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New York child custody, Manhattan child custody, Brooklyn child custody Lawyer
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.
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Divorce Lawyer. New York child custody, Manhattan child custody, Brooklyn child custody Lawyer.

Recent Cases Affecting New York Divorce Law


Recent Case dealing with Equitable Distribution and Child Support in New York, County of Rockland
December 26, 2021

In a recent case decision promulgated by the Supreme Court, County of Rockland on June 2, 2021, dealt with whether a gift of inheritance to one spouse, which was made as a loan to the parties by that spouse’s parents, would constitute up to a separate property credit to the spouse who received the advance on their inheritance.  On these facts the Court stated that the gifted loan from her parents, which the parents had “forgiven”  was paid off by the parties during the marriage and hence lost its separate property characteristics when the property became comingled such that the equity in the property subject to equitable distribution was solely marital. C.R. v L.R Supreme Court, Rockland County June 2, 2021, 71 Misc. 3d 1229•2021 N.Y. Slip Op. 50527•146 N.Y.S.3d 466.  In the case of Renck v Renck , 131 AD3d at 1149  Court held that "[t]o overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest".  In this instance, the court felt the Wife failed in her burden of proof to show  by clear and convincing evidence that the property originated solely as separate property.

Normally, has this loan not been paid off and forgiven by the wife’s parents the case law would support a separate property credit to the Wife if she used an advancement on her inheritance to acquire the property.  But here, it was a “loan” to both parties. The Court has tremendous discretion to characterize property as being marital or separate. 

Separate property is described as follows: Separate property is defined as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse ...". DRL § 26(B)[1][d]). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL § 236(B)[1][d](3)

As such, if you are using your inheritance as a down payment for the purchase of the marital residence be sure you do not take out a loan against the property that is used to pay off the mortgage because that payment on the loan may be construed as having stripped the inheritance of its separate property characteristics. Also, if your parents are gifting you your inheritance in advance, make sure the check is written out in your name only otherwise it might be considered a gift to the marriage subject to equitable distribution in the event of a divorce.  More importantly so not mix and mingle your separate or joint accounts by depositing that money into  those accounts used during the marriage. Keep that money in a separate bank account.

This case also briefly dealt with child support and the rules governing modification of same and the collection of child support arrears which accrued prior to the divorce action. Domestic Relations Law § 236(B)(9)(b)(2) stated that child support arrears cannot be reduced or annulled.

New York Domestic Relations Law §§ 236(B)(7)(d) and 236(B)(9)(b)(2) clearly states that either party may move to modify a child support award if there has been 1. a substantial change of circumstances; or 2.  three years have passed since the order was entered, last modified, or adjusted; or 3. there has been a change in a  party's gross income by 15%  since the order was entered, last modified, or adjusted, provided that the reduction in income was not on purpose and the offending party has made good faith attempts to secure employment equal to his or her education, ability, and experience.  The law also states that  unless the parties in their agreement or divorce judgment expressly opts out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party may petition the court to modify the underlying  support order upon a showing of those facts suggested in subsections “1.” “2.” or “3.” above.   The Family Court also follows suit in this regard. 

In all events, a petition to modify child support in New York may be filed upon a showing of a substantial change in circumstances especially where it is in the best interests of the child that the child support be adjusted.  However, it is up to the Court to determine whether it will grant such modification after a New York Family Court fact-finding hearing.

 

This decision is also interesting because it was written this year and sets forth this court’s understanding of equitable distribution and how it is to be  applied to each case. Under Equitable distribution law "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker." O'Brien v O'Brien, 66 NY2d 576, 585 [1985].”

Under the case of Price v Price,  "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of un-remunerated services to the joint enterprise, such as homemaking, raising children and providing for emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." Price v Price , 69 NY2d 8, 15 [1986].

Equitable Distribution does not always mean equal distribution. If it is fair to divide the assets up differently the courts will do so if it is equitable. Each case is different, and each case is treated uniquely.  In the cases of Conner v Conner, 97 AD2d 88, 96 [2nd Dept 1983] the Court held that  "modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case." Conner v Conner, supra at 96 (citing 11C Zett-Kaufman-Kraut, N.Y.Civ.Prac., Appendix B, at 8).

As such, the Court has substantial discretion to divide up the property in a fair way, even though most of the time the court will start out with the premise that it should be an equal distribution.  However, look at NY Dom. Rel. Law § 236. There you will see all the enumerated factors a court should and must consider in arriving at its decision as to equitable distribution.

"In determining equitable distribution , the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker." Loria v Loria , 46 AD3d 768, 770 [2nd Dept 2007] ; DRL § 236(B)[5](d).

