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Sunday, June 15, 2014

Requests for New York Child Custody Modifications Must be Convincing

Family court judges aren't apt to create a disruption in the lives of children by altering the child custody agreement unless it can be proven that there is a good reason for it.

Brooklyn child custody modification lawyers know that in order to alter a previously-established parenting arrangement, the moving party needs to show there has been a material change in circumstances. He or she must also show why a modification is in the best interests of the child.

Courts will generally strive to place children in a joint physical custody arrangement, wherein both parents share equally (or at least equitably) in parenting time. However, sometimes that is simply not possible, particularly if one or both parents is moving out of the area.

A move would be considered a "material change," but whether it is in the best interests of the child to stay or go will be up to the court, regardless of who held primary custody originally.

This was the issue at hand in the recent case of Schroeder v. Schroeder, reviewed by the North Dakota Supreme Court.

According to court records, the pair married in 1999 and had two children, one in 2000 and another in 2002. Five years after the birth of their second child, the pair sought a divorce. According to the original custody agreement, they were awarded joint legal and physical custody of the children.

Two years later, the mother moved out-of-state, and sought to obtain primary physical custody of the children. The father opposed the motion, and subsequently filed his own, requesting primary residential custody. Each indicated there had been a material change in circumstances requiring an alteration of the earlier custody agreement.

The district court sided in favor of the father.

Another two years passed. The mother informed the father that the following year, she intended to move to  yet another state. Around the same time of her move, the father moved to Florida, with both the children. He dropped the children off with their mother in her new home state for their summer parenting time. While the children were in her care, she filed a motion to amend judgment, again requesting primary physical custody. The father opposed.

In August of that year, the father moved for an order to show cause why the other shouldn't be held in contempt when she failed to return the children to him in Florida following the conclusion of their summer visit. In September, the court denied the mother's motion, reasoning there had been a material change in circumstance, but she failed to establish that her request was in the best interest of the children. The court further ordered her to return the children to their father in Florida.

The mother appealed, saying the district court erred in failing to fully consider her arguments. The state supreme court addressed them one-by-one.

In the first argument, she contended the father "has expressed in correspondence" to both her and the kids his intention to infringe upon and restrict her parenting time. However, she did not submit to the court any copies of such correspondence, and neither did she provide affidavits by either child that supported this allegation.

Secondly, she indicated the children were distraught about their move to Florida, saying they'd had little time to say goodbye to friends, teachers and family members. The court didn't doubt  her firsthand accounts of this, but said the allegation ignores that the children would have had to relocate regardless, whether they lived with her or their father.

Thirdly, she argued the children had a tough time being separated from their half-siblings. Again, the court indicated they would be separated regardless of which parent was awarded custody.

Fourth, she asserted that her older child preferred to stay with her. While the preference of a mature child is generally weighted by the court, the mother provided no affidavit from the child to back this assertion.

Fifth, she indicated that the schools in her new home state were superior to those in Florida, and could better meet the needs of the children, one of whom was developmentally disabled. However, she failed to provide any information to the court to prove this.

Finally, she alleged that the children would be living with their paternal grandfather, whom she claimed routinely threw large parties with copious amounts of alcohol. However, the father denied he and the children would be living with his father, and further, contended his ex-wife hadn't provided any proof of her allegations.

Based on all this, the court indicated that while a move by both parents was considered a material change in circumstance, the mother failed to prove that staying with her would be better for the children.

If you are contemplating a Brooklyn child custody change, call our offices at (718) 864-2011.

Additional Resources:

Schroeder v. Schroeder, May 2014, North Dakota Supreme Court

More Blog Entries:

Davidson v. Carillo - Importance of Attorney Representation in Brooklyn Child Custody Matters, May 30, 2014, Brooklyn Child Custody Lawyer Blog


Friday, June 13, 2014

Report: 1 in 3 Marriages With Sick Spouse Ends in Divorce

Couples vow on their wedding day to care for one another in both health and sickness. However, a new study conducted by researchers at the University of Michigan suggests a growing number of spouses aren't holding up the latter half of that bargain. One-third of marriages in which a spouse falls ill ends in divorce, researchers say.

It appears whatever flaws exist in a union become amplified with the stress and hardship of one spouse falling seriously ill.

Divorce attorneys in New York City recognize that these cases require special attention. For example, issues of health insurance become matters of key importance. Judges deciding child custody may factor in the ill parent's ability to provide for the child's day-to-day needs. Spousal support, too, may be ordered to the ailing person, where it otherwise might not have been, depending on the severity of the illness and expected outcome.

