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Thursday, March 20, 2014

Separation Agreements Fall in Wake of No-Fault Divorce in New York

A recent report by The New York Law Journal indicates that since the introduction of the no-fault divorce in New York state, the number of legal separation agreements has plummeted, even as the number of marriages dissolving has spiked. 

Our Brooklyn no-fault divorce attorneys know that for years, separation agreements steadily preceded about 7 percent of all divorces in the state, paving the way for many couples to smoothly start the process of separation. However, in the last 3.5 years, since the state legislature first adopted the no-fault model, the number of separation agreements has been halved. The New York State Department of Health reports that the number of separation agreements in divorces fell from 7.2 percent in 2001 to 6.8 percent in 2010 (the year after the law passed), 4.9 percent in 2011 and 3.2 percent in 2012. 

Meanwhile, the number of divorces reflected the opposite trend. In 2001, more than 66,000 couples in New York legally divorced. In 2009, that figure had fallen to less than 50,000. However, in 2010, it jumped back up to more than 56,000 couples, and it's continued on this upward trend in the years since. 

The reasoning is fairly straightforward. Prior to the introduction of the no-fault divorce, couples who wished to divorce either had to provide a grounds for the divorce or wait a full year. Sometimes, establishing fault in a divorce makes sense, particularly in cases of domestic violence (cruel or inhumane treatment) or when one party is seeking the upper hand in the divorce settlement. 

But for a lot of couples, this really isn't necessary. Both concede a share of the blame and simply want to part ways without dragging one another through the mud. However, this wasn't really possible prior to the introduction of no-fault divorce, unless they were prepared to wait a year. When couples went forward with that year-long wait period, it made sense to establish a separation agreement, wherein the terms of bill pay, child support, child visitation, etc. were all clearly spelled out. 

Then after the year was up, the couple could formally file for divorce. 

Now, however, spouses can put an end to their union simply by citing an irretrievable breakdown of the marriage that they allege has lasted for at least six months. They don't have to technically have been separated that long. They only must admit the marriage has been broken for that long. 

So in essence, the divorce process has gone from a two-step affair to a one-step affair. This is good news for many couples, and it's part of the reason why we've seen an increase in the number of divorces. 

However, there are still circumstances under which a separation agreement could be beneficial to couples. These include cases where it is expected the proceedings may extend beyond several months. Another example might be if one spouse needs to remain on the other's health insurance plan for the duration of the proceedings. 

If you are seeking help with either a separation agreement or an uncontested Brooklyn divorce starting at $399, we are available to help. 

Call the Law  Office of George M. Gilmer at  at (718) 864-2011.


Tuesday, March 18, 2014

Expunging a Brooklyn ACS Case: Clearing Your Name

If a report of child abuse or neglect has ever been made against you to the New York Administration for Children's Services - even if your child was never taken away and the case was closed - there may still be a report against you on file in the New York State Central Register. 

Brooklyn ACS attorneys know that it is important to seek sealing or expungement of any old ACS records. These files could be accessed by a future employer if you ever decide to apply for a job working with children. They may also be dredged up if you ever want to foster or adopt a child or even if you try to seek custody of your own children. 

No one from the state is going to contact you to inform you that these records exist, or to let you know that you have the right to seek expungement. But chances are, if there has ever been an allegation of abuse or neglect made against you - no matter how erroneous - a file exists. 

ACS cases in New York generally follow this track: Reports of neglect and abuse of children are made to the SCR. Officials with that agency make the determination of whether a report should be investigated. If a positive determination is made, the case is then forwarded to ACS (formerly the Bureau of Child Welfare). From the time that report is forwarded, ACS personnel have two months in which to complete an investigation. 

These investigations can involve social workers conducting home visits, interviewing the children at the home and talking with teachers, doctors, relatives or clergy. 

At the close of the investigation, a social worker will make the determination that the allegation was either "unfounded," meaning there is not enough evidence to suggest the allegation was true, or "indicated," meaning there is some believable evidence that child neglect or abuse has occurred. 

In cases that are "indicated," the file is kept on file until the youngest child named in the report turns 28 years of age. An "indicated" report is available not only to potential employers and family courts, but also to police, district attorneys and child welfare agencies. 