While I hope you find this information useful, it was not intended as legal advice, and as such seek legal counsel if you are going through a divorce or child support or child custody matter.


 
Can I get my ACS records in a Manhattan Custody case
November 27, 2021

 

Do I have a right to see the ACS Records in my New York Custody case?

You  may very well have a right to see the ACS records if you have been a target of an ACS investigation brought on by a spouse in a child custody case.  But there are strict procedures you must go through to get the records.  Federal law requires the state’s child protective agencies to maintain records of the investigation and you can usually access these records if you were the subject of an ACS investigation.  But these records are not readily available without following formalities set forth in the law.  Requesting Child Protective Records Child protective records are not available pursuant to the Freedom of Information Law. A request for your child protective records must be written, notarized request and should include your full name and date of birth.  You can also request the records by fax to the Records and Compliance Unit at (212) 341-0726 OR

If you're seeking someone else's records or if your records involve the records of other parties in a New York custody case that is also different as you will probably need to obtain a court order.  And if you require the records to be certified then you will also need to get a court order before the records are released. Due to the nature of the confidentiality of these records  you must have been the target of the investigation and usually the case is already closed before you can ask for the records.

Another way to secure the records is to subpoena them.  It is well-settled under New York law that if an agency’s case record meets the requirements of a business record, it may be entered into evidence. The law is clear that your attorney may do this if relevant to your case. See:  Matter of James M.B., 155 A.D.3d 1027, 1030, (2017) in which the Appellate Division Second Department held that “The mother's contention that the Family Court erred in admitting the agency's case record into evidence as a business record is without merit. A proper foundation for the admission of the case record was laid by the testimony of the agency administrative supervisor, who was familiar with the agency's record-keeping practices (cf. Cadlerock Joint Venture, L.P. v. Trombley, 150 A.D.3d 957, 959). Each participant in the chain producing the record was acting within the course of regular business conduct (see Matter of Leon RR, 48 N.Y.2d 117, 122). The court providently exercised its discretion in limiting the records admissible to those entries made contemporaneously with the events reported or within a reasonable time thereafter (see CPLR 4518[a]; cf. Matter of Dustin H., 40 A.D.3d 995, 996).  Also see In re R., 264 A.D.2d 423, 423–24, (1999), in which the same Court held, “we find no merit to the appellant's contention that the Family Court committed reversible error by admitting the entire case file of the child protective agency into evidence. The agency established a proper foundation for admission of the file into evidence as a business record by establishing that it consisted of entries made by case workers who were under a business duty to timely record all matters relating to the welfare of the subject children (see, CPLR 4518 [a]; Matter of Dept. of Social Servs. v. Waleska M., 195 A.D.2d 507, 510; cf., Matter of Leon RR., 48 N.Y.2d 117, 123). Furthermore, as required by principles of “fundamental fairness”, the appellant's counsel was afforded an opportunity to review the case file prior to its admission into evidence (see, Matter of Rosemary D., 78 A.D.2d 889; Matter of Melanie Ruth JJ., 76 A.D.2d 1008, 1009).Here, the production of the requested documents via subpoena duces tecum would be a mechanism to allow you to review the files prior to their expected admission into evidence, as set forth above.

 

By: Lisa Beth Older, Esq.  

Your Manhattan Custody Lawyer


 
What must I know about Virtual Trials in New York Custody and Divorce cases?
November 7, 2021

 

The Covid-19 pandemic has caused many courts to go virtual and many of the courts still try cases virtually using Microsoft Teams technology. In my estimation, long after the pandemic has ended,  the Courts will probably continue to use this virtual technology for certain cases, especially where parties live out of  State or where there are other safety risks. This is yet to be seen.

In preparing for a virtual trial that is coming up soon, I ran across a very useful article I wish to share that was  written by the Hon. Norman St. George, J.S.C. District Administrative Judge 10th Judicial District County of Nassau.

The article has to do with the protocols the parties are expected to adhere to and follow in a virtual  bench trial, whether it be a New York Family Court trial a New York Divorce trial or a criminal trial.

Here we will focus on the virtual trial as it relates to family law in New York and as it relates to bench trials in New York Family Court and as it relates to divorce matters held in Supreme Court.

For more detailed instructions and information please go to:

https://www.nycourts.gov/whatsnew/pdf/VirtualBenchTrial-Protocols-2112021.pdf

This is particularly important information to have, especially if you are appearing pro se and have not yet familiarized yourself with introducing evidence over the Microsoft Teams Meeting application used by the Court.