For this study, researchers sifted through data on more than 2,700 marriages and outcomes over the course of two decades, beginning in 1992. The study authors analyzed how the onset of one of four serious physical illnesses affected marriages. Specifically, they looked at cancer, lung disease, stroke and heart problems. What they found was 31 percent of those marriages affected by one of these illnesses ended in divorce.

Women in particular seem to be at a double disadvantage. Men were most often the ones who developed these diseases, so they were at higher risk of becoming widowed. Conversely, when it was the woman who fell ill, there spouse was twice as likely to file for divorce, as compared to when the situation was reversed.

Researchers didn't specifically delve into this disparity as part of the formal data mining, but they did generate a few theories. The first theory is that social expectations and gender norms regarding care taking could make it tougher for males to provide care to ailing wives. Secondly, because men tend to die sooner, the more they age, the more prospective partners they may find among divorced women.

This same pattern has borne out in previous studies. In both 2001 and 2009, researchers at the Penn State School of Medicine analyzed the issue and found married women are more likely to become separated or divorced following a terminal illness diagnosis.

If an ill spouse maintains health insurance through the other, sometimes it can be best to postpone or cancel the divorce proceedings, if at all possible, in order to ensure continued health care coverage through the course of the illness. However, sometimes that simply isn't ideal or possible. In those cases, a divorce attorney can work to have your spouse's health insurance coverage continue as part of the divorce settlement or spousal maintenance award, at least until Medicare, Social Security Disability or some other form of insurance and/or financial assistance can be made available.

Additionally, spouses in this situation may need additional assistance with estate planning documents. Records for health care power of attorney, advanced medical directives and your will may need to be revised. One must be careful how this is done, however, because once a divorce is filed, most assets are likely to be lumped into the "marital estate" and can't simply be gifted or transferred without prior approval from the court.

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

Additional Resources:

'Til sickness do us part: How Illness Affects the Risk of Divorce, May 1, 2014, University of Michigan's Institute for Social Research

More Blog Entries:

Boulds v. Nielson - Just Because You Weren't Married Doesn't Mean You Won't End Up in Court, May 16, 2014, New York City Divorce Lawyer Blog


Wednesday, June 11, 2014

New York Court Wrangles With Asset Division With One Spouse Deceased

While divorce isn't always inevitable, death is. Unfortunately, sometimes the two intersect.

In many cases, this frankly simplifies matters. For example, there is usually no longer a need to battle an estranged spouse on matters of child custody, visitation or maintenance costs.

However, Brooklyn divorce attorneys recognize there are many situations in which a death in the midst of divorce could make matters more convoluted. Take for example the Yonkers case of Bordas v. Bordas.

She was a Naval reservist who had retired from the military to become a high school social studies teacher. He was also a teacher, which was how the pair met. They married and had two daughters.

But then, in 2012, after more than a dozen years of marriage, the husband filed for divorce, citing an irretrievable breakdown of their relationship. Less than six months later, the 38-year-old wife committed suicide after consuming a lethal mix of prescription drugs.

That might have ended proceedings right there. However, the widower then learned that his deceased wife, before she died, removed him as a beneficiary from her retirement account and life insurance policies. Instead, she named their two daughters, ages 10 and 13, as beneficiaries. This alone might not have been a major issue, but for the fact that she indicated if something happened to the girls, the entire $500,000 payout should go to her boyfriend.

Soon after, the widower filed a motion in the divorce case, which was still pending, arguing that the transfer of money and assets prior to her death violated legal guidelines. Generally, those assets and accounts would be considered marital property, meaning it would be subject to equitable division.

However, the fact that she is deceased could mean the husband won't be able to do much about it. A Westchester state Supreme Court justice called the wife's actions "regrettable," noting that the wife had seemingly "reached beyond the grave" to stymie her estranged husband's efforts to recover his share of assets, he said there was simply nothing the court could do to remedy the violation.

An attorney representing the husband called the ruling "unfair" in a quote offered to the New York Post. She said an appeal may be the appropriate next step. She cited other examples where courts will seek to hold people responsible for actions even after their deaths. For instance, police may issue a citation to a deceased drunk driver who caused a crash resulting in injury and death to others.

While a criminal trial might not proceed such action, a civil trial might.

There is evidence to suggest the ruling in this case is outside the norm. Many states have held that the death of a spouse during divorce results in the termination of continuing maintenance payments, they have also generally held that the surviving spouse should still at the very least receive his or her fair share of the marital property. In some instances, lump sum alimony awards have been granted from the deceased party's estate.

Additionally, surviving spouses can't assume that the divorce action will be dropped entirely after a death.

Though the assets acquired during the marriage might be in both party's names, once the divorce action is filed, equitable interest in the property becomes vested as part of the estate, and may still be divided. Whatever is left in your former spouse's estate might then go to any beneficiaries he or she has named.

