May 2016 Archives

Maintenance (other states use the term "alimony") is determined by a number of issues relating to a marriage. It may be temporary or permanent. Although it is not a given right to either spouse, the courts will generally order a certain amount of spousal support based on the following factors (this is a non-exhaustive list): duration of the marriage, income of both spouses, age of both spouses, health/special needs of either spouse, circumstances surrounding spousal support are unique to each couple, and therefore the court uses its discretion when determining maintenance orders. In most cases, attorneys' fees for matters surrounding maintenance are paid for by the spouse with the higher income. Indeed, in 2010, New York passed statutes making interim maintenance & counsel fees presumptively awarded on all cases involving a higher-earning spouse versus a lower-earning spouse. Additionally, as with child support orders, a maintenance order may be modified if the court can be shown there has been a substantial change of circumstances in the life of either party involved (though if there was a valid written agreement such as a "stipulation of settlement" or "separation agreement," the standard to modify may be "unanticipated change of circumstances").

Maintenance (other states use the term "alimony") is determined by a number of issues relating to a marriage. It may be temporary or permanent. Although it is not a given right to either spouse, the courts will generally order a certain amount of spousal support based on the following factors (this is a non-exhaustive list): duration of the marriage, income of both spouses, age of both spouses, health/special needs of either spouse, circumstances surrounding spousal support are unique to each couple, and therefore the court uses its discretion when determining maintenance orders. In most cases, attorneys' fees for matters surrounding maintenance are paid for by the spouse with the higher income. Indeed, in 2010, New York passed statutes making interim maintenance & counsel fees presumptively awarded on all cases involving a higher-earning spouse versus a lower-earning spouse. Additionally, as with child support orders, a maintenance order may be modified if the court can be shown there has been a substantial change of circumstances in the life of either party involved (though if there was a valid written agreement such as a "stipulation of settlement" or "separation agreement," the standard to modify may be "unanticipated change of circumstances").

Maintenance in New York is the equivalent of what other state's call "alimony." It's intent is to enable a recipient spouse to get back on his/her "financial feet" after getting a divorce from the more-monied spouse.

War story from a past potential client
A guy came in to see me saying the mother of his child was suing him for 50% of college expenses. He said he was already paying basic support & simply didn't have any money left. I reviewed his settlement agreement - it clearly said he was to pay for college. Bottom line: he was screwed! Lesson learned: save for college when they're young!

Overtime counts, too!
Many non-custodial parents think that child support is just calculated on his/her base salary. Think again! All income counts, so this will include overtime or income from a 2d job. As such, if the custodial parent threatens to sue for child support, you may wish to consider cutting back on overtime, or giving up that 2d job - or else you may be stuck with having to keep earning that income whether you like it or not.

Some people share custody of their child - which means exactly 50%-50% in each household. The issue then becomes whether child support is paid at all - and if so, how much.

Especially since the '08 financial crash, many people have lost their job. However, don't assume your child support order will automatically go down.

Especially in New York City, there are many "document service companies" which have offices, particularly in low-income neighborhoods, promising to do "uncontested divorces" for cheap prices. Unfortunately, many people go with such places because they simply cannot afford the higher fees attorneys much charge (given our many more years of schooling & experience).

Be proactive & divide some assets before even retaining the lawyers
If you need money to pay for your attorney, pay large bills, etc., you're best advised to secure those funds before the divorce is even filed. Once the case is filed, as stated, you may be restrained from accessing certain funds without consent of your spouse. As such, if there's a house which needs to be sold, go ahead & sell it (with, of course, the consent of your spouse) before the case is even filed. If there is a dispute as to credits owed to 1 party, or debts which need to be paid, then evenly split the undisputed funds & place the remainder in the escrow account of 1 of the attorneys.

Many potential clients ask whether it's better to merely get a legal separation, or proceed with filing a divorce case. This Guide will explain the basic pros & cons of each.

There are instances in which one spouse is the "breadwinner" of the family - and then abruptly leaves the marital residence and refuses to support the family. The remaining spouse should have a game-plan on what steps to take.

I've seen many signs & Ads posted throughout the Bronx, Yonkers, New Rochelle & Mount Vernon advertising to do divorces for "$299" or "$399." Many such ads strongly imply you're hiring an attorney or that they're just as good as attorneys - guess again.

Sometimes a spouse is disabled - even in a nursing home, mental facility or rehabilitation center. The question becomes if there are "things to know" regarding how to proceed.

