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Monday, February 3, 2014

Report: New York Divorces to Increase as Economy Recovers

For the last several years, there was a significant downward trend of divorces across the country. But it wasn't that people were suddenly finding new and revolutionary ways to make marriages work. Rather, couples were holding onto dying relationships for one simple reason: They couldn't afford to let go. 

A new report set to be published in "Population Research and Policy Review" reveals that as the economy begins to rebound, we can expect the divorce rate to do the same. 

Securing an uncontested divorce in New York City can be done for as little as $499. 

Researchers reveal that from 2009 to 2011, there were reportedly 150,000 fewer divorces happening than what sociologists might typically have expected. In fact, divorce rates for married women fell from about 3 percent to about 1.95 percent between 2008 and 2009. However, over the next two years, the rate inched upward again to 1.98 percent. 

Conservative think tanks like The National Marriage Project hailed the lowered divorce rate as the bright side of the recession. They held that it was an indicator that husbands and wives pulled together during tough times. 

And perhaps to some extent and for some couples this was true. However, the big picture is that most couples were putting off divorce until they could afford it. 

Let's face it: Divorce can be expensive. Outside of court costs and attorney fees, routine expenses typically grow when individuals must somehow manage the finances of a separate household. This can be especially challenging if one party or the other (or sometimes both) is enduring financial hardship caused by a job loss, stagnant wages and an underwater home - all of which were extremely common during the downturn. 

Now, however, a separation is not so unreasonable as it once seemed. The fact that the economy has bounced back means that couples now may finally have the financial freedom that will allow them to separate. 

This same kind of pattern was observed in the 1930s, according to sociologists with Johns Hopkins University. The divorce rate took a nosedive during the Great Depression, but they say it had nothing to do with the fact that marriages were suddenly happier. It was because these folks couldn't afford to get divorced. 

Of course, the issue is not entirely black-and-white. For example, while joblessness among college graduates seemed to reduce the divorce rate, foreclosures for this same cohort appeared to drive up divorce rates. Sociologists say they aren't sure why this is. 

Another puzzling dichotomy is that while historically, marriages between those with less income and education tend to end at higher rates, a poor economy affecting greater numbers of people would result in fewer divorce filings. One explanation is that economic downturns don't impact whether a couple will get divorced, but rather when they do it. Meanwhile, low wage-earning spouses may not wait to file if they don't view their economic situation as temporary. 

Attorneys across the country have reported that many individuals end up walking away from a divorce once they find out how much it costs. This is particularly true for those living paycheck to paycheck. 

Our New York City divorce lawyers firmly believe that no one should be forced to stay in an unhappy union simply because they don't have enough money to walk away. We work closely with clients to determine a financially feasible solution, making it possible to move on and start the next chapter. 

If you are contemplating an uncontested divorce in New York City, call our offices at (718) 864-2011.

Additional Resources:

Divorces rise as economy recovers, study finds, Jan. 27, 2014, By Emily Alpert Reyes, The Los Angeles Times

More Blog Entries:

Bronx Divorce Courts Weigh Equitable Division of Property, Jan. 28, 2014, New York City Uncontested Divorce Lawyer Blog


Saturday, February 1, 2014

Brooklyn Child Support Modification Requests, Voluntary Job Loss and Imputing Income

Child support modifications in Brooklyn are warranted for all sorts of reasons, including a significant change in circumstances, the passage of three years or more since the last order or the paying parent's income fluctuation by 15 percent or more. 

The court will weigh these requests carefully, but none of the above factors is a guarantee that anything will change. A good example of this would be that the court finds a paying parent's downward income fluctuation was due to a voluntary job loss, and therefore rules that support will be based not on actual income, but rather by imputing income. This means the court will base your income for child support purposes on what a person earned in the past or what he or she is capable of earning, based on factors ranging from education to employment opportunities. 

This is essentially what happened in the case of Schwalk v. Schwalk, reviewed by the Supreme Court of North Dakota. A district court denied a father's request to modify his child support, which had recently been increased from $210 monthly to $930 monthly. He attempted to have it lowered to $350, but the court rejected his reasoning, and the higher courts affirmed this stance. 

According to court records, the mother and father had divorced in 2004 and had a single child together. Initially, the father was only ordered to pay $200 monthly to the mother, who was awarded primary residential responsibility for the child. 

Several years later, the mother learned that her ex's income had increased substantially, and he was earning about $92,000 annually, with a net monthly income of about $5,700. It was on these grounds that the court agreed to increase support payments to $930 monthly. 

