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Monday, September 29, 2014

Doan v. Wilkerson - Leave No Aspect of New York City Divorce Overlooked

Depending on the length of the marriage, number and age of children and financial assets at stake, separation and divorce can be arduous. We recognize the toll the process can take on clients. However, our Brooklyn divorce lawyers also recognize the importance of being thorough.

 If some aspect is overlooked and not negotiated, it may be difficult if not impossible to alter once the ink has dried on the divorce settlement. There are sometimes options for modification of the agreement, but usually, this requires a showing of change in circumstance. For example, you lost your job and can no longer pay the agreed-upon child support amount. Usually, this pertains to child custody, child support and spousal support maintenance.

Most other aspects would have to be the subject of an appeal. This can be a drawn-out process, whereby you are asking the court to overturn the decision of the lower court. In these cases, usually you need some kind of fundamental inequity, proving the agreement unfair. Even then, if you had reason to know of that fundamental inequity at the time of the agreement and did not address it, the court may not consider your request.

Bear in mind also that for an appeal, your window of opportunity may be brief. There are no "statute of limitations" on divorce agreements, but the time you have to file a motion to reconsider and/or appeal may be short. The sooner you consult with an attorney, the better.

A good example of what can happen when key elements are overlooked in a divorce can be seen in the recent case of Doan v. Wilkerson, weighed by the Nevada Supreme Court.

In this case, the pair were married in 1985. The husband worked for the Federal Aviation Administration, and when he retired after 23 years on the job, he received numerous retirement benefits as a federal employee.

Prior to his retirement, the parties filed for divorce, seeking equitable division of assets. As part of this, the pair exchanged financial affidavits laying out respective income, monthly expenses and marital assets. Although no account was specifically listed by name, both parties indicated they owned retirement accounts and/or pensions, and listed the contributions as a monthly expense.

In a pretrial motion, wife listed federal retirement benefits accrued during the marriage, and husband conceded to this fact.

Just before trial, counsel for both parties withdrew from the case (it's not clear why) and both parties agreed to represent themselves at the scheduled trial before a judge. During the settlement conference (at which time an attorney would be needed most) the pair agreed to the terms of division of property and debt. The district court issued a final degree, prepared by husband and approved by wife. That was in late summer 2003.

Problem was, the decree made no mention of husband's federal retirement benefit.

Six years later, wife filed a motion for division of an omitted asset when her new lawyer learned she wasn't receiving her fair share of her ex-husband's retirement benefits. She indicated they had been unfairly omitted, and she sought collection and also reimbursement of past benefits.

The district court denied her motion following two hearings, finding the benefits had been disclosed during discovery hearings, meaning wife knew of them (amounting to "full and fair disclosure"), and failed to ensure they were included in the settlement.

Wife filed a motion for reconsideration, which the district court granted. At that time, the court indicated although full disclosure had occurred, those retirement benefits were only left out due to mutual mistake.

Husband appealed, and Nevada Supreme Court reversed. The court found an ex-spouse who fails to file a motion for relief from a divorce decree within six months (per the law in that state) is not entitled to relief except when "exceptional circumstances" would justify such action. Further, under the facts of this case, wife was not entitled to equitable relief because the issue of retirement benefits was adjudicated during the previous divorce proceedings.

This means the wife will likely lose out on tens of thousands of dollars - if not more - on retirement benefits over the rest of her life. The money saved on not having an attorney review the agreement likely now seems minimal.

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

Additional Resources:

Doan v. Wilkerson, June 26, 2014, Nevada Supreme Court

More Blog Entries:

Thursday, September 25, 2014

Adrian Peterson Case and the Legality of Corporal Punishment

Minneapolis Vikings' All-Pro running back Adrian Peterson is facing criminal child abuse charges that could lead to two years in prison and possibly the end of his football career after he was arrested for striking his 4-year-old-son with a "switch," or thin tree branch. He has been suspended indefinitely from the NFL while his case plays out in the criminal courts, and though not as widely publicized, there is likely a simultaneous family law case playing out as well, determining to what extent Peterson's custody or visitation schedule should be limited.

Brooklyn ACS appeals attorneys recognize that in all 50 states, including New York and Minnesota, corporal punishment is still technically legal. The problem is there is widespread misunderstanding about the law, and various cultural interpretations about what is socially acceptable when it comes to raising and appropriate disciplining of children.