Cases that are "unfounded" will still be kept on file until the youngest child turns 28, but they will be automatically expunged at that time. Prior to that, they will still be available to police or ACS officials if they launch another investigation into the welfare of children in your care. 

The first thing to do is to find out if the SCR has a report on you. If so, you can request to have the report sealed or expunged. However, it's possible the agency could deny your request. In this case, you have the right to request a hearing. 

In some cases, it can also be valuable to request records from any clinics, hospitals or doctors from whom you or your children received treatment in the course of your case. Some agencies can take a long time filling these requests, and if you don't make them to the proper party, they can take even longer. Here again is a good reason why having an attorney with experience. 

Be mindful that you have 90 days from the time you receive notice that your name is on an SCR file in which to initiate the process to have the case sealed or expunged. That's why a lot of times, people who make the request are told their request was not filed timely. An attorney can help you in this matter by reminding the agency of a 1988 policy memo indicating that denial of a late notice requires ACS to prove they did in fact send the notice to you of the expungement process within 90 months. In many cases, this is enough to convince the agency to reconsider your request. 

Unfounded reports are often - but not always - expunged on the first request. 

Those with indicated reports can request an administrative review to have an administrative law judge consider expungement or sealing. At this review, the court will consider your request and may even come to the conclusion that the original report was unfounded. In this case, your records can be sealed right away. If not, however, you can request an administrative hearing. 

At the hearing, the two issues to be decided will be:

  • Did neglect or abuse occur?
  • Whether that neglect or abuse is relevant and reasonably-related to your working with or caring for children?

You can have witnesses testify on your behalf at the hearing. You can present medical evidence. Educational evidence. Employment evidence. Reports on therapy or rehabilitation. Anything that would show that whatever led to the maltreatment has been addressed. 

At that point, the administrative law judge overseeing the proceedings will make a decision. Even if the judge decides against you, you have the right to an appeal. An appeal in these cases can be brought on the grounds that the decision was arbitrary, capricious or not in line with the law. 

If you need help expunging a Brooklyn ACS case, call our offices at (718) 864-2011.


Friday, March 14, 2014

Resolving Child Visitation Disputes in NYC

There are perhaps few terms of a divorce or separation with such high potential for contention like child visitation. While the courts generally prefer to have arrangements wherein the parenting time is split 50-50, family law courts also realize that in some cases, this is neither realistic or even in the best interests of the children. 

Brooklyn child visitation attorneys can help parents to mitigate conflict and reach an equitable compromise. Many times, these situations deteriorate because the line of communication between parents is virtually severed.  Particularly in high-conflict cases, arrangements can be made wherein parents have very limited contact with each other. 

Setting a visitation schedule is going to take several factors into account. The first thing to establish is the form of custody that the child will be under.

Per the New York State Unified Court System, there are two primary kinds of custody: joint custody and sole custody. In a joint custody situations, both parents make big decisions regarding the child together. Examples would be decisions regarding a child's education, health and religion. Smaller, everyday decisions in a joint custody situation are made by whichever parent is physically caring for the child at the time. 

In a sole custody situation, only one parent has the right to all major decisions. 

Generally, New York family courts will lean toward a joint custody situation, unless there is evidence of domestic violence or that one parent is unfit or lives out-of-state or is otherwise unable to fill that role. It's important to note that today's courts do not favor either parent, and sole custody is based on what is best for the child. 

With very few exceptions, all parents who were not awarded custody are still entitled to visitation with their children. The courts generally believe that it is in the best for the children to have a relationship with both parents. For this reason, visitation orders are strictly enforced. 

N.Y. FCT Law 1081 outlines visitation rights, which can be claimed by either the non-custodial parent or even a grandparent. 

Depending on the facts of the individual case, however, those visits may be very different from case-to-case. There are many different kinds of visits. There are unsupervised visits, wherein the parent is able to visit with their child without any major restrictions or oversight. Then there are supervised visits. These are ordered in cases where the court has decided the parent can't be alone with the child due to concern about the parent's ability to act properly or where there have been allegations of abuse. Here, the court will choose a person to supervise those visits. That person could be a social worker, or it could be a neutral family member. 

Then there are therapeutic supervised visits. In these circumstances, a mental health professional is the one tapped to supervise the visits, and he or she will work to try to help the parent improve his or her parenting skills during those visits. 

