Recent Blog Posts

Child Support in New York

Andrea B. Friedman, Esq. — Sat, 12 May 2012 02:18:00 GMT

Recently, model Linda Evangelista' s case for child support from François-Henri Pinault, created major attention as to how the New York County State Court would handle calculating child support for the child of a billionaire. While the case settled, the story raises interesting questions regarding child support.

Pursuant to Domestic Relations Law 240, basic support of a child is based on the combined parental income of both parents, and the statutory cap is $136,000.00. However, under appropriate circumstances the Court may go above the cap, and often does go above the cap. Under this calculation of income, after Federal and City taxes, the Court computes the non-residential's "pro- rata" share to determine the sum of support to be paid on behalf of the child or children. Additionally, this non-custodial parent pays his or her pro-rata share of health costs and child care expenses. Finally, case law allows the Court in is discretion to direct the non-residential parent to contribute towards expenses for the children, for example, educational costs or extra curricular expenses, where it deems appropriate.

Accordingly, the circumstances presented by the Evangelista case presented an unusual circumstance for the average child support case. The Court is concerned that the basic needs of the child are being met, and in this case, want to ensure the child is supported in a manner concurrent with the parties's life style.

However, this case does raise important factors to consider for high net worth clients. Whether children attend private school, have special needs, or strong extra curricular activities are important to consider when determining whether the basic sum of child support is appropriate.

If you are concerned about child support for your children, contact our office to speak with an attorney who can help answer questions pertaining to you particular case.

Enhanced earnings: How much is the non-titled spouse entitled to?

Andrea B. Friedman, Esq. and Allyson D. Burger, Esq. — Mon, 16 Apr 2012 02:50:00 GMT

Enhanced earnings is the value attributed to a spouse who obtained a degree or license during the marriage, because his or her earning capacity is greater due to earning that degree. Thus, where one spouse helped another spouse obtain that degree to enhance his or her earnings, under the concept of equitable distribution, the non- titled spouse is entitled to a percentage of that enhancement.

This concept developed about twenty seven years ago, in the case of O'Brien. In that case the New York State Court of Appeals determined that a non-titled spouse was entitled to half of a spouse's enhanced earnings.

However, recent trends show that a spouse is entitled to 10-20%, and just recently the Appellate Division of the Second Department awarded a Husband only 5% of the Wife's enhanced earnings. (Nidositko v, Nidositko, 92 A.D.3d 653). Judges are looking for direct contributions from the non-titled spouse when determining the percentage of the enhanced earnings to be awarded.

Additionally, when determining the percentage of enhanced earnings to be awarded to the non-titled spouse, if that spouse is also seeking spousal support (maintenance), it is important to understand the concept of "double dipping." This means that a spouse who is seeking maintenance based on the other spouse's income, cannot receive an award which is also based on the spouse's enhanced earnings.

Therefore, it is important to work with an attorney who can best determine what an award of enhanced earnings and maintenance should be. If you want to learn more, contact our office and speak with a lawyer who can help you.

Grandparent's rights to visitation with grandchildren

Andrea B. Friedman, Esq. — Sat, 07 Apr 2012 20:21:00 GMT

The New York courts have held a natural parent has a right to raise his or her child and the child has a right to be raised by his or her parent. However, under special circumstances, New York state gives standing to Grandparents to seek visitation with their grandchildren. These special circumstances are:

1. when either or both of the child's parents are deceased; or

2. when conditions exist which equity would see fit to intervene.

In a recent decision, Honorable Elaine J. Stack of Nassau County Family Court determined that a grandmother was entitled to parenting time with her grandchildren, after her son deceased and the mother refused to let the grandmother to visit with the children. The testimony during the hearing revealed that despite the mother's contention that the grandmother posed a "grave danger" to the children, that the children and grandmother had a strong relationship prior to the death of the Father. The Court also noted that an acrimonious relationship is generally not a sufficient cause to deny visitation. (Matter of J.P v. E.B.)

If you want to explore your rights as a grandparent, contact our office to speak to a lawyer today.

Does New York State have "No-Fault" Divorce?

Andrea B. Friedman, Esq. — Tue, 14 Feb 2012 03:55:00 GMT

While the Divorce Reform Act of 2010 added a seventh ground to the Domestic Relations Law allowing a couple to obtain a divorce on the basis that the marriage had irretrievably broken down for at least six months, it is still controversial whether this allows the spouse who did not file for divorce to contest the divorce.

Originally, in the matter of Strack v. Strack, Justice Muller in Essex County determined that a spouse is entitled to a trial over whether a marriage is beyond repair. Similarly, Justice Quinn of Suffolk county ended a fifty six year marriage but only after a trial where he determined that the marriage had been "irretrievably broken." Therefore, in that case the spouse was entitled to contest the divorce, even though that spouse lost.