Two years after that, the father requested modification of child support down to $350, holding that he was no longer employed by the same company that was previously used to calculate his support obligation. Further, he had moved out-of-state to live with his new wife, and his monthly income had fallen to about $2,500. He asked the court to also consider his expenses to return to the state periodically to exercise parenting time with his child. 

There was no question that his income had dropped. However, the court determined that the father had voluntarily changed his employment. As such, his motion was denied. He had to keep paying the $930 a month. 

This case illustrates why if you are responsible for paying child support, it is usually not a good idea to quit a job without careful consideration. There is a strong likelihood you will be asked by the court to justify your change of circumstance. 

Of course, there may be perfectly legitimate reasons for leaving a certain place of employment or even moving out-of-state. But if you do so expecting to take a hit on salary, be prepared to explain that to the family court judge. 

The court will sometimes grant requests for downward modification of child support payments when a parent can show a change in circumstances that is both unanticipated and unreasonable. For example, if a father loses his job unexpectedly and through no fault of his own and sends out dozens of resumes and is still unable to find work, this might qualify for circumstances under which support obligations can be reduced. However, upon his finding employment, another modification hearing could be requested. 

If you are considering requesting a child support modification in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

Schwalk v. ShwalkJanuary 2014, North Dakota Supreme Court

More Blog Entries:

New York Child Support Income Verification Can be Complex Matter, Jan. 25, 2014, Brooklyn Child Support Lawyer Blog

 


Tuesday, January 28, 2014

Bronx Divorce Courts Weigh Equitable Division of Property

Anytime a married couple decides to part ways, the state of New York requires equitable distribution of their marital assets. 

This is essentially a method for fairly divvying up what the couple accrued during the course of their union. It's not always a 50-50 split, and there are many considerations made with regard to who gets what. But one of the first things that must be determined is what exactly constitutes marital property. 

An experienced Bronx divorce lawyer can help you sort through the particulars of your assets, but generally speaking, marital property is all that which was acquired by either party during the marriage. However, there are exceptions, including property acquired prior to the marriage, property received individually as a gift, compensation for personal injuries and property characterized as separate in a valid prenuptial agreement. The title of a property is not necessarily a conclusive determination for whether it will be subject to consideration and division. 

Even though state legislators had striven for clarity in this regard, there occasionally results a dispute as to what constitutes marital property and what doesn't. When there is a dispute, it's up to the court to decide. 

That was the issue In re: The Marriage of Cardona and Castro, reviewed recently by the state supreme court in Colorado. There too, the principle of equitable distribution is adhered to in divorce cases. 

The question raised here was whether accrued vacation and sick leave could  be considered marital property under the state's divorce laws. While the trial court indicated that it was marital property, the appellate court reversed. The state supreme court, which found that so long as the vacation and sick leave were earned during the marriage, whatever value it has must be considered by the court for distribution. However, the high court found the trial court had erred because there was no evidence presented indicating the employee who had accrued the sick and vacation leave had any right to collect payment on that accrual. 

According to court records, the pair filed a co-petition for divorce in 2007, and the matter was finalized two years later. In its final divorce decree, the court indicated that the husband's unused, accrued vacation and sick leave was to be considered marital property for division. 

The wife indicated that the accrued value of this time was $23,000. Rather than seek division of this amount, the wife requested that she instead be permitted to move to Florida, with the husband given the option to use this amount to engage in parenting time exchanges with the children. In this regard, the wife's counsel requested that the vacation and sick leave be considered an economic circumstance, rather than a marital asset. 

The amount of accrued leave time was indicated on the husband's most recent pay stub, and the value calculated by his per-hour salary. 

With regard to the husband's right to collect that salary, the wife's attorney questioned the husband about whether if he were terminated the following day, he would be entitled to collect that money. The husband answered that he thought that was probably the way it worked, but he wasn't sure. That was the only testimony or evidence provided indicating the husband's potential to collect on that money. 

In its final orders, the court allowed the wife to move to Florida, and also allowed her to collect half of the $23,000 in unused leave. 

Upon appeal, the husband argued that accrued leave is not marital property. The appellate court agreed and reversed. That court held that such leave was analogous to unvested stock options or interest in a discretionary trust. As such, it wouldn't be considered marital property. 

The supreme court disagreed with the appellate panel, but narrowed the scope of the trial court's initial ruling. 

 The high court noted that courts in various jurisdictions have been split on this very issue. What was ultimately determined was that where a spouse has some enforceable right to paid for accrued sick or vacation time, as per their employment policy or agreement, such leave accrued during the union could be considered marital property. As such, it would have to be equitably divided as part of the marital estate.