There are many different types of assets - other than houses & Condos - which are valued & divided in a divorce case. I cite herein to the list as stated in the treatise "NY Law of Domestic Relations," West Publishing by Alan Scheinkman.

I get this question a lot & of course the answer depends on how extensive the litigation gets. The more I have to do, the more the client gets billed. But some guidelines on the expected costs are provided below.

Often a share of significant assets can turn on the precise definition of what constitutes "marital property" versus "separate property." In a nutshell, a non-title-holding spouse gets a share of marital property, but does not share in separate property (though there are many exceptions to this).

Q: Separated from wife, marital home was in Long Island...Home was a short sale in 2014. I have been living in OC, NY. Want to file for an uncontested Divorce have 3 children with wife and the youngest is 20 will be 21 in August. No reason to contest what hidden cost should I expect.

Q: Have the kids? If my girlfriend is there?

There are instances in which one spouse is the "breadwinner" of the family - and then abruptly leaves the marital residence and refuses to support the family. The remaining spouse should have a game-plan on what steps to take.

Sometimes a spouse is disabled - even in a nursing home, mental facility or rehabilitation center. The question becomes if there are "things to know" regarding how to proceed.

Often a share of significant assets can turn on the precise definition of what constitutes "marital property" versus "separate property." In a nutshell, a non-title-holding spouse gets a share of marital property, but does not share in separate property (though there are many exceptions to this).

Q:  I had a financial trial with a special referee hear and determine. The judgment of divorce has many accounting mistakes regarding equitable distribution of assets. The judge double counted many things. Can I appeal it to correct the typos or is there a quickest way? The judge doesn't want to hear about it.

Q: violations, and we modified the order together w attorney for the child and judge. In open court though, ex constantly interrupted and cut me off while I was speaking, and even trashed me about child support which I've paid! Attorney for the child reminded her that this isn't support court. My question is do you think the judge may have noticed my ex's behavior?

First let's define the terms. A general practitioner is an attorney who does several different area of law. For example, s/he does 20% Family Law, 30% property, 20% criminal, 25% civil litigation & 5% landlord/tenant. An attorney who concentrates in an area of law will do that area of law roughly 2/3 of the time (or more).

Sometimes a father is sued for child support - or threatened to be sued - demanding support despite already supporting a child from a previous relationship. There's a couple of options here to ensure proper credit.

Q: My ex is trying to relocate my daughter to NC. She is 12 and has no extended family there and has all her family and friends here in NY>

Q: I've been divorced since 2011. March of this year, I settled in court for maitnenance payments. which was an order in court decree. My attorney has not drawn up the paperwork yet, and the only reson I know is beacause after calling him numberous times and he not responding to me Ieft me no choice but to call the court clerk, and they are waiting on him to prepare the DRO so they can commense and send docs to the NYS Retirement plan. Is there any legal way I can speak with someone in the courts about this situation. Lost for words. Desperately need help in this matter. Thank you.

Q: the house.She put an add up in craigslist to party with her with cocaine. in exchange for sex I caught her and she left the house willingly,I went to court Judge said she cant leave state.. because she was living in conn. the judge said she needs supervised visitation. one hr a week .Tomorrow is Mothers day, she wants to pick up the boys with her dad and take them out for the day.once before she tried to take them from me.shall I trust her to ytake the boys for the day? it is Mothers day?how do I also get her punished for child endangerment and child abuse? I have all the proof on her.

Many people are unaware that domestic violence is NOT limited to disputes among married persons. Domestic violence can also occur between family members or intimate partners. In New York, the allegations may include (this is a non-exhaustive list): Assault, Harassment, Stalking & Disorderly Conduct. New York law was recently amended to allow for restraining orders or orders of protection to anyone who is involved in an intimate relationship (generally termed "boyfriend" or "girlfriend" relationships).

Especially in New York City, there are many "document service companies" which have offices, particularly in low-income neighborhoods, promising to do "uncontested divorces" for cheap prices. Unfortunately, many people go with such places because they simply cannot afford the higher fees attorneys much charge (given our many more years of schooling & experience).

Many people don't consider the steps which need to be taken to enforce a violation of a divorce decree - and thus make mistakes in the process.

Some parties have money in bank accounts or assets in a portfolio and are now contemplating a divorce. How should they proceed?

NY now recognizes gay marriages. That said, at least 50% of all marriages end in divorce. While it may be that gay marriages will statistically turn out different than heterosexual marriages, it remains to be seen. Nevertheless, one can bet a significant minority of gay marriages will end.

