Summary

DIVORCE

A divorce is the legal dissolution of a marriage by a court. To initiate a divorce proceeding, a party to a marriage petitions the Supreme Court of the County where one party resides to obtain a judgment permanently dissolving the legal status existing between the spouses.  The spouse petitioning the Supreme Court for a divorce is identified as the Plaintiff, whereas the non- petitioning spouse is identified as the Defendant.

In October of 2010, the state of New York joined the other forty-nine (49) states to include a No-Fault basis for divorce.

———————————————————————————————————SEPARATION

A legal separation is a contract, “whereby a husband and wife live apart from each other while remaining married, either by mutual consent (often in a written agreement) or by judicial decree.” InNew York, separation may last for any period of time.  A separation agreement does not automatically become a divorce after one year.

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CHILD CUSTODY AND VISITATION

The parents of a child born of the marriage have equal powers, rights, and duties with respect to the guardianship of the children.  The issue of custody is usually a very difficult component of a divorce. However, “in the context of matrimonial litigation, the courts may intervene to determine custodial and visitation rights as between the parents of minor children.”

The unmarried parents of a child have identical rights, which are usually determined in the Family Court, rather than Supreme Court.

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PRENUPTIAL AGREEMENTS

In New York, prenuptial agreements are specifically authorized by Domestic Relations Law § 236(B)(3).

 

A prenuptial agreement (also referred to as an antenuptial or premarital agreement) is a contract between parties entered into prior to their marriage, usually to address such issues as spousal support, ownership, and distributions of property in the event the marriage later ends in divorce.

A prenuptial agreement obtain help minimizes the time and money expended in legal proceedings should a marriage end in divorce, by reducing the amount of judicial intervention needed.  In New York, there is a strong public policy in favor of allowing families to resolve issues of custody, support, and property division without such intervention.

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POSTNUPTIAL AGREEMENTS

In New York, postnuptial agreements are specifically authorized by Domestic Relations Law § 236(B)(3).

A postnuptial agreement is a contract entered by a husband and wife during their marriage, usually to address such issues as support, ownership, and distributions of property in the event the marriage later ends in divorce.

A postnuptial agreement can also help minimize the time and money expended in legal proceedings should a marriage end in divorce.  Like prenuptial agreements, postnuptial agreements further a public policy in favor of allowing families to resolve issues of support and property division without judicial intervention.

Courts will determine that postnuptial agreements are valid and enforceable, so long as they comply with certain formal and substantive requirements.

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CHILD SUPPORT

 

Child support is a sum of money paid by either or both parents for the care, maintenance, and education of any unemancipated child under the age of twenty-one.  Parents may enter into child support agreements, so long as they are in writing and comply with the requirements stated in Domestic Relations Law § 240(1-b)(h); otherwise, the court will award child support by order or decree.  The court has limited discretion in awarding child support, and must follow the provisions of the Child Support Standards Act (embodied in Domestic Relations Law § 240).

There are three components to child support: “(a) a regular periodic payment, or ‘basic support;’ (b) contribution towards ‘add-on’ expenses, which are additional items not encompassed in the regular, basic child support payment; and (c) a contribution towards the expense of the child’s health plan coverage.”

A parent may also seek a determination with respect to college expenses.  The Court shall only decide that issue when the child is enrolled, or in the year immediately prior to the enrollment.  However, parents may at any time, inter into a written agreement concerning college expenses.

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CHILD RELOCATION

Child relocation occurs when the parent with residential custody of his/her child seeks to move the child outside the noncustodial parent’s locale, which would then affect parental access.

 

When reviewing a custodial parent’s request to relocate, the court’s primary focus will be on the best interests of the child.  The custodial parent has the burden of demonstrating by a preponderance of the evidence that the proposed move is in the child’s best interests. The factors to be considered include, but are not limited to:

(1)   Each parent’s reasons for seeking or opposing the move;

(2)   The quality of the relationships between the child and the custodial and noncustodial parents;

(3)   The impact of the move on the quantity and quality of the child’s future contact with the noncustodial parent;

(4)   The degree to which the custodial parent’s and child’s life may be enhanced economically, emotionally, and educationally by the move; and

(5)   The feasibility of preserving the relationship between the noncustodial parent and child through suitable visitation arrangements.