The Microsoft Teams platform may be employed at the Court’s election, to hear trials as well as court conferences, preliminary conferences, and arguments on motions.

The Honorable Chief Judge DiFiore was the Judge who spearheaded this virtual innovation.

The virtual trial will mirror the traditional trial in all  respects, except for the technological aspects which must be employed to ensure fairness during trial. It is supposed to be as formal as if you are standing in person in front of the judge. Participants shall make best efforts to provide no audio or visual distractions when in attendance at their virtual trial.

As a litigant, you are expected to dress in an appropriate manner because this trial will be as formal a proceeding as it gets.

Like any other trial, all testimony shall be taken down by a Court Reporter (or by a court authorized recording device) and this will provide a record of the trial so do not speak over another participant.  That is, one person should speak at a time. A Judge has the power to mute your microphone if you attempt to speak over another party. This is one tool that I like since in live court a Judge can not manually mute an obstreperous party or an overzealous attorney.  

Objections to a question may be raised orally or by using the raise hand option provided in the Teams application.

Counsel may ask the Court to pause the proceeding to request that they speak to their client off the record,  In  that instance, the Breakout Room on Microsoft Teams may be used to ensure that no one hears what the attorney is saying to their client during a sidebar.

To protect against ex-parte communication when there is a pause in the trial all parties should mute their computer sound and shut off their video camera until the trial resumes.

It is important to note that the same rules apply in virtual trials with respect to third party access to the trial.  It will be up to the Judge to ensure that witnesses that will be called at trial not be allowed to be present during that part of the trial where they are not testifying. All people present at a virtual trial will need to identify themselves on the record.

The Court System has worked hard to ensure secure connections but if security is an issue, try to us a protected internet password rather than a public wifif connection.

You can expect that technical setbacks can occur.  As such, if there are internet connection problems it is important to share your email and contact information before hand to facilitate swift expedient reconnection onto the internet.

 

Counsel, parties, and witnesses should exchange back-up contact information, such as cell phone numbers and/or e-mail addresses, with the Court prior to the Virtual Bench Trial and discuss a protocol on how to reconnect in case the Virtual Bench Trial itself or a party is disconnected, or other technical issues arise. If appropriate, the contact information for technology support should also be shared. All participants should immediately notify the Court if it appears anyone has dropped from the Virtual Bench Trial. Sometimes there a computer technical support staff will be on hand in the court room to aid the court with technological issues as they arise and this person will identify themselves.

Some but not all virtual bench trials will be live streamed so that the public can have access to the courtroom.  It is yet to be seen how family court matters will be handled, such that if there are matters that require a closed court the court will so advise.

Pro se litigants that have no access to virtual technology should so advise the Court and the Court shall allow  a safe place at the courthouse where the pro se litigant can participate in their trial.

You can expect that a Court may want to have a pretrial court conference ten days before trial so that issues of stipulation as to trial exhibits and other such procedures can be ironed out.

Like in al trials it is expected that the attorneys discuss the identity of their witnesses and the order in which they expect each witness to be called.  Normally the Court will request the exchange of exhibit slists and witness lists at least ten days before trial and counsel are expected to raise any objections as early as possible.

If a party has a problem with securing a witness to appear at trial the Court may still execute SO ORDERED subpoenas at the request of counsel unless there is an objection.

As for proposed Exhibits, the attorney and pro se litigants are required to file them electronically through the EDDS system. If one exhibit has more than one page it is necessary to bate stamp each page so that it is easier to refer to that page when using an exhibit.

 

If you are Plaintiff, or Petitioner, you are to number your exhibits.  If you are the Defendant, you are to use letters to mark your family court or Supreme Court exhibit.

If you wish to present audio or video, these cannot be downloaded onto the EDDS system so you must submit these items directly to the court and counsel at least 15 days in advance of trial. The Court will expect you as attorneys or pro se litigants to try to stipulate to as many exhibits as possible in advance of the trial date so that you can avoid time consuming objections.

Any exhibit presented at trial must be presented per the same evidentiary rules which means that each attorney must lay an appropriate foundation for each exhibit. Once marked and offered into evidence the Court reporter will properly notate the exhibit.

As to witness testimony, the court will send a link to the witness at least one half hour before they are called to testify. The attorney calling the witness will instruct their witness to log in at the allotted time.

Like all trials, any recording of the trial is prohibited.

It is important to note that as in all trials there shall be no communication allowed between a witness or party during the Virtual Bench Trial testimony.  The party and his or her attorney may not independently speak to a witness until their testimony has concluded

When you testify, you are not allowed to refer to documents of any kind other than that presented to them at trial in the form of a marked exhibit.

