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News about Divorce Law in New York State
Articles on New York Divorce Law
Mar 2018What is a Separation?
Feb 2018HOW DO I GET AN ORDER OF PROTECTION
Feb 2018WHAT IS CHILD SUPPORT?
Jan 2018CAN I GET ALIMONY?
Nov 2017WHAT IS A HIGH NET WORTH DIVORCE?
Sep 2017What to expect in a custody case
Sep 2017WHAT IS A CONFESSION OF JUDGMENT
Aug 2017WHAT IF I CAN'T SERVE MY SPOUSE?
Aug 2017What should I say to the Judge?
Aug 2017Can I appeal a Custody Order?
Jul 2017How do I get custody if my spouse and I live in different states and how do you determine Home State
What is a Separation?
March 17, 2018
If you are contemplating separation from your spouse you are not relegated to filing for a divorce. You may also file for a legal separation. When you file for divorce you are asking to settle all of the financial support and custody issues of your case, as well as asking for a dissolution and end to your marriage. However, in an action for a separation, although you can settle all of the issues that you settle in an action for divorce, a legal decree of Separation does not dissolve your divorce. This avenue is an important way to go if you wish to retain health insurance benefits but still be allowed to go on living separate and apart. Other benefits might be that you can still file joint returns which will result in lower taxes for the parties. However, if you pursue the avenue of a legal separation you cannot re-marry. IN New York you may also sign a separation Agreement which can be filed with the County Clerk. However, this sort of Agreement, if executed properly in a manner required for the filing of a deed while enforceable, is not as effective as a separation decree promulgated by the Court, as it is not a Court Order. As and for a Separation Agreement the parties hire two attorneys who draft a document that outlines the agreement of the parties as to custody, visitation, support and equitable distribution of marital assets and debt and each party agree to be bound by these terms. This is a binding document that can later be incorporated into a Judgment of Divorce and can form grounds upon which to file for a divorce when the parties are ready to proceed after one year.
At the Law Offices of Lisa Beth Older we often strive to settle contested divorces through the negotiation of stipulations of settlement or separation agreements because it best saves the clients time and money in a divorce or separation case and is less acrimonious.
The Stipulation of Settlement can also set forth detailed custodial arrangements which the parties will follow, whether or not they seek a divorce.
By: Lisa Beth Older
Your New York Divorce Lawyer
Will the new Tax Reform Act impact my Divorce?
March 16, 2018
Will the new tax law impact my divorce?
The new tax law which passed congress in December 2017 will impact your divorce.
Starting December 31, 2018, in your New York divorce, any divorce judgment entered after that date that involves spousal support will be impacted in many ways. First, after December 31, 2018, spousal support will become nontaxable to the recipient spouse and no deduction will be able to be taken by the payor spouse. However, should your divorce judgment be executed prior to December 31, 2018 your spousal support or maintenace will be taxable to the recipient and a deduction for the payor.
There are many gray areas in this law however as it is subject to interpretation by IRS opinions and the Tax Court. However, as it stands now, this is the law. And it will impact the amount of disposable income a family has in arriving at a divorce settlement.
Other ways this law will impact your family are as follows. If you have a mortgage on the marital residence, you must be aware that the mortgage interest deduction is limited to $750,000 of the home equity debt. Also, as to a Heloc loan, before the law changed you could deduct the interest on the loan. Now, you can only deduct the interest on the loan if the loan proceeds went toward renovations on the home.
There will be tax rate changes as well and you should consult with your tax attorney about same.
As for dependent exemptions these are now gone. However, it is important that you try to claim your child as a dependent because of the child tax credit you would be entitled to secure.
As for Head of Household status, that is important also as that status remains the same under the tax reform act except that there are lower tax rates and a higher standard deduction.
The good news is that the child tax credit is still applicable and in fact will be increased to $2,000.00 per child for parents earning up to $200,000 and it also allows for a $1,400 refund, if the credit is larger than the income tax liability. However, though the standard deduction has doubled, the bill does away with a whole slew of personal exemptions so that benefit might well be offset.
All of these considerations are important in having your divorce or family lawyer fashion a creative stipulation of settlement that maximizes the tax benefits for each respective party.
++++ This is only informational in nature and you must consult a tax attorney and not rely upon the information in this article
Can I settle my divorce out of court?