———————————————————————————————————PARENTAL ALIENATION

 

Parental alienation occurs where a child freely and persistently expresses unreasonable negative feelings toward one parent that are drastically different than the child’s actual experience with the parent. Typically, alienation is a combination of the other parent’s effort to brainwash the child and the child’s own negative feelings towards the other parent.

For custody proceedings it is important to recognize parental alienation. In order to determine custody, the court looks to the best interest of the child. Notably, one of the factors the court considers when awarding custody is the preference of the child.  Therefore, parental alienation may negatively impact the final decision of the court.

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ORDER OF PROTECTION

 

An order of protection (often called a “protection order”) is a court order requiring a person to perform or refrain from performing a specified act or acts. The purpose of an order of protection is to ensure the safety of the victims of family offenses or othercrimes by limiting the perpetrator’s contact with them.

In family court, the person asking for an order of protection is a “petitioner.” A “respondent” is the person a petitioner wants an order of protection against.

A protection order may (i) require the respondent to stay away from the home, school, or work of the petitioner; (ii) require the respondent to pay reasonable counsel fees of the petitioner or participate in counseling; (iii) require the respondent to provide health insurance for the petitioner; or (iv) require the respondent to refrain from intentionally injuring or killing any animal owned by the petitioner or child residing with the petitioner.

There are two types of protection orders: (1) temporary and (2) permanent.

(1)        A temporary order of protection may be issued by the court on the same day that you file your family offense petition.  In addition, it can be issued ex parte, meaning the judge can issue a temporary order of protection to you without the respondent being present.

The temporary order can last, at the court’s discretion, for days or months, depending on the circumstances.

(2)        A permanent order of protection is usually issued after a full hearing takes place and evidence is placed on the record of the court.

The permanent order will indicate a specific duration in which it is effective.  The duration of a permanent order of protection ranges from 2 to 5 years.

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SPOUSAL SUPPORT (MAINTENANCE)

 

There are two periods of time when either spouse may receive court-ordered spousal support.

(1)        Under Domestic Relations Law § 236 B(5-a), a spouse may receive temporary maintenance after an action has been commenced for separation or divorce, but prior to a judgment of divorce.

(2)        Under Domestic Relations Law § 236 B(6), a spouse may receive a final maintenance award for a fixed duration of time following a judgment of divorce.

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EQUITABLE DISTRIBUTION

 

Domestic Relations Law § 236(B)(5)(c) requires that the court equitably distribute marital property between the parties to a divorce.  Equitable distribution, however, does not necessarily mean equal distribution, and the court must consider the circumstances of the case and of the respective parties when distributing the marital assets.

What is “marital property”?

Marital property is all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.

What is “separate property”?

Separate property is defined as:

(1)        Property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2)        Compensation for personal injuries;

(3)        Property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4)        Property described as separate property by written agreement of the parties pursuant to subdivision three of this part.

While marital property is distributed among the parties to a divorce, separate property remains the property of whichever spouse acquired it.

How do courts determine an equitable distribution of marital property?

In determining an equitable disposition of property, the court shall consider:

(1)        The income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2)        The duration of the marriage and the age and health of both parties;

(3)        The need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4)        The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5)        The loss of health insurance benefits upon dissolution of the marriage;

(6)        Any award of maintenance under subdivision six of this part;

(7)        Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8)        The liquid or non-liquid character of all marital property;

(9)        The probable future financial circumstances of each party;

(10)      The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11)      The tax consequences to each party;

(12)      The wasteful dissipation of assets by either spouse;

(13)      Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14)      Any other factor which the court shall expressly find to be just and proper.

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GRANDPARENTS’ RIGHTS

 

The grandparent or grandparents of a minor child have a right to petition the court for custody rights by demonstrating, to the satisfaction of the court, the existence of extraordinary circumstances.

The grandparent or grandparents of a minor child also have a right to petition the court for visitation rights after the death of either or both parents of a minor child or under circumstances where it would seem fit for the grandparent or grandparents to intervene.

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CPS/ ACS MATTERS

 

What is CPS and ACS?

In New York, the health and safety of our children is of utmost importance.  Child Protective Services (CPS) is a division of the Department of Family and Protective Services.  CPS investigates reports of abused and neglected children. The New York City Administration for Children’s Services (ACS) advocates for children who have been either abused or neglected.