Of course, you can't know at the beginning of a divorce proceeding whether death is on the horizon for either of you. Preparing for the possibility by hiring an experienced divorce attorney will assure you that in the event of an untimely passing, your interests will be defended.

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

Additional Resources:

Judge denies man's divorce asset claim a year after wife's suicide, May 26, 2014, By Julia Marsh and Erin Calabrese, The New York Post

More Blog Entries:

White v. Howard - Life Insurance Policy May be Considered a Form of Alimony, May 26, 2014, Brooklyn Divorce Lawyer Blog


Monday, June 9, 2014

Stanley v. Stanley - Marital Misconduct and Impact on Property Division in New York Divorce

New York was late to the no-fault divorce bandwagon, being the last state in the country to approve the proceedings in 2010.

However, New York City divorce lawyers know this does not mean neither party will be held culpable for misdeeds during the marriage, especially when that misconduct is financial in nature. For example, a husband who spends thousands of dollars buying jewelry and other gifts for a mistress will likely have to account for that money during the divorce settlement. So too will a wife who squanders a fair portion of a joint savings account to feed a gambling addiction.

The courts also have specific means of dealing with individuals who attempt to purposely sell off marital property in an effort to keep it from the spouse. This particular action is referred to concealment of assets by fraudulent conveyance.

This issue was addressed recently in Stanley v. Stanely by the West Virginia Supreme Court, which also has specific laws regarding the conveyance of marital property. There, state statute says that spouses have 30 days to notify one another of real estate conveyance. If they don't and a divorce is filed within five years of that conveyance, the other spouse is entitled to compensation for what would have been his or her share of that property.

Here, the wife entered the marriage with 27 acres of land, on which her home was located. The husband moved in, provided $30,000 for her to pay off the deed trust on the property (so that she could legally own it in full) and additionally made various improvements to the property over the years.

Following a decade of marriage, the pair sought a divorce. The husband initially offered to forfeit his interest in the property - and the marital home on it - if she would simply reimburse him his $30,000. She agreed at first, but then later backed out.

The court would later learn that instead, she legally gifted the property to her five adult children. She reportedly did so without providing notice to her husband of this deal.

The family court agreed that notice was not properly given, and ordered that the value of the property be considered as marital property for purposes of equitable distribution. That ruling was reversed by the circuit court, but then that ruling was reversed by the state supreme court, which backed the family judge's ruling.

As the property already legally belongs to a third party (the children), the court, in seeking equitable distribution, will likely offset that value against whatever the wife would have otherwise been awarded. So for example, her entitlement to her ex-husband's life insurance benefits, retirement accounts, savings, etc. could be significantly curtailed as a result of the decision.

New York spouses who believe they have been similarly taken may wish to take action under the Uniform Fraudulent Conveyance Act, codified in N.Y. Debt. Cred. Law. §§ 270 – 281.

An example of this was the lawsuit of Bloomfield v. Bloomfield, in 2001, wherein the wife accused both her husband and his brother of concealing marital estate assets, with the husband transferring property to his brother prior to the divorce. The court held that she could pursue damages under the UFCA.

Further, the 2006 ruling in Jackson v. Brinkman indicated that a divorcing spouse can forfeit the right to recover a certain marital asset if the claim of wrongful transferee of marital property is not properly joined to a pending divorce case. Knowing whether such action is appropriate requires the review of an experienced New York divorce lawyer.

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

Additional Resources:

Stanley v. Stanley, May 27, 2014, West Virginia Supreme Court

More Blog Entries:

Expectancy of Interest Argument Against Property Inclusion in Marital Estate, May 22, 2014, New York City Divorce Lawyer Blog


Saturday, June 7, 2014

Brooklyn Child Support Modification Requests Must be Preceded by Significant Changes

Court-ordered child support payments are set based on a number of factors, including both parties' income, obligations and the needs of the children.

Given that such careful consideration is made to the determination of this figure, Brooklyn child support modification attorneys are well aware that judges aren't inclined to modify the original order unless there has been a material change in circumstance.

The term "material" is one that is widely left open to the interpretation of the court. For example, if you were laid off from your job and are only accruing unemployment benefits, the court may agree to temporarily reduce your payments. Alternatively, if you are fired from your job because you didn't show up or failed a drug test, the court may determine this is a willful violation, and in turn refuse to modify your payments.

It's going to be up to your lawyer to make the best possible argument in your favor.

In the recent case of Garza v. Garza, before the Nebraska Supreme Court, the justices were tasked with determining whether the family court's grant of a father's child support modification request was proper, as the decision was appealed by the mother.

