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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


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 with life behind bars, the other struggles to handle the children, finances and other affairs on their own.. 

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 longer. 

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, 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, 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


Thursday, December 26, 2013

Fighting New York ACS for Child Reunification

For anyone sparring with New York's Administration for Child Services for reunification with their children, there is perhaps no time like the holidays to remind you why you're fighting.

December is one of the most difficult months for a family to be apart, and the new year is a reminder of how much precious time you are losing. In fact, Brooklyn ACS attorneys recognize that the more time passes with your child in foster care, the less likely reunification becomes.

The median length of foster care stay prior to reunification is six months. After that six months, though, research suggests the chances of a successful reunification begin to dwindle. However, there may be ways that you can expedite the process and bring your child home sooner. 

A recent report by the state's Child Welfare Advisory Board revealed that the number of children taken from their homes and placed in foster care has been significantly reduced over the last six years, from 12,000 foster care placements down to about 6,000. Officials attribute this to better training and lesser caseloads for child welfare workers responsible for making emergent decisions regarding child placements. 

But the truth is, mistakes still happen. That's why strong legal representation is important. 

The reasons for the foster care placement are going to be important in determining the strategy that will be employed. One of the best things an attorney can help you negotiate are realistic terms and conditions for reunification. Many parents are eager to have their children back, but find the benchmarks set by the court is sometimes out of reach.

Federal law requires that state agencies make reasonable efforts to provide assistance and services to parents to make removal a last-resort option in the first place. The idea is that if, for example, you are poor and can't buy food, you shouldn't be punished by having your children taken away. Rather, the state should make efforts to help you better provide food for your children. 

The same concept can be applied when it comes to requirements to become drug-free or to secure stable housing. 

The only time states aren't required to make reasonable efforts is when there are some mitigating circumstances, such as long-term incarceration, severe mental illness or abandonment. New York Soc. Serv. Law 384-b(7)(f) defines reasonable efforts, while Soc. Serv. Law 358-a(3)(a) spells out when they are required and Soc. Serv. Law 358-a(3)(b) spells out when they are not required.

But that is only relevant in a small number of ACS cases. Most of the time, the court's goal will be reunification.

Many times, reunification can be achieved more swiftly if the parent has an advocate from the start, beginning with the initial placement process. Even if ACS determines that a child must be removed from parental custody, placements with extended relatives tend to result in more successful reunifications because they keep parents and children connected. This is a powerful motivator for the court to eventually return the child to parental custody, as judges don't typically want to be known for keeping families apart. Having an advocate to argue this point for you at the outset can set the tone for the rest of your case. 

The next part of the process includes setting realistic goals. That might mean attending drug treatment. It could be adherence to probation requirements. It might be following through on efforts to secure gainful employment. Your attorney can help you determine what those might be for you so that they can be convincingly presented to the judge overseeing your ACS case. 

OurACS case attorneys in Brooklyn can be reached at (718) 864-2011.

Additional Resources:

Reasonable Efforts to Preserve or Reunify Families and Achieve Permanency for Children, Oct. 2012, Child Welfare Information Gateway

More Blog Entries:

New York City Child Custody Cases Must Afford Both Parties Due Process, Dec. 20, 2013, New York City ACS Case Attorney Blog


Monday, December 23, 2013

Divorce of Female Military Members, Higher Than Males

For members of the military, the physical wounds of battle are sometimes only the beginning of their struggles. 

Upon returning home from deployment, many find their marriages have significantly deteriorated, usually the result of some combination of the long distance and the emotional turbulence everyone has endured during that time. 

The Pentagon recently reported that this is more true for active-duty female members of the military than for the males, though it was noted that the rate has dipped slightly over the past two years. The female military member divorce rate reached a peak of 8 percent in 2011, fell to 7.9 percent last year and again to 7.2 percent in 2013. 

Compare that to the divorce rate of male military members, which has remained at about 3 percent since 2005. Overall, the average divorce rate across all genders and services fell this year to 3.4 percent, down just by 0.1 percentage point.

