Call today: (646)685-7478

HOME
ATTORNEY
AREAS OF PRACTICE
RESOURCES
FAQ
CLIENT'S RIGHTS
CONTACT
 
FAQ
 
Contact

What is family court?

What is the difference between Supreme Court and Family Court?

What is the difference between a Plaintiff/Defendant and Petitioner/Respondent?

What is the difference between Spousal Support, Maintenance and Alimony?

What is the difference between an attorney for the child and a law guardian?

Arbitration versus mediation, which is better?

What is a parenting coordinator?

What is the difference between a settlement and a court order?

What if I cannot afford to litigate?

What court remedies are available to a parent with a difficult child?

How is property distributed upon divorce?

What is the new “No Fault” ground for divorce and what are its implications?


What if I can no longer afford paying the amount I was ordered to in child support?

What if the amount of support awarded is no longer enough to cover my child’s expenses?

What if my child’s parent no longer resides in this state, but I need an order of support to help me care for my child?

What if I have an order of support from another state?

What if I have an order of custody and visitation from another state?

What if my husband refuses to give me a get?

____________________________________________

  (646)685-7478

 

What is family court?

I get this question a lot, most people think that it deals with divorce. This is in fact, not true. In order to get a divorce, a couple must go to Supreme Court. However, Family Court does deal with many, but not all, issues that come up in divorce. Namely, child support and child custody.

One may petition Family Court for an order of child support and child custody prior to seeking a divorce in Supreme Court. This proves to be a good tactic, especially as today there is the “no fault” divorce in New York, know as Irretrievable Breakdown of the Marriage.  If all issues regarding custody, support, and distribution of property are resolved prior to the filing of divorce, the new ground may be used to obtain a "quick divorce" in as little as 120 days.  If a couple has orders from Family Court resolving issues of custody and child support, they are able a apply for a quick divorce. However, it is worthwhile to note, that this option becomes more complicated when there is marital property, which must be distributed between the parties.

If there is a finalized divorce in existence dealing with either child custody or support, a party may petition Family Court. A party may do so either because there has been some change in circumstances due to which they wish to have the order modified or because there has been a violation of the order. However, Family Court is only an available venue 18 months after the Supreme Court order was entered and only if the divorce does not specifically state that the Supreme Court retains jurisdiction. Family Court may prove the better venue as it is cheaper, at times is speedier and is often more sensitive to the issues at hand.

Family Court also sees family offenses and juvenile issues. Family Court is often thought of as a unique judiciary as it functions as a hybrid of Family Court, Supreme Court, and Criminal Court. It is very sensitive to familial issues. It is so sensitive to the issues brought before it that in some instances, where the “best interest of the child” requires, the rules of evidence and litigation are relaxed.


____________________________________________

What is the difference between Supreme Court and Family Court?

The civil term of the Supreme Court is the only venue from which a couple can get a divorce; in this regard it has what is known as exclusive jurisdiction.  However, once there is a divorce in place, a party can go to Supreme Court when problems arise regarding issues covered in the divorce, such as when one party is not paying support. To bring a case in front of the Supreme Court, a party must pay an array of fees. Additionally, Supreme Court is very strict in how it follows the rules of evidence. This becomes an issue, for example, when a party wants to bring in documents or oral testimony of a witness to prove their case that would otherwise not be admissible in Supreme Court.

Family Court will litigate an array of issues which the Civil Term of the Supreme Court will not, such as child abuse, juvenile delinquents and orders of protection. It is free to litigate in Family Court. Family Court is often more sympathetic to the issues brought before it with regards to evidence. In some situations, Supreme Court is the speedier venue, in others Family Court may be preferable. A competent attorney may make that determination.


____________________________________________

What is the difference between a Plaintiff/Defendant and Petitioner/Respondent?

In Family Court, the party initiating or bringing an action is called a petitioner and the party it is brought against is called the respondent and the action is started by filing a petition. In Supreme Court, the party bringing the action is known as the plaintiff, the party responding is the defendant and the action is started by filing a summons with notice of a summons with a complaint.
____________________________________________

What is the difference between Spousal Support, Maintenance and Alimony?

There are many misconceptions among these three terms. Spousal support is available to a married spouse while the parties are still married, the key word here is “spousal,” you must remain spouses and married to receive this support. This is available to individuals regardless of whether or not they are living together, so long as they are still legally married. Additionally, if the key requirements for spousal support exist, spousal support may be awarded indefinitely. Click here for more information.

