," since the lower court has failed to consider "the parties' ability to pay, the nature and extent of services rendered, the complexity of the issues involved, and the reasonable of the fees under all of the circumstances." W1488759.1 ) 22 30 F. Post judgment counsel fees may also be awarded in some circumstances, especially if the behavior of the party that is being charged is in violation of a court ordered parenting agreement. In a post judgment child custody case attorney’s fees may also be awarded. In the case of Boukas v. Boukas, 2018 Westlaw 3451549 (2d Dept. July 18, 2018), the mother appealed a lower court decision that denied attorney fees where the Father was in contempt of Court for failing to abide by the parenting time access Order. There, the Second Department modified the lower court order and gave the wife a counsel fee award of $15,000, finding that the mother was "was entitled to reasonable counsel fees in connection with this matter, as the plaintiffs conduct in violation of the stipulation of settlement caused these fees to be incurred…. An award of counsel fees in the sum of $15,000 is supported by the record."
IS YOUR CHILD CUSTODY EVALUATION VALID IF CONDUCTED VIRTUALLY August 28, 2022
If you are in a child custody battle and the parties were sent out to do a psychological evaluation during the pandemic you may have grounds to challenge that report. In order to determine whether an expert report can come into evidence the Court must weigh the reliability of that evidence before it can consider it. In my view, remote testing is not generally accepted by the scientific community as yet for purposes of arriving at an expert opinion as to custody so that it may be challanged. Historically there are two tests that Courts rely upon in doing so, those being Daubert and Fry, but New York follows the Frye test for the admissibility of expert witness testimony, opinions and reports. The Frye test is the “general acceptance test,” providing that expert opinions grounded in a scientific theory or technique are admissible in evidence only if the theory or technique used is generally accepted as reliable by the scientific community in which they practice. Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Parker v. Mobil Oil, N.Y.3d 434, 824 N.Y.S.2d 584 (2006); People v. Wesley, N.Y.2d 417, 611 N.Y.S.2d 97 (1994); People v. Brooks, N.Y.3d 939, 96 N.E.3d 206 (2018); Ratner v. McNeil-PPC, Inc., 91 A.D.3d 63, 933 N.Y.S.2d 323 (2d Dept. 2011); Lugo v. New York City Health and Hospitals Corp., A.D.3d 42, 929 N.Y.S.2d 264 (2d Dept. 2011) State v. David D., 37 N.Y.S.3d 685 (N.Y. App. Div. 2016). In other words, the Court must consider the "question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally." People v. Wesley, 83 N.Y.2d 417, 422, 611 N.Y.S.2d 97, 633 N.E.2d 451 (1994); see also, Parker v. Mobil Oil Corporation, 7 N.Y.3d 434, 824 N.Y.S.2d 584, 857 N.E.2d 1114 (2006). The scientific principle "must be recognized" [widely] and "sufficiently established to have gained general acceptance in the particular field in which it belongs" . Wesley, at 422–424, 611 N.Y.S.2d 97, 633 N.E.2d 451, quoting Frye, supra. "The Frye test emphasizes 'counting scientists' votes, rather than on verifying the soundness of a scientific conclusion' " . Id., at 439, 611 N.Y.S.2d 97, 633 N.E.2d 451(Kaye, Ch.J., concurring) see also, People v. LeGrand, 8 N.Y.3d 449, 835 N.Y.S.2d 523, 867 N.E.2d 374 (2007). Under the Frye test, the burden of proving general acceptance rests on the party presenting the disputed evidence. Zito v. Zabarsky, 28 A.D.3d 42, 44, 812 N.Y.S.2d 535 (2d Dept.2006). General acceptance can be established through "texts and scholarly articles" , expert testimony and judicial opinions. People. v. Wernick, 215 A.D.2d 50, 52, 632 N.Y.S.2d 839 (2d Dept.1995), affirmed, 89 N.Y.2d 111, 651 N.Y.S.2d 392, 674 N.E.2d 322 (1996).. Accordingly, to determine if said evidence is accepted, the court must, as gatekeeper, analyze whether the expert has used “accepted techniques” to arrive at his or her opinions. State v. Ralph P., 39 N.Y.S.3d 643 (N.Y. App. Div. 2016). Moreover, it is important for the Court to identify which scientific community’s opinion of acceptability is relevant in assessing the reliability and general acceptance of the methodologies used to arrive at an expert opinion. In the context of this case, the scientific community would be the American Psychological Association In order for expert opinions or reports to be admitted into evidence there must be a judicial finding that said evidence was arrived at by the use of proper acceptable procedures condoned by that expert’s scientific community as being reliable through scientific findings, sufficient testing, treatises, published books or other such papers demonstrating acceptance of the scientific principle within the applicable scientific community. In order for a piece of expert evidence to be admissible, then, the “principle, procedures and tools of discovery used by the expert must have passed the mere experimental [nascent] stage and become demonstrable scientific knowledge generally accepted as valid within the relevant scientific community.” People v. Bullard-Daniel, 42 N.Y.S.3d 714 (N.Y. Ct. Cl. 2016). The court does not determine whether the expert’s findings are correct, but rather, the court determines whether “those espousing the theory or opinion have followed generally accepted scientific principles and methodology in evaluating clinical data to reach their conclusions.” State v Ralph P, 39 N.Y.S.3d 643. Due to the pandemic, many psychological forensic evaluators have been made to rely largely upon remote interviews, remote testing and remote questionnaires, despite cautionary advise by their community to revert to standardized testing as soon as they are able. In an article espousing the view of the psychological community on the validity of evaluations conducted remotely during covid, the American Psychological Association warned that practitioners cannot guarantee a valid equivalency between conducting an assessment remotely and conducting one in person, stating that…” Replications of studies are needed, and evidence needs to be amassed…” because these assessment methods have always relied on interpersonal procedures that require personal contact and interaction, such as standardized interactions between the forensic examiner and party, and clinical observation of the party in their office. See, American Psychological Association. (2020, May 1). Guidance on psychological tele-assessment during the COVID-19 crisis. https://www.apaservices.org/practice/reimbursement/health-codes/testing/tele-assessment-covid-19 As stated above, the consensus of the psychological scientific community is that there is a lack of sufficient scientific literature that would legitimize expert opinions derived from remote evaluations as reliable. As such, it is my legal opinion that all such reports should be challenged as inadmissible.