There are those who will (and have) said Peterson's actions were excessive, the perpetuation of the generational cycle of abuse. But there are those who have just as quickly stated such actions are taken out of love, and necessary to raising a respectful child. It's how they were raised, too.

Statutes vary from state-to-state on the definition of what "abuse" is, but most say that to be considered "discipline," it must be "reasonable" or at least "not excessive." Delaware passed a law in 2012 indicating it may not "cause any pain or injury." Still, most courts have generally upheld parents' right to spank.

In New York just this past summer, the state's highest court determined a father's use of an open hand to discipline an 8-year-old son who used an expletive was "reasonable use of force."

Public opinion is generally overwhelmingly in favor of allowing parents to retain this right - within reason. Last year, a Harris poll indicated more than 80 percent of American parents found spanking children is "sometimes appropriate." Less than 20 percent found it is "never appropriate." While one-third said they had "never" spanked their child, two-thirds said they had done so at least once.

Those who are Southern, African-American and religiously conservative Christians were far more likely to approve of spanking than those in other groups, according to another national General Social Survey.

In the Peterson case, news reports showed photographs of the boy with some half-dozen welts on his legs. Peterson would later say he was trying to discipline, not injure. It was the way he was disciplined as a child, he noted. He would later concede, however, that he "caused an injury that I never intended or thought would would happen."

Under New York law, "children" are defined as being up from birth up to 18 years (or up to 21 if he or she has a handicapping condition). Abuse upon a child is defined as that which is inflicted on this category of individual which causes serious physical injury (such as fractures, burns, head trauma and other internal injuries) creates a substantial risk of serious physical injury or impairment of emotional health other than by accidental means.

However, while corporal punishment is legal in New York, this does not mean the New York Administration of Children's Services Won't get involved in cases of legal discipline. What one family perceives as discipline, another may perceive as abuse, and the government may intervene simply as a preventative measure. But the process can be overwhelming for the family at the center regardless.

We're here to help.

For Brooklyn ACS help, call our offices at (718) 864-2011.

Additional Resources:

Corporal Punishment: Legal and Common, By Tracy Connor, Sept. 16, 2014, NBC News

More Blog Entries:

Corporal Punishment in New York City: Discipline vs. Abuse, Feb. 18, 2014, Brooklyn ACS Lawyer Blog

Monday, September 15, 2014

In re the Marriage of Evans: Be Cautious of Pre-Disclosure Agreements

In any divorce settlement, it's imperative that each party fully understand the consequences of each concession. In uncontested divorce proceedings, couples divvy up the assets and liabilities per the terms of a predetermined agreement.

But even when things move fast, it's important to make sure everyone understands every step taken and what it's going to mean for all parties. This is why we often advise parties to wait for a formal disclosure of declarations before signing on the dotted line. Our Brooklyn divorce lawyers know both sides are sworn under oath to be honest in these mandatory declarations, which means any discrepancy can later be challenged in court.

This was the issue in the recent divorce case of In re: The Marriage of Evans, before the California Court of Appeal for the Fifth Appellate Circuit. Although this is a non-local case and family law can vary significantly between jurisdictions, the concept of mandatory financial disclosure prior to divorce is a widely-regarded concept.

In this case, the question was whether a property settlement that was signed after the pair separated but prior to a petition for dissolution of marriage (and the exchange of disclosure declarations) should be valid and enforceable.

The specific property in question was the marital home. The two entered into a written agreement in which the husband agreed he would buy out the wife's interest for one-half the value of the equity. The agreement was signed and dated prior to the petition for dissolution of the 22-year marriage.

After that, when financial declarations were made, the husband sought to render the agreement unenforceable.

The marital estate was the only significant asset the two shared. They agreed the husband would buy out the wife's interest, and the wife typed out a contract that was titled "Pre-Divorce Agreement." Both parties assume the residence had a net equity of $600,000, and accordingly, the husband agreed to pay $300,000 to the wife for her one-half interest. The agreement was then the husband would own the home and the wife would move out.

After the document was signed, the husband paid $197,000 to his wife, leaving a remaining balance of $103,000.

This agreement was not reviewed by an attorney, but it was signed and dated by both parties. Prior to both parities signed, neither had served the other with any kind of financial disclosure statement. However, there is no indication in the record the wife had possession of information that might have been pertinent to the exchange and chose not to tell the husband about it. Had that been the case, the husband might have had a stronger argument.