According to court records, the pair were married in the summer of 2005. Not six months later, a son was born to them, and that same month, the mother filed for divorce against the father.

The original divorce decree/parenting plan allocated primary custody to the mother, with weekend visitation given to the father, who was required to pay $500 monthly in child support.

In early 2010, the father was unemployed and subsequently moved out-of-state to obtain work. He later filed a motion for a material change in circumstance, based on his lesser-salaried new job and his out-of-state move.

The mother subsequently filed an order to show cause why the father shouldn't be held in contempt for willfully and contemptuously violating the earlier court ruling. He was indeed found in contempt, based on his being nearly $8,000 in arrears in child support, plus another $10,600 he owed her for child care expenses and $31,000 he had yet to pay her per the divorce property settlement.

The court agreed to purge his contempt if he paid $3,000 in child support upfront and kept current on his subsequent payments. He did so, and the contempt was purged.

However, soon after, he was laid off. He filed an amended application for modification, citing not only his new unemployment, but also the fact that the child had since become school-age, meaning day care expenses were significantly reduced.

The court did ultimately reduce his payments from $500 monthly to $305 (rejecting his request to make them $50 monthly). It also determined the mother was not required to meet the father half-way to aid in his visitation so long as he remained unemployed, and that once he had again found work, he was to pay her $2,500 in attorneys' fees.

He appealed on the grounds the court erred in reaching the transportation arrangement it did and insisted his payments should have been further reduced and that he should not have to pay his ex's attorney. The mother cross-appealed on the grounds that the court erred in slashing the child support award.

The state supreme court upheld the modification, finding no reversible error.

The court could find no indication that the father's two bouts of unemployment were the result of bad-faith, and they did constitute a material change in circumstance that warranted a reduction of child support. Still, the court weighed his earning capacity, as opposed to his actual income, in determining what the set rate should be. This, the high court ruled, was appropriate.

For the most part, judges aren't interested in creating a windfall for one parent or leaving the other destitute. They do generally strive to reach a fair conclusion that is ultimately in the best interests of the children involved.

Still, having an experienced legal advocate to sympathetically explain to the court your circumstances will help allow you to provide for your children in a way that is  adequate, fair and manageable.

Those with questions about Brooklyn child support modification petitions should call our offices at (718) 864-2011.

Additional Resources:

Garza v. Garza, May 23, 2014, Nebraska Supreme Court

More Blog Entries:

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences, May 28, 2014, Brooklyn Child Support Modification Lawyer Blog


Tuesday, June 3, 2014

Domestic Violence in Brooklyn Divorce Cases Must be Handled Carefully

Domestic violence can be the catalyst for a Brooklyn divorce filing. Unfortunately, a divorce filing can also result in the escalation of abuse.

In fact, the most dangerous time for a victim is when she finally makes known her plan to leave. Domestic abuse is all about control. Once an abuser fears a loss of control, he or she may become a serious threat.

Our Brooklyn divorce attorneys are well-versed in handling sensitive cases such as these. We not only help victims coordinate with local social service agencies to formulate a safe exit strategy, we can help file orders of protection on behalf of yourself and your children. We can also work to help you extricate yourself from the legal trappings of the relationship in a way that requires you to have little to no contact with your ex. This includes addressing your child custody and visitation concerns. If you can show the court that your children have witnessed abuse by your partner or suffered it themselves, the court may choose not to award visitation at all.

But again, these cases have to be handled with great care, not only for the safety of the victim, but also for the success of your divorce. The allocation of assets and property as well as potential child custody and maintenance determinations will have a significant bearing on your ability to move forward. If handled incorrectly, you may find yourself in an unfavorable situation. 

Such was the case for an alleged victim recently in Yelena R v. George R., a matter weighed by the Alaska Supreme Court.

According to court records, the pair in this case were involved in an on-again off-again relationship for more than 10 years. They shared two children together.

The mother accused the father of sexually assaulting her in 2011, while the pair was still living together. She contends that this was the culmination of long-standing abuse he inflicted upon her, beginning some five months after they were married. She said in some cases, the violence was reciprocal, and they were both at various points arrested for inflicting violence on each other.

Her husband filed for divorce in 2004 in California. A court granted primary physical custody to the father, with regular visitation awarded to the mother. Despite their divorce, the pair continued to live together intermittently over the next several years. Their daughter was born in 2006. The mother would later say the father pushed her down a flight of stairs when she was six-months pregnant because he did not want her to have the child.

She claimed that after the family moved to Massachusetts, she found earrings in their bed that weren't hers. When she questioned her spouse, he reportedly assaulted her while their daughter lay next to them. She suffered a punctured kidney, and he was later arrested.