By:
Your New York Divorce Lawyer
Lisa Beth Older, Esq. Do I have to pay my spouse 50% of my Business? January 8, 2022
Do I have to pay my spouse 50% of my business? This article has to do with updates as to New York Divorce Law and equitable Distribution of business interests. I will try to point out trends that I see in the case law in the various judicial districts and hope that it will provide guidance as to your expectations when you are in litigation over business interests in a divorce action. In 2021, in the Second department case of Davenport v. Davenport, 2021 WL 1112911 (2d Dep’t 2021) the Wife was only awarded 10% because of the short duration of the marriage, and because her contributions toward the business was very small. Compare this to the First Department case of DeNiro v. DeNiro, 2020 WL 3848156 (1st Dep’t 2020) where the Wife got nothing because the court concluded the husband’s business was a gift. In that case there were extenuating circumstances involving the proofs posited at trial. So if you are in the First Department you should be aware of this recent decision. Can I withdraw my Divorce? December 8, 2021
Can I withdraw a divorce case? This article is about parties who have filed for divorce but have changed their mind and now want to know whether they can withdraw their case in Supreme Court. The answer is it depends. Whenever you make an application to court it is considered a very formal application. You cannot just ignore the fact that you filed something in New York Supreme Court. So, if you wish to discontinue who are action for divorce it depends on what stage of the proceedings you are in. Obviously, it is easier to stop a divorced before it has been litigated. If a Judge has been assigned it can become more complicated. For instance, if one of the parties has filed a divorce case by way of Summons with Notice, and have not served it, app they do not require the permission of the other party to withdraw the case so long as they did not file a Verified Complaint, and so long as 20 days have not elapsed. In that regard, act of your lawyer in that circumstance would simply file a Notice of discontinuance. The law in support of this this can be found in the NY CPLR at section 3217. And However, if you have filed a Summons with Notice for action for divorce in New York Supreme Court and you have served the other party, and more than 20 days has passed then it will require the signature of both parties to discontinue the action. A Stipulation is also required if you filed a Verified Complaint and y would our spouse responds with a verified Answer or Motion. If that occurs the case will move forward. The So, you might ask, what if your spouse will not sign the stipulation for discontinuance of the divorce action. When this occurs, it will require your Attorney to file a motion in the Court for permission to withdraw the divorce. When this occurs, your lawyer must give reasons and a basis for your request for withdrawal of your case. Then, it is entirely up to the court to decide whether the case will be withdrawn. You might also ask what will happen in circumstances where both parties want a divorce but have settled their issues and do not want to litigate the divorce. In other words, you filed a verified complaint, your spouse answered the verified complaint, but now you have reached a settlement and you wish to close the case. Be advised that you cannot just close the case. In this situation the best course of action is to draft a stipulation of settlement and file an uncontested divorce. In the uncontested divorce paperwork, you will have the opportunity to withdraw your verified answer and proceed on the verified complaint for to a judgment of divorce. In this regard, your divorce ends with a formal divorce judgment. But the clerk of the Court will not allow you to get a judgment of divorce if the spouse who was served does not execute a formal notarized defendant’s affidavit stating that they have either decided not to answer the complaint or have elected to withdraw. At their verified answer. If you have filed a verified complaint that needs to be amended because you made an error, you also need to file a motion to amend your verified complaint. The court will be more likely to grant you a withdrawal of your divorce action if the case has not been fully litigated if you provide good basis for your position. Hope this has been helpful to you. By: Your Manhattan Divorce Lawyer Lisa Beth Older apt What Should You Expect from your New York City Divorce Lawyer? October 9, 2020
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 should you expect from your divorce lawyer?