In some cases, the court will order a neutral place of exchange. This is a safe location where a child will go from one parent to another for visitation. Some examples of a neutral location would be a library, police station, school or the mall. 

There are some cases in which one parent refuses to follow the court-ordered visitation schedule. In these cases, your Brooklyn family law attorney can file an enforcement petition. If the court determines a violation has occurred, it can impose a number of penalties and corrective actions. Sanctions might even include removing a child from the custody of the violating parent. 

This is why it's very important to follow the terms of the visitation agreement. If there is some aspect that you feel is unfair or should be modified, your attorney can set up a court hearing to request a change. 

If you need legal advice regarding a Brooklyn child visitation arrangement, call our offices at (718) 864-2011.


Saturday, March 8, 2014

New York Domestic Relations Law Bars New Action in Midst of Divorce

A Manhattan Supreme Court Justice recently ruled that the state's domestic relations law prohibits a husband's effort to sue his mother-in-law in an out-of-state court action regarding property in that state.

In the case of R.P. v. L.P., Justice Ellen Gesmer pointed to a new state law, passed in 2009, that serves to freeze automatically the assets of the parties in the midst of a divorce action.

Specifically, N.Y. Dom. Law 236(B)(2)(b) indicates that at the time the matrimonial action is commenced (or a divorce is filed), neither party is allowed to sell, transfer, encumber, conceal, assign, remove or in any way dispose of property without the written consent of the other party. Our Manhattan divorce lawyers would point out that property in this statute includes (but isn't limited to) personal property, real estate, stocks, cash accounts, bank accounts, boats, cars and mutual funds that were held either individually or jointly by those involved. The only exception on this freeze would be those transactions that would occur throughout the normal course of business, or for customary and usual household expenses or for attorney fees.

This is the same statute that prevents either party from incurring  unreasonable debts or causing the children to be deprived of their regular medical health insurance coverage.

The idea here is that the court wants to get an accurate picture of the union for purposes of equitable division of property and assets. They also don't want any sudden or rash decisions to negatively impact any of those involved.

Both parties are essentially expected to maintain business-as-usual, except in cases of emergency or unless otherwise agreed upon by all parties.

In this case, the husband attempted to simultaneously work through his divorce, while wresting possession of a Pennsylvania property from his mother-in-law.

The husband, wife and wife's mother purchased the property some 10 years ago, with one-third ownership belonging to the mother and two-thirds ownership to the husband and wife.

The wife, a part-time pharmacist, had filed for divorce back in the summer of 2011. By the fall, both parties agreed that the husband, a full-time orthopedic surgeon, had worked out many of the financial stipulations for their separation. That included the agreement that the husband would pay $12,500 monthly to her in temporary support, plus $5,000 monthly per child and he would also cover attorneys' fees.

Still, the husband sought ownership of the home in Pennsylvania. He filed several subpoenas in the divorce case in furtherance of this goal. However, the judge quashed these subpoenas, noting that she probably wasn't going to award him ownership of the property, though he would most likely be entitled to an apportionment of its value.

After the judge reached this finding, the husband filed a civil lawsuit in the local court of common pleas in Pennsylvania, where the house is located. He was not seeking to have his wife's stake in the property removed, but rather wanted his mother-in-law cut out of the deal. He wanted to sell the property and divide the proceeds.

The wife responded with a temporary restraining order that stopped him from filing this action, and she sought an injunction from the judge overseeing the divorce case. The judge granted it, rejecting an argument from the husband that Pennsylvania law allows the suit.

The Manhattan judge indicated that while the court in Pennsylvania would be the proper venue for the proceeding, the entire proceeding is improper until such time that the New York family court has the opportunity to resolve each parties' claims against the other regarding the equitable distribution of their interest in the property.

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

Additional Resources:

Judge Halts Division of Pa. Property in NY Divorce, Feb. 25, 2014, By Brenden Pierson, New York Law Journal

More Blog Entries:

Bronx Divorce and Money Matters: Can a Split Help Your Finances? Feb. 20, 2014, Manhattan Divorce Lawyer Blog


Friday, March 7, 2014

ACS Termination of Parental Rights Request - Legal Help for Bronx Residents

New York law is very clear that unless there are extraordinary circumstances, a parent is going to have a greater right to custody of a child than a non-parent.