Two years later, when the wife formally filed for dissolution and financial disclosures were submitted, it turned out the actual market value of the home was $420,000. There was an unpaid balance on the property of $350,000, meaning the actual net equity of the home was $70,000 - far less than the $103,000 the husband still owed the wife under the terms of the agreement.

Husband requested the agreement be set aside, citing the parties' failure to comply with disclosure declaration agreements prior to signing. The trial court denied this motion, ruling that because the agreement was signed prior to filing a petition for dissolution, failure to disclose declarations was irrelevant.

He appealed, and the appellate court affirmed.

The lesson here is that financial disclosure is an important part of the asset division process - even if you have no reason to suspect your spouse of hiding anything. It ensures both parties are entering each aspect of the agreement with open eyes. Review by an attorney likely could have prevented this scenario.

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

Additional Resources:

In re: The Marriage of Evans, Aug. 29, 2014, Court of Appeals of California, Fifth Appellate District

More Blog Entries:

Tallo v. Tallo - Drafting an Unambiguous Divorce Agreement, Sept. 9, 2014, Brooklyn Divorce Lawyer Blog

Saturday, September 13, 2014

In re A.E. - Brooklyn ACS Lawyers Discuss Spanking as Discipline

Parents have the fundamental right to discipline their child as they see fit - within the confines of the law. However, our Brooklyn ACS lawyers recognize problems can arise when definitions of appropriate discipline vary.

Often a parent's cultural background and personal upbringing play a role in their views on discipline. In a place diverse as New York City, sometimes the chasm between interpretations can be wide.

The same might be said of Los Angeles, where the case of In re A.E. played out before the California Court of Appeal for the Second Appellate District, Division Eight. This case involved a young mother and father, both raised in rural Texas, who had moved to L.A. with their 3-year-old daughter.

One evening last summer, a neighbor called police after hearing a young child being spanked. The county sheriff's department responded, and found the young girl had two, six-inch welts on the back of her right leg, as well as several more on her buttocks.

The father, seemingly without hesitation, admitted he had struck the girl with his belt because she was misbehaving that day. Both parents considered spanking to be an appropriate form of discipline, though the mother denied knowing anything about welts on her daughter's legs.

The father was arrested for child abuse. After being red his Miranda rights, he told police the incident occurred when his daughter disobeyed her mother for the fourth time in less than one hour. The father was quoted as saying he did not act out of sport or fun, but "So that one day, just as I thank my parents for their care of me, she will do the same."

He indicated that he disciplined her with his belt on her butt. However, she turned at the last second, and he mistakenly struck her leg.

Following his arrest, a case worker with the state's family services agency opened a file on the family. The caseworker noted no signs of mental illness, drug abuse or any other circumstance that might indicate a danger to the child. The mother's uncle, who was temporarily living with the family, told the caseworker the parents were "good people" who were "doing their best" to raise the girl. He told the caseworker he had never seen either parent inappropriately discipline the girl.

The condition of the home was found to be safe and clean and all the child's needs were being met.The caseworker even noted the father was cooperative and motivated to change. He had even purchased a parenting book and later conceded to understanding why the discipline was not proper, and how he would react differently in the future.

And yet, a petition was filed by the state agency indicating the father was a danger to the child and should be removed from the home.

The court initially only allowed monitored visits between father and child, with the requirement he attend parenting courses. However, he was not permitted to have overnight visits in the family home.

He appealed on grounds that he was not a substantial danger to the child's physical and mental well-being. The appellate court agreed, finding the lower court failed to find by clear and convincing evidence the girl's health, safety, protection or physical or emotional well-being were in danger.

These kinds of cases can result in a substantial and unnecessary emotional and financial burden being placed on a family. Our attorneys are committed to helping your family achieve a swift and just solution to your ACS case that is in the best interest of you and your children.

For help with a Brooklyn ACS case, call our offices at (718) 864-2011.

Additional Resources:

In re A.E. , Aug. 4, 2014, California Court of Appeal for the Second Appellate District, Division Eight

More Blog Entries:

In re J.T. - Grandparent Visitation Rights in New York, Sept. 1, 2014, Brooklyn Family Law Attorney Blog

Thursday, September 11, 2014

Brooklyn Divorce Lawyers Advise Women How to Protect Financial Interests

While income equality is more of a reality today than just a few decades ago, the fact is, many women still earn less than men. In the event of divorce, family law judges seek to equitably divide assets and establish support payments were necessary.

