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Real Estate & Family Law Blog

Custody Case: The Forensic Mental Health Evaluator

In a contested custody case, often the Court will appoint a neutral mental health evaluator to aid the Court in determining various parenting issues and what type of custody arrangement is in the best interests of the children. This expert is usually a psychologist or psychiatrist and is often referred to as “the Forensic Expert” or “the Forensic”. The Forensic will meet and interview the parties and often conduct psychological testing such as the MMPI-2: the Minnesota Multiphasic Personality Inventory, a very widely used test of personality and the existence of possible mental disorders. The Forensic will usually meet with the children as well and talk to them about the custody issues. The Forensic will often observe each parent and how they interact with the children. Most Forensic Evaluators will meet with each party 3-5 times and meet with the children 2-3 times depending on…Read More

Do I need a Prenuptial Agreement?

That is a good question to ask yourself before you walk down the aisle… “Prenups” are not for everyone and they certainly are not the most romantic subject to bring up with your fiancé. However, they can be a powerful and useful planning tool before you get married. In fact, prenups can be utilized for spouses to be who do not have any significant assets at this time but expect to acquire assets in the future. In a prenuptial agreement, you can “carve out” certain current or future assets as separate property. For example, a prenup can say that any property held or titled in his/her separate name will be considered separate property and will not be subject to equitable distribution (will not be divided at trial) and that any property held or titled in joint name will be considered marital property subject to equitable…Read More

Keeping Your Separate Property Separate

Equitable distribution is the division of marital property in a divorce. Equitable distribution law is premised upon a marriage being an economic partnership. Marital assets are broadly construed, while separate assets are narrowly construed, as exceptions. An asset is considered separate property, under New York Domestic Relations Law Section § 236 Part B(1)(d) if it is: property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; compensation for personal injuries; 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; property described as separate property by written agreement of the parties pursuant to subdivision three of this part. Martial property, only, is distributed during equitable distribution. It is presumed that assets…Read More

Divorce in Westchester County: Specific Court Rules

If you are getting divorced in Westchester County, it is important to hire a matrimonial attorney who is familiar with the unique practice of the Westchester County Supreme Court Matrimonial Part. In Westchester County, there are Matrimonial Part Operational Rules that set forth rules specific to Westchester County divorce cases. One significant aspect of matrimonial practice in Westchester County is the Court’s use of Court Attorney Referees. Court Attorney Referees handle most Court conferences in Westchester including the preliminary conference, compliance conferences, and pre-motion conferences. Referees do not conduct hearings or trials and they do not have the power to issue Orders. These powers are reserved for Supreme Court Judges. However, Referees do make recommendations to the Judges and the Judges are permitted to consider these recommendations when issuing orders. See Parts (D)(6) and (E)(12) of the Westchester Supreme Court Matrimonial Part Operational Rules. In the Westchester Matrimonial…Read More

Can My Child Support Be Increased Because Of Gifts From My Parents?

People are sometimes inclined to spoil their children and grandparents are especially fond of spoiling their grandchildren. This often results in children living a better lifestyle than their parents could provide because monetary contributions from a party’s parents. However, a grandparents’ generosity may become a negative for their adult child in the event of a divorce. During and after a divorce, one parent will typically receive child support from the other. In determining income for child support, a court looks at the gross income of each parent (as stated on their tax return) less FICA and medicare taxes along with other possible deductions permitted by statute. However, on top of a party’s income, Courts may impute income based on gifts made to the parents from relatives. See Domestic Relations Law § 240 (1-b)(b)(5)(iv)(D). Section (iv) specifically states: At the discretion of the court, the court may attribute…Read More

Divorce Consultation and the Divorce Process

Many times a lawyer is the first person you talk to about your decision to pursue a divorce. For this reason, it is important to choose a lawyer you feel comfortable with and can trust. When you first arrive at your lawyer’s office, you will have to sign a “Statement of Client’s Rights and Responsibilities.” This will outline what you should expect of your attorney and what would be expected of you and the execution of this document is required by the Office of Court Administration. This is a document you keep whether or not you retain the attorney, but does not obligate you to retain the attorney. The first topic the attorney should discuss with you is whether you can file for divorce in New York State. To file for divorce, you must fulfill the residency requirement and also have one of the 7…Read More

Custody Factors in New York

There are many factors that the Courts look at when determining a child custody decision. All of the factors fall under the predominant factor, which is the best interest of the children and what will promote the children’s happiness and welfare. However, the Court analyzes various sub-factors including, but not limited to: Which parent was traditionally the primary caregiver to the children The availability of each parent to spend time and care for the children The willingness of each parent to co-parent and share information with the other parent The willingness of each parent to foster the children’s relationship with the other parent The ability of each parent to provide for the intellectual and emotional needs of the children The nature and quality of each parent’s home environment These are some of the main factors that a Court looks at when making a custody determination…Read More

Legal Fees in New York Divorce Cases

In a divorce action, a Court may direct either spouse to pay counsel fees and expert fees directly to the attorney of the other spouse. In addition, in any application to enforce, annul, or modify orders such as orders for maintenance, child support, custody, and visitation, a Court may do the same. In all of these instances, the Court is allowed to use its discretion to award such fees when justice requires and after taking into account the circumstances of the case and the parties, including the conduct of the parties. Recently, in October of 2010, the legislature amended the law and included a mandate that creates a rebuttable presumption that counsel fees will be awarded to the “less monied” spouse. Generally speaking, the Court considers the spouse with the greater income, earning power, and assets as the monied spouse. Prior to the amendment, the…Read More

Can a Custody Order be Changed in New York?

If you are interested in changing a custody Order, you should first know and understand the details of the current Court order concerning custody. You should read the Order and determine whether you have joint or sole custody – for both legal custody and physical custody. You should also ascertain whether the custody order was determined by a Court following a custody hearing (a trial) or whether you and the other parent agreed on the custody arrangement. Custody agreements are either part of a written contract signed by both parties before a notary, or the terms of the agreement are put on the record before a Judge and the transcript of the proceeding embodies the agreement. Courts generally afford less weight to an agreed-upon custody arrangement as opposed to one ordered by a Court. Great deference is given to a Court that made a previous…Read More

Separation Agreements in New York State

What is a Legal Separation? Many people are confused about the term “separation” and exactly what that means. Many people refer to the word separation in an every-day context. For example, they consider a married couple to be separated if they live in separate bedrooms, live at separate residences, or agree to see other people romantically. However, legally, New York considers a married couple to be married until the marriage is nullified through annulment, separation, or divorce. There are two ways for a couple to become legally separated in New York State. One way is to start a legal action and ask the Court to grant an Order, declaring the separation. This is uncommon. The most common method for a couple to separate is through a Separation Agreement. Why get Separated and not Divorced? With New York’s recent no-fault divorce statute, it is arguably just…Read More

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