There is a lot of praise offered to active duty military families for all they endure to keep it together. While that praise is often well-deserved, there is also no shame in reaching the conclusion that it's no longer working. Filing for an uncontested divorce may serve to make the process even less painful for everyone involved. 

Active-duty women in the U.S. Marine Corp. have for a long time held the record for the highest divorce rate within the military. This year, it reached 7.4 percent, from a recent high of 10.4 percent in 2010.

While the military outlined a number of relationship-building initiatives it has implemented over the last several years, the slight decline in divorce rates may have more to do with the drawdown than anything else. Fewer deployments is going to mean less stress on families and therefore fewer marriages splitting up. 

Yet the disparity between male and female service members remains. A 2011 report on the issue by USA Today surmised that the fact that female service members were more than twice as likely to split from their husbands may have to do with societal pressure. While the military continues to level the playing field in terms of the kind of positions that women hold in their careers, society is still expecting them to fulfill certain family ideals. Often, there is not an equal balance between men and women in this regard, and women in military may be less accepting of this disparity. 

Additionally, roughly 50 percent of all female military members are married to male members of the military Compare that to 10 percent of male military members married to other military members. In some ways, there are advantages to such a relationship in that the other person more likely understands the pressures and demands of the job, the downside is that balancing two military careers can pose significant challenges. 

One female Army sergeant and Afghan war veteran who had recently divorced told a reporter that during her four-year marriage to her military husband, they racked up thousands of dollars in debt just on long-distance phone calls. She said it was difficult not to feel some level of insecurity when both she and her husband saw rampant infidelity among their colleagues during deployments. Ultimately, the separation simply proved too much. By the time she retired from her career, they had become different people and grown too far apart. 

If you are a military member contemplating a New York City divorce, call our offices at (718) 864-2011.

Additional Resources:

Female Military Divorce Rates Continue to Decline, Dec. 18, 2013, By Amy Bushatz, Military.com

More Blog Entries:

Post-Nuptial Agreements and Stay-at-Home Moms, Dec. 6, 2013, New York City Divorce Lawyer Blog


Saturday, December 21, 2013

Brooklyn Child Custody Cases Must Afford Both Parties Due Process

Due process is something we hear a great deal about in the realm of the criminal justice system. It's what allows accused parties to know the charges, shield themselves against self-incrimination and challenge opposing witnesses. 

But due process is also important in civil and domestic matters as well, particularly in issues of child custody. When the top priority is the best interests of the children and the question of custody is in dispute, both parents must be given the fair chance to present their case. 

One of the key determining factors in disputed Brooklyn child custody cases is a custody investigation report. These are investigations that are commissioned by the judge and carried out by a social service agency or mental health professional with the goal of gleaning information for the judge to weigh as evidence in the case. These reports are going to cover things like the kind of home environment the parent can offer, what kind of relationship the parent has with the child, whether he or she is working, drug-free and mentally stable. 

Courts have generally held that in ensuring due process to both parties in these matters, child custody investigation reports must be submitted to the opposing side for review. If the court is going to base its custody decision in whole or in part on that report, the parties and their attorneys have to be given the chance to read it, examine it and challenge it. Attorneys and parties may be able to cross-examine the other party as well as the investigator. Also, both parties have to  be given the opportunity to provide outside witnesses or documentation that could prove any potential inaccuracies in the report. 

Still, there have been multiple examples across the country wherein a judge has denied the opposing side the right to review the custody investigation report. Many times, those findings are reversed upon appeal. 

Case-in-point is that of Sumpter v. Sumpter, reviewed recently by the Maryland Supreme Court. The proceedings started in the spring of 2010, when the father in the case filed for divorce and simultaneously filed for sole physical custody of the couple's two children. 