However, our Brooklyn divorce lawyers are well aware that far too often, women become financial victims in these situations. Ensuring that divorce settlements are fair - or more than fair - requires an experienced attorney who is emotionally removed from the turmoil.

One of the primary mistakes made by divorcing spouses (of both genders) is focusing too heavily on alimony, also known as spousal maintenance. Of course, there is nothing wrong with asking the question or with insisting that such payments be made. This is particularly true if the spouse making the inquiry has foregone career opportunities (or a career altogether) in favor of staying home to raise children or helping the other spouse to advance his career.

But here's the problem: Almost always, alimony is temporary. It's not a long-term solution to achieving self-reliance or long-term financial security. First, there is always the possibility the ex-spouse will abscond and simply not make payments. Or, he could become disabled, rendering him unable to work. He might die. All of these factors should be considered when weighing what other elements require focus.

Sometimes, provisions can be written into divorce agreements to allow payments for tuition or other educational training, which might help bolster your viability in the job market.

There should also be ample consideration for health insurance coverage and receiving a fair share of the pension/retirement fund.

Another common mistake is focusing too much on the house. This often proves one of the most self-defeating decisions in property settlements. There may be an emotional attachment to the property. They may believe keeping the children in the same home allows for greater stability as they make this difficult transition. While there is nothing inherently wrong with keeping the house, far too many people focus on this aspect without considering some of the more negative aspects. For one thing, many homes are underwater in the wake of the housing crisis. A home that is worth less than what's owed will quickly become a money pit. Beyond that, affording not just the mortgage but the maintenance on a home can become extremely difficult when household incomes are divided.

Consider too that even if you can afford the house, payments and maintenance may preclude you from setting aside any meaningful savings which, again, can help to ensure long-term financial security.

We often encourage exploring whether a home sale - with an equitable division of profits or debts - makes more financial sense.

Finally, one of the best ways to ensure you don't become a financial victim in a divorce is to plan properly. While it may seem one is never fully "ready" for a divorce, there are steps you can take to put yourself in a better position. Those measures include having access to funds and credit. Additionally, each party will want to make sure they can readily access important documents, such as checking account statements, tax returns, property deeds, vehicle titles, etc. Also, each party needs to know what they own - and what their spouse owns and owes.

Talking through all of this with an experienced divorce lawyer prior to filing will help ensure you are financially prepared for the next chapter of your life as an independent person.

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

Additional Resources:

How Women Can Keep From Making Themselves Victims in Divorce, Sept. 4, 2014, By Laura Mattia, Baron Financial Group

More Blog Entries:

Brooklyn Divorce: What to Do With the House? July 30, 2014, Brooklyn Divorce Lawyer Blog

Wednesday, September 10, 2014

In the Matter of Serodio & Perkins - A Lost Prenuptial Agreement

Initiating a prenuptial agreement to parse out property division in the event of a split is smart. So is keeping track of the document once it's signed by both parties.

It was a failure to do the latter that caused trouble for one soon-to-be-ex-husband in the family law case of In the Matter of Serodio & Perkins, considered recently by the New Hampshire Supreme Court. Our Brooklyn divorce attorneys know that such records must be properly preserved and presented to the court in order to receive full consideration. Given what is potentially at stake, it may be wise to have multiple copies of the document (or better, multiple originals), in order to ensure it will be readily available.

The Seridio & Perkins case involved a couple who had been married since 1988. Just prior to their wedding, the pair each signed a prenuptial agreement stipulating how certain assets were to be divided in the event the marriage ended. One original document was signed by both parties, and was reportedly in the possession of the wife. She filed for divorce in 2010.

In 2011, the husband sought to enforce the prenuptial agreement. However, the wife claimed she was unable to find the original. The husband filed a request to allow the copy to be submitted as evidence in the event the original could not be found.

The wife responded she didn't remember signing a prenuptial agreement, never possessed one, and that even if she had signed it, such action would not have been voluntary but rather under duress.

In April 2012, the wife moved to dismiss the request to enforce the prenuptial agreement, arguing the husband failed to produce a copy of an agreement signed by her, and any assertion of an oral or unsigned agreement was unenforceable.

A hearing was held a few months later, and the husband acknowledged he'd been unable to locate either the original or a copy of the agreement. Considering this, the trial court granted the motion to dismiss the request for enforcement of the agreement.

An appeal followed. Husband argued the trial court erred in assuming the truth of the facts he alleged. Further, he alleged the court was wrong to consider only whether the agreement presently exists, rather than whether it had ever existed. The wife argued since no document was ever produced, the trial court properly determined it had no statutory authority to consider it.

