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News about Divorce Law in New York State
Articles on New York Divorce Law
Dec 2018Family Offense
Oct 2018Can I apply for Custody?
Oct 2018Must I sue for custody?
Oct 2018WHAT IS A RJI
Sep 2018Who will get custody in New York?
Aug 2018Can I sue for abandonment?
Jun 2018What is Mediation?
May 2018What will happen in Divorce Court?
CAN FAMILY COURT HELP ME IF I CANT AFFORD A LAWYER?
August 30, 2018
Family Court is a place to seek immediate relief if you are undergoing a crisis in your family. There is a family Court in every county in New York State. Family Court is user friendly for family members that need help quickly, Some examples where Family Court can help you are in the following areas are filing for an Order of Protection if you are being abused at home, which can result in a stay away order in your favor, seeking custody of your child, seeking visitation of your child or establishing paternity if you suspect you are the father of a child and you are unmarried or else your spouse is disavowing responsibility.
In Family Court the other issues they deal with and they can help you with are Adoption, foster care, guardianship.
You will find that they are a very helpful and user family. You simply enter the court house and ask for the help desk. If you have no money to hire a lawyer then Family Court will assist you in filling out the paperwork. The laws change so it is good to know what are in the forms. You can familiarize yourself with the flattest forms by visiting the nygov web site at https://www.nycourts.gov/courts/nyc/family/. They list the approved forms you will need in order to petition for assistance.
When you file for relief in Family court there are rules of procedure you must file or your case will not be docketed properly and you may never get to see the Judge or Support Magistrate.
First, be sure you prepare your form and notarize it at the bottom. Make sure you set forth the assistance you need and the relief sought in the body of the petition. Be sure you make a few copies and then have the court clerk review them. You can find the court clerk’s office by asking the court officer as you enter the building. You next must serve the Respondent with the papers you filed with the court clerk. This will be standard procedure as you go through the various stages of your case. The last part is very important. After you have personally served your paperwork on the Respondent you must then have the process server fill out an Affidavit of Service that you must file with the court by bringing it with you to the next court date as that will be the first thing the court will ask of you. I find the Judges to be very civil and even helpful so do not hesitate to go to court alone if you have to. But it is recommended that you take an experienced New York Divorce or Custody lawyer with you to court.
Can I sue for abandonment?
August 2, 2018
Abandonment is still grounds for divorce in New York. The Courts will try to steer away from having you proceed on these grounds because it is expensive, and might require a jury trial. Instead they will encourage the parties to proceed under the ground of irreconcilable difference.
There are different types of abandonment such as the New York courts recognize "constructive abandonment" which is when one spouse or the other refuses to have sexual relations with the other spouse for a continuous period of one year.
Abandonment can have serious economic consequences for the family especially if there are children involved. For this you may seek immediate relief in Family Court for such items as child support, health insurance, spousal support and child custody. Seek one of the best attorneys you can find.
When filing in Family Court you can expect that the case be transferred over to Supreme Court at some point to be consolidates with your divorce action should your spouse file there after you filed in New York Family Court. This is because the Family Court has no power to grant you a divorce or divide up marital property. But Family Court is a good place to start if you lack resources. Always remember to apply for a free lawyer in both courts if you lack funds to prosecute your child custody case.
Try the Law Offices of Manhattan Divorce Lawyer Lisa Beth Older. We have thirty two years of experience dealing with such matters.
You can read more about her agt www.nycdivorcelawyer.net
THE BEST DIVORCE LAWYER LISTENS TO YOU!
July 30, 2018
THE BEST DIVORCE LAWYER LISTENS TO YOU!
When you are looking for a divorce lawyer you want someone who will listen to you. As a NY Divorce lawyer, I know that my clients will tell me exactly what they need and what I need to advance their case. Whether you are a male or a female matters naught. Each is a person in their own right wo have certain expectations as to what they want out of their divorce and to the extent possible under the law I try to provide that service. That means paying attention to what a client would like to see as an outcome. While a client’s wants list is not always going to be satisfied your divorce attorney should at least try. If you do not not ask or demand you will not get anything out of your divorce settlement.
A skilled and experienced New York Divorce Attorney will give you the best possible legal advice to have you move your case forward at the quickest rate possible without sacrificing professional aggressive and assertive advocacy of your rights and needs.
Matrimonial law is a complex set of laws that involves the immense discretion of the court in determining what is in the best interests of your children and what is fair and equitable. While there are strict guidelines the court applies, there is always room to deviate from those guidelines when the facts so warrant deviation. That is why you need a divorce trial lawyer who is willing to take your case all the way to a trial or even an appeal.
