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Articles on New York Divorce Law
Jun 2023Fathers' Rights in New York
Jun 2023The Law on Counsel fees in divorce and Child Custody cases in Manhattan and in all other cities in the First Department of the State of New York
Jan 2023Family Law and Estate Planning
Nov 2022NEW CHILD SUPPORT LAW POSSIBLY PROVIDING ADDITIONAL SUPPORT FOR ADULT CHILDREN THROUGH AGE TWENTY SIX
Dec 2021Can I withdraw my Divorce?
Mar 2019Can I sue for Adultery?
Jan 2019WHAT DO I TELL THE KIDS?
Dec 2018CHANGES IN DIVORCE LAW
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.
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
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
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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What if my spouse is turning our children against me?
March 12, 2020
Parental alienation has a huge impact on child custody cases
The New York courts considers parental alienation in its decision as to which parent shall obtain custody over children. When a quart feels that a child is refusing to have any relationship whatsoever with the other parent a quart then explores reasons as to why that is happening. In the absence of and fitness or abuse it is not unreasonable to imagine that parental alienation is occurring. The courts take parental alienation very seriously. The concept of parental alienation is not straightforward and at one time was discredited. However, the term parental alienation is seeing a comeback in the courts and has found new scientific legs upon which to support the theory.
If, for no apparent reason, your child is no longer talking to you or is expressing hatred towards you, the chances are the other parent could be saying bad things about you to the child. In other words, the child is merely mirroring that parent’s hatred of the other parent. Parental alienation often occurs in the middle of a divorce case. However, it can also occur under other circumstances. If children are around too many negative statements made by one parent about the other parent, they experience something called parental alienation. There are experts in the field who can ascertain whether the child is being alienated against one parent. For instance, when a child displays anger and fear not grounded in any rational basis these feelings of anger are usually planted in the head of the child by the opposite parent. This psychological twisting of a child is detrimental to the child and his or her family relationships because children try to trust and need to rely upon both parents in order to develop in a healthy manner, but when one parent poisons the child against the other parent it is not only detrimental to the child but it can also have dire consequences on the injuring party's case.
It unjustifiably causes the child to have negative feelings toward the aggrieved parent. An example of parental alienation is when a parent blames the other parent by having an adult conversation with the child as to the finances of the parties and why they cannot longer enjoy certain activities they used to enjoy prior to the divorce, y blaming the child’s lack of enjoyment of said activities on the fact that the other parent is the bad guy. Sometimes this happens purposefully and many times I see it happen unintentionally, but it can happen nevertheless and should be voided in any New York Custody case. Any good Manhattan Custody lawyer will warn against it and will be on the lookout for it. There is a lot of case law that developed in the state of New York that deals with parental alienation. One of the￼ accepted principles of law is called interference with the noncustodial parent's relationship with the child. If the court finds that one spouse has intentionally interfered with the relationship of the child and the noncustodial parent, the court finds that that parent is per se unfit to parent. You can imagine the consequences of this in a custody case that goes to trial. The lesson from all of this to be learned is do not speak badly about the other parent in front of your child. If you need to speak badly about your spouse, hire a therapist to vent or speak to a friend or another adult.￼￼￼ Involving a child in your divorce and financial problems is the worst possible thing you can do for your child and will likely have negative consequences in your case.
If you feel that your spouse has alienated your child against you, then argue in court that you have been the victim of intentional alienation and that as a result your spouse should not be awarded custody. It is a very strong case, but it’s also a difficult one to prove without expert testimony. If you suspect that you are a victim of parental alienation, then ask your attorney to request the appointment of an attorney for the child and forensic evaluations of the￼ parties. After all parties and the children have been interviewed, if the forensic evaluator feels there are sufficient facts for showing a parental alienation, this factor will play a large role in what the judge will do in your New York custody case.
By: New York divorce lawyer Lisa Beth Older
Can I sue for Adultery?