But other judges state that a spouse is not entitled to a trial, and one spouse's declaration that the marriage is broken down is sufficient.

In the recent decision of Vahey v. Vahey, Justice Palmeri of Nassau County followed the decision of Justice Falanga from Nassau County in the matter of A.C. v. D.R., and determined that the decision whether to grant a divorce on this ground is entirely subjective in nature. Therefore, one spouse's declaration that the marriage is broken is sufficient to grant a divorce under DRL 170(7).

Until this matter is appealed to the Appellate Division, the Supreme Court shall continue to be split. While some argue that a spouse should be entitled to a trial because the denial is a violation of his or her Due Process rights, others find that the legislature intended for DRL 170(7) to be "no-fault."

However, the law is still clear that a divorce shall not be granted until all ancillary issues of equitable distribution, maintenance custody, and child support are resolved. Thus, even though the issue of grounds has made significant strides in the New York legislature, it is important to consult with an attorney to navigate your divorce.

Will same-sex marriage become federal law?

Andrea B. Friedman, Esq. — Thu, 09 Feb 2012 02:17:00 GMT

While there is no answer yet on this issue, our country is getting closer to an answer. While marriage is a power delegated to the states, the federal law DOMA has stated that states need not give Full Faith and Credit to a legal same sex marriage from another state.

On February 7, 2012 a California Federal Appeals Court struck down California's ban on gay marriages. However, the Court did not address whether other states or the federal government were required to recognize same-sex marriage. Accordingly, the decision will likely be appealed and reach the United States Supreme Court in the upcoming year.

The decision rendered Tuesday by the 9th Circuit was purposely narrow in scope so as to not be the subject of scrutiny upon appeal to the Supreme Court. While the Court determined that proposition 8 violated the 14th Amendment, Equal Protection clause, the Court did not state whether there is a fundamental right to marry someone of the same-sex.

Thus, we are closer to learning the future of DOMA and same-sex marriage in our country.

How do you find the right attorney for you?

Andrea B. Friedman, Esq. — Mon, 19 Dec 2011 00:59:00 GMT

Finding the right attorney is not an exact science, but is a personal choice each client must make when hiring counsel. However, when looking for an attorney you want to hire an attorney not only with experience and expertise, but one who is able to develop of strategy that best serves your interest based on the facts on your individual case.

It is very important to hire a lawyer who is capable to telling you the strengths and weaknesses of your case in order to obtain the best results possible, while softening some of the pitfalls along the way. Often an attorney will help you see your case from an outside perspective so you can learn and educate on the realistic outcomes and results in your matter.

It is important to have trust in your lawyer, and that means hiring an attorney who is familiar with the jurisdiction where in your case will be heard. While it is important that your attorney be knowledgeable of the law, it is the facts of each individual case which lead to various outcomes.

More over, the more information you provide to your lawyer, the better they are able to assist you. Since cases are built on facts, the more your lawyer understands, the better able he or she is able to help you and develop your case.

I urge anyone who is looking to hire an attorney on Long Island to try and see the big picture. The most satisfied clients are those who understand they are on a journey and eventually need to determine what the outcome of their case looks like, so that their attorney can best guide them towards that outcome.

To learn what will best suit your needs and what strategy you can apply to your matter, please contact a lawyer in our office.

Health Insurance in Divorce

Andrea B. Friedman, Esq. — Mon, 21 Nov 2011 02:57:00 GMT

So many times my clients ask when they can remove their soon to be ex-spouse from their health insurance, or conversely, when their soon to be ex-spouse may remove them. The answer is always the same, upon entry of the Judgment of Divorce.

Pursuant to Domestic Relations section 255, a New York state court, prior to signing a judgment of divorce or separation or a judgment annulling a marriage or declaring the nullity of a void marriage, shall ensure that:

1. Both parties have been notified, at such time and by such means as the court shall determine, that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Provided, however, service upon the defendant, simultaneous with the service of the summons, of a notice indicating that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan, shall be deemed sufficient notice to a defaulting defendant.

2. If the parties have entered into a stipulation of settlement/agreement on or after the effective date of this section resolving all of the issues between the parties, such settlement/agreement entered into between the parties shall contain a provision relating to the health care coverage of each party; and that such provision shall either: (a) provide for the future coverage of each party, or (b) state that each party is aware that he or she will no longer be covered by the other party's health insurance plan and that each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available. The requirements of this subdivision shall not be waived by either party or counsel and, in the event it is not complied with, the court shall require compliance and may grant a thirty day continuance to afford the parties an opportunity to procure their own health insurance coverage.