Let us say, for example, that the child support guidelines say that you should only get 17% of your spouse’s income up to $148,000 for purposes of child support. If that amount does not meet the child’s needs you can always apply for additional funds. The guiding light of every case is to meet the needs of the child and there are many statutory factors a court may apply to justify awarding more support.
The same goes for spousal support. Let us say that you are only entitled to three years of spousal support under the statute calculated at the cap of $184,000 per year of your spouse’s income. If your spouse earns one million dollars and if you are disabled., for instance, a court is allowed to lift the cap and perhaps order additional support in terms of amount and duration.
As far as equitable distribution goes, the same rules apply. Remember that the Supreme Court in New York has an abundance of power to fashion relief as to distribution of property. Let us say for example that you contributed more to the marriage, it was a short term childless marriage and your spouse stayed home and did not contribute even to the extent of homemaking, the court could award more than 50% of the assets to you.
So, remember, in closing always tell all the facts and circumstances of your marriage to you lawyer and see if they listen to you or cut you off. If they cut you off and prohibit you from relaying the facts then it may not be the right lawyer for you!
I hope this helps you in your decision as to how to choose the best New York divorce lawyer.
Can I file for Divorce in New York State if I just moved here?
July 24, 2018
I have lived in New York for less than one year. Can I file for divorce in New York?
In New York you can only count on certain residential requirements before filing an action for divorce.
They are specific and set forth in the Domestic Relations Law.
You are permitted to bring a divorce action in New York but the best way to do it is to be sure you comply with the residence requirements or your case could be thrown out of court in which case you will not be granted a divorce.
A court has the power to grant you a divorce, separation or annulment under the below enumerated categories:
1. The Parties must have been married in New York State and also one or the other of the two parties is presently a resident of New York when the action is started for a period of one (1) year entire year contiguously prior to the filing of the divorce, annulment or separation action.
2. Both spouses resided in New York, but not necessarily married in New York, as husband and wife and one of the spouses was a resident of New York State at the time of the filing of the divorce, annulment or separation action for one (1) year period just prior to the commencement of the action.
3. The grounds of the divorce action occurred in the State of New York and either party was a resident of New York State continuously for one (1) year period immediately prior to the filing of the action for divorce, separation or annulment.
4. The grounds or cause of action occurred in New York and both parties were residents of this State when the action for divorce, annulment or separation was commenced.
5. Either of the spouses were a resident of the State of New York for a period of at least two (2) years or more immediately prior to the filing of the divorce annulment or separation action.
If you take a look at number “4” above it is very interesting because let us say the husband and wife lived in New York for two months but the husband assaulted the Wife and treated her in a cruel and unusual manner. In this example, the Wife does not have to wait for one or two years before filing her action for divorce, annulment or separation, she can do so immediately.
Other than that, the waiting period is usually one to two years, depending on whether all of the other requirements in each of the above paragraphs are met.
Because of the strict residency requirements be sure to tell your New York divorce lawyer about the circumstances of your residency before hiring a lawyer to pursue your divorce as it is critical for the lawyer to know whether you meet the criteria for filing an action for divorce.
Also, just because the parties do not meet the residency requirements it does not necessarily mean you cannot negotiate an amicable settlement with your spouse out of court. You may also opt to file in a State where you meet the residency requirements so long as all of your financial issues, support issues and custody issues are resolved
In thinking about filing for divorce in New York you must also be aware that even though you might be able to get a judge to give you a divorce sometimes the Court in New York has to defer to another State in deciding the ancillary issues of custody and equitable distribution because there are other laws that dictate whether the Court in New York has the power to dispose of all of the issues in your case. For instance, let us say you own real property in another state and you are contesting how to distribute that property. You will then have to file a separate action in that State for equitable distribution since New York would not have in rem jurisdiction to decide that matter for you.
In sum, this is for informational purposes only and shouldn’t be construed as legal advice so you should always consult with a lawyer before making any decisions as to divorce.
Reasons why you might want to finalize your divorce before the end of this year
July 21, 2018
Here are some reasons why getting a New York divorce before the end of the year might be a good or bad idea, depending upon which of the two spouses is on the receiving end for spousal support.
If you are going to be the paying spouse, you might want to start thinking of getting a divorce before the end of this year. That is because the new tax law that went into effect says that all Americans who finalize a divorce Agreement after December 31, 2018 will no longer get a tax break. It used to be that the spouse that was paying the other spouse “alimony, which we refer to as spousal support or spousal maintenace in New York, got to take the amount paid as a deduction on his or her Income tax return while the person receiving the money had to pay taxes on it.