Extraordinary circumstances might be if the parent has abandoned the child or was deemed somehow unfit.

Our Bronx ACS attorneys understand that separation of parents and children is traumatic and reunification should almost always be the goal. However, sometimes ACS will set unreasonable demands on parents trying to regain custody. It's our job to mitigate the impact this has on the judge's final decision.

In the recent child custody case of In re Guardianship of Stevens, reviewed by the Maine Supreme Judicial Court, the lower court had found the mother to be unfit, but had not provided a clear plan with achievable goals through which she could regain custody.

The child in this case was born in early 2009. His mother was transient. His father was not a reliable figure in his life. By the time he was four months-old, he was living with the mother's grandparents. Soon after, with the mother's permission, they sought temporary guardianship of the boy. It was granted, and he had lived with them ever since.

During the first year of his life, his mother rarely saw him. However, shortly after the boy turned 2, the mother became pregnant again and sought to regain custody of her son, thereby terminating her grandparents' guardianship rights.

A guardian ad litem was appointed for the boy, and several reports were subsequently issued. The first report indicated the mother was not fit, as she had lied to the guardian at litem, "inappropriately parented" the boy and continued to have regular contact with her mother, who was living with a convicted child sex offender.

Based on this, the mother was required to undergo a series of actions if she hoped to press forward with the case. Those included enrollment in substance abuse and mental health counseling, attendance of regular parenting classes and continue with regular supervised visits with the boy.

She followed through with most of this, but was reportedly "stonewalled" by her grandparents, who often canceled visits or refused to bring the boy to her home.

The grandparents countered that the boy experienced extreme anxiety anytime he had to go to his mother's home. He considered them his parents, they said, and his mother had never spent more than two hours with him at any given stretch.

The guardian at litem recommended termination of the guardianship if the court ever hoped to reunite mother and son. The court denied the request for termination of guardianship, indicating the grandparents had met their burden of proof, and further found the mother to be unfit.

The mother appealed, contending that denial of her petition to terminate was based on the erroneous finding that she was unfit. Additionally, she said the court gave her no remedy through which she could regain custody of her son.

The higher court in this case determined that all competent evidence produced at trial indicated that the mother could be a fit parent if transitional arrangements were made. However, the court's refusal to offer a transitional arrangement effectively prevented the mother from becoming fit. For this reason, the court determined, the ruling was erroneous. It was reversed and remanded.

Transitional arrangements for parents attempting to regain custody of their children must of course keep the best interests of the children in mind. That said, the best interests of the child most often involves reunification with the parents. Goals set for parents must be reasonable and clear.

If you need help with a Bronx ACS case, call our offices at (718) 864-2011.


Saturday, March 1, 2014

New York City Small Business Owners Must Carefully Consider Divorce Actions

Divorce can be trying for anyone. However, small business owners must be amply prepared before filing for divorce in New York City in order to protect their company, assets and employees. 

You may have considered that certain property, like the house, would be fair game and that your debts may be divided with you paying the larger share.

However, your business interest could be considered a piece of property that could be at risk for division in your divorce, and if you hope to protect it, you need to consult with an experienced divorce lawyer - preferably before you file. Even if the business itself may not be up for grabs, the value of it could be considered by the judge when determining how to split up your property. 

This is true even when your spouse has no ownership interest in the firm and even if he or she knows virtually nothing about what you even do. 

It's not that the non-business-owning spouse somehow becomes part-owner. Rather, the entrepreneurial spouse may end up owing the other for a portion of the business interest. 

Some company owners make the mistake of assuming that just because the spouse was not involved (or minimally involved) in building the business or the day-to-day operations that they don't have a stake in the firm. Legally, as far as divorce is concerned, this may not be true. Several factors will be considered, including how long you have been married, what sacrifices your spouse may have had to make while you grew the company and whether he or she did have any direct involvement. 

New York is an equitable distribution state, which means the court will be responsible for determining an asset division schedule that is most fair. Bear in mind that "equitable" doesn't mean "equal," and this is true for your business interests as well. 

The particular method of valuation of your company or your interest in the company will vary on a case-by-case basis. The court is going to look at the book value of the firm, its income approach and its market value. 