However, if the court is unable to reasonably ascertain the value of that leave at the time of the split, the court should consider such an asset as an "economic circumstance." That would mean that the spouse who stands to someday collect on that leave wouldn't have to pay half the value of it up front if he or she had no way to cash it out immediately. Still, it would be considered a benefit to that spouse, and therefore weighed when considering how to fairly divide up the rest of the assets. 

If you are contemplating a divorce in the Bronx, call our offices at (718) 864-2011.

Additional Resources:

In re: The Marriage of Cardova and Castro, Jan. 13, 2014, Colorado Supreme Court

More Blog Entries:

Brooklyn Divorce Filings Surge in January, Jan. 8, 2014, Bronx Divorce Lawyer Blog

 


Saturday, January 25, 2014

New York City Child Support Income Verification Can be Complex Matter

There are few situations in which income verification for the purposes of New York City child support claims are a simple matter. 

While on the surface it wouldn't seem all that tough to determine, the fact is that anytime there is a request for modification of support, the court must carefully weigh a host of various factors. That includes one's salary, of course, but also costs for insurance, individual health and educational needs of each child, the receipt of public benefits, and other forms of outstanding debt. 

Making sure that all of these considerations are appropriately weighed - preferably in a light most favorable to your situation - requires the help of a family law attorney with proven experience. 

The case of Finch v. Finch, reviewed recently by the Mississippi Supreme Court, is a good example of the complexity of these situations. Although this is an out-of-state case and the specifics of the law can vary significantly from region to region, the general principles are applicable to parents in New York state. 

Court records indicate that in the course of the divorce proceedings, the husband worked as a boat captain in New York while the wife stayed at home as a mother. Ultimately, she was awarded $4,000 a month in alimony for 36 months, followed by $3,700 a month for 48 months and then $3,400 monthly indefinitely thereafter. 

A few months later, the ex-wife filed a petition for contempt, alleging her ex had failed to pay alimony, child support, obtain life insurance, maintain COBRA payments or disclose his address or phone number.

The ex-husband filed a counter petition, alleging the wife had withheld personal property from him and failed to pay the balance on a vehicle, as ordered by the divorce court. He said he hadn't obtained health insurance for her because she failed to undergo a physical examination. He also contended that she had fraudulently indicated that she continued to pay down the marital debts, although she had stopped paying a credit card that was in his name, causing him to incur numerous fees and a hit to his credit score. On this basis, he requested a reduction of alimony from $4,000 to $2,500. He also requested that the court declare his child emancipated because the child would not communicate with him, had legally removed his last name from his own, graduated from high school and was enrolled in college. 

During the subsequent hearing, it was revealed that the ex-wife had incurred debts in her former husband's name of which he was not aware. She also had been receiving about $730 in monthly Social Security payments, of which the court was not aware, despite requirements to submit such information. 

Based on all of this, the judge overseeing the case found a significant change in circumstances since the original decree was entered. He retroactively slashed the alimony payments in half, and also retroactively reduced the child support payments from $1,300 monthly to $900 monthly and relieved the father of any duty to pay his son's educational expenses. 

The ex-wife appealed this judgment, which was upheld by the appellate court, but later reversed by the state supreme court. While the court found clear and convincing evidence that the ex-wife had committed fraud upon the court, the primary issue in dispute was the ex-husband's salary. It apparently had fluctuated dramatically from year-to-year, and the court had failed to appropriately consider that in determining the new support obligation. Additionally, the high court found that the lower court's retroactive downward modification of child support was not appropriate. Downward modifications of child support can only be effective from the date the modification is ordered. 

Also with regard to the educational support expenses, the high court found that the lower court had erred in requiring the son to maintain a "C" average in college in order to continue to receive child support. Any modifications to child support should be considered in the light most favorable to the child, based on the parent's ability to pay, not the child's ability to prove worthy enough to receive support. 

If you are seeking a child support modification in New York City, call George M. Gilmer Esq. at (718) 864-2011.

Additional Resources:

Finch v. FinchJan. 16, 2014, Mississippi Supreme Court

More Blog Entries:

Brooklyn Child Custody Cases Must Afford Both Parties Due Process, Dec. 21, 2013, New York City Child Support Lawyer Blog


Friday, January 24, 2014

Fighting New York Neglect and Abuse Allegations

There are perhaps few things in this world more agonizing for a parent than an allegation of abuse or neglect of a child. 

It's true the state has a veritable interest in protecting children from caregivers who are cruel or fail to meet their needs. However, our Brooklyn ACS attorneys have become familiar with a number of cases in which good parents were either falsely accused or made a genuine mistake for which they were thereafter held to unrealistic expectations in order to regain custody. 