That is no longer the case. So, if you are the wealthier spouse who is likely to be paying support for your spouse, you might want to speed up the process as best you can and get your divorce agreement or stipulation of settlement finalized before the end of this year. After December 31, 2018 you will no longer have this deduction available to you. Also, the recipient spouse will no longer have to pay taxes on the amount received.
By Lisa Beth Older, Esq. A Manhattan Divorce Lawyer striving to give you the best possible information available to her..
WHAT HAS CHANGED IN MATRIMONIAL LAW IN NEW YORK
July 4, 2018
WHAT HAS CHANGED IN NEW YORK MATRIMONIAL DIVORCE AND SUPPORT LAW SINCE 2017
As of March 1, 2018, the revisions in the child support law reflect a mandatory increase in the combined parental income cap used to compute child support under CSSA Guidelines to $148,000, as required by Social Services Law 111(i)(b). Of course, the Court may deviate upwards by lifting the capped income of the parties if the CSSA guideline amount fails to cover the needs of the subject child/children. Furthermore, these revisions also include changes to the Self Support Reserve and the Poverty Income Level.
Other changes are an increase in the annual income cap that can be captured for purposes of calculating the amount of spousal maintenace. It used to be $178,000.00 but has now been increased to income up to $184,000.00 as per the 2015 Maintenance Guidelines Law.
To comport with the changes in the law, and by the Administrative Order of May 21, 2018, the Uncontested Divorce Packets were modified, so adopting these above stated changes. These revisions were made to comply with the changes in the law set forth in 22NYCRR 202.50(b)(2) and 22NYCRR 202.50(b)(4) and effect the forms you are required to file in order to get a divorce judgment.
What is Mediation?
June 9, 2018
What is Mediation?
Make no mistake about it. Divorce is a rough process altogether but when you and your spouse are not in agreement on a variety of issues the process quickly becomes more unspeakably onerous and uncivil.
For some people, the Court Room is the only way to air out and settle differences by having a neutral party, the Judge, who points out to the parties and their lawyers how a case will likely be determined after a trial and if that does not happen, to try the case. But that is not the only option. You can also choose mediation. If you are a private person you might like to keep your dirty laundry out of the public eye and opt for mediation or collaboration instead in a setting that is more relaxed. If you are living in Manhattan, mediation with our law firm is a good choice. Though this firm has over thirty one years’ experience in litigating new York divorce cases, we also find that mediation or collaboration is just as highly effective if not more so. Manhattan residents will find qualified attorneys who can work with both spouses to achieve a just result and arrive at an agreement and you would probably want a Manhattan divorce lawyer or Manhattan custody lawyer to accomplish this as each county in New York has a somewhat different take on the law that governs your case.
After a mediated agreement is reached you do not have to sign it as yet. Then, teach party has the agreement reviewed by independent counsel to ensure that the agreement arrived at in mediation comports with their understanding and you will save a lot of time, money and aggravation in proceeding thus since the second attorney is only hired for the review process, not tear it apart.
By Lisa Beth Older, your NYC DIvorce Lawyer
Manhattan Divorce Lawyer discusses the best divorce case scenerio
May 20, 2018
The Best divorce case is one that never has to go to Court. If you and your spouse feel it is necessary to divorce then you both should try to hire collaborative divorce lawyers that know how to compromise and make deals for your family that will best preserve your assets and your mental health. As a divorcing couple you may not feel fondly toward one another but if you are required to co-parent then in that circumstance it is best to keep the heat down during the divorce proceeding and try to settle your differences through compromise. +lawofficesoflisabetholderNewYorkNY or https://plus.google.com/+LawOfficesofLisaBethOlderNewYork
How do you calculate sousal support and child support in New York?
May 20, 2018
The New York Courts.gov website has a valuable tool you can use to estimate and calculate your support obligations and rights.
I provide the link for you here, but be sure you consult with a divorce attorney before accepting any result as you might be missing legal information needed to make the right calculation. This is provided for informational purposses only.
Come see me on line.
What will happen in Divorce Court?
May 6, 2018
This is a very generalized statement for educational purposes only as to what a divorce looks like if the parties are contesting the divorce. This guideline set forth below under New York State Law is what you might expect to see but no guarantees are to be read into this article as litigation is hazardous for both parties and wrought with uncertainty. Also, variations will occur as each couple’s divorce is different from the next. However, the steps are pretty much the same. Any divorce, is covered under the umbrella terms of a “Matrimonial Action”, that is, a divorce affects the marital status of the parties involved as well as the financial settlement of support and assets. Whichever spouse begins it is irrelevant. When an action is commenced an “Index Number” is assigned to the case for record-keeping purposes. Starting an action and “Purchasing the Index Number” are sometimes used interchangeably. We have already done this part.