March 21, 2019
As a New York Divorce Lawyer, my clients ask me oftentime whether aultery is still a crime in New York State and whether they can sue their spouse for cheating on them. This article is designed to lend clarity to this issue because spouses that are hurt by a cheating spouse need answers to this. Penal law section 255.17 states that you can be found guilty of adultery if you or your spouse has sexual intercourse with another person during that time that you are married. However, you cannot actually depend on the State to prosecute anyone for adultery because the state of New York usually does not act against the perpetrator. There have been only approximatley 13 convictions for adultery over the last forty odd years and these convictions were attendant to and related to other more serious underlying crimes. This is because New York chooses not to prosecute adultery as a crime as a matter of public policy.
As for divorce in New York we have several grounds upon which to seek a divorce and again, one such ground is adultery. So, you can still sue for adultery but that does not always mean you will prevail because there are higher standards of proof that must be met for divorce courts you get you relief under those grounds. Also, while you can sue for adultery, since New York State has added irretrievable breakdown of the marriage as a ground for divorce the courts favor this as ground and you will be encouraged to proceed forward on this ground because it alleviates the court from having to have a trial on grounds. This is encouraged because, quite frankly, grounds no longer impact decisions on equitable distribution and support and child custody unless the factual basis of said act is so severe and egregious that it warrants special equitable relief.
For instance, for adultery to form a basis for any part of an equitable distribution award, you will have to prove in court that the adultery directly impacted that economic issue. An example of this might be that the cheating spouse may have spent some or all the marital assets on his or her paramour. In that instance a court will make an allowance for that amount and in its discretion try to reward the aggrieved spouse that amount which was spent on the extramarital affair. Another example as to how adultery might affect a divorce is has to do with custody. If the adultery was committed in a careless manner in front of the children or in an explicit manner and as such had an upsetting direct impact on the children, then a court might consider that as one of a myriad of factors in its determination as to what custodial arrangement would be necessary in the best interests of the children. Usually, however, a mere affair will not alter the way a court arrives at a custodial award.
Accordingly, if you are staying married because your spouse threatens that you will be punished for your adulterous act it is probably not a good reason. Most New York Courts do not concern themselves with grounds when making rulings for support, custody and distribution of property and it will probably have no impact on the result of your New York Divorce and your New York Divorce Lawyer will likely so advise. If after reading this article you are still convinced that you want to sue for divorce on the ground of adultery, then you must realize that you have a higher standard of proof. You can not just take the stand and tell the Judge you believe your husband or wife had an affair. Rather, in providing adultery you must have a witness other than yourself testify in a compelling manner that your spouse had sexual relations with a person outside the marriage and usually that person will be an investigator with corroborative media evidence such as a video or photographs of the spouse during the act. There are also defenses that your spouse can raise against an adultery allegation such as the fact that you might have agreed to an open marriage where both spouses agreed to extramarital affairs, you might have forgiven your spouse, or you might have cheated on your spouse as a form of revenge.
So, while New York Courts will still hear your case on the grounds of adultery, it is a cumbersome and costly process that involves airing your dirty laundry in a court of law and is unnecessarily expensive.
To conclude if you are looking to file for a New York divorce then the best grounds to precede on would be a no-fault divorce, or irretrievable breakdown of the marriage. Using this ground no proof is required to be had, and the plaintiff merely alleges and states that the marriage has broken down for a period of in excess of six months.
WHAT DO I TELL THE KIDS?
January 17, 2019
Getting a divorce in New York? What do I tell the kids?
It is important that you keep your children in the loop about all life changing circumstances such as a change in school, a change in residence or a change in teachers. So, it is not surprising that parents should inform their children about their change in marital status.
Depending upon their age, children are smarter and more attuned to their environment then you might guess. Children may even know that you and your spouse are headed toward a divorce.
Even so, you should prepare the children well in advance of the move. Sit down with the children at an appropriate time and do so as a couple if at all possible. The children need to see you are united in your decision.
Spend a sufficient amount of time talking to them and listening to their concerns. It is important to stress that you love them at that nothing will change that. However, it is also important to listen to them. They will most likely have a lot of questions for you and you might expect them to ask about where they will live and who will be taking care of them. Expect that the children will have questions of worry or concern. Address them with assurances. Also expect the unexpected questions because children have their own ideas about what a divorce will look like because often times, they have had talks with their friends who have had very different experiences with divorce.