No matter what the situation, effectively appealing an indicated ACS finding of abuse or neglect will require strong representation from a legal team with extensive experience in the field. 

The recent case of In re: K.N.D., reviewed by the Texas Supreme Court, provides a solid example of the uphill battle parents face. 

In this case, the mother appealed a family court decision to terminate her parental rights to her infant daughter and make the state the sole conservator of her daughter's care. While the appellate court upheld the state's appointment as sole managing conservator, it reversed the judgment terminating the mother's parental rights, deeming the evidence legally insufficient. However, the state supreme court reversed that ruling on the basis of the mother's care of her previous child. 

According to court records, caseworkers with the state filed a referral to the court against the mother for neglectful supervision - just one day after the woman had given birth, and while she was still in the hospital. The woman was 37 weeks pregnant when she went into labor with the child, after reportedly falling down (or possibly being pushed) during an altercation with a male roommate. 

Caseworkers indicated that the woman was a prostitute, living with both her pimp and another prostitute. Her female roommate told investigators that the pregnant woman had gotten into an argument with the pimp, he put his hands around her neck and she ran from him, causing her to fall. 

An apartment worker would later tell investigators he had witnessed the incident and that after the pregnant woman managed to get up and run into the apartment, the male kicked in the door. He had to be forcibly removed by police while the woman was transported by ambulance to the hospital, where she gave birth. 

Two weeks prior to that incident, the mother had voluntarily relinquished her parental rights to an older child because she stated she could not care for the child. This was reportedly after the court made numerous demands for her compliance, which she failed to meet. 

However, she had made no indication that she couldn't or wouldn't care for this child. 

The appellate court found that for this reason, the evidence was not sufficient enough to justify terminating her parental rights. 

However, in the state supreme court's reversal and order to remand, the justices indicated that a reviewing court can weigh a parent's history with and care of other children as a possible factor of risks or threat of the environment. So her rights to the baby girl were terminated - even though the child had only been in her care for less than one day in a hospital setting. 

The state of New York takes termination of parental rights quite seriously, but parents should still prepare for a fight. Spiteful exes (or other relatives) and overzealous case workers can be a tough match.

Some of the grounds upon which a judge can revoke parental rights include:

  • Permanent abandonment of the child for at least on year by failing to maintain contact with the child and plan for the future;
  • Legal abandonment of the child for at least six months;
  • Severe or repeated abuse of the child;
  • The presence of a mental illness that would prevent a parent from caring for the child. 

Overcoming allegations of this nature can be an enormous challenge. To learn more about how we can help, call us today. 

To fight Brooklyn ACS allegations, call the offices of George M. Gilmer at (718) 864-2011.

Additional Resources:

In re: K.N.D., Jan. 17, 2014, Texas Supreme Court

More Blog Entries:

Brooklyn Child Support Attorneys Can Help Establish Voluntary Underemployment, Jan. 15, 2014, Brooklyn ACS Case Attorney Blog

 


Wednesday, January 15, 2014

Brooklyn Child Support Attorneys Can Help Establish Voluntary Underemployment

In the midst of the recession, it was understandable that many people had a tough time finding work - or at least more than part-time work. 

Under these circumstances, many sought modification of child support orders. Parents paying child support simply weren't making enough to sustain the orders that had been previously set. 

However, as the economy has improved, there may be some parents choosing to stay unreasonably and voluntarily underemployed. In these scenarios, the court will decide the proper amount of support based not on the parent's current income, but rather on his or her assets and earning capacity (as outlined in the 1976 case of Hickland v. Hickland, Appellate Division for the Supreme Court of the State of New York, Third). 

The courts will weigh whether the party seeking to lower support payments has made a good faith and diligent effort to obtain further employment, as well as whether positions matching his or her skill sets and in his or her field are readily available and whether any health problems impact one's ability to work. 

In the court's view, the scope of the job search has to extend beyond what's simply convenient for the parent so that the child doesn't unfairly burden the economic costs of parental separation. The key question is whether the underemployment is due to economic factors or purely personal choices. 

The case of Reilly v. Northrup, recently reviewed by the Alaska Supreme Court, aptly demonstrates this principle. 

Here, according to court records, the father sought a modification of child support payments on the grounds that his income had significantly fallen in recent years. Although he had retained previous positions as a sales representative at engineering firms, earning an average of $55,000 annually, he was terminated from two of those positions and subsequently opened a wedding photography business. 

It was true that he earned substantially less in this field - about $20,000 annually. However, when he secured a  job for a loan management firm earning $8.50 an hour (or $17,000 annually), he quit his wedding photography business. 