After service of the Summons, and after settlement talks fail, the parties usually file a request for judicial intervention, or a motion, or both. The parties appear in court for some kind of OSC or motion for immediate or temporary relief. The relief requests may include a request for exclusive occupation of the parties’ home, payments for support, restraining orders, counsel fees etc. while these “Motions” may award only temporary relief, they are highly important to the outcome of the action. Courts like to continue patterns. If the “Motion” made by either party is necessary for some financial matter, then the parties will need to disclose (show the court) relevant financial documentation, including pay stubs, bills, bank information and / or recent tax returns. The Court has 60 days to rule on Motions. Sometimes it can take up to three to four months or more before they decide the motion, however, depending on the Judge and you never want to rush a judge or they might hold it against you.
During the first court appearance, the Court also holds a PRELIMINARY CONFERENCE. This first appearance is long as the court maps out a time line setting forth dates that the attorneys must follow to complete financial exchange and possible depositions. The parties’ attorneys and Court must all sign it. On this date the court also holds a conference with the attorney to narrow down the issues and try to solve them, and to encourage the parties to settle. The Court will impart how they see your case and how it should settle but you are not required to follow their suggestion.
We then go back to court every month or so as the court controls its calendar to ensure attorneys are making progress along the terms set forth in the preliminary conference Order. The Judicial Guidelines say this process should take 9 months max, but often it goes on beyond nine months This can go on for months to years depending on the complexity of the issues. In your case, though, depending on the Judge assigned, with no children I would say the range is 9 months to 1.5 years but do not hold me to it as I do not have a crystal ball. At any time during each court appearance the court will put enormous pressure on the parties to settle reasonably. Whoever caves in first and gives away the case at the demand of the other spouse usually loses on his position, so you need fortitude.
As stated above, the parties may choose to settle the action, at any stage, if it is at all possible for them to agree to the distribution of assets, property, and support matters, and any other outstanding issues. If such a resolution is possible at any time, the parties will sign an agreement known as a Stipulation of Settlement or Separation Agreement, which will dictate the terms of the parties’ separation. The terms of the agreement may be incorporated with the terms of any divorce granted and you no longer have to go to court, the lawyers do the rest. This can happen at any stage of the proceedings, whether in or out of court. Often life intercedes and one party or the other caves in and settles for a multitude of reasons.
If no settlement of the action occurs, or if wither party is unsatisfied with the financial documents produced and exchanged, the Court adjourns the case for two to three times more for the attorneys to exchange all the financial documentation they need from the other party. If dissatisfied the attorneys have the right to insist upon depositions or EBTs, which stands for Examinations Before Trial. During an EBT, each is asked to give testimony regarding the marriage, including any alleged grounds for the divorce, and the financial affairs within the marriage. The Defendant’s attorney asks the Plaintiff questions, and the Plaintiff’s attorney asks the Defendant questions. EBTs are recorded through a stenographer, who is present to transcribe a written record of everything that is said by each person in attendance.
Through motions, EBTs, and production of documentation regarding the marriage, each parties’ attorneys try to determine the manner in which the marital property ought to be awarded by the court, and the amount and duration of support, and they argue to the judge their respective positions. In NY, the marital property is divided pursuant through a process known as "Equitable Distribution", which divides the marital property based on a number of factors, including the parties’ current financial status, their health, and ability to be employed, among other items.
If after Depositions or during this process your action is not resolved through negotiations or settlement, you will go back and forth to the Court for what is called COMPLIANCE conferences. After a period of time the Judge loses patience and then the action moves into pre-trial court conferences and further negotiations before the assigned judge. This can go on for months to a year and a half, sometimes longer but only if the issues are complex. Again, no guarantees on time lines. If, once again, there is still no resolution to the parties’ disputes, then the case will proceed to a judicial trial, where you present your evidence and make your legal arguments wherein a judge or Referee will make a decision regarding any outstanding issues. Even at this stage, there is still opportunity for the parties to agree upon a settlement, which is “read into the record” before the court. The judge will then sign off on the terms of this agreement, which will make the parties bound to the terms of the divorce. Of course, the judge still retains the right to make any decisions regarding the divorce if no agreement is reached.
Every Divorce Case is Unique
Unfortunately, while this description may offer a simplified outline of a contested divorce proceeding, it cannot predict the course of your own divorce case. While some divorce actions are resolved in a period of a few months, others are not resolved for several years if the case involves complex issues of finance or custody. In general, the duration of any divorce action is dependent upon numerous factors, including the parties’ willingness to compromise, the financial assets of the parties, support, and the court’s ability to hear the action within a given timeframe.
Law Offices of Lisa Beth Older