The New Hampshire Supreme Court first clarified that the husband was not requesting consideration of an unsigned or oral agreement. Rather, he sought to enforce a prenuptial agreement that was both written and signed, even though he couldn't produce an actual copy of it for the court.

Accordingly, the court indicated, the question for consideration was whether the husband's factual allegations are reasonably susceptible of a construction that would permit recovery.  The court found that it was. In order to enforce a prenuptial agreement, the court pointed to the statute on the matter, the agreement had to have been in writing. However, the statute makes no specific mention of producing the writing. Nor does the  state law make any mention of how to prove such an agreement existed, absent a copy.

Other cases involving contracts that could not be produced were allowed to proceed to trial, and proof of those agreements was provided in the form of testimony by attorneys who had helped to draft them.

Further, the court found no prior case in which a party was precluded from presenting evidence of a prenuptial agreement that had been lost or destroyed. Thus, the earlier ruling was reversed and the case remanded.

However, this doesn't mean the husband will prevail. Ultimately, having the document (or at least a copy) in hand would have made his case far stronger.

Contact our Brooklyn divorce lawyers at (718) 864-2011.

Additional Resources:

In the Matter of Serodio & Perkins, Aug. 22, 2014, New Hampshire Supreme Court

More Blog Entries:

Tuesday, September 9, 2014

Tallo v. Tallo - Drafting an Unambiguous Divorce Agreement

At is core, a divorce settlement agreement is a contract. It is a binding document representing the obligations and expectations of both parties, and there are few circumstances under which courts will refuse enforcement.

Once of those circumstances, however, is ambiguity. Divorce lawyers in New York City know this is the kiss of death for any contract - including a divorce settlement.

In determining whether a divorce agreement (or any contract) is ambiguous, the court will analyze whether the agreement on its face is reasonably susceptible to more than one interpretation. This precedent was established in New York in the case of Stormer v. County of Oneida. Otherwise, when parties collaborate, through the divorce process, in setting forth a clear, complete document, the writing contained therein is enforced as a rule according to the terms.

This is why it's so important to hire a divorce lawyer who is committed to helping you draft a divorce agreement that is clear, complete, unambiguous and fully considers the benefits and consequences of each provision. When disputes regarding the contents of the agreement arise, the courts will give less credence to likely intentions of the parties involved, and more to the actual words contained therein.

This was an issue that came up recently in the case of Tallo v. Tallo, before the Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department.

Here, the parties divorced with an agreement stipulating, among other things, payment of monthly alimony and a set number of annual disbursements from the husband's 401(k) to the wife's accounts. The alimony payments were to be made very month for a full five years. There were, however, a number of circumstances under which alimony payments could cease. These circumstances including provisions for remarriage, an increase in the ex-wife's income, etc.

The provision detailing the retirement account disbursements, however, contained no such provision. Instead, it indicated that on the first of every year, the husband was to make a $117,000 payment to his ex-wife from his 401(k) for a total of three years, with the last payment being made on January 2, 2013.

However, when the time came for that final disbursement payment to be made, the husband refused. He indicated that because his ex-wife's circumstances had changed, as outlined under the alimony section, he should not be required to pay.

But the court rejected this argument. The court noted it was clear there were no conditions or events in the contract that would relieve the defendant of his obligation to make those distributive payments. It didn't matter if the wife remarried. It didn't matter if she won the lottery. He would still have to pay.

While he would later argue this was not the intention of the parties, intentions did not matter. It was the wording of the contract that the court considered. The court  refused to apply the terms of one portion of the contract to another because to do so would essentially be to distort the meaning of the words used and thereby create a new contract for the parties under the "guise of interpreting the writing."

The bottom line is that it will be critical to communicate all concerns with your attorney before the settlement is signed, and further to ensure the agreement is drafted in a way that is clear and unambiguous, so that intentions cannot later be misinterpreted.

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

Additional Resources:

Tallo v. Tallo, Aug. 8, 2014, Supreme Court of the State of New York, Appellate Division, Fourth Judicial Department

More Blog Entries:

Robin Williams Joked of Divorce, but Alimony Had Been Costly for Actor, Aug. 15, 2014, New York City Divorce Lawyer Blog

Friday, September 5, 2014

Macchio v. Macchio - New York Child Custody Modification After Divorce

Modification of a child custody order in New York requires there be some sort of material or substantial change in circumstance since the previous order was issued. Our Brooklyn family law attorneys know failure to establish this will likely result in dismissal of the request, as was seen recently in the case of Macchio v. Macchio, an appeal of which was heard by the Supreme Court of the State of New York, Appellate Division, Second Department.