Before the circuit court would consider his petition, it was ordered that a custody investigation report be initiated and completed. This was done, with the result being a 161-page report with attachments that outline the social service staff's findings, resulting primarily from interviews with the parties, their relatives, their partners and their children. The report also covers the personal, criminal, health, housing, education, employment and child protective services histories of both parties. Additionally included are the children's school records, the mother's mental health records, information on the father's fiancee, criminal reports pertaining to the mother and a child protective services report regarding one of the kids. At no point in the report was any recommendation made with regard to custody. 

Access to the report was limited by the court, with the judge stating that while all parties were free to view the report, it could not  be copied or carried out of the clerk's office. 

The mother's attorney spent 1.5 hours at the clerk's office, reviewing the reports and taking notes until the clerk's office closed. The attorney did not have an opportunity to return before the hearing, at which he requested the report be either released to all parties for review or, in the alternative, struck from evidence. 

This motion was denied, with the trial court erroneously stating that the law required that the copies not leave the control of counsel. The court allowed attorneys to share the single copy in between breaks, which the supreme court would later note "brought some measure of absurdity to the process."

In the end, the father was granted his petition for divorce and awarded sole custody. 

The mother appealed this finding, arguing that her due process rights were violated because she was denied sufficient access to the investigative custody report. As such, her ability to properly prepare for trial was inhibited and she was afforded inadequate procedural protection. 

While the appellate court affirmed the earlier ruling, the state supreme court reversed it on the grounds that the trial court had misinterpreted the law and abused its discretion. The case was remanded for further consideration. 

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

Additional Resources:

Sumpter v. Sumpter, Dec. 9, 2013, Maryland Supreme Court

More Blog Entries:

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

 


Friday, December 20, 2013

Divorce of Female Military Members, Higher Than Males, Down Last Two Years

For members of the military, the physical wounds of battle are sometimes only the beginning of their struggles. 

Upon returning home from deployment, many find their marriages have significantly deteriorated, usually the result of some combination of the long distance and the emotional turbulence everyone has endured during that time. 

The Pentagon recently reported that this is more true for active-duty female members of the military than for the males, though it was noted that the rate has dipped slightly over the past two years. The female military member divorce rate reached a peak of 8 percent in 2011, fell to 7.9 percent last year and again to 7.2 percent in 2013. 

Compare that to the divorce rate of male military members, which has remained a roughly steady 3 percent since 2005.

Overall, the average divorce rate across all genders and services fell this year to 3.4 percent, down just by 0.1 percentage point.

There is a lot of praise offered to active duty military families for all they endure to keep it together. While that praise is often well-deserved, there is also no shame in reaching the conclusion that it's no longer working. Filing for an uncontested divorce may serve to make the process even less painful for everyone involved. 

Active-duty women in the U.S. Marine Corp. have for a long time held the record for the highest divorce rate within the military. This year, it reached 7.4 percent, from a recent high of 10.4 percent in 2010.

While the military outlined a number of relationship-building initiatives it has implemented over the last several years, the slight decline in divorce rates may have more to do with the drawdown than anything else. Fewer deployments is going to mean less stress on families and therefore fewer marriages splitting up. 

Yet the disparity between male and female service members remains. A 2011 report on the issue by USA Today surmised that the fact that female service members were more than twice as likely to split from their husbands likely had to do with societal pressure. While the military continues to level the playing field in terms of the kind of positions that women hold in their careers, society is still expecting them to fulfill certain family ideals. Often, there is not an equal balance between men and women in this regard, and women in military may be less accepting of this disparity. 

Additionally, roughly 50 percent of all female military members are married to fellow male members of the military Compare that to 10 percent of male military members married to other military members. In some ways, there are advantages to such a relationship in that the other person more likely understands the pressures and demands of the job, the downside is that balancing two military careers can pose significant challenges. 

One female Army sergeant and Afghan war veteran who had recently divorced told a reporter that during her four-year marriage to her military husband, they racked up thousands of dollars in debt just on long-distance phone calls. She said it was difficult not to feel some level of insecurity when both she and her husband saw rampant infidelity among their colleagues during deployments. Ultimately, the separation simply proved too much. By the time she retired from her career, they had become different people and grown too far apart. 