He contended that he was prevented from pursuing other employment because he suffered medical problems (a broken ankle and Crohn's disease). He also argued he could not find other work when he sought it and that a special needs daughter from a previous relationship required an intensive level of care, which he was helping to provide. 

But the court ultimately found that he was voluntarily and unreasonably underemployed. In considering the totality of the circumstances, the state high court rejected the father's claims that it was impossible for him to obtain a higher paying job. The court found that the father hadn't made a good faith effort to find anything outside the engineering field, despite the fact that he was qualified to do so. Further, the court ruled his medical conditions were not severe enough to warrant disability that would prevent him from working. And lastly, the court determined that his obligation to his older daughter did not diminish his responsibility to adequately provide for his younger children. 

A similar case out of New York in 2011, Szalapski v. Schwartz, resulted in the New York State Supreme Court reaching a similar conclusion regarding a father who sought to lower his support payments. In that case, the father was a physicist who at the time of his divorce earned $82,000 annually. The couple had three children, and support payments were based on his stated income at the time. 

The father stated that after this time, he left academics and entered the field of software design, for which he was only marginally qualified. He was later laid off and received unemployment insurance benefits in the amount of $160 weekly, after taxes. The father argued that he had tried to find employment, but had been unable to do so because there was a low demand for someone with his skills in the region. He said when he tried to find other work, he was turned away for being overqualified. However, his most recent interview had been more than year prior to the hearing. 

The court ultimately found that his search for employment was not diligent and that he failed to search outside the immediate geographical area. As such, he was deemed voluntarily underemployed and denied a child support modification. 

Timely production of ample evidence will be key in determining the outcome in such cases. 

Questions concerning Brooklyn child support modification orders can be answered by calling our offices at (718) 864-2011.

Additional Resources:

Reilly v. NorthrupDec. 20, 2013, Alaska Supreme Court

More Blog Entries:

Fighting New York ACS for Child Reunification, Dec. 26, 2013, Brooklyn Child Support Lawyer Blog


Tuesday, January 14, 2014

Fighting Order of Protection in New York City

There is no question that domestic violence by abusive partners is a serious problem, and that situations exist in which protections are legitimately needed. 

What is equally true is that sometimes, domestic abuse allegations are lodged against a person for the sole purpose of gaining the upper hand in a contentious child custody dispute or to receive preferential treatment in court proceedings. These allegations are not reflective of the truth, and can reflect negatively on the accused, and may also jeopardize one's career, personal relationships and reputation. 

Fighting a protection order in New York City is going to require the aid of an experienced attorney who can help gather evidence to disprove the allegation. Judges do understand the serious implications of a protection order - even a temporary one - and will not be inclined to grant the request if the accuser is proven dishonest. Once finalized, an order of protection can drastically impact a defendant's life and so fighting the allegations from the outset is typically the best course of action. 

False allegations are more common than one might think. One of the worst things someone in this situation can do is not hire or a lawyer or fail to show up to court. Either one of these can leave the accused vulnerable to unfair or unreasonable requirements by the court, as they will be largely based upon the position of the accuser.

An order of protection will have very specific and immediate consequences. Each order will differ, depending on the circumstances, but generally, a judge can order an individual to have no contact with the accuser or the children the two share in common. That contact often extends beyond the physical to phone calls, text messages and other forms of electronic communication. A protection order can also result in the accused being forced to move out of the shared home and may bar the the accused from possessing a firearm or consuming alcohol. 

Beyond that, there could be consequences to one's immigration standing. If a person is convicted criminally for domestic violence and is a non-citizen, this could be grounds for immediate deportation. It doesn't matter if the person has lived here 30 years, has purchased a home, has a stable job and extensive family here in America. 

An order of protection could have the same effect if it's violated. 

Orders of protection can be issued by the criminal court, but can also be obtained in family court. In and of itself, a protection order may not constitute grounds for deportation, but it certainly won't help you, particularly if you are actively seeking citizenship. Plus, if you violate the order in any way, that IS considered a crime, and could be grounds for deportation. 

Another potential motivation for false allegations of domestic violence is that in some situations, legal aid will assist accusers in expediting immigration applications. This can provide a powerful motivator for someone who simply wants a divorce or separation, but doesn't want to risk their immigration standing. 

False allegations of domestic abuse are also fairly common in cases where there is a bitter battle for child custody. Accusers know that the courts will weigh the case in terms of whatever is in the best interest of the child. Showing that the other partner is somehow unfit - or worse, violent - can prompt a judge to set an arrangement that favors the accuser. 