In this case,  the mother and father separated in 2012. The pair initiated a separation agreement, which granted the mother residential custody of their children while the divorce action was pending. Once the divorce was finalized, the domestic relations court judge incorporated (but did not merge) the separation agreement into the divorce agreement, and the mother retained residential custody of the children.

Two weeks after that decision was reached, the father filed a motion to modify the separation agreement and award him primary residential custody of the children.

The court did not hold a hearing, but instead based its decision to deny the motion on the facts contained in the father's petition. In that petition, the court found the father failed to provide any evidence that there had been a material change in circumstances that would support a finding that it would be in the children's best interests to come live with him instead of their mother. While the original separation agreement was two-years-old at that point, the divorce agreement had been entered just two weeks prior. Therefore, barring some extreme circumstance, the father would have had a tough time proving a substantial change in circumstance.

The court denied his motion. Upon appeal, he argued the court erred because it failed to conduct a hearing. However, the appellate court found it was within the trial court's discretion not to hold a hearing in resolving this dispute, per the case law established in Connor v. Connor, among other cases.

While child custody and visitation modifications can be requests at any time, the better approach in a case like this would have been to challenge the separation agreement pertaining to child custody before the divorce settlement was finalized.

One example of what may constitute as a "substantial change in circumstance" for the purpose of child custody modification might be a geographical move of one parent (usually the parent who currently has custody). If that move would make it difficult or impossible for the non-custodial parent to maintain a meaningful relationship with the child, he or she might have grounds to request a modification.

Another example would be if there has been a change in lifestyle that might be considered harmful to the child. For instance, if the custodial parent takes a job working the night shift, resulting in a child being left alone at night, the other parent may request a custody modification.

Considerations for a change might also be made in instances where there has been a change in financial or household circumstances. If the custodial parent is no longer able to physically provide for the child, due to his or her own illness, a change might be warranted. Similarly, if the needs of the child have substantially changed, such that the custodial parent is unable or unwilling to meet those needs, the court may grant modification.

Brooklyn family law attorneys can be reached at  (718) 864-2011.

Additional Resources:

Macchio v. Macchio, Aug. 13, 2014, Supreme Court of the State of New York, Appellate Division, Second Department

More Blog Entries:

Brooklyn Divorce: What to Do With the House?  July 30, 2014, Brooklyn Family Law Attorney Blog

Monday, September 1, 2014

In re J.T. - Grandparent Visitation Rights in New York

One of the most heart-wrenching aspects of a divorce is the strain it can put on familial relationships outside the immediate family unit. At a time when children may most need the love and support of extended family, their access may be restricted due to  turmoil between spouses in an acrimonious split.

Our Brooklyn family law attorneys often receive questions regarding child visitation from extended family members, such as grandparents, aunts, uncles and great-grandparents. In general, New York is rather restrictive on this matter. Family courts have generally limited the rights of grandparents to visit their grandchildren, instead holding more firmly to the fundamental right of the parent to raise the child as they see fit. That fundamental right includes restrictions on who the children may visit.

However, there are sometimes exceptions, usually when one parent is deceased and the surviving parent has created distance. Strong cases might also be made when parents are teenagers, unable to fully support themselves. Even then, the court will consider the previous relationship of the grandparent and child and whether such visits would be in the child's best interest. While some courts have held firmly that extended family members may not seek visitation rights, exceptions have been made for grandparents when it was in the child's best interests.

In considering those "bests interests," the court will weigh the child's wishes, the physical and emotional needs of the child, the motivation of the parent who is limiting contact, the parents' morality, the parents' past behavior and conduct, the home environment and potential educational opportunities afforded by the grandparents.

A recent case out of California, reviewed by an appellate court in Los Angeles, illustrates how such an order might work. Although family laws vary from state-to-state, it's not impossible that a similar scenario might unfold here. In the case of In re J.T., the California Court of Appeal for the Second District, Division Eight, upheld the earlier-granted grandparent visitation rights.

According to court records, the mother was 16 and the child one-year-old when the juvenile court asserted dependency jurisdiction over the baby. The mother, too, was considered a dependent of the juvenile court. Evidence presented showed the mother had left the baby with her mother without making appropriate plans for his care, and without informing her mother of where she would be.