The Court will also expect that each witness display the room where they will be testifying from and there shall be no other computer phone or other electronic device in the room other than the computer they are using for purposes of the virtual trial.

No one other than the party or witness shall be in the room during trial other than someone that is needed to help with technology. In the case of technological assistance the person in the room must identify themselves to the Court.

No party is permitted to turn off their screen or audio without the express permission of the court.

If counsel requests a sidebar, the court may wish to accommodate counsel through the use of a what is referred to as a  “BREAK OUT”. room provided in the teams platform. In the alternative a court may request a cell phone conference at which point all parties must mute their cameras and audio on Teams.

 

I hope that this article has proven to be helpful in your child custody or New York divorce matter.

 

By: New York Divorce Lawyer Lisa Beth Older, Esq. 


 
What is the Recent Law on Child Support in New York?
June 25, 2021

Recent 2021 Child Support Decisions Highlight Numerous Commonly-Faced Issues

No matter what the issues are in your New York child support matter, having competent, knowledgeable legal representation will help you navigate the processes of production, negotiation, modification, or enforcement of a child support agreement, Order, or judgment. Thus far in 2021, the Appellate Division’s Second Department has decided a number of cases that implicate issues commonly litigated in child support actions. Read on for several examples case law that touch on child support related issues that the Law Office of Lisa Beth Older can help you traverse.

 

Downward Modification of a Child Support Obligation

In an agreement as to child support, it is important to consider the potential for future changing economic circumstances. New York law allows for a noncustodial parent to seek a modification of child support under certain conditions, such as a substantial change in circumstances, three years of elapsed time, or a 15% change in a party’s gross income. However, if your income is variable from year to year or has the potential to decrease dramatically, it may be worth outlining this possibility in a stipulation of settlement or other child support agreement, providing for more specific potential circumstances that could trigger your entitlement to a downward modification.

Recently, in Rodriguez v. Starks, 194 A.D.3d 1063, the Appellate Division’s Second Department upheld a reduction in child support obligation following the father's successful petition for a downward modification. In this case, the father was an NFL player who made $850,000 per year at time of the entry of the Order of support. However, the agreement between the parties allowed for the father to seek downward mod if he stopped playing professional football. Because the Order contained this provision, the father was entitled to a recalculation of his child support obligation pursuant to the Child Support Standards Act. The Law Office of Lisa Beth Older can assist you in drafting or modifying an agreement that will comport with  your particular, individual financial needs.

 

Inter-State Orders and Judgments

Whether you are new to New York and are seeking enforcement of a child support judgment or Order from another state, or relocating elsewhere and now seeking to enforce a New York child support judgment or Order in another state, you should know that generally, under the Full Faith and Credit for Child Support Orders Act and Uniform Interstate Family Support Act, the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state. (See: Matter of Spencer v. Spencer, 10 N.Y.3d 60, 66.)

Recently, in the case of Nassau County Dept of Social Services v. Ablog, 194 A.D.3d 817, the Department of Social Services brought a proceeding under the Family Court Act seeking support from the father on behalf of his daughter who had turned 18 and moved to New York. The child support magistrate denied father's motion to dismiss and entered a final order directing him to pay support, but in accordance with the above principles, the Supreme Court, Appellate Division held that Florida retained continuing, exclusive jurisdiction of child support order.

Jurisdictional issues in child support enforcement can become complicated when interstate judgments are involved. The Law Office of Lisa Beth Older can be trusted to navigate these complex issues with care and experience.

 

Reimbursement of Expenses

In addition to a basic monthly child support obligation, child support Orders and agreements may include provisions that require the noncustodial parent to cover or contribute to reimbursement for additional expenses, such as medical expenses, recreational activities, or education expenses. Under New York law, the party seeking reimbursement of expenses related to support of child must show that he or she actually paid the sums for which reimbursement is sought.

In the recent decision in Parente v. Parente, 193 A.D.3d 862, the former wife petitioned for reimbursement from the former husband for his pro rata share of the children's college expenses pursuant to parties' stipulation of settlement that was incorporated into judgment of divorce. The Court found that the wife had established sufficient proof of payment, however, the Support Magistrate below had erred in failing to award the father a credit against his pro rata share of the room and board expenses for the amount he had paid in child support for the same child at the relevant time.

Determining what is owed by whom when the text of an agreement is complicated or allows for credits and expenses can be difficult. The Law Office of Lisa Beth Older can help you understand your obligations, determine a fair and balanced support agreement, or modify one that is not working for you.

 

By: Your Manhattan Divorce Lawyer 

Lisa Beth Older