Sadly, it is often at home holiday visits that this first becomes apparent. 

If you are a military member contemplating a New York City divorce, call our offices at (718) 864-2011.

Additional Resources:

Female Military Divorce Rates Continue to Decline, Dec. 18, 2013, By Amy Bushatz, Military.com

More Blog Entries:

Post-Nuptial Agreements and Stay-at-Home Moms, Dec. 6, 2013, New York City Divorce Lawyer Blog


Friday, December 20, 2013

New York City Child Custody Cases Must Afford Both Parties Due Process

Due process is something we hear a great deal about in the realm of the criminal justice system. It's what allows an accused party to know the charges, shield themselves against self-incrimination and challenge opposing witnesses. 

But due process is also important in civil and domestic matters as well, particularly on issues of child custody. When the top priority is the best interests of the children and the question of custody is in dispute, both parents must be given the fair chance to present their case. 

One of the key determining factors in disputed Brooklyn child custody cases is a custody investigation report. These are investigations that are commissioned by the judge and carried out by a social service agency or mental health professional with the goal of gleaning information for the judge to weigh as evidence in the case. These reports are going to cover things like the kind of home environment the parent can offer, what kind of relationship the parent has with the child, whether he or she is working, drug-free and mentally stable. 

Courts have generally held that in ensuring due process to both parties in these matters, child custody investigation reports must be submitted to the opposing side for review. The reason is that if the court is going to base its custody decision in whole or in part on that report, the parties and their attorneys have to be given the chance to read it, examine it and challenge it. Attorneys and parties may be able to cross-examine the other party as well as the investigator. Also, both parties have to  be given the opportunity to provide outside witnesses or documentation that could prove any potential inaccuracies in the report. 

Still, there have been multiple examples across the country wherein a judge has denied the opposing side the right to review the custody investigation report. Many times, those findings are reversed upon appeal. 

Case-in-point is that of Sumpter v. Sumpter, reviewed recently by the Maryland Supreme Court. The proceedings started in the spring of 2010, when the father in the case filed for divorce and simultaneously filed for sole physical custody of the couple's two children. 

Before the circuit court would consider his petition, it was ordered that a custody investigation report be initiated and completed. This was done, with the result being a 161-page report with attachments that outline the social service staff's findings, resulting primarily from interviews with the parties, their relatives, their partners and their children. The report also covers the personal, criminal, health, housing, education, employment and child protective services histories of both parties. Additionally included are the children's school records, the mother's mental health records, information on the father's fiancee, criminal reports pertaining to the mother and a child protective services report regarding one of the kids. At no point in the report was any recommendation made in the report with regard to custody. 

Access to the report was limited by the court, with the judge stating that while all parties were free to view the report, it could not  be copied or carried out of the clerk's office. 

The mother's attorney spent 1.5 hours at the clerk's office, reviewing the reports and taking notes until the clerk's office closed. The attorney did not have an opportunity to return before the hearing, at which he requested the report be either released to all parties for review or, in the alternative, struck from evidence. 

This motion was denied, with the trial court erroneously stating that the law required that the copies not leave the control of counsel. The court allowed attorneys to share the single copy in between breaks, which the supreme court would later note "brought some measure of absurdity to the process."

In the end, the father was granted his petition for divorce and awarded sole custody. 

The mother appealed this finding, arguing that her due process rights were violated because she was denied sufficient access to the investigative custody report. As such, her ability to properly prepare for trial was inhibited and she was afforded inadequate procedural protection. 

While the appellate court affirmed the earlier ruling, the state supreme court reversed it on the grounds that the trial court had misinterpreted the law and abused its discretion. The case was remanded for further consideration. 

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

Additional Resources:

Sumpter v. Sumpter, Dec. 9, 2013, Maryland Supreme Court

More Blog Entries:

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

 


Wednesday, December 18, 2013

Affordable Bronx Divorce: What to Do With the House?