The pair separated, but again moved back in together about five months later, against the advice of the husband's commanding officer in the U.S. Coast Guard. This pattern continued for years. When the father relocated to Alaska for work, the mother soon followed. In the short lapse, the son developed a severe dental issue, which the father would later blame on the mother's alleged neglect.

Still, the pair continued to live together, and it was during this time that the alleged sexual assault occurred.
The incident was immediately reported to her work supervisors (at a domestic violence shelter). The U.S. Coast Guard also launched an investigation into the alleged incident.  A military protective order was issued and a probable cause hearing on court-marital charges indicated reasonable grounds to believe the assault happened.

A short-term protective order was issued in civilian court, but the magistrate denied a long-term order.

The mother then fled with the children back to Massachusetts, leaving behind only a note to the father. The court-martial charges were dismissed. No civilian criminal charges were ever filed.

A hearing in Massachusetts resulted in the children being sent back to Alaska for custody proceedings. It was there the father was granted full custody.

The mother appealed, but the family court's order was allowed to stand.

As in many domestic violence situations, particularly those involving a couple with extensive history, the facts here were incredibly convoluted. It takes an attorney with extensive experience to highlight to the court the accuser's suffering, even in scenarios where the victim has returned again and again. This is in fact indicative of the classic pattern of domestic violence, which is only recently beginning to gain a greater understanding culturally and within the realm of family law.

The biggest mistake the mother made here was fleeing with her children out-of-state without court approval. She may have felt she had no other choice. We are committed to ensuring that all of our clients have a complete understanding of their options. It's our goal that as you set off on the next chapter of your life, you do so in safety and with every advantage possible.

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

Additional Resources:

Yelena R v. George R.,May 23, 2013, Alaska Supreme Court

More Blog Entries:

Davidson v. Carillo - Importance of Attorney Representation in Child Custody Matters, May 30, 2014, Brooklyn Divorce Lawyer Blog


Friday, May 30, 2014

Davidson v. Carrilo - Importance of Attorney Represention in Brooklyn Child Custody Matters

It can be tempting when pursuing action in family court to represent ones' self. After all, it's not required, and why not save the money on attorney's fees, right?

The problem is that this often ends up costing more in the long run, whether directly in cash or assets or, as in cases of child custody, parenting time and other benefits that one may deem important.

Our Brooklyn family law attorneys are dedicated to fighting for our clients, even in complex cases, and we strive to keep our prices reasonable in doing so. That's why we offer $399 uncontested divorce assistance, and $599 uncontested divorce assistance in cases involving children.

These costs should be considered investments in yours and your children's future. The recent case of Davidson v. Carrillo is an illustration of how not hiring an attorney can backfire.

In this case out of Wyoming, the parents had two children together. While both parents were separated, the relationship was cordial and both parents indicated that while they had greatly varying styles of parenting, they each respected the other.

For a time, the older child, who had special needs, was living with the father while the younger child was living with the mother. Both parents worked jobs earning less than minimum wage, though the mother was attending school full-time.

The father filed a petition seeking primary custody of the younger child, indicating it was in the children's best interests to live together, as they shared a close relationship. He also sought child support. He did both things without the aid of an attorney, and both of his requests were granted.

The problem was the terms on which these requests were granted. The parenting time order the court reached essentially gave the mother more daytime hours with the children than the father, despite his position as the parent with primary custody. Additionally, the mother was ordered to pay $280 monthly in child support payments, which the father would later contend were insufficient and improper because no financial affidavit had been requested prior to the order. Also, the court did not order those payments to made retroactively. The father would also later argue that his due process rights were circumvented when the court limited the amount of time during the trial court hearing in which he was allowed to cross-examine his ex-wife.

The Wyoming Supreme Court granted review upon appeal, which was also filed pro se (without a lawyer). The state high court rejected all of the husband's arguments. The court found that most lacked merit, but beyond that, husband had failed to raise objections to these issues during the trial court hearing. Raising objections during hearings - even if they are overruled - preserves the issue for later consideration upon appeal. 

This is something we would not necessarily expect someone who is not an attorney to know. In fact, there are many procedural issues of which the parties involved may not be aware.

By all accounts, this individual fared better than most, having been granted his initial requests. This was likely due to the fact that, by all accounts, he was articulate and respectful and presented a good case. However, the divided outcome shows that this is not always enough.

While it's impossible to say for sure, there is a likelihood that had he been represented by an attorney, the outcome may have been more to his advantage.