Therefore, in all divorces it is necessary for parties to understand that upon entry of the Judgement of Divorce, each spouse will no longer be covered by the other's health insurance, but may have a COBRA option available.

If you are concerned about health insurance as an issue in your divorce matter, contact our office to speak with an attorney.

Pre-Nuptial Agreement

Andrea B. Friedman, Esq. — Thu, 03 Nov 2011 02:10:00 GMT

Marriage is romantic, but it also has a practical side. This is why many clients choose to enter into a prenuptial agreement upon marriage. The true benefit of a prenuptial agreement is that it allows the parties to maintain control over their assets and finances, rather than allowing new york state law to dictate their future.

Typically a prenuptial agreement covers how to divide finances and assets should the marriage break down.

According to Domestic Relations Law section 236B (1)(c), marital property is all property that is acquired by the parties between the date of marriage and before the execution of a separation agreement or the date of the commencement of a matrimonial action, with three exceptions. Gifts from third parties (not inter spousal gifts), proceeds acquired from a personal injuries case, and inheritance received are deemed to be separate property. However, Domestic Relations law section 236B(1)(d)(3) states that the appreciation, or increase in value, of separate property remains separate except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse. Case law interpreting the statute has made it clear that where the value of a spouse's asset has increased during the marriage due to the contributions of the other spouse, that appreciation is a marital asset to be divided.

A pre-nuptial agreement can help protect assets where one or both of the parties have children from a prior marriage or relationship. An Pre-nuptial agreement can also dictate the inheritance rights of the other spouse, which may differ from New York State law which may help protect children from a prior marriage or relationship. A prenuptial agreement can dictate how much of the appreciation of a separate property asset the other spouse is entitled to, and can dictate future maintenance awards.

To learn more about how a pre-nuptial agreement can benefit you, contact our office today.

The "SUNY" Cap: A parent's obligation to contribute towards college

Andrea B. Friedman, Esq. — Sun, 23 Oct 2011 22:39:00 GMT

The Courts in New York State may order the parties to pay for their children to attend college. Pursuant to DRL 240 (1-b) (c ) (7), absent a prior agreement , the Court may direct parents to contribute towards to the cost of a child's private education depending on the parent's ability to pay, the child's previous academic history, any any special needs of the child, and the type of colleges the parents themselves attended.

Often in New York State parties agree to contribute towards their child's college costs on a pro-rata basis, up to a SUNY cap. This means that each parties contribution shall not exceed the cost of a SUNY college at the time the child matriculates in school.

However, a recent decision from New York State Supreme Court Judge Matthew F. Cooper ruled that he was not mandated by the SUNY cap and directed a father to pay 40% of his son's education costs at Syracuse University, in the sum of $21, 200.00. Justice Cooper reduced his pro-rata share from 50% to 40% because of the father's other aid he has already provided to his family since the divorce settlement.

Justice Cooper wrote that "there are no judicially manageable standards to use in a post-judgment divorce proceeding to determine the quality of education a student will receive at Syracuse University as compared to SUNT- Binghamton, or for that matter as a compared to any of the four-thousand other colleges and universities in the United States."

However, in this case, the Court determined that contribution above the SUNY cap was appropriate. Absent a provision in a divorce agreement regarding higher education, the matter may be left to the interpretation and discretion of the Court.

To learn more about a parent's obligation to pay for a child's college,contact a lawyer in our office.

Judges start to address the new spousal maintenance calculations

Andrea B. Friedman, Esq. — Thu, 22 Sep 2011 01:26:00 GMT

In October of 2010 New York State passed new temporary spousal maintenance calculations. Prior to this new statute, during the pendente lite period the Court would ascertain the needs of the spouse requesting maintenance by reviewing the lifestyle of the parties during the marriage, the expenses of each spouse, the income of each party and each party's access to assets. Typically where one spouse predominately out earned the other spouse, the Court would also direct the more monied spouse to pay the carrying charges on the martial home.

However, upon enactment of this new statute, it was unclear how the courts would apply this new statute, which does not address how the court should maintain the status quo during the pendency of the action, including the payment of the carrying charges. Since the new spousal maintenance calculation can in many circumstances make the more monied spouse the less monied spouse and the issue of how the court would direct the carrying charges to be paid remained questionable.

Well, two judges have recently ruled on this very issue. In the case of J.V v. G.V. Judge Norman Janowitz of the Nassau County Supreme Court determined that deviating from the presumptive amount of spousal maintenance was appropriate. The Court stated that the Husband was voluntarily paying the carrying charges on the martial home, which the Wife voluntarily vacated, and all the children's expenses. The Wife also engaged in wasteful disposition of marital assets. As such the Court awarded the Wife spousal maintenance in the sum of $5,332.99 per month, rather than the presumptive sum of $10,249.31 per month.