You and your spouse have decided to part ways. 

You're still trying to sort out your emotions, along with all the financial matters that come along with this difficult decision. In seeking an uncontested Bronx divorce, you may have both reached the conclusion that you don't want an epic battle on your hands. You want to move on, but you want to be smart about it too. 

Hammering out an equal asset division plan is almost always going to include the question: "What should we do with the house?" For couples without children, this may be the most complex decision you both face, and it's important in an uncontested divorce proceeding that you both feel you have been treated fairly. 

The first thing to understand is that New York is a state that will uphold equitable distribution of assets. This generally means that unless otherwise stated in court documents, both parties are entitled to a portion of the marital home.

In order for the property in question to be legally divisible by the court, it must be established that the home belonged to the marriage. Generally, that means if you owned the property prior to the marriage, it might be considered separate property. However, that's not a hard-and-fast rule, particularly if both parties lived in the house and contributed to its payments and upkeep. 

Even if the court deems the house to be your separate property, it can still be considered as part of your financial resources in determining the amount of child and spousal support to pay, if any. 

Bear in mind that equitable doesn't necessarily mean equal, and there could be multiple ways that that the court could determine what is fair.

Figuring out which course of action is going to make the most sense for you in an uncontested proceeding will involve a careful analysis of the home's value, as well as consideration for the desires of both parties. 

It could be that one person gets the house and another gets the retirement benefits. It could be that the house is sold and the proceeds split 50-50. It could be that one person stays in the home and agrees to pay the other a portion of the equity that's been established thus far. 

Keep in mind too that the hoe might not be an asset, but rather a liability. Scores of Americans were badly burned in the housing market collapse, and the market is only beginning to report small recoveries. That could mean that simply selling the home and splitting the difference in proceeds isn't an option. You could instead be wrangling over how much each party should have to pay when the home is sold at a lower cost than what you both owe. 

That may still ultimately be the best course of action for you both, but it's important to have handle on the exact ramifications. 

At the very least, both parties must agree on a course of action as well as the home's value in order to move forward. If these matters can't be resolved, it's possible the issue will have to go to before a trial judge for the final say-so. 

If you are  interested in pursuing an uncontested divorce in the Bronx, call our offices at (718) 864-2011.

Additional Resources:

What to do With Your House in a Divorce Case, Dec. 9, 2013, By Christian Denmon, The Huffington Post

More Blog Entries:

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


Monday, December 16, 2013

Establishing Brooklyn Child Support Change of Circumstance

Anytime there is an issue of child support or spousal support (also known as alimony) before the family law court, the judge is going to carefully weigh a variety of factors before reaching a conclusion about who should pay, how much should be paid and for how long. 

Once the order is issued, the only way it can be altered is if one of the parties involved requests a review based on a substantial change in circumstance. It could be that the parent receiving support payments requests an increase in those payments due to special needs of the child or after learning about a major boost in the other's income. 

Mostly what our Brooklyn child support attorneys have noted in recent years are requests for a reduction in support payments - primarily fueled by the economic downturn, which as resulted in lay-offs, benefit reductions and decreased salaries. 

Establishing a substantial change in circumstance, however, is not always a straightforward matter, as the Connecticut Supreme Court case of Olson v. Mohammadu recently illustrated. Although this was not a matter handled in New York, courts often look to the supreme court decisions made by other state courts for guidance in similar cases. 

In this case, the high court was asked to review the refusal of two lower courts to grant a modification of child support, based on the substantial change in circumstances as laid out by the father. 

The lower courts had rejected the father's request on the basis that the reason for the substantial change in circumstance was voluntary on his part. However, the high court reversed those earlier decisions, holding that the lower courts had erred in failing to take into consideration the father's motivations in voluntarily changing his circumstances. 

Here, we had a mother who lived in Connecticut and a father who lived in Florida. The two divorced back in 2009, and at the time had been living in separate states. Upon dissolution of the marriage,the court allowed for joint legal custody of the child, with primary custody granted to the mother and reasonable visitation rights to the father. 