February 24, 2018
I have to go to Court to Litigate my Divorce?
In a contested divorce situation there are alternatives as to how to approach your divorce without having to go to court. First, you may want to seek arbitration with a person that has no interest in the outcome of your case. This arbitrator" hears arguments from both spouses and decides on a decision. There is binding and non-binding arbitration and you may also approach your contested divorce through hiring attorneys to approach your divorce case collaboratively.
There is less internal fighting that way and you are guided by experienced counsel to a resolution. This normally works if both parties are calm and collected and can remain rational throughout the process and are ready to compromise.
There is also mediation, where a mediator helps guide you toward a resolution of your divorce and custody case.
In New York County we have a program that utilized professionals with a brad base of experience in this field of law to use their experience to hear arguments from both spouses and review the issues so as to provide both sides with likely court outcomes. It happens to be a useful program for people that do not want to go through the rigors of courtroom litigation and extensive financial discovery.
As to litigation of your child custody case it often helps to ask the court to appoint what is called a parent coordinator. This trained professional will help assist in parenting decision making over the subject children where the parties cannot work these items out through direct communications. These professionals are appointed by the court to promote the best interests of the children to resolve differences of opinions as to education medical or religious decisions impacting your children.
HOW DO I GET AN ORDER OF PROTECTION
February 6, 2018
HOW DO I GET AN ORDER OF PROTECTION?
You can file for an Order of Protection in Family Court in the County where you reside if you are related to the person or married to the person who harmed you. This is called an Article Eight Family Offense Petition.
You may also apply for an order of protection if you have an intimate relationship with someone or a child with someone, whether or not you are living together. You may also file for an Order of Protection in Criminal Court. The Criminal Court is usually open at night so you can go there at any time. Do not be afraid to call 911 as the police will assist in protecting you from immediate harm.
In Family Court, you do not need a lawyer to get an Order of Protection, although it is always advisable to speak to an attorney before you go to court, if circumstances permit.
In Family Court, you can go to a room that is entitled Petition Room. There the clerk of the court will assist you in filling out all the forms you need. You will have to list all the reasons why you need an Order of Protection and the dates and times and ways you were threatened or harmed.
It costs nothing to file for an order of protection.
Do so if you are at risk of harm only or if your children are at risk of harm. The Court is there to help you.
As an aside, do not make up false allegations thinking you can get a leg up in a custody case, as this will come back to haunt you!
WHAT IS CHILD SUPPORT?
February 3, 2018
How can I get child support? In New York, child support is an amount of money paid to the parent who is the custodial parent. This includes the basic child support amount that is based upon each parent’s income and the special needs of the child and in addition, includes health insurance obligations, day care if the parent is working, and unreimbursed or uncovered medical dental and other reasonable health costs for your child. The Family Court, upon an application under Article Four of the Family Court Act, or the Supreme Court, will configure the obligation in the form of an Order if you apply for it. New York has a child support enforcement department, and for the most part every state has an equivalent service to help each parent collect wat is owed to them.
Any parent who has a child can apply for child support and enforcement services.
The Child Support Enforcement agency will help you collect your child support through automatic deductions from the payor’s paycheck or from tax refunds and the like.
CSE can also assist you in locating the noncustodial parent so that you can collect your child support award.
The CSE agency can also help you prepare your petition for child support.
You do not pay taxes on child support.
Even if the child is born when the parties are not married you are entitled to child support. However, in that regard, you must first establish the paternity of the Father by filing a petition for paternity in your Family Court
Child support is automatically adjusted every two years, to account for increases in the Consumer Price Index but you can also apply for higher amounts or lower amounts of child support based upon a serious or important change in circumstances from the last order, unless you have opted out of that right in a divorce agreement.
The amount of “basic” child support you are entitled to is usually based upon a statutory formula under the CSSA guideline’s. Usually it is 17% of gross income, less certain deductions) for one child, 25% for two children, 29% for three children 31% for four children and 35% for five or more children. As to the add-ons such as medical and day care, this is usually awarded pro rata to the income of the parties.
Lisa Beth Older, your New York Divorce Lawyer
CAN I GET ALIMONY?
January 23, 2018
People going through a divorce in New York always ask about the law regarding alimony. When one speaks about alimony in New York we typically refer to that as spousal maintenance or support.