The process for determining a company's value tends to be quite complex.Typically, your attorney will guide you to experts in the field who focus on this specific kind of forensic financial work. While this can sometimes get pricey, a lot of times, these individuals can help in the process of divorce settlement negotiations - which keeps you out of court and significantly drives down the overall cost of the process.

While you and your soon-to-be-ex could hire separate financial experts, you might be able to further reduce expenses by hiring a single "neutral" expert who can help you reach a fair conclusion. 

Your attorney can help you do a preliminary evaluation of the firm and other assets to help you figure out the most cost-effective approach to preserving your business interests during the divorce proceedings. 

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

Additional Resources:

Business owners and divorce, Feb. 3, 2014, By Christopher H. Macturk, The Richmond Times-Dispatch

More Blog Entries:

Benefits of a Prenuptial Agreement in Brooklyn, Feb. 5, 2014, New York City Divorce Lawyer Blog


Wednesday, February 26, 2014

Pro Se Divorce in New York Rife with Risk

It's understandable that a person facing a division of property and years of domestic support obligations would want to limit their expenses.

However, attempting to cut down on legal expenses by cutting out your Manhattan divorce attorney entirely is almost always a very bad idea. For one thing, your attorney is the person who will argue to have your support obligations minimized and your property retention maximized. Even in cases of an uncontested divorce, it's important to have a legal advocate looking out for your best interests.

Plus, for someone with little to no experience in the New York divorce courts, the process can be intimidating and confusing, and judges tend to have little patience for those who are trying to navigate it on the fly.

In the words of the Suffolk County family law judge overseeing the case of G.T. v. A.T., herein highlights the difficulties when one party attempts to represent themselves. Although it's true that the court may give some leeway to those who represent themselves, it is rarely to their advantage.

The judge determined that in this case, the husband presented minimal evidence, was fueled by his own agenda, lacked reason and direction and his evidence often lacked any substantive value in the case. The judge described the husband as "rambling" and lacking clarity, and it was determined the court essentially wasted several days while the man cross-examined his soon-to-be-ex-wife.

Mind you: This was not an uneducated or unintelligent man. He was an engineer who previously earned an annual salary of $90,000 and has most of the college credits necessary for his doctorate degree. 

However, as a result of his faulty attempt to represent himself, his ex incurred over $10,000 in additional legal bills, which the court determined the husband would have to pay.

The judge noted that just because a person chooses to represent themselves does not mean he or she will be allowed to unnecessarily drive up plaintiff's legal fees.

According to court records, the 50-year-old wife filed for divorce in late 2011. The pair had been married since 1987. They had two children, one aged 21 and another 16.

While the wife had lost her job, she returned to school and again became employed. Her husband, meanwhile, had left his job and refused to get another, even at her request, saying he believed it beneath him to work for anyone. Instead, he managed several real estate properties. This was despite the fact that these joint properties were intended to be an adjunct to their full-time work.

Her husband's refusal to find work, she said, was a big part of the reason for the initial separation. She felt that the "empire" he was trying to build was unwise and put the family on shaky financial ground.

The pair worked out a custody plan regarding their teen prior to going to court, so the majority of the argument between the two involved debt. The husband constantly refinanced these real estate holdings, putting  the pair deeper into debt.

This was the one issue both parties couldn't seem to settle. They had numerous outstanding credit cards, legal fees and mortgages.

Throughout the proceedings, the husband accused the judge of disrespect, called on him to recuse himself, threatened to file a complaint with the judicial commission when the judge did not acquiesce and begged his wife to reconcile with him. None of these efforts were effective.

During a four-day cross-examination of his wife, the judge said that the husband refused to follow the court's direction, often testified improperly and disregarded the judge's rulings regarding pursuit of certain subject matter. He yelled at his wife while cross-examining her and was described by the judge as "hostile."

He reportedly "bombarded" his wife's counsel with demands for "emergency meetings," as well as scores of emails, phone calls and letters. This also resulted in driving the wife's legal fees up. 

While the courts usually award attorney fees to the less moneyed party, in this case, the judge determined that the defendant was voluntarily unemployed. Because of this and the unnecessary delays caused by the husband's self-representation, he was ordered to pay attorneys' fees.

