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    Child Custody/Visitation

   
Child Protective Proceedings

   
Child Support

   
Divorce

   
Equitable Distribution: Division of Property

   
Family Offenses

   
Juvenile Delinquency

   
Maintenance

   
Modification Petitions

   
Orders of Protection

   
Paternity

   
Person In Need of Supervision

   
Prenuptial Agreements

   
Spousal Support
 
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Child Custody/Visitation


Custody and visitation is currently a hot area of the law. The mindset of the Court is slowly changing with the changing times. It used to be believed that a child belongs with the mother; however, given that today’s family differs from familial structures of the past, the Court is moving away from this belief and keeps an open mind when determining what is “the best interest of the child.” The Court and its judges attempt to examine each situation on a case-by-case basis looking at many factors and not use generalized rules and misconceptions when determining what the “best interest of the child” is. The Court will look at each child and each case’s individual characteristics when deciding what is best for that specific child. It is an established law that visitation is a right of both the parent and the child. This means  that often, issues that are brought up in matrimonial and family law are very fact specific. Therefore, adequate legal representation requires a lawyer who is both competent in the law and patient, who is willing to sit down and discuss your story and situation. One who knows what is relevant to a custody/visitation situation and who will take the time to make sure that of the facts have been thoroughly discussed.
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Child Protective Proceedings


A child protective proceeding is one that deals with an allegedly abused or neglected child. The exact definitions of abuse and neglect include a range of behaviors. The threat in such a proceeding is a termination of parental rights and incarceration. Like family offense proceedings, child protective proceedings have criminal elements and
ramifications and the respondent is entitled to the highest level of due process.
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Child Support


There is a general equation when it comes to child
support: the key amount to any child support award is the parents’ incomes. The basic child support award is from statute, and generally non-negotiable. In addition to the basic award, in some situations a child may be entitled to “add-ons;” this includes expenses such as childcare, private school, summer expenses and many more. The amount each parent contributes to these add-ons also depends on income.

There are legally viable ways to increase or decrease an individual’s income. It becomes imperative to have a competent attorney who knows how to deal with the available additions to and subtractions from income. Child support is a monthly amount that a custodial parent has a legal right to, generally, until the child reaches the age of 21;
therefore, even what seems like a miniscule increase or decrease may prove to be very substantial over time.

Ensuring that you have adequate representation, by an attorney that not only knows the laws, but one who is also competent with financial documentations, future value computations, and real time valuation will allow you to get the most out of your support case or ensure that you do not overpay.
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Divorce


The grounds for divorce in New York are as follows:
(i)cruel and inhuman treatment; (ii) abandonment;
(iii)incarceration; (iv) adultery; (v) living separate and apart for at least one (1) year pursuant to a separation agreement; (vi)living separate and apart for at least one (1) year pursuant to a judgement or decree of separation; (vii) one party states under oat that the marriage has been irretrievably broken for a period of at least six (6) months.

The new, irretrievable breakdown, no fault ground allows for a quick uncontested divorce when all issues regarding custody, support, and the distribution of property are settled prior to the filing of divorce. This may be accomplished in a couple of ways such as with a separation agreement or through litigating child custody and support in Family Court.

The new ground for divorce is useful as the fault based grounds could have only been used against the party guilty of the fault. This new ground allows for a party who is at fault to be able to exit the marriage. Furthermore, it allows for parties to exit a marriage that has simply died with out having to wait the additional 1-year separation period. Therefore, the party’s may still live in the same home until choosing to file or even throughout the divorce if they so choose.

In a divorce action- all other issues relating to the marriage must be resolved- either by the Court through litigation or by a settlement of the parties or a by hybrid of both. This may include child custody/visitation, support, maintenance, and equitable distribution. If there is a prenuptial agreement then contact law will come into play and issues regarding the application of said agreement must be resolved.
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Equitable Distribution: Division of Property


The rule in New York is: separate property remains separate property and marital property shall be “distributed equitably” among the parties. Here are two issues which a competent lawyer needs to tackle for his/her client: what is marital/separate property? What is an “equitable” way to distribute the property? There is case law regarding both; however, much area may still remain gray and there are many arguments to be made.

The law itself has 14 factors to consider when equitably distributing the property. There is room for argument with regards to any of the 14 factors, but the 14th one is a catchall: “any other factor which the Court shall expressly find to be just and proper.” This catch all allows a competent attorney to argue for anything their client might need- even if it is not a usual term found in a divorce. Please see the FAQ section for some more information.

This area is one where a competent lawyer is invaluable: one who knows the laws; is able to listen to and investigate the circumstances; is properly able to look at a financial situation with a financer’s eye; and is able to properly tailor legal arguments using all information to his clients best interests.
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Family Offenses


Family offenses brought in family Court share jurisdiction with criminal Court. To bring a family offense petition- the alleged victim and respondent must have a familial relationship or have some other relationship specified in statute. Family offense proceedings include, but are not limited to, spousal abuse, child abuse and neglect.

Family offenses including children are concerned primarily with the best interest of the child. The Court addresses family offenses on a case-by-case basis, looking at the specific circumstances. Because family offenses have criminal elements and ramifications, the respondent is entitled to the highest level of due process. Furthermore, the Court system incorporates many up-to-date scientific and social data regarding children and families when determining the best interest of the child and may sometimes decide arrangements that may seem outlandish to a layperson but are in fact wholly inline with the best interest of the child.