Unlike the standard of proof required in criminal court, grounds for orders of protection do not need to be proven beyond a reasonable doubt. This lower proof threshold means that it's up to the accused to show why such an order is unjustified. Given the seriousness of potential consequences, experienced legal help is always warranted.

If  you are trying to fight a false order of protection New York City, call our offices at (718) 864-2011.

Additional Resources:

Obtaining an order of protection, NYCOURTS.gov 

More Blog Entries:

Fighting Brooklyn Child Custody Case Without Attorney is Unwise, Jan. 6, 2014, New York City Family Law Attorney Blog

 


Friday, January 10, 2014

Obtaining a Brooklyn Order of Protection Against a Violent Partner

For weeks, we have been hearing about the dangers of the extreme cold that has gripped most of the country. 

But it's not just the frostbite that puts people at risk.  "Good Morning America" reports that extreme winter weather, the kind that keeps couples and families cooped up inside for days on end, will inevitably result in an uptick of domestic violence. Law enforcement officials refer to this as "cabin fever," and note that those who have few resources to begin with have even fewer resources in extreme weather conditions. It can be tough if not impossible to take the children and leave. There may be no transportation and no place to go. 

For some victims, this might be the first time their partner's violent streak is revealed. For others, it's just the latest episode in a long struggle. 

Whatever the situation, it may be an appropriate time to think about leaving the relationship for good. Recognize however that doing so can be dangerous and requires careful planning. One of the first steps you will likely need to take is to filing for a protection order.  

An order of protection is issued by the court to limit or curtail the behavior of someone who has harmed you or has threatened to harm you. A protection order can order the offending party to: 

  • Keep away from you and your children;
  • Move out of your home;
  • Refrain from possessing a firearm. 

When the request is made in family court, it's a civil proceeding. You do not have to be married to receive a domestic violence protection order in New York. These orders can be issued to a current or former spouse, but they can also be obtained against anyone with whom you share a child, a family member to whom you are related by blood or marriage or anyone with whom you have an intimate relationship. (An intimate relationship doesn't necessarily need to be sexual, though if it is not, the court will carefully weigh several factors to determine whether it qualifies as intimate.) 

While some question how much protection such an order can truly offer - after all, it is merely a piece of paper - keep in mind that it is a crime to violate a protection order, whether temporary or final. If the order is not obeyed, the offending party will be arrested on the spot.

A violation doesn't necessarily mean another violent encounter. It could be simply that he is circling your home in his vehicle. Even a phone call, e-mail or text could violate the order and result in an arrest. 

If you aren't interested in having the party arrested, but want the violation documented, you have the option of filing the violation in family court. Most of the time, this won't result in an arrest, but it can help to bolster your case if you are fighting for child custody or seeking a quick dissolution of the marriage. 

Keep in mind that people who are violent have anger management issues, and it's likely that announcing you are leaving them is going to set them off. That's why we encourage the process to be done as quietly as possible. Our Brooklyn family law attorneys are experienced in handling cases involving domestic violence, and we can work with you to help you plan an effective strategy for obtaining an order of protection and if you're married, ultimately, a divorce. 

To learn more about filing an order of protection in Brooklyn, call our offices at (718) 864-2011.


Additional Resources:

'Cabin Fever' in Cold Weather Can Cause Uptick in Domestic Violence, Experts Say, Jan. 8, 2014, By Susan Donaldson James, Good Morning America

More Blog Entries:

Filing for a New York Divorce From a Spouse in Prison, Jan. 4, 2014, Brooklyn Family Law Attorney Blog


Wednesday, January 8, 2014

Brooklyn Divorce Filings Surge in January

January has earned a well-deserved reputation as being "The Divorce Month." It's a time of new beginnings, which also means that other chapters must come to a close. 

It's estimated family law firms see a 10 to 25 percent increase in divorce filings at the start of each new year. 

The reasons are varied, but generally, it's a decision those involved have been mulling for months. Few people want to make a break during the holidays, especially when children are involved. They don't wish for the holidays to be associated with negativity.

Alternatively, there are a fair number of people who reach a definitive conclusion to file for a Brooklyn divorce because of disputes that arose during the holidays. Emotions tend to run high during this time anyway, and when you are already unhappy in your union, that kind of stress can push a marriage to the breaking point. 

The first Monday after children return to school from winter break sees a particular spike in filings. 

But there are other, perhaps more pragmatic reasons, why filing for a divorce in January makes better sense than at other points in the year. 