What constitutes child neglect?

A neglected child is defined as a child less than eighteen years of age (i) whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of the parent to exercise a minimum degree of care; or (ii) who has been abandoned by his or her parents.

What constitutes child abuse? 

An abused child is defined as a child less than eighteen years of age whose parent inflicts or allows another person to inflict physical injury upon the said child, by other than accidental means, which could cause or create a substantial risk of death.

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NEGLIGENCE

 

What is negligence?

Negligence is “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation.”

Each person owes a duty to others to refrain from conduct that creates a foreseeable and unreasonable risk of injury.  When a person fails to act with reasonable care to prevent foreseeable injuries to others, that person has breached his or her duty of care.

What are the elements of a claim for negligence? 

In order for a plaintiff to make out a successful negligence claim, he or she must demonstrate the following:

(1)        That defendant owed plaintiff a duty of care;

(2)        That defendant breached the duty of care owed to plaintiff;

(3)        That defendant’s breach of duty was the actual and proximate cause of injury to plaintiff (the breach of duty by defendant must be closely connected to plaintiff’s injury so as to justify imposing liability); and

(4)        That plaintiff suffered damages to his/her person or property.

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WILLS, TRUSTS, & ESTATES

 

Estate planning is the process of arranging for the management and/or disposition of one’s estate in the event of incapacity or death.  Planning ahead by arranging for the disposal of your assets now can have many benefits, which include:

(1)        Ensuring that loved ones are provided for after your death;

(2)        Ensuring that your assets go to your intended beneficiaries; and

(3)        Maximizing the value of your estate by avoiding, where possible, certain taxes and legal expenses.

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HOW TO COMMENCE A FAMILY COURT PROCEEDING

Family Court proceedings should be commenced in the county where you live.  File a petition on any of the following matters:

(a)    Custody (Must be brought via an Order to Show Cause);

(b)   Visitation (Must be brought via an Order to Show Cause  ;

(c)    support; or

(d)   orders of protection.

Fill out the petition, and submit it to the Clerk. The Clerk will timestamp the Petition.

——————————————————————————————————–HOW TO COMMENCE A SUPREME COURT PROCEEDING

In order to commence a proceeding in the Supreme Court, you must first pay a filing fee of $210.00 and file a Summons with Notice or a Complaint. Once you have paid the filing fee, you are given an index number. With that index number you, will then request a Judge by filling out a form labeled “Request of Judicial Intervention” (Request for Judicial Intervention–$95 Fee).  You then have 120 days to serve and file the Summons with Notice or a Complaint.  You may also file a Request for Judicial Intervention to place your case on the docket so you are able to see a Judge within 45 days.

Once you have been assigned a Judge and after you have completed all discovery needed to present your case, you must fill out and file a Note of Issue and Certificate of Readiness. Both forms must be completed and both must effectively tell the Judge that you are ready to present your case. After both forms are filed, the case is placed on the Judge’s calendar and you are ready to start the process of litigation.

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ATTORNEY ADVERTISING: Information herein and is not intended to be, legal advice. This sample legal document is provided as part of a free public educational service by Zachary Irtaza Riyaz, Esq., attorney at law in the State of New York (Westhampton – Tel. 516-234-0348), for reference only. IT IS NOT INTENDED TO GIVE LEGAL ADVICE ABOUT A SPECIFIC LEGAL PROBLEM, NOR DOES IT CREATE AN ATTORNEY-CLIENT RELATIONSHIP. Due to the importance of the individual facts of every case, the generalizations I make may not necessarily be applicable to any particular case. Statutes and codes such as Domestic Relations Law (DRL)are frequently amended and may affect the validity of the above legal document and no representation is made that the above sample is going to be enforceable in the future.Changes in the law could at any time make parts of this web site content obsolete. Updated statutes and codes may be available at the New York State Legislature Website. No statute or sample legal document should be relied on without understanding controlling case law which may further interpret it. THIS INFORMATION IS PROVIDED WITH THE UNDERSTANDING THAT IF LEGAL ADVICE IS REQUIRED THE SERVICES OF A COMPETENT ATTORNEY SHOULD BE CONSULTED.

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