Also set aside other quiet times to go over with the children what a divorce means. If one or the other parent is relocating it is important to let the children know how that relocation will affect their lives and their access to each parent.
You should also be talking to other critical persons in the lives of the children such as their doctors, their school teachers and their summer camp counselors or therapists. Everyone should work as a team to explain how scheduling will work so that the children will know well in advance as to who will be expected to drive the children to their various appointments and who will attend what activity recital or event. Garnering the support of those people in their lives will help the children in their post-divorce transition.
In my experience it is best if the parents can co-parent the children. Not only is this favored by the New York Courts, it is also very healthy for the children to know that both parents will remain active in their lives.
Before you and your spouse sit down to talk with the children is important that you and your spouse talk to their respective New York divorce lawyers about scheduling access and visitation time. Children like structure and need to know what to expect once the household composition changes.
Once the household becomes two households, things get very expensive. You should talk to your divorce lawyer about how child custody issues will affect your pocket book and budget, and who will be expected to pay for extracurricular activities. If you can, do not disrupt the activities the children are already involved in as this will tend to put stress upon the children. In my experience, children are children and should not be involved in the problems of financing their lives. In New York extracurricular activities are nonmandatory add-ons to child support so you and your spouse should decide in advance as to what activities are affordable and wo will be paying for them. Do not unilaterally schedule an activity and then expect your spouse to approve and pay for it.
By co-parenting that means discussing what is in the best interests of the children and making decisions form them together as it concerns religion, medical attention and education.
Even if the child is residing primarily with one parent the law favors liberal contact with the noncustodial spouse for a reason-the child need both parents, absent a showing of unfitness to parent.
The end result is that if you work together as parents and try not to fight in front of the children the children will not feel like they have to take sides which is known to be detrimental to the children’s best interests. It is generally easier said then done but it is the best possible course if you wish your children to adjust to their post-divorce life.
I hope this has been helpful. Your Bronx Child Custody Attorney, Lisa Beth Older.
DO I NEED A LAWYER IN FAMILY COURT
December 30, 2018
DO I NEED A LAWYER IN FAMILY COURT?
It is not required that you retain a NY divorce lawyer or NY Family Law Lawyer to go to Family Court or to prosecute your divorce in Supreme Court in a New York Divorce Case, but here is why it is advisable to do so. Family Court is user friendly if you think you can settle your case and if there is not too much animosity between the parties. However, all proceedings are still legally binding upon you and your case will proceed forward in a manner in which you are not familiar.
When you hire a family court or divorce lawyer these attorneys usually have had experience in these matters and can guide you through each step of the way. Each court appearance matters, from the way you dress to the way you conduct yourself in court. A family law lawyer will let you know what to expect at each stage of the proceeding. The lawyer will know how to file pleadings on your behalf, research the applicable law and how it bis favorable to your case and explain to you what a court will likely do or not do given certain facts and circumstances. You do not have this advantage when you represent yourself.
Moreover, the case will normally result in a fact finding or trial where you will be required to call witnesses and present evidence in a manner required under the New York evidentiary rules so if you are not familiar with trying a case you will find it very frustrating to try to get the court to consider your proffered evidence. Also, sometimes the other side might make a motion to dismiss and you may have legal grounds to contest that motion but because you do not have a lawyer to argue your case knowledgably, aggressively and professionally the court might dismiss your case. Lastly, when the Judge rules on your case it is a binding decision that will have far reaching consequences on your life and your children. Moreover, if your spouse or parent of a subject child hires a lawyer you will be at a lose as to how to prosecute your case. If you are indigent or a low wage earner you should ask the court if they can appoint a free lawyer for you. In custody cases in New York you have an absolute right to be represented by counsel so if the court does not appoint a free lawyer then make an application to the Judge to have the other side pay for a lawyer and for all costs associated with litigation of your case, such as forensic reports and risk assessment studies.