So while he may have saved money initially, his inexperience in the courtroom cost him in the long run.

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

Additional Resources:

G.T. v. A.T., Feb. 10, 2014, Supreme Court, Suffolk County

More Blog Entries:

New York Divorce: Contested Versus Uncontested, Feb. 20, 2014, Manhattan Divorce Lawyer Blog


Monday, February 24, 2014

Bronx Divorce and Money Matters: Can a Split Help Your Finances?

Our Bronx divorce attorneys want to steel our clients for the financial impact of divorce. Particularly in a contested divorce, individuals should anticipate a year or two of financial strain, which will include upkeep of all the previous expenses, plus those you will incur while maintaining a separate household. There are attorney's fees,  court expenses and support payments to consider.

All of these can be significantly mitigated when a divorce is uncontested, but the the type of filing you choose will be heavily dependent on your individual situation.

Still, one aspect of divorce that tends to get less attention is the financial benefit. Most people expect their savings to take a dive, but they fail to consider that in many cases, a divorce may actually boost one's credit. A recent Divorce and Credit survey conducted by Credit.com found that nearly half of respondents realized a credit boost once their divorce was finalized. About 30 percent indicated a "significant" increase.

The 530 adult respondents varied in age, education level, location and income level. Admittedly, this wasn't a nationally representative group, but the results nonetheless offer a different perspective on divorce and finances than the one we are so used to hearing.

Overall, 46 percent said their credit score had improved following divorce. Of those 29.66 percent said their score had improved significantly, while 16.35 percent said it improved "a little."

There were 12.36 percent who said their score become a little worse and 19.01 percent who said their score got significantly worse. About 23 percent said they didn't know how their score was affected.

Those couples who did indicate a dip in credit scores following divorce were more likely to indicate that finances were a central reason for the split. Among those whose scores decreased after a final judgment was issued, about 7 percent indicated that finances were a prime factor in the separation. Compare that with those who saw a credit score increases, where only about 4 percent said money was the main issue. Of those whose credit score climbed, more than 40 percent said money had nothing to do with the breakup, compared to 30 percent of those whose scores had dropped following divorce.

The reality is that divorce itself doesn't have any direct impact on your credit. You get no positive or negative marks either way for the actual filing.

The impact, rather, comes indirectly.

If you are hoping to emerge from the separation better off, the first thing to understand is that the divorce decree in and of itself is not going to free you of obligations to your creditors. A decree that obliges one party to cover certain debts is binding in family court, but creditors are not bound to that contract, meaning that if your spouse refuses to pay, you could still be held liable. You have the option of taking your ex back to family court, but your credit could still suffer a negative impact by then.

With this knowledge, you may consider prior to a divorce is disentangling yourself from joint credit accounts. That way, you are not obligated by the credit card company to pay, and if your spouse falls behind, it will be only his or her credit that suffers.

In cases where a couple owns real estate together, usually the best option is to sell the property and split the proceeds (or the debt obligations). However, there may be some circumstances in which one spouse wants to stay in the house. The details of this should be carefully worked out with a divorce attorney, but bear in mind that if both individuals signed the mortgage, both will be obligated to continue paying on it, at least in the bank's eyes. It's usually impossible to remove one party or another from the mortgage, so it's important if you and your spouse agree to keep the house that you have an airtight agreement with regard to payments.

Even if your score takes a hit in the short-term aftermath of a divorce, when money woes have been a central issue in your marriage, the long-term financial benefits of extricating yourself from those problems more than make up for it.

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


Saturday, February 22, 2014

Report: American Families Changing, Family Law Needs Evolve Too

A recent in-depth report in The New York Times explored how the American definition of "family" has been rapidly evolving over the last several decades.

The "typical" nuclear family of a young wife, husband and 2.5 children is no longer necessarily the norm in many places. In addition to families headed by homosexual partners, many families have become blended following second and even third marriages. They are more racially, ethnically and religiously diverse than they were even a generation ago. Some people delay marriage extensively or reject it altogether in favor of cohabitation. The birthrate has been halved since 1960, and older generations are finding love and choosing marriage later in life than ever before.

As the American family has changed, the American legal system has struggled to keep the pace. Our Brooklyn family law attorneys recognize that we have seen this in states' approval (and bans) of gay marriage, expansion of adoption laws and the rise of prenuptial agreements and cohabitation agreements.