Family offense proceedings will often have a custody/visitation component, and if there is a finding of family offense it will always be a factor in custody/visitation determination.  However, the standard of proof differs for the two actions.
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Juvenile Delinquencies


Juvenile delinquency proceedings include a person aged seven (7) to thirteen (13) accused of an action that if committed by an adult would constitute a crime. Respondents in such a proceeding may await trial at home, depending on the circumstances and history. The thought behind juvenile delinquency is rehabilitation- therefore, the Court is more lenient especially when during the course of trial the respondent has been taking an active role in changing their ways. A successful attorney knows how to portray the facts of the case in a light most beneficial to his client, so that his client not only truly rehabilitates, but also gets the least restrictive verdict.
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Maintenance


Maintenance comes in two forms: temporary maintenance and post-divorce maintenance. Temporary maintenance, also known as pendente lite maintenance, is awarded for the term of litigation. It expires once there is a final order of divorce specifying the post divorce amount. The two most important factors in determining both of these amounts are the marital standard of living and the income of the parties. These are the most often litigated issues of a maintenance dispute.

There are many financial benefits a party may be receiving, which are not traditional forms of income, but may be used to increase income for maintanance and support purposes.  Conversely, this also applies to expenses, which may be used to reduce income.

The marital standard of living depends on the spouse seeking maintenance. If the wife was used to an extravagant lifestyle financed by the husband, she may continue maintaining some version of that lifestyle while the husband will foot the bill. this has nothing to do with how extravagant a life the husband was leading. Meaning: one spouse's marital standard of living is not necessarily the same as the other spouse's marital standard of living.

There is a temporary maintenance calculator by the Court. However, this may only take into account the parties’ salaries. Lifestyle and statutorily permitted add-ons and deductions may substantially alter this amount. A competent attorney will help you properly calculate the final income looking at all the facts.
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Modification Petitions


Modification petitions are filed when there is either a final order of custody or support or a settlement of custody or support and a party wants the terms changed. To get a hearing on a modification petition- a party must allege that there has been a “sufficient change in circumstances” since the order/settlement/divorce was entered. However, if enough time has passed since the entry of the initial order and the bringing of the modification petition, that may sometimes sufice.

Additionally, the Court will consider if the current arrangement is based on an order entered after a full hearing or a settlement- the burden of proving sufficient change in circumstances will be easier or harder depending on how the current arrangement came about. Once a hearing on the change is awarded, the plaintiff/petitioner must prove that the change was substantial and that a modification will be in the child's "best interest".  The burden of proof in the modification hearing is on the person seeking the modification.
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Orders of Protection


Often, family offense proceedings are initiated so that a petitioner may gain an order of protection, also known as restraining orders. There are a few types of orders of protection- depending on how restrictive the Court must make them given the allegations. They range in restrictiveness. A stay away order is the most restrictive and means that the respondent must stay away from the petitioner; the exact distance and terms may be tailored to the circumstances at hand. If the parties reside in the same home, they may continue to do so after receiving a less restrictive order of protection.  Orders of protection are often considered in custody disputes.
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Paternity


Paternity may be established in a number of ways:
  1. Acknowledgement of Paternity: This is often done in the hospital, when the child is born and the father says that the child is his and signs the acknowledgment of paternity.


  2. By the Court entering an Order of Filiation: Such an order may be entered for two reasons:

    1. A DNA test establishing the respondent as the father

    2. A finding of Estoppel: Requires a showing that respondent held out to be the father of the child from a young  age, the child believed that the respondent is the father, and it is in the best interest of the child for the respondent to remain as such.

  3. By marriage when a man is arried to a woman at the time of birth he is considered the father unless the Court determines otherwise.

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Person in Need of Supervision
(PINS)

One course of action available to parents who have extremely disobedient children is to bring a Person In Need of Supervision (PINS) action against the child, a principle may also bring such a petition for truancy. The filing of a PINS petition brings the child in front of a judge who will often threaten the child to juvenile detention. While this should only be viewed as a last resort for parents, it is a possibility available free of charge through the Court system. The idea is that often the Court will scare them straight.
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Prenuptial Agreements


Prenuptial agreements are legally binding contracts, usually entered into prior to marriage. Generally, the purpose of a prenuptial agreement is to set expectations should the parties divorce.  Many modern couples choose to keep their finances separate during their happy times, and may want to know that this arrangement will continue should they ever divorce.

Prenuptial agreements are strictly a safety measure and should not be frowned upon. In many instances, especially when there are businesses with many partners involved, entering into a prenuptial agreement is the responsible thing to do and may range in generosity.

Prenuptial Agreements may include provisions relating to many aspect of marital life and divorse, mainly:
  • property and support rights during and after marriage

  • personal rights and obligations of the spouses during marriage


  • education, care, and rearing of children who may later be born to the married couple.
It is important that you seek adequate representation for many reasons: to ensure that the financials are properly disclosed prior to entering into the agreement, to ensure that the financials are displayed in the best light, to ensure that the settlement set forth in the agreement is the best given your financial position, and to ensure that all provisions will be binding and upheld in Court. A good attorney will make sure that your legal rights are not compromised and that the contract you enter into will be upheld in Court.
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Spousal Support


According to statute (Family Court Act §412): “A married person is chargeable with the support of his or her spouse and, if possessed of sufficient means or able to earn such means, may be required to pay for his or her support a fair and reasonable sum, as the Court may determine, having due regard to the circumstances of the respective parties.” Therefore, as a married spouse, you may have a right to support, regardless of whether you are separated or living with your spouse so long as your spouse has the ability to support you and you need the support.
 

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New York, NY 10007
Phone: (646)685-7478
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