Further, the father was required to pay alimony in the amount of $777 weekly and child support of $335 weekly, plus costs for daycare, extracurricular activities and medical expenses. 

The following year, the father requested a modification to this order on the basis that there had been a substantial change in his circumstances. He had relocated from Florida to Connecticut in order to be closer to his child. In accepting a new employment position, his annual salary was reduced by some $30,000. 

However, after the hearing, the trial court denied the father's motion, citing the voluntary nature of the change in his circumstances. The court did concede that the father's motivation for moving amounted to a good parental decision, but it was one that "ignored the realities of the financial obligation as set forth in the judgment" that had been issued just several months prior. 

In response to a subsequent motion by the father to further articulate its reasoning, the court indicated that it did not consider the father's relocation to be a substantial change in circumstance for the sole reason that it was voluntary. The appellate court confirmed this logic. 

The father appealed to the state supreme court on the grounds that the lower courts had misinterpreted previous case law, which held that substantial changes "brought about by the defendant's own fault" are not necessarily grounds to modify an existing support order. 

The high court agreed that the statute had been misinterpreted, and that the father's reason for relocation was worthy of consideration. The simple fact that the move was voluntary, the court held, did not bar the father's claim of a substantial change warranting modification. 

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

Additional Resources:

Olson v. Mohammadu, Dec. 10, 2013, Connecticut Supreme Court

More Blog Entries:

Post-Nuptial Agreements and Stay-at-Home Moms, Dec. 6, 2013, Brooklyn Child Support Lawyer Blog

 


Thursday, December 12, 2013

In re Custody of B.M.H. and De Facto Parentage Rights in New York

Blended families have increasingly become the norm over the last several decades, as the divorce rate has crept past 50 percent. 

This has meant that many adults have found themselves assuming "de facto parentage" as it relates to their stepchildren, in many cases raising them since birth and becoming the only father or mother those children have known. 

But what rights do stepparents - or other de factor parents, such as homosexual spouses - have if the marriage doesn't work out? 

Our Brooklyn family law attorneys know that case law results have been mixed, suggesting these issues might soon wind their way to the U.S. Supreme Court. In the meantime, a number of cases continue to be battled out at the state level. 

Most recently, in the case of In re Custody of B.M.H., the issue is the scope of stepparent rights. The Washington state couple had a child together in 1995 during a two-year relationship. The two subsequently broke up. The woman went on to have a second child with another biological father, to whom she became engaged. However, her fiance was killed three months into her pregnancy. The father of her first child came back into the picture soon after. The two married and he raised the second child from birth.

However, the couple later divorced. At issue here is what rights does the father in this case have relative to the second child. Although the two continued to co-parent both children, the former stepfather technically had no legal rights to the child - even though he was tightly bonded with the child and was the child's father in all other respects. 

At the heart of this case, and so many others, is who qualifies as a parent. Legally, a parent is someone who is considered, by virtue of certain connections to a child, to have constitutionally-protected rights, as well as legal obligations, as it pertains to that child. 

In most cases, unless state law indicates otherwise, the termination of a marriage will result in the stepparent becoming a legal stranger to the child. Some state will allow for reasonable visitation, and there are a few cases where former stepparents have successfully petitioned the court for a non-parent custody. But those are generally only successful in cases where the former stepparent can prove the legal parent is unfit. 

In New York, de facto parentage has been rejected in the course of recent case law. Specifically, in the ruling of Debra H. v. Janice R., the courts ultimately upheld the rights of a woman who was in a civil union with her same-sex spouse at the time her spouse was artificially inseminated to produce a child. However, the way the law was interpreted allowed that such rights were only recognized when a couple was involved in some type of formal, recognized relationship. 

Ultimately, that has had the effect of the court rejecting the notion of so-called "functional parents," or those who participate in critical aspects of a child's life, without the actual legal protections afforded to the other parent. 