One of the greatest changes over the last several decades, the Times reports, is the number of people who are choosing to cohabitate and have children outside of wedlock. While women with bachelor's degrees or higher marry before having children about 90 percent of the time, the numbers are far lower for everyone else. More than 40 percent of all babies are now born outside of marriage - which is a 400 percent increase since just 1970.

Of those mothers who are unwed, about 25 percent live with a man who may or may not be the child's biological father. Cohabitation rates have risen by nearly 170 percent just in the last several years, from 2.9 million in 1996 to 7.8 million in 2012.

Cohabitation agreements have also become increasingly important for homosexual couples, particularly in states where their marriages are not recognized.

Additionally, the number of gay couples with children has doubled just in the last decade, according to the Williams Institute at the University of California, Los Angeles. Researchers there say well over 100,000 gay couples are raising children in America. Other estimates put the number of children being raised by gay parents at close to 2 million, or about 1 out of every 37 children. The rights of both parents in these unions must often be affirmed and protected through legal paperwork filed in family court.

Another aspect that has thrown the family legal system for a loop is the rate of working mothers. It used to be in divorces or other family legal matters that the male/father would be expected to support the family both during the union and after a divorce. But women's paychecks have become not only vital to their family's financial health, in many cases, they are now the breadwinner (40 percent of families are headed by women who are the primary wage earners, versus 11 percent in 1960). That has resulted in a shift in the way courts approach issues of child and spousal support.

Then there is the overall shift in the age of those who are getting married for the first time. The average age for men has risen from about 23 in 1970 to 29 in 2010. For women, it was 20 in 1970. Now, it's nearly 27. Delaying marriage has given individuals more time to focus on their careers and obtain financial stability. This in turn has led to lower divorce rates among these cohorts after they actually do get married. However, it has also increased the number of premarital agreements signed, as each party has more interest in protecting the assets they brought into the union, including homes, vehicles, savings and retirement accounts.

Children, too, are being delayed. In 1970, most first-time mothers were 22. As of 2010, they were 26. There has been a significant shift in the number of teen mothers as well, with most first-time mothers having their children in their mid-20s to early-30s.

We also see fathers who are more involved than ever in their child's lives. That has meant that in the event of a divorce, custody isn't automatically assumed to go to the mother, as it was in years' past. Fathers are now given equal consideration in terms of custody and child-rearing.

As this research shows, there are many reasons beyond simply divorce why a New Yorker might seek the services of a family law attorney. We're here to help.

If you are in need of a Brooklyn family law attorney, call our offices at (718) 864-2011.


Thursday, February 20, 2014

New York Divorce: Contested vs. Uncontested

It was recently announced that former New York Governor Eliot Spitzer and his wife, Silda, would divorce after 26 years of marriage. This revelation in and of itself wasn't all that shocking, as the pair had endured numerous, high-profile marital strains. The greater surprise, it seemed, was that the pair also indicated that the split would be uncontested.

In contemplating filing for divorce in Brooklyn, people often assume that if the marriage was long-term or if there are minor children involved or if there are a large number of assets or funds (all of which is true in the Spitzer case) that it is impossible for the divorce to be uncontested.

This is not true, though it will require an experienced divorce lawyer in these cases to ensure your interests are protected. There are benefits to each type of filing - contested versus uncontested - and the kind of divorce you seek will depend largely on your own individual situation.

An uncontested divorce is on in which both spouses agree to all issues concerning the dissolution of marriage. That is, not only do both spouses want the divorce itself, but they agree on the grounds for divorce, child custody arrangements, visitation rights, spousal maintenance, child support and equitable division of the marital property and debts.

If these issues can be resolved before the divorce is ever even filed, then neither of you have to appear in court and the divorce will be considered uncontested from the very inception.

A contested divorce, meanwhile, is when spouses disagree on the aforementioned issues, or some combination of them. For example, your spouse may not contest the divorce itself or child custody or even child support payment amounts. However, he may have an issue with the way you propose dividing the property. In this case, a contested filing would be more appropriate.

Contested filings are inevitably going to be more expensive. They will require more time from your attorney, and tend to be taxing on those involved, both financially and emotionally. In some cases, if there is vehement disagreement, procedures may drag on months or possibly even years.