Maintenance is available while a divorce action is pending (known as pendente lite maintenance, or interim support) as well as for some time after divorce. The main idea behind maintenance is to allow the less wealthy party maintain the marital standard of living, however, with the goal that over time they be able to be self sufficient. Maintenance is available only until the party receiving it remains unmarried and automatically ends upon remarriage of the receiving party. The marital status of the paying party is irrelevant. While seeking a maintenance award, the key issue is establishing the marital standard of living. Once maintenance is awarded, the issue becomes when maintenance should expire.


Alimony is not available in New York. Generally, alimony is thought of as a sum of money that the less wealthy party received indefinitely and only expired upon death or remarriage of the receiving party. The ability of the receiving party to stand on their own and be self supporting was less relevant after alimony was awarded, and alimony would only expire upon death or remarriage. New York does not have alimony, mainly because the State’s view is that divorce should sever all financial obligations between the parties (except for with regards to children) and that such severance should occur as soon after the divorce as possible.

There are many strategies to consider when dealing with maintenance or child support and wealth management becomes a key issue when litigating, negotiating and settling. The age of the spouses, the age of the children, the education of the spouses, the financial standings of the spouses and much more become important factors of such an award.


____________________________________________

What is the difference between an attorney for the child and a law guardian?

The fundamental legal issue when dealing with family and matrimonial law is the “best interest of the child.” The Court will always consider what is best for the child(ren). Whether dealing with child support, child custody/visitation, or even spousal maintenance and the distribution of marital property, the best interest of the child analysis comes into play. Because the child’s best interest is not necessarily in line with both, or even either parents’ attorneys’ it is often necessary for the child to have his/her own independent representative. Sometimes, when more than one child is involved, it is necessary for each child to have their own representative.

In the past, a child would be represented by a law guardian, who would represent to the court what it believed would be in the best interest of the child. Therefore, it was as if the law guardian made the best interest determinations. Today, this has drastically changed. The child is assigned an attorney, this attorney represents a child in the same way he/she would represent any other client. Generally, the attorney represents to the court and fights for what the child wants, not what the attorney believes is best for the child. While the court will give much weight to the position of the attorney for the child, the court makes its own determination as to what is in the best interest of the child and makes its decisions based on its own best interest determinations. In some circumstances, most often when the child is very young, the attorney for the child can substitute his/her judgment and request from the court what it believes is in the child’s best interest. In such a case, the attorney must state for the court what the child requests and why the attorney is substituting judgment.

At first glance, it may seem strange that a month old child can have an attorney, given the adversarial nature of our judicial system, it is often the best way to bring out the best interest of the child by providing the child with his/her own independent and unbiased advocate.


____________________________________________

Arbitration versus mediation, which is better?

Mediation is an out of court meeting with the parties, their lawyers and an unbiased mediator. The purpose of mediation is to help the parties brainstorm and settle a case. A mediator’s role is to provide the parties with new settlement options and to help the parties consider those options objectively using the facts of the case.

Additionally, a mediator should help the parties communicate efficiently.  A mediator is NOT supposed to prefer one settlement bundle to another and is NOT to persuade one party to take another party’s settlement offer. A mediator is just there to help the parties consider alternatives and to try to help them while keeping emotions at bay.

Arbitration involves an unbiased third party. Each of the parties will present their case to the arbitrator using very relaxed evidentiary standards (unlike in a proper hearing in front of the court). The arbitrator will then consider the evidence and make a binding determination.

In conclusion, a mediator helps the parties settle while an arbitrator will make a binding determination. The benefit of using arbitration versus litigation is that it is speedier and, therefore, often cheaper.

The benefit between arbitration or mediation depends on the parties’ ability to communicate; if a settlement is likely then mediation is better. If a settlement is not likely, but the parties would prefer a cheaper route than litigation, then arbitration may be a good alternative.

____________________________________________

What is a parenting coordinator?

A parenting coordinator is an independent professional who helps divorced parents deal with parenting or custody/visitation disagreements. A parenting coordinator can become a player during litigation or after litigation/settlement. A parenting coordinator is unbiased and often paid for by both parents. He/she is a third party who helps the parents communicate and make decisions without coming to court. The logic behind the parenting coordinator is that if the parents are better able to communicate, the child’s best interest is increased. Often, in a settlement/order the parties will agree to first take their issues to a parenting coordinator, and only when one party is still not happy with the determination may they “appeal” it to the courts.
____________________________________________

What is the difference between a settlement and a court order?