To start, many people receive a year-end bonus, which arrives either late December or early January. While our offices offer options for a low-cost, uncontested no-fault divorce in Manhattan starting at just $399, most divorces cost more to ensure a client's rights are protected throughout the process. 

The courts have found in some cases that once the divorce action is filed, the marital partnership ends. Accrual of what is considered marital property also ends on that date. So if your spouse is the one receiving the bonus, waiting until after that check is received can help to clarify this income as marital property. That means that you would be entitled to a share of it in the property distribution phase of the proceedings. 

Another reason to file in January has to do with the tax implications. A divorce is more than likely going to require a significant rearrangement of your finances. By filing for a divorce in January, you have a clearer picture come tax time of things like who is going to receive the mortgage interest deduction and who is going to be allowed to claim the children as exemptions on the taxes, etc. 

A January filing isn't a sure-fire guarantee that you'll meet the requirements for a different tax filing in the new year, but it improves your odds. You may also be able to more simply claim single, head of household, etc.

Most divorces can be completed within the time span of a year, so filing in January can make it easier for both parties in this regard. 

In truth, there is no "best time" to file a divorce. The right timing is going to vary for each couple, and we don't suggest rushing the decision. People need to evaluate their marriages year-round. 

But if you have reached the tipping point and are certain of your choice, it's important to recognize that there could be a number of advantages to moving forward with the filing now, as opposed to waiting. 

If you are interested in filing for a Manhattan divorce, call our offices at (718) 864-2011.

Additional Resources:

New Year Signals Divorce for Many Couples, Jan. 2, 2014, By Macradee Aegerter, WDAF-TV Fox4

More Blog Entries:

Identifying Assets in a Brooklyn Divorce, Dec. 8, 2013, Manhattan Divorce Lawyer Blog

 


Monday, January 6, 2014

Fighting Brooklyn Child Custody Case Without Attorney is Unwise

Few areas of law are as wrought with emotion as family law, particularly cases involving child custody disputes. 

This is precisely why it is unwise to pursue or fight a Brooklyn child custody case without the benefit of an experienced family law attorney. The stakes are simply too high. Not only do participants stand to lose valuable parenting time with their children, they may be forced into long-term child support arrangements that don't accurately reflect their current financial situation. 

A good example of this was illustrated in the case of Brush v. Davis, reviewed recently by the Wyoming Supreme Court. Although this was an out-of-state case and family law statutes can vary from state-to-state, the general principal of the pitfalls of pro se representation are relevant here in New York. 

Pro se representation is when a party to litigation chooses to represent himself or herself. 

In the Brush case, both parties represented themselves pro se, and the result was a confusing, drawn-out battle, wherein the mother ultimately lost and was further denied her appeal on the grounds of due process violations. Of course, had an attorney been by her side to represent her from the start, she could have assured that her due process rights were protected throughout the process. 

According to court records, the pair divorced in 2005 and at that time, the mother was awarded primary custody and child support payments from the father. 

In late 2012, the father filed a pro se motion to modify the child custody and time-sharing agreement. However, he did not file the correct forms. The documentation indicated certain relevant forms were included when they in fact were not, and the date that the mother was served the paperwork was incorrectly reflected in the court record. 

But in response to receiving this paperwork, the mother did not retain counsel either. In fact, she didn't respond at all, resulting in the clerk's office issuing a default against the mother. However, the court refused to modify the child custody case without a hearing. A hearing was held, with the court holding that because the mother was in default, the mother would be allowed to cross-examine her husband's witnesses, but would not be allowed to bring her own or testify on her own behalf. 

And still, she did not hire an attorney. 

Ultimately, the district court sided with the father in finding that there had been a substantial change in circumstance and that it was in the child's best interest for the father to be awarded primary custody. 

The court requested that both parties file financial affidavits to determine child support. The father filed one. The mother did not, although she had previously provided an affidavit of indigency prior to the hearing. The court used this document to determine that she should pay $340 monthly. 

It was only at this point that the mother retained an attorney and filed an appeal. She claimed the district court lacked jurisdiction because the father's original paperwork wasn't properly filed, she had been denied due process by the court's refusal to allow her to testify on her behalf and that the court had abused its discretion with regard to the child support determination. 

The appellate court rejected her claims, and the state supreme court affirmed this ruling.

Although the father had failed in properly filing and labeling certain paperwork, the court determined that the mother had ample time to respond to these failures - and she didn't. She failed to prove that his clerical errors resulted in a fundamental unfairness of the procedures. 

The court further found that although defaults in family law cases - the kind that would render a party unable to bring their own witnesses or testify on their behalf - are not preferable, it's up to the person in default to demonstrate why the ruling should be set aside. Without the benefit of an attorney, she didn't realize that meeting this standard likely would have been simple. But without ever making the attempt, she forfeited her right to argue this point later. 