The time span of an uncontested divorce isn't guaranteed either, but it is likely to be significantly shorter than a contested divorce. Much of it will depend on the level of cooperation we get from both spouses. The faster both spouses sign and submit the paperwork, the faster it can be processed. Local clerks of courts may vary in how quickly they file what you have submitted (depending on backlog, staffing levels, etc.), but if all runs smoothly, an uncontested divorce could  be completed with a final judgment within three months.

So long as the divorce remains uncontested, neither party will need to appear in court, as all matters can be handled by mail, phone, email or fax.

The process is also decidedly less expensive. At the Brooklyn Law Office of George M. Gilmer, we offer uncontested divorce filings starting at $399.

It is possible in some cases that a divorce that begins as uncontested could turn contested. There is always the chance that after signing the initial paperwork, one spouse could decide that he or she does not agree with the grounds for divorce, the type of relief sought, the terms of the child support or custody arrangements or property division.

The best way to avoid this possibility is by reaching an agreement with your spouse about all of these matters prior to filing. You may wish to meet with a divorce attorney prior to opening the discussion with your spouse to determine the best way to approach it.

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


Tuesday, February 18, 2014

Corporal Punishment in New York City: Discipline vs. Abuse

A mother in Massachusetts was recently arrested after patrons at a supermarket called police to report she had abused her 5-year-old son.

Witnesses say she began to spank the child while in the check-out line of the store. Onlookers urged her to stop,  but she continued. Roughly a dozen patrons then followed her out to the parking lot, wrote down her license plate number and called police. She explained she had merely been disciplining her son, an "active" child. However, she was arrested on charges of assault with a dangerous weapon on a child under 14. Local social services have opened a case file on her and her family.

Our Brooklyn family law attorneys know that parents of young children will at some point inevitably lose their temper. In some families, corporal punishment is considered a moral and effective form of discipline. There are some who argue it isn't used enough, which explains some of our societal failures.

But is corporal punishment legal in New York?

The answer is yes. However, that does not necessarily mean that the New York Administration of Children's Services won't  get involved in cases of legal child discipline. What one family perceives as perfectly normal, another may deem harsh.

These kinds of claims will often arise in child custody battles, where one parent interprets the corporal punishment as discipline, while another deems it abusive.

In the end, it's often social workers who are tapped to make the judgment call. Such a determination, even if it doesn't result in arrest, can have a profound impact on an individual and a family.

Setting aside the various moral arguments for and against spanking, let's focus here on the legal aspects.

Corporal punishment for children in New York is legal. However, parents should be mindful of N.Y. FCT. Law 1012. This law holds that a child (that is, a person under the age of 18) could be considered "neglected" when his physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired due to his parent or caregiver "unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereto, including the infliction of excessive corporal punishment."

This law is painfully broad, and is open to a wide degree of interpretation.

The state's criminal law, specifically N.Y. Pen. Law 35.10, is a bit narrower in its definition of justification for use of physical force against children. This law states that a parent, guardian or person entrusted with the care and supervision of a person under the age of 21 can use physical force (but not deadly physical force) upon such person when and to the extent that he reasonably believes it necessary to maintain discipline or to promote the welfare of such person.

The key work here is "reasonably," and that is open to interpretation of the court.

Some states have taken these laws a step further by specifically defining "how hard is too hard." In Texas, for example, disciplinary spanking is confined to the buttocks. A bare hand may be considered abusive, but the use of an instrument, such as a belt, may not so long as injury does not occur. A child who is bruised or requires medical attention may be considered abused.

However, New York doesn't offer up such specifics.

What is clear is that the standard for proving child abuse stemming from corporal punishment is much higher in criminal cases than in family court. So even if hitting or spanking a child for disciplinary purposes may not land you in jail, it could very well impact your ability to maintain custody of your children. The family court judge may require you to attend parenting classes or some type of anger management course - at your own expense, of course. 

In some cases, ACS may petition the court to have your children removed from your home, resulting in trauma to both you and the children.

Successfully fighting back against these sorts of ACS actions requires the assistance of an attorney who is experienced in New York family law.

Contact the Brooklyn Family Law Office of George M. Gilmer at (718) 864-2011.


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