Sometimes people separate from their spouse & thereafter that spouse disappears. The question becomes how to proceed with a divorce case if the spouse's whereabouts cannot be ascertained.

With the increasing cost of housing, many intact couples do not find they have a ton of money left over after paying their mortgage as well as their basic living expenses. When those same couples split up, however, they may be left with less money than is necessary to meet those expenses.

NY has statutory factors that the Judge must consider in dividing marital assets, debts & property.

Sometimes it makes better sense to pay off one's debts prior to filing for divorce.

As reiterated in a recent New York Court of Appeals decision (Galetta v. Galetta), separation agreements and pre-nuptial agreements must be properly executed (in the same manner a deed is executed) and must be notarized. The failure to do both of these items will almost always result in the agreement being invalidated.

Maintenance (other states use the term "alimony") is determined by a number of issues relating to a marriage. It may be temporary or permanent.

Maintenance in New York is the equivalent of what other state's call "alimony." It's intent is to enable a recipient spouse to get back on his/her "financial feet" after getting a divorce from the more-monied spouse.

I must first caution, no matter how tense the situation may be around the house, do NOT move out of the house & leave the kids with the other parent. This will automatically put you behind the 8-ball in winning custody.

If circumstances change, and there is a basis to file for a change of custody, don't delay - or else Judge may think you've acceded to the situation.

If circumstances change, and there is a basis to file for a change of custody, don't delay - or else Judge may think you've acceded to the situation.

Sometimes parties settle on custody, but then 1 parent wishes to move with the child or children out-of-state.

The overall standard is the "best interests of the child." Within that standard, the court considers "the totality of the circumstances." That said , there are a number of other specific factors that the court considers when awarding custody when dealing with two biological parents.

Q: 2007 my court order was established for $60/week for child support and $40/week for child day care. My son, however has not been to a day care in nearly 4-5 years. Instead he attends an after school program which is either free or covered by medicaid, I don't have the exact date as to when he was last at a daycare.

Q: my lawyer says its a good think the judge gave me sole custody but what does it mean in a day to day life. my ex has lots of visitation with our daughters and will be around nearly every day. what is the point of sole custody if he has tons of daily access?

Q: My boyfriend has supervised visitation with his daughter(the courts did this just to get the mother to stop with her complaints) His mother is the supervisor. He is filing for regular unsupervised visitation, and later when he has his own place within the next 1-2 years, filing for custody. The maternal grandmother has custody of his daughter. We are planning a vacation to DisneyWorld with my family for the end of August. He has asked the custodian if we would be able to take her on this trip. She will not agree until she finds out if it is ok from the mother(who does not have custody, and has supervised visitation herself). We are approaching the vacation quickly and the mother will not return his phone calls.

Q: My ex has only paid for basic tuition and some fees. He is very wealthy, What is generally included in the cost? The wording is very basic. I was under the impression that it included all the direct and indirect costs of a college education as would be at a SUNY school, as they give a number that is a total cost A college education. Nothing itemized. Also if my son is about to graduate and is past 21 who would go after him, me or my son?

Q: The situation is as follows: NY residents. Husband and I have settled custody for 50/50 arrangement. I make 10% more, and so he is requesting child support. We have agreed to my paying support until the children go to college (age 18). After that, the idea is that we will both pay college at 50/50 (he doesn't want to show assets which far exceed mine). In looking at the agreement, his lawyer did write child support until 18, but then put a large section about emancipation. He also wrote 50/50 for college, but didn't specify that my child support contribution was intended to go towards college expenses. I do not have a lawyer, but a friend of mine who has gone through this says we must specify, or else my ex could come back when the kids are 18 and ask for support, regardless of our agreement that resources be directed toward college expenses. I don't want to sign it this way if that is true. Thank you.

Q: I had a CPS fair hearing almost three weeks ago and still have not received a decision. How long does it take to receive an answer?

Q: I have been in a 5 year custody court case. I have done nothing to my Daughter. I asked the Paternal Grandmother to help me, and take care of my Daughther temporary. The Paternal Grandmother decided that she wanted to keep my daughter permanently. In January of 2015 the judge from the Idv Court granted me custody of my Daughther but the police did not act on the order because there was no place or other specific details listed on it. The other parent then Appealed the judges decison and I was informed by the Family Court that my daughter was not suppose to stay in the care of the other parent while the appeal was pending. So from the time that the order was issued until the appeal was received my daughther was in care of the other parent. I' am not getting any justice in the Court. I' am in need of getting my Daughter back into my custody.