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

Additional Resources:

Davidson v. Carrillo, May 22, 2014, Wyoming Supreme Court

More Blog Entries:

Negotiating a Fair New York City Divorce Settlement, May 5, 2014, Brooklyn Child Custody Lawyer Blog


Wednesday, May 28, 2014

U.S. v. Fuller - Failure to Pay Child Support Results in Severe Consequences

The criminal conviction of a deadbeat dad was recently upheld by the U.S. Court of Appeals for the Tenth Circuit, where the defendant in U.S. v. Fuller was ordered to pay $54,000 in restitution to the mother of his three (now-grown) children and serve time on probation.

New York City child support attorneys understand that this was the conclusion of a years-long effort to find this man and collect. We are dedicated to ensuring our clients won't have to endure such an ordeal, and that payments can be secured in a timely manner, while the children are still minors and can benefit from those payments - which is the whole point of child support.

One of the most common actions taken against parents who don't pay child support in New York is a contempt proceeding, initiated by the parent to whom the money is owed. These are among the few instances in civil cases where a person can be ordered to serve time in jail. Incarceration can be ordered for an indefinite period until payment is made. The non-paying parent could also be sentenced to a jail term as punishment for failure to comply with the court's earlier orders.

The key to successfully pursuing this option is to prove the non-paying parent has the ability to pay and has willfully failed to do so. The non-paying parent could have a successful defense if he or she can show that they legitimately did not have the ability to pay.

In some cases, the court may find that a parent's lack of a job isn't an excuse. If the court finds the non-paying parent willfully avoided gainful employment, he or she could still be held in contempt.

In pursuing claims against a non-paying parent who lives out-of-state, it's important to understand that the federal Uniform Interstate Family Support Act gives sole jurisdiction to the court in which the child support order was issued.

Additional federal legislation - including the Child Support Recovery Act and the Deadbeat Parents Punishment Act - allow for additional penalties for parents who refuse to pay.

It was under these acts that the defendant in the Fuller case was prosecuted.

According to court records, the couple met in the late-1970s when they both worked at an aviation parts supplier. The two married, divorced and then married again by 1983. Over the course of the next 10 years, the couple had three children.

During this time, the husband quit his aviation parts job to work full-time as a musician. This became a spot of contention in the marriage, as his earnings were meager and there were difficult financial realities involved in providing for three children. The wife would later say that while she believed her husband was talented, he had chosen his music over his children because he refused to get a "real" job, while she worked full-time and had to place the children in daycare.

Eventually, the pair divorced. The husband did not attend any of the hearings, but was ordered to pay a little less than $400 a month in child support. 

He did not. While the wife worked full time, put herself through college and raised the children on her own, the husband sporadically made payments, but none of any significance and never with regularity.

In 1996, the mother sought help in enforcing the child support order, but was deterred by the fees.

More than a decade later, the federal government pursued criminal action against the father. The court called to testify his ex-wife, as well as several club owners who had paid him to perform and child support personnel who had for years attempted to locate him and make him pay.

During trial, the father argued that the government's evidence had shown, at most, that he had only earned $5,200 over the course of 17 years (when the child support order was in effect), and that he lacked any ability to pay.

The court rejected this theory, convicted him and ordered him to serve five years of probation and pay $54,000 in restitution to his ex-wife.

He appealed, but the federal appellate court affirmed the earlier verdict.

If you are seeking enforcement of a child support order New York City, call our offices at (718) 864-2011.

Additional Resources:

U.S. v. Fuller, May 13, 2014, U.S. Court of Appeals for the Ninth Circuit

More Blog Entries:

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse, May 20, 2014, New York City Child Support Attorneys


Monday, May 26, 2014

White v. Howard - Life Insurance Policy May be Considered a Form of Alimony

Divorcing couples tend to think of "alimony" as monthly payments made in the form of cash to one spouse or the other, usually for a finite period of time that terminates by a certain date or in the event  of remarriage. For the most part, this is exactly true.

However, the Georgia Supreme Court recently handed down a ruling in White v. Howard indicating that other assets (namely, a life insurance policy) could potentially be considered alimony for purposes of divorce. Brooklyn alimony attorneys recognize that this could make certain elements of divorce a bit messier for family courts seeking to ensure both sides are treated fairly.

This case involved a pair married for 35 years at the time of their separation. In the final divorce decree, the court indicated that neither party would be entitled to alimony, but did order the following:

  • That the husband obtain a life insurance policy worth $100,000 that named the wife as the beneficiary and maintain that policy for 12 years.
  • That the wife was to receive half of the husband's pension.
  • That the husband was supposed to make partial payments on the mortgage of the home in the wife's name until such time that the property was sold.

The court specifically stated in its order that these items were to be considered matters of equitable distribution of property - and not alimony. That order was issued in 2007.

Four years later, the wife remarried. Shortly thereafter, the husband filed a pro se motion (meaning without an attorney) seeking to terminate all three of these benefits, arguing they were a form of alimony that should be terminated when she remarried.