The court found the mother failed to consistently maintain a residence with her mother, and frequently left with the child without informing anyone of where they would be or when they would return, and without permitting a social worker sufficient access to the child.

Then, for several time periods - one lasting two years - the boy was placed with his paternal grandmother. Although the mother partially completed a reunification plan, her efforts were inconsistent. However, eventually, the court found she had completed enough of the requirements, and granted the mother custody of the boy.

At this point, the paternal grandmother sought visitation. She was granted unmonitored, overnight visits with the boy. The grandmother would later complain the mother was not making the child available for visitation. The mother responded she did not want the child to visit his paternal grandmother, and vowed to fight the order.

At a hearing, the mother said she did not have a good relationship with the grandmother, who she claimed made false allegations against her and interfered with her relationship with her son.

The agency overseeing child welfare testified on behalf of the grandmother, noting no false allegations had been made and pointing out the grandmother had done a good job of raising the boy most of his life up to that point.

The court ordered unmonitored, overnight visitation, with a review of the issue slated for the following year.

An appeal followed, with the mother arguing the mandatory visitation was a violation of her 14th Amendment rights to parent her child.

However, the appellate court found it would disrupt the child's stability to deprive him of contact with his paternal grandmother, with whom he had a very strong bond. Finding it in the best interests of the child, the appellate court affirmed.

If you are dealing with child custody or visitation  issues in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re J.T., Aug. 7, 2014, California Court of Appeal for the Second District, Division Eight

More Blog Entries:

Brooklyn Divorce Attorneys: Help With Divorce by Publication, Aug. 20, 2014, Brooklyn Family Law Attorney Blog

Tuesday, August 26, 2014

In re J.A.L. - Guardianship of Elder Adults in Brooklyn

A growing number of requests for guardianship in Brooklyn are being filed by people hoping to protect the health and financial well-being of an elder adult. Usually, we see this with adult children seeking guardianship of their elderly parent in order to manage their affairs and oversee health care decisions when the parent suffers from dementia or is otherwise incapacitated and unable to make his or her own decisions.

These situations are guided by Article 81 of New York's Mental Hygiene Law.

In some cases, the parent lives with the adult child, and other times, he or she is cared for at a nursing home or assisted living facility. Our Brooklyn family law attorneys believe it's important to note that not all guardians in New York are granted the same powers. Orders are drafted specifically for each case so that guardianship authority is tailored specifically to be able to meet the needs of the incapacitated person. For example, some elderly adults may only require assistance to pay their bills, so the court would limit the guardian's power to financial management. In a case with a person suffering severe dementia, the court may give the guardian a much wider swath of power.

While the process in these cases is often straightforward and unchallenged, family conflicts do sometimes arise.

This was the case recently for the parties involved in In re J.A.L., overseen by the Montana Supreme Court. This was a difficult case where it was clear there were no easy answers. The court worked to act in the best interest of the incapacitated adult.

According to court records, the woman at the center of this case had been married to her husband for 50 years. During that time, the husband provided her with care in their home, as she suffered from both cognitive impairments and her mobility was limited by multiple sclerosis.

However, as time went on, the husband was unable to provide her with a sufficient level of care, even with assistance. As a result, she was taken to live in an assisted living facility.

However, the husband reportedly caused problems with the doctors, nurses and staff at the facility, and the wife was discharged. This series of events repeated itself again. The husband suffered an emotional breakdown and was admitted for care at a state hospital. When he was released, he stopped taking his prescribed psychiatric medication, as he did not like the side effects. He did not seek further treatment for his mental health issues.

Meanwhile, the wife's daughter and son sought, and received, appointments as co-guardians and conservators for their mother. She was placed into another assisted living facility, and appeared to do well. However, once the husband began to visit frequently, this changed. She began "acting out." The husband called sometimes 40 times in a single day and was disruptive when he was present. She was again discharged.

The woman's son and daughter had trouble in responding to these problems. A guardian ad litem was appointed for the woman, but the husband reportedly interfered with his wife's communication with the court-appointed GAL.

An emergency court hearing was held, and guardianship was transferred from the woman's children to her brother and sister-in-law. She was then re-admitted to the assisted living facility, on the condition she have no contact with her husband. She reportedly did well after that point.