In many ways, this interpretation has failed to meet the needs of so many of New York's non-traditional families. 

If you are weighing issues of child custody in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

De Facto Parentage and the Rights of Former Stepparents, Dec. 10, 2013, By Joanna L. Grossman, Justia Verdict

More Blog Entries:

Successfully Negotiating the Terms of Your New York City Divorce Settlement, Nov. 17, 2013, Brooklyn Family Law Attorney Blog


Sunday, December 8, 2013

Identifying Assets in a Brooklyn Divorce

Recently, our  family law attorneys in Brooklyn wrote about ways to uncover hidden assets that your soon-to-be-ex might be trying to hide. 

Now, the case of a Suffolk County woman illustrates the importance of making this a priority before the divorce settlement is reached and a decree is finalized. The case of Bellino v. Bellino, Superior Court of Suffolk County, illustrates judges have little sympathy for those who fail to conduct due diligence in uncovering all assets in the course of a divorce proceeding. 

In this case, the former wife (the plaintiff) had requested that the court grant an injunction on numerous bank accounts, trading accounts and investment trust accounts held by her ex-husband (the defendant), claiming he hid them from her during the course of their union. Some of these accounts were offshore, and the wife claimed she had no knowledge whatsoever that her ex owned them during the course of their marriage. 

The defendant filed a cross-motion, indicating that the claims made by the ex-wife were false and inflammatory and demanding that she be forced to cover his cost for defense fees, as well as be made to pay sanctions for bringing the action in the first place. 

Although the judge initially granted a temporary restraining order on the bank accounts, he ultimately denied both parties' requests in their entirety. 

The couple first proceeded with divorce actions back in the spring of 2009. Over the course of several months, both parties agreed to a settlement of four stipulations, which included a custody and parenting time agreement, a child support and spousal maintenance agreement, a resolution as to equitable distribution of property and the distribution of retirement assets. 

The divorce was finalized in the spring of 2010, with the four stipulations incorporated into the final judgment. 

However, the plaintiff filed a new action in January 2012, alleging that the four stipulations reached were the result of "financial blackmail," as well as improper and inadequate discovery of assets. Specifically, she said there was an estimated $3.3 million in undisclosed assets to which she would have been entitled to access in the divorce - had she known about it. 

In bringing her request for an injunction, the ex-wife listed numerous accounts in the U.S., as well as England and the Bahamas. Based on the existing balances, the plaintiff said she was entitled to at least $1.6 million in liquid assets, which she unknowingly waived. She argued that the stipulations reached represent an "unconscionable bargain that no honest or fair person would accept" in light of the new information. 

The restraining order, she said, was necessary to prevent the defendant and/or his agents from removing, withdrawing, selling, transferring or disposing of those assets after it became apparent she knew of them. 

The defendant countered that the plaintiff's claim was a "sham," and that the report given by the plaintiff to the court did not reflect accurate balances in the existing accounts. He pointed to several inaccuracies, including one line item that indicated a Bank of America deposit account that was in fact a credit card account. 

Further, he asserted that his income was only about 25 percent of what it had been prior to the collapse of the world market - and his marriage. He had been forced to borrow from his retirement accounts, the equity in his home and even cash out a life insurance policy in order to make ends meet. 

In response, the plaintiff provided an updated list of assets to the court. 

However, the judge ultimately denied her request, stating that the facts of the case were in sharp dispute and the plaintiff had failed to convincingly establish her position - specifically that the four stipulations were reached as a result of fraud on the part of the defendant. The judge noted that the plaintiff had the means and opportunity to thoroughly research the defendant's existing assets prior to the dissolution of the marriage, and did not do it. 

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

Additional Resources:

Bellino v. Bellino, April 12, 2013, Superior Court of Suffolk County

More Blog Entries:

Uncovering Hidden Assets in Brooklyn Divorce, Nov. 16, 2013, Brooklyn New York Divorce Lawyer


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