A settlement can occur before any litigation is initiated or while litigation is ongoing.  A court order is a determination made by the court. Both properly executed settlements and court orders are binding. However, more weight is given to a court order. If a court order is based on an agreement of the parties and is entered prior to thorough litigation, it is less binding than a court order that was entered after a lengthy hearing exploring all of the facts. The nature of the settlement/order becomes most important when considering modifications and alterations.
____________________________________________

What if I cannot afford to litigate?

There are a few alternatives to litigation such as mediation or settlement. Furthermore, the New York statute governing divorce now allows for a less wealthy spouse to request the court to award her interim attorney’s fees. This may be done concurrently with filing for divorce.
____________________________________________

What court remedies are available to a parent with a difficult child?

As a parent or guardian, what can I do if my child stays out late, skips school or repeatedly disregards me and my parental rules? 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. 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 and if not, juvenile detention will.
____________________________________________

How is property distributed upon divorce?

New York follows the doctrine of Equitable Distribution; this means that separate property remains separate property and martial property is “distributed equitably”.  Generally, property that belonged to one spouse prior to marriage is not shared upon divorce, unless that spouse took an active role during the marriage in the accumulation of that property.

A good example to help distinguish between separate property and marital property may be seen by examining a stock portfolio. If husband inverted in a stock portfolio prior to marriage and let the money sit there throughout the marriage and the value of that portfolio doubled that money is separate property and belongs solely to husband. In contrast, if husband invested a stock portfolio prior to marriage, but was actively involved in buying and selling stocks during the marriage, then in such a scenario the money is marital property and must be split with wife upon divorce.

There are some exceptions to the above example. For instance, inheritance or personal injury verdicts awarded during the marriage will remain the property of the spouse who received them upon dissolution. Additionally, professional licenses earned by one party during a marriage will be equitably distributed amongst the parties upon dissolution. Note- debts are also distributed.

A way to limit what will be divided upon divorce is by entering into a prenuptial agreement prior to marriage. Also, the parties may enter into post-nuptial agreements.  Prior to filing for divorce or while the divorce action is pending. For more info, click here.


____________________________________________

What is the new “No Fault” ground for divorce and what are its implications?

New York has adopted a no fault divorce ground known as "irretrievable breakdown in relationship".  All that is necessary for a divorce under this ground is that one party affirm under oath that the marriage has been irretrievably broken for at least six (6) months. Additionally, the parties can have the divorce expedited if they resolve all major issues prior to filing for divorce.  This can be done by going to Family Court and getting orders regarding custody/support, or entering into an agreement addressing any issues, which will then be incorporated into a "settlement for divorce. The purpose of the new ground is to make divorce more accessable and to allow any party to initiate a divorce. Furthermore, it allows for an expedited dissolution of the marriage, so that both parties can move on with their lives.

____________________________________________

What if I can no longer afford paying the amount I was ordered to in child support?

Has your life situation has changed and you can no longer pay the amount of child support that was initially ordered? You may be entitled to a reduction in that amount. A competent attorney can help you determine which changes are relevant to a reduction and provide you with adequate representation to that end.

____________________________________________

What if the amount of support awarded is no longer enough to cover my child’s expenses?

Were you awarded a child support award a couple of years ago which no longer covers your growing child’s expenses? An adequate attorney will help you sift through the facts of your situation and determine which changes can in fact increase your support award.
____________________________________________

What if my child’s parent no longer resides in this state, but I need an order of support to help me care for my child?

Whether or not your child’s parent resides in New York is not relevant. A competent attorney can get you a child support award regardless of where the other parent is.
____________________________________________

What if I have an order of support from another state?

New York has adopted the Uniform Interstate Family Support Act (UIFSA). UIFSA allows NY to enforce a child support order from another state. Additionally, other states have acts similar to UIFSA.  A competent attorney will know how ensure that the active support order is enforced regardless of the parent's state of residence.
____________________________________________

What if I have an order of custody and visitation from another state?

New York has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). UCCJEA allows NY to enforce a custody and visitation order from another state. Additionally, all other states (EXCEPT Vermont) have enacted CCJAE.  A competent attorney will know how to enfore the custody/visitation order in place regardless of the state to which a parent has relocated.  Furthermore, if a parent has move to NY with an out of state custody/visitation order, a competent attorney will know how to enforce such an order, how to modify it if modification is necessary, and how to inform the right agencies.
____________________________________________


    Ilus Law
277 Broadway Suite 701
New York, NY 10007
Phone: (646)685-7478
Fax: (646)786-4122
Email:info@iluslaw.com

 
Serving Manhattan, Brooklyn, the Bronx, Staten Island, Queens, and Long Island.
© 2013 by Ilus Law. All Rights Reserved.