We no longer call it alimony in New York.
Spousal support and maintenance is now primarily governed by statutes in New York and case law and it is agreed upon or court ordered. It is actually defined as money being paid from one spouse to the lesser monied spouse especially if there is a substantial disparity in income between the respective parties.
After October 25, 2015 the maintenance and spousal support laws changed and we now have a calculator that will help you determine what you can expect to pay or receive in a divorce action. To access the government calculator for those divorces started after October 25, 2015 click on the government link below:https://www.nycourts.gov/divorce/calculator_05192017.pdf.
After October 25, 2015 there is a presumptively correct amount to be paid. As stated above you can configure that with the help of an attorney with the web site link provided herein. After January 25, 2016 the new laws come into effect setting forth these presumptive amounts and the length of time you will pay or receive post judgment maintenance. If the amount derived from the guideline amount is not sufficient to meet your needs then the court may order a different amount, but the court has to explain the reasons why they have deviated from the guidelines amount. Once you run the numbers yourself always double check with an attorney who can also run the calculation by hand.
By Your New York City Divorce Lawyer
HOW TO APPEAL A CHILD CUSTODY CHILD VISITATION OR CHILD SUPPORT CASE
January 19, 2018
Family courts and Supreme Courts rule on child custody and visitation cases. They rely on the best interests of the child rule set forth in the case law to rule on what custody arrangement they think is best for the subject child. The trial courts evaluate many different considerations and may fashion a joint custody ruling that includes a parenting schedule. They have an enormous amount of power and discretion to fashion their custody order.
The Courts also rely on the testimony of each respective parent and the witnesses called at trial, the representation of the child’s attorney as to preference of the children, and forensic court appointed experts who perform evaluations. Sometimes, a court might appoint a second expert if the first expert opinion is tainted or unreliable. It is up to your divorce or child custody attorney to ensure that the forensic report rendered by the court appointed expect is thorough, and your attorney should further ask to see the notes as well as the forensic report upon which the expert relied to arrive at his or her opinion as to the parties’ fitness.
It is not easy to overturn a custody determination and it requires more than just an adverse ruling against you. When you are the losing parent in New York you have the right to appeal on certain circumstances but you must show that it is more than just your disagreement with the Judge. You must show that there was an error in law or that the record does not substantially support the factual findings of the Court.
Another consideration is timing-in New York you have thirty days to file your Notice of appeal. If you run the time to appeal you will not be able to appeal without leave of court.
You must also consult with the Appellate Division in whatever department your case is heard as each department has its own rules as to what they need in order to perfect your notice of appeal in the appellate division. Your first stop is usually the trial court. They get the first Notice of Appeal that you file. Be sure to attach the Decision you are appealing from along with an Affidavit of Service proving that you served your notice of appeal on your adversaries.
But the Appellate Division also has its own rules as to how to go about filing the Notice and typically the rules require that you to file a copy of the Notice of Appeal as well as the Decision and Order with the Appellate Division as well, along with the Affidavit of Service.
The Appellate Division will also have you file what is called a Request for Appellate Division Intervention, which is a form requesting additional information about your case and the issues you wish to appeal.
After the Notice of Appeal is properly filed in both courts and if it is filed correctly, the Court will issue a scheduling Order to let you or the attorneys involved know when they must file their appeal briefs. If your case was tried in Family Court in New York the Court will often times assign your case to a case manager.
Usually, each Appellate Division in New York has its rules of procedure listed on their respective website, and these rules are also applicable, really to any appeal you might take.
Another consideration other than timing is that you be sure that the Order you are appealing is a final order rather than a temporary order as you can not appeal a temporary order without first making a motion for leave or permission to appeal. You might ask, what is a final order. The answer is that the Order is usually final if it includes a determination after trial of all the related issues in the case. It will also usually state Final Order and Decision in the upper right-hand corner of the Decision,
Appellate practice is complex and you should consult with an attorney before endeavoring to file an appeal. It is also an expensive venture and the cost is often times dependent upon the number of dates of trial, the number of transcripts involved and the number of pages of transcripts to be reviewed. There are also printing charges that might be prohibitive. If the Decision just does not make sense given the testimony then you should consult with an attorney to see if it can be appealed. If you are indigent and cannot afford an attorney you can make an application to the Appellate Division for appointment of a free lawyer and for costs
Before you file an appeal brief you must settle the transcripts on the opposition counsel and attorney for the child. You should always order the transcripts of the Fact Finding from the stenographer as soon as possible as you cannot file a brief without submission of said transcripts.