We certainly understand that divorce and child custody proceedings are not only daunting, but also costly for many people. We work hard to keep our rates affordable. The cost of going to court without an attorney, however, can be far higher in the end. 

If you are facing a child custody fight in Brooklyn, call our offices at (718) 864-2011.

Additional Resources

Brush v. Davis, Dec. 27, 2013, Wyoming Supreme Court

More Blog Entries:

Establishing Brooklyn Child Support Change of Circumstance, Dec. 16, 2013, Brooklyn Child Custody Lawyer Blog


Saturday, January 4, 2014

Filing for a New York Divorce From Spouse in Prison

Few life events can wreck a marriage faster than a long prison stint. 

One party struggles to cope to life behind bars, the other struggles to handle the children, finances and other affairs on their own. The physical separation often becomes too much for either to bear, no matter how much love they have for each other. 

Divorcing an imprisoned spouse in New York is made easier under New York Domestic Relations Laws, as imprisonment of greater than three years constitutes grounds upon which to file for divorce. This statute allows that the free party can claim the imprisoned party "at-fault" for the divorce if he or she has been imprisoned for a period of three years or more. 

This provision is only applicable if the prisoner has been locked up for at least three years. If he or she has only been sentenced to three years, the free party cannot file for divorce on these grounds until that three-year mark is reached. You can also file for divorce on these grounds for up to five years after the imprisoned party is released. 

However, that does not mean there aren't other options. New York became a no-fault state in 2010, meaning neither party has to assign blame to the other in order to secure a legal separation or divorce. A no-fault divorce simply says there has been an irretrievable breakdown of the marriage.

While it's understandable that the freed party may want to simply initiate the filing and get it over with (particularly if the crime of which the spouse is accused is especially heinous), there can be some benefits to waiting out the three years. An at-fault divorce filing can in some instances entitle the spouse who is not at fault to receive full child custody, spousal support and/or alimony or a larger share of the marital assets. 

This is why even if your spouse hasn't been imprisoned for the full three-year term yet, you may consider filing an at-fault divorce on other grounds, such as abandonment, adultery or cruel and inhuman treatment. 

While many incarcerated spouses allow their husband or wife to file the action uncontested, recognizing the unfair position in which they have placed the other person in by committing such a crime, others fight the divorce action vigorously. Sometimes, the marriage is the only thing they have left, an they aren't willing to let it go without a battle. 

Such was the case in Jackson v. Sey, recently reviewed by the Alaska Supreme Court. 

In this case, the husband was incarcerated shortly after the two married in 2003. The wife filed for divorce five years later, while her husband was still in prison. In his answer to the divorce filing, the husband alleged that his wife had concealed property that should have been part of the marital estate. He also challenged the jurisdiction of the court, as he was incarcerated at a federal prison in California. 

When the husband failed to appear telephonically for a scheduled hearing in the case, the court granted the wife the divorce by default. 

The husband later appealed this action, but the court found that his claim to marital property was moot because the separation had occurred just weeks after the two were married. He continued to fight this issue, and was eventually granted access to his wife's bank account records, upon which he founded his claim for approximately $15,000 in marital assets. The request was denied and the case closed, specifically on the grounds that he had waited too long to file the appeal.

He filed for a reconsideration on the grounds that the divorce court only allowed him to conduct discovery after the divorce had been granted. This motion too was denied. 

However, he appealed to the higher court, requesting that the divorce decree itself be vacated because he was not given proper notice of the hearing at which he failed to attend telephonically. 

The state supreme court determined that while the husband's discovery efforts were misguided, the superior court authorized his course of action and failed to impose new deadlines for his supplementation, leaving him without a clear timetable for the motion's consideration. 

However, the high court found that the request to vacate the divorce decree wasn't first addressed with the lower court, as it should have been. So the court didn't rule on that aspect of the case, but did reverse the earlier dismissal of his motion for access to certain marital property and ordered the matter remanded for further consideration. 

This case illustrates how these matters drag on. It is possible that an experienced divorce attorney can help a client approach an imprisoned spouse on these issues in a way that minimizes the potential for this kind of protracted legal fight. 

If you are contemplating a divorce from an incarcerated spouse in New York City, call our offices at (718) 864-2011.

Additional Resources:

Jackson v. SeyDec. 23, 2013, Alaska Supreme Court

More Blog Entries:

Divorce of Female Military Members Higher Than for Males, Dec. 23, 2013, New York City Divorce Lawyer Blog


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