The husband then filed two petitions with the court, seeking to remove the guardianship granted to his in-laws and to appoint him as his wife's guardian. The court held six hearings on the matter, and ultimately rejected his requests, and gave the in-laws full guardianship and granted them the authority to limit the woman's contact with her husband.

He appealed, but the lower court's order was affirmed. The Montana Supreme Court justices noted the woman's declining physical and cognitive health required that she have a guardian to oversee her affairs. However, the court ruled the husband was not in a position to do this, as he'd displayed a history of inappropriate behavior that did not serve to protect his wife's health and welfare. While the court has ruled that guardians can't initiate divorce proceedings for a ward, they can influence the marital relationship if it's in the best interest of the ward.

If you need help securing guardianship of an elderly loved one in Brooklyn, call our offices at (718) 864-2011.

Additional Resources:

In re J.A.L., July 23, 2014, Montana Supreme Court

More Blog Entries:

In re Guardianship of Madelyn B. - Same-Sex Couple Custody Dispute, July 11, 2014, Brooklyn Family Law Attorney Blog

Sunday, August 24, 2014

Robinette v. Hunsecker - Securing Retirement Benefits in Brooklyn Divorce

One of the most important - and too often overlooked - elements in the allocation of property in a New York divorce is retirement benefits.

Brooklyn divorce attorneys recognize it has an increasing level of importance as more people are divorcing in middle age and even as seniors. But it should be given priority even in cases involving younger spouses because your portion of benefits accrued during the marriage could bolster your overall financial health in old age.

In the recent case of Robinette v. Hunsecker, before the Maryland Court of Appeals, a lawsuit was filed by the ex-wife of a deceased man whose widow collected the entirety of his retirement benefits, including a pension payout and death benefits. This ran contrary to an earlier-agreed division of property per the divorce settlement agreement reached many years prior. The ex-wife alleged unjust enrichment. The district court and later Maryland's highest court agreed.

To better understand the facts of this case, it's important to start with an explanation of the federal Employee Retirement Income Security Act of 1974 (often referred to as ERISA). This was a law that established a series of requirements to protect the retirement plans of private sector workers, and preempted state laws that ran to the contrary. One of ERISA's limitations is that it limits the ability of the worker to transfer pension benefits to another party. While this would seem to bar the transfer of pension benefits by a state court in a divorce action, the amended Retirement Equity Act of 1984 allows for an "alternate payee" to collect all or a portion of benefits, pursuant to a court order that adheres to federal statute requirements.

Many, but not all, retirement plans are governed by ERISA. For example, government worker pension benefits are specifically exempt from the law.

In this case, the ex-wife and the husband were married in June 1981. Throughout the course of their marriage, the husband worked at the local public school system and participated in the pension plan. After 17 years together, in 1998, the pair divorced. Per the terms of the divorce settlement, the ex-wife was supposed to receive a portion of her husband's pension benefits that were accrued during their marriage. This included death benefits.

The settlement agreement implied that the plan was overseen by ERISA and that the ex-wife was to be the alternate payee, set to receive 50 percent of the benefits that he had amassed during their union. However, the plan was exempt from ERISA, as it was a government-sponsored plan.

Two years later, the husband remarried. He listed his second wife as the beneficiary on his pension plan. he continued working at the school until his death in late 2009. His wife was named as the beneficiary of his estate. She received an initial payment of $4,100 and was set to receive a monthly amount of $2,100 thereafter.

The following spring, the ex-wife applied for her portion of death benefits under the retirement plan, pursuant to the divorce agreement. However, the pension fund never received a proper filing indicating the ex-wife was a beneficiary, so her request was rejected.

The ex-wife filed a lawsuit. Her attorneys determined that her portion of the monthly $2,100 benefits would be $600.

Both parties filed for summary judgment, and the court ruled in the ex-wife's favor. The court indicated the widow had done nothing wrong, but she was receiving a windfall of the ex-wife's portion of the pension.

The order was filed with the pension fund, and the ex-wife began receiving her monthly portion of benefits.

The wife appealed, though the order was affirmed both by the Court of Special Appeals and the state's highest court, which found the domestic relations order (or QDRO) was valid under state law, and therefore, the ex-wife was entitled to receive her portion of the benefits.

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

Additional Resources:

Robinette v. Hunsecker, July 18, 2014, Maryland Court of Appeals

More Blog Entries:

Brooklyn Divorce: What to do With the House? July 30, 2014, Brooklyn Divorce Lawyer Blog

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