In your child custody and visitation brief you cannot introduce new evidence and the Appellate Court will rely upon the various briefs and the transcript record and evidence admitted at trial in making its decision. If they find the court erred the Appellate Division can reverse the decision, affirm the decision or send it back to the lower court for reconsideration.
By Lisa Beth Older
This information is not legal advice and you are recommended to seek legal counsel as each case is very different.
How the New Tax Law Affects Your Divorce
January 12, 2018
Divorce cases will now be more complicated than before with the advent of the new tax bill. And the incentive to settle a divorce or custody case is now lessened under the new bill. Under the new law, spousal support paid by one spouse to the other spouse will not be a tax deduction whereas the recipient spouse no longer has to pay taxes on it. Under the present system, the payer of alimony got to deduct the full amount and the recipient spouse paid taxes on the amount. No longer so!
Custody, custody agreements, and relocation of children in a divorce
November 4, 2017
How does a Court decide who gets custody of the children?
It is well settled that in making a child custody decision the Courts are required to inquire and analyze the best interests of the children through a review of the totality of the circumstances. Weisberger v. Weisberger, 60 N.Y.S.3d 265 (2017). “The best interests of the child[ren] must be determined by a review of the totality of the circumstances” Matter of Preciado v. Ireland, 125 A.D.3d 662, 2 N.Y.S.3d 594; Eschbach v. Eschbach, 56 N.Y.2d 167, 171–172, 451 N.Y.S.2d 658, 436 N.E.2d 1260; Matter of Boggio v. Boggio, 96 A.D.3d 834, 835, 945 N.Y.S.2d 764).
In making a determination of the best interests of the child, the Courts must take into account many factors, including but not limited to the quality of the home environment, the parental guidance the respective parties provide, the contrasting ability of each parent to provide for the children’s emotional and intellectual welfare and development, the financial status and financial ability to provide for the children, the relative fitness of the parties, and how the effect of the decision of custody might have on the children’s relationship with the other parent. Mohen v. Mohen, 53 A.D.3d 471, 473, 862 N.Y.S.2d 75; see Matter of Moran v. Cortez, 85 A.D.3d 795, 796, 925 N.Y.S.2d 539.
However, a different policy of this Court and a higher threshold must be met before there can be a modification of a court-sanctioned agreement. While it is true that “No agreement of the parties can bind the court to a disposition other than that which a weighing of all of the factors involved shows to be in the child[ren]'s best interest” (Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95, 447 N.Y.S.2d 893, 432 N.E.2d 765; see Eschbach v. Eschbach, 56 N.Y.2d at 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260), it is equally true that a more stringent standard of review controls where there exists a court Sanctioned custody agreement.
So, as to the “best interests” analysis when dealing with modification of an existing court sanctioned agreement, in order for the Court to modify it, it can only do so upon a showing that there has been a change in circumstances such that a modification is necessary to ensure the continued best interests and welfare of the child[ren]” Matter of Spencer v. Killoran, 147 A.D.3d 862, 863, 46 N.Y.S.3d 658, quoting Matter of O'Shea v. Parker, 116 A.D.3d 1051, 1051, 983 N.Y.S.2d 903; see Matter of Bodre v. Stimatz, 150 A.D.3d 1228, 1229, 52 N.Y.S.3d 872).
If the Lower Court errs and awards the child to the wrong party you have the right to appeal to the higher court. It is well settled that this Court may set aside a Lower Court custody determination if it lacks a sound and substantial basis on the record or is contrary to the weight of the evidence adduced at trial. (Trinagel v. Boyar, 70 A.D.3d 816, 893 N.Y.S.2d 636; see Matter of Selliah v. Penamente, 107 A.D.3d 1004, 1004, 968 N.Y.S.2d 177; Matter of Jackson v. Coleman, 94 A.D.3d 762, 763, 941 N.Y.S.2d 273). And in the Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137 the Court held that “while we are mindful that the hearing court has an advantage in being able to observe the demeanor and assess the credibility of witnesses, we ‘would be seriously remiss if, simply in deference to the finding of a Trial Judge,’ we allowed a custody determination to stand where it lacks a sound and substantial basis in the record” Matter of Caruso v. Cruz,114 A.D.3d 769, 772, 980 N.Y.S.2d 137, quoting Matter of Gloria S. v. Richard B., 80 A.D.2d 72, 76, 437 N.Y.S.2d 411; see Matter of James A.—S. v. Cassandra A.—S., 107 A.D.3d 703, 706, 967 N.Y.S.2d 99; Matter of Moran v. Cortez, 925 N.Y.S.2d 539.