The wife responded with a motion to dismiss and a request for attorney's fees. The husband retained an attorney and subsequently filed a motion to modify alimony. A trial court held a hearing and issued a ruling in favor of the wife, dismissing all claims and granting attorneys fees. The court cited the earlier specification that these elements were not alimony, but part of equitable distribution of marital property. 

The husband did not fight back on the issue of the ongoing mortgage payments or pension, but he did appeal the decision as it related to the life insurance policy. He insisted this was a form of alimony. 

The state supreme court ultimately agreed with him. 

The court first explored the definition of periodic alimony, which is when maintenance payments are slated for an indefinite period of time, making the total amount indefinite as well. The court indicated that such orders could be modified if the financial circumstances of either party changed substantially. By contrast, with equitable distribution of assets, the assets in question are fixed, and the trial court doesn't have the authority to modify a final order on these matters, regardless of a change in circumstance. Also, lump sum alimony payments (those wherein the spouse receives a set amount of maintenance to be paid at one time) cannot be modified.

The wife argued in this case that the life insurance policy was a form of either lump sum alimony or equitable distribution, therefore not subject to modification.

The court disagreed with this because of the uncertainty that comes with a life insurance policy - specifically, the unknowable fact of how long the husband is going to live. That means it could be worth the 12 annual premiums he paid, or it could be worth $100,000, plus whatever premiums he paid up until the point he died. Because the value could not be determined, it was subject to modification.

Further, the court cited a previous case (Hawkins v. Hawkins) wherein the court had already established that the obligation to carry life insurance for the benefit of the other spouse is in fact a form of periodic alimony.

On these grounds, the supreme court reversed the trial court's ruling on this matter and remanded for reconsideration, based on the wife's remarriage.

If you are interested in alimony modification in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

White v. Howard, May 19, 2014, Georgia Supreme Court

More Blog Entries:

Court: Phone Sex Not Grounds for Resetting the Divorce Clock, May 18, 2014, Brooklyn Divorce Lawyer Blog

 


Thursday, May 22, 2014

Expectancy of Interest Argument Against Property Inclusion in Marital Estate

In filing for a Brooklyn divorce, one of the first things both sides will seek to establish is a full accounting of a couple's assets, income, and interests. It is then up to the court to determine whether such property is divisible as part of marital property, or whether it should be retained solely by one spouse as separate property.

What is considered marital property and what is considered separate is a determination that varies from state-to-state. Generally, though, assets acquired during the marriage are marital. Those acquired before or received under special circumstances may be held separate.

As the recent case of Coburn v. Cook shows, this determination can impact not only whether a party gets to keep the property in question, but may also impact how other property is divided.

This is a case out of Vermont, which, like New York, is an equitable distribution state.  This means the court is going to seek to divide marital assets equitably (which does not necessarily mean "evenly").

The dispute upon appeal to the Vermont Supreme Court was whether a husband's "expectancy interest" in a property should have been lumped in with the other marital assets.

Here, the parties married in 1997. They had a daughter in 1999 and separated in 2010. The court issued a final divorce order in 2013, when the wife was 48 and husband 55.

Prior to the marriage, the wife had her own horse stabling and training business, with property valued at $260,000. The husband assisted, and as a labor intensive operation, it was worth more when they worked together than when she worked alone. The husband also worked various other jobs. In 2010, prior to the couple's separation, the husband's mother deeded a 160-acre family farm to her son, though she retained a life estate and the power to sell or mortgage the property during her life. That property was appraised at $425,000, plus there was an adjacent empty lot he owned valued at $15,000. The parties also owned a small joint business together valued at $40,000.

The court analyzed both parties' employment and living situations, with the husband living with his mother and working part-time as a bus driver and the wife continuing to work in her stabling business and also running the business she started with her husband.

The court awarded the wife the horse stabling property, an adjacent lot, the couple's joint business and other personal property. The husband was awarded his mother's farm, the adjacent lot and other items of personal property. The court determined the value of the wife's award was around $436,000 while the husband's was around $453,000. No spousal support was awarded.

The husband appealed, arguing that the court wrongly included his mother's farm in the marital estate. He held that the terms of the warranty deed meant that he held an interest that would be considered similar to that of a beneficiary in a will or revocable trust. The court overlooked this fact, he contended. As such, the wife retained a disproportionate share of the marital estate. 

The Vermont Supreme Court agreed with him on the first argument. While noting that the court has a wide range of discretion in determining what is marital property, the court harkened back to earlier case law that held any interest a spouse held as a beneficiary under a revocable trust or will wasn't deemed marital property, ripe for court-ordered distribution, if the settlor was still alive. The reason was that the property was or interest was a mere "expectancy."

