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Real Estate & Family Law Blog

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

Can I Get A Divorce In New York State?

Living in New York does not necessarily entitle you to file for a divorce in a New York Court. In order to determine whether you can obtain a divorce in New York, you need to find out if New York courts have jurisdiction over your divorce action. The first step is to see if you or your spouse satisfy the residency requirements set forth in Domestic Relations Law Section 230. To start a divorce (commence an action) in New York you must satisfy one of the following residency requirements: The marriage ceremony was performed in New York State AND either spouse is a resident of the state at the time of the commencement of the action AND has resided in this state for a continuous period of one year immediately prior to the commencement of the action The couple lived as husband and wife in…Read More

How Does Domestic Violence Affect Child Custody and Visitation?

Domestic violence affects millions of Americans every day. Courts have now become more familiar with domestic violence and the detrimental consequences it has to victims, families, and society. Accordingly, Courts factor the presence of domestic violence in households when making child custody and visitation decisions. There was a time when the Courts did not have to take into account domestic violence when making determinations of child custody. However, Domestic Relations Law Section 240(1)(a)(4) was revised in 1996 and now the Court must consider the effects of domestic violence when making decisions about custody and visitation. Specifically, domestic violence against either a parent or a child, even if such violence was not committed in a child’s presence, is factored by the Courts. Although this law requires that domestic violence be considered in custody and visitation cases, only specific and identifiable instances of domestic violence will be…Read More

Changing Child Support In New York

Child support awards may be changed under certain circumstances in New York. Child support is determined pursuant to a written agreement or by a Court order, after the Court determines the appropriate amount. Usually child support orders are issued in association with a divorce. Although sometimes these child support arrangements are final, child support can be modified in certain circumstances. In fact, the legislature and the Courts have established standards when reviewing child support orders to determine whether a child support order should be modified. An upward modification of support is where a party petitions the Court for more support. A downward modification of support is where a party petitions the Court for a decrease, suspension, or termination of support. There are different standards the Courts use to decide whether or not to modify a child support order. The standard depends on how child support…Read More

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