In a relocation case it is well settled that the movant must prove that the child will benefit from being relocated and that somehow your circumstances are so much better that the child's best interests are to allow you to relocate. Perhaps you have better employment prospects, or more family support in another state? In weighing all factors, the Court will consider these factors as well.
If you are the moving party you must make a showing that the child would benefit from being uprooted from all of his or her school friends and activities enjoyed in New York. It is well settled that, in a relocation case, a court must consider the loss of benefits the child would have and the harm which would ensue if the move is permitted. In the Second Department case of Martino v. Ramos, 64 A.D.3d 657 (2009)the court held in pertinent part, that …”there is still a need to weigh the effect of the quantitative and qualitative losses that naturally will result against such other relevant factors as the custodial parent's reasons for wanting to relocate and the benefits that the child may enjoy or the harm that may ensue if the move is or is not permitted” (id. at 739, 642 N.Y.S.2d 575, 665 N.E.2d 145).
If you are planning to get a divorce in New York and you want to relocate to another state it is best to speak to a New York Divorce lawyer who has experience in this area of divorce. Deciding custody is one thing, but if you are asking the court to allow you to relocate to another state or county with the children there are specific facts that you must show to convince the Court it is in the best interests of the children and if you cannot do so then you probably will not be allowed to relocate the children.
WHAT IS A HIGH NET WORTH DIVORCE?
November 1, 2017
High Net Worth Divorces
High Net Worth Divorces and Prenuptial cases involve a complex financial analysis of family assets and should require not only the advice of a skilled matrimonial attorney but also the advice of tax attorneys and financial advisors, and the New York divorce lawyer you choose should also have some business acumen.
In writing up a prenuptial agreement, if you are the monied spouse, there are asset protection strategies your attorney can employ to protect your business or partnership and to legally minimize tax exposure.
If you are going through a high net worth divorce then it is likely that there has been some sort of estate planning instruments in place such as trusts and off shore accounts that might allow your spouse the opportunity to hide assets or protect them against equitable distribution. There might also be irrevocable child trusts that have been set up for the children or for other of the spouse’s family members. This is why it is important to hire a matrimonial attorney who has experience dealing in such matters.
Furthermore, the division of property in a divorce gets particularly complicated when the asset is partially acquired before the marriage and partially acquired after the marriage. The quantification of a marital asset is fairly straight forward as parties rely upon forensic accountants to evaluate and value the asset, whether it be real estate, cash accounts, stocks or retirement accounts. What is complex is figuring out what value was acquired during the marriage, what part was acquired before the marriage and what part was acquired after the commencement of the divorce action. Usually each asset is valued as of the date of the commencement of the action but real estate is usually valued as of the date of trial or on such other day as the parties may mutually agree by way of Stipulation. However, if you are evaluating a business that was running before the marriage, you would want to get a valuation of the business as of the date of the marriage and one valuation as of the date the parties separated so you can assess what part of the business might be marital and subject to distribution.
Usually inheritances and personal injury recoveries are exempt from equitable distribution and belong to the party that acquired that asset. However, in high net worth divorces this assumption can come undone if the parties comingle that asset into a joint account and that is commonly referred to as comingling or transmutation. In cases where the separate property got mixed in with marital property the property loses its separate property characteristics and becomes marital property subject to equitable distribution.
Also, equitable distribution is not equal distribution. The Courts will often times grant more than 50% of a business to the spouse who is most actively involved in operating a complex business. I guess it is safe to say that it all depends on the role each spouse plays in the asset that is acquired, and the determination as to who gets what is very fact specific. So as to high net worth divorces, no-one’s divorce can be compared to yours as each party has a unique set of circumstances.
LIsa Beth Older
Your NYC Divorce Lawyer