The court ruled that in the Coburn case, the husband's interest in the property was inchoate, or not fully developed, and therefore could not be distributed as marital property.

The same kind of outcome could generally be expected in New York, though the major exception with expectancy of interest would be pensions or retirement benefits. The courts have ruled that these are earned by both spouses in a marriage, and may be considered as marital assets available for division.

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

Additional Resources:

Coburn v. Cook, May 2, 2014, Vermont Supreme Court

More Blog Entries:

Baby Boomer Divorce Requires Financial Preparation, May 2, 2014, Brooklyn Divorce Lawyer Blog


Tuesday, May 20, 2014

Brooklyn Child Custody Cases Can be Impacted by Drug Abuse

Alcohol or drug abuse by parents can have a significant impact on the outcome of a Brooklyn child custody claim. Many times, such issues are at the root of why the claim was brought in the first place.

But drug use or even abuse is not grounds enough to terminate a person's parental rights. Brooklyn ACS attorneys know that the courts will be looking closely at the impact substance abuse had on the child, the parent's ability to meet the child's needs and whether the parent has taken steps to curtail his or her use.

The recent case of In re Interest of J.S., before the Iowa Supreme Court, underscored that a parent's status as an addict is not grounds enough on which to adjudicate a child as one in need of state assistance, which is the first step in potential termination of parental rights.

According to court records, the case involves a 9-year-old and a 5-year-old whose mother had, according to state social workers, used methamphetamine intravenously while caring for her daughters. The social worker indicated that the residence maintained by the mother for the girls was clean, and the mother appeared to be "very nurturing" to the 9-year-old. The younger girl was staying with her grandmother in order to finish her school year in their previous hometown in Nebraska.

The mother indicated that she had retained a retail store job, but was fired when she and her daughter became sick and she missed too much work. She admitted prior methamphetamine use, saying she was clean for seven years, but then relapsed in 2012. She conceded that authorities had removed her children before due to her drug use. She later completed a court-ordered program, and the children were returned. She admitted to another relapse in March 2013, but said the girls were not present.

Later, after a period of time during which social workers could not reach her, she came into the offices at the agency's request. She indicated the girls were with her mother, she had been staying with a boyfriend and had been using. Social workers noted her odd behavior during the interview, which involved wildly swinging emotions, from laughing to crying to anger. A drug test confirmed substances in her system, and staffers who administered the test believed she was under the influence at the time.

Child protection workers arrived at the grandmother's home the next day. They found the residence to be spacious, clean, appropriately furnished and the children appeared well taken care of.

The mother stated she visited the children with the grandmother's supervision, but that she ultimately wanted the girls back in her care. She said she changed her phone number, ended a number of unhealthy relationships and was willing to attend inpatient treatment.

She did later attend outpatient treatment, but then relapsed again and was admitted for residential treatment. At this point, the state filed a petition alleging that the girls should be classified as "children in need of assistance." This essentially would take formal custody away from the mother.

The mother was not represented by an attorney in court. She did not object to any of the state's exhibits and she presented no evidence of her own. The court declined immediate adjudication, instead calling for another hearing. Yet again, the mother had no legal representation, and did not refute any of the items the state entered into evidence. 

Subsequently, the court ordered the girls to be formally placed in the care of their maternal grandmother.

At that point, the mother retained a lawyer and appealed. The appellate court reversed, finding that the state failed to meet its burden of proof to show that the girls needed to be adjudicated as children in need of assistance. The state then sought review from the Iowa Supreme Court.

The high court indicated that simply showing that a parent was a methamphetamine addict - without more - isn't sufficient evidence to establish that there is an immediate risk of physical injury to the child.

In New York, there have been cases where a parent with a history of substance abuse was chosen to be a more fit parent than other relatives. An example is Worowski v. Worowski, a 1983 decision rendered by the Appellate Division of the Supreme Court of New York, First Department. Here, the court ruled that a mother with a history of alcoholism who was improving was a more fit parent than a 74-year-old father who had little to no meaningful interaction with the child.

This is not to say that New York family courts will turn a blind eye to children who suffer as a result of a parent's addiction. However, addiction alone is not necessarily enough to warrant stripping the parent of custody rights. Every case will be different.

Consulting an experienced family law attorney is the best way to determine your options.

If you need assistance in dealing with New York ACS, call our offices at (718) 864-2011.

Additional Resources:

In re: Interest of J.S., April 25, 2014, Iowa Supreme Court

More Blog Entries:

Failure to Follow Brooklyn Child Custody Orders Can Result in Sanctions, May 1, 2014, Brooklyn ACS Attorney Blog


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