In the case of S.B. v. G.B., Judge Ellen Gesmner of New York County Supreme Court declined to award the Wife maintenance above the discretionary income cap of $500,000.00 and awarded the Wife the sum of $12,500.00 per month. Again, in this case the Husband consented to pay carrying costs and utilities.

What lawyers and litigants can take away from this is that the application of the new statute by the Court is case and fact sensitive. In order to learn more about this new statute and how it may affect you, contact a lawyer in our office.

Attorney for the Children

Andrea B. Friedman, Esq. — Thu, 08 Sep 2011 15:43:00 GMT

In New York state, courts will often appoint an attorney for the children of the litigants going through a custody dispute, whether in supreme court or family court. While the standard in custody matters is "best interest of the child," an attorney for the child typically must advocate for their client's wishes. The more competent and mature a child is, the more dispositive their position may be. Therefore, it is the role of the attorney for the child to speak with the child to understand the child's position and communicate that position to the court, even if the attorney disagrees with the position (however, there are limited exceptions to this rule). To learn more, contact a Long Island divorce lawyer at our office.

Is my spouse entitled to my business when we get divorced?

Andrea B. Friedman, Esq. — Wed, 10 Aug 2011 17:15:00 GMT

The answer is , it depends. Distribution of an asset, such as a business depends on what if any contributions the other spouse made towards the business. These contributions are broken down into two different categories; direct and indirect contributions.

A direct contribution is where the spouse worked in the business. For example, the spouse is an employee of the company. But, it could also include a spouse who handled an administrative function, even if not directly an employee.

A indirect contribution is where the person did not do something specific to help the business run, but as your "economic partner" helped or enabled you to develop and grow your business. The most common example is a housewife who stayed ohm and cared for the children and the home, so that you could be out growing your business.

Active contributions tend to receive a higher percentage of the business during the divorce than indirect contributions. Percentages awarded to the non-titled spouse typically range from 50% to 25% to 0%.

Parties often utilize the services of a forensic accountant to determinate value of the business. This is similar, but not to be confused with determining the value of a spouse's enhanced earnings or income.

Where one spouse has a business, it may be good to speak with an attorney about protecting this asset should your marriage break down. (See my blog on "What type of Agreement do you need?") Contact our office to learn more about how to protect this precious asset, your business.

Does New York have jurisdiction to handle my divorce?

Andrea B. Friedman, Esq. — Thu, 04 Aug 2011 14:00:00 GMT

There are five alternative requirements to obtain a divorce in New York State. A party must meet one of the following five:

1) The parties were married in the state and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

2) The parties have resided in this state as husband and wife and either party is a resident thereof when the action is commenced and has been a resident for a continuous period of one year immediately preceding, or

3) The cause occurred in the state and either party has been a resident thereof for a continuous period of at least one year immediately preceding the commencement of the action, or

4) The cause occurred in the state and both parties are residents thereof at the time of the commencement of the action, or

5) Either party has been a resident of the state for a continuous period of at least two years immediately preceding the commencement of the action.

If you meet one of the five requirements as listed above, and are looking to be divorced, contact our office today!

What type of Agreement do you need?

Andrea B. Friedman, Esq. — Fri, 29 Jul 2011 13:39:00 GMT

Often clients are unaware of the different types of martial agreements available. Depending on the client and their individual needs, different agreements are appropriate. There are four major agreements in matrimonial law:

Pre-Nuptial: This is an agreement the parties enter in contemplation of marriage. This agreement need not address all aspects or issues which may arise from the break down of the marriage. It is a contract to dictate how certain assets, debts, and obligations will be divided or apportioned should the marriage break down in the future. A good example of when this agreement is used is where one party comes into the marriage with monies or an asset that they want to ensure will remain his or her's upon the breakdown of the marriage.

Post- Nuptial: This is an agreement the parties enter into while married. Like the prenuptial agreement, the post-nuptial agreement need not address all aspects or issues which may arise from the break down of the marriage. Again, it is a contract to dictate how certain assets, debts, and obligations will be divided or apportioned should the marriage break down in the future. A good example of when this agreement is used is where one person acquires an asset during the marriage that they want to ensure the other person will not have a claim to should the marriage breakdown.

Separation Agreement: This is an agreement entered between parties during the marriage, upon the breakdown of the marriage. This allows people to remain married while having a contract to resolve any and all issues which arise from the breakdown of the marriage. A good example of when this Agreement is used is when one spouse wants to remain on the other spouse's medical insurance, but they parties choose to live separate and apart.

Stipulation of Settlement: This is the most common agreement, as it is the agreement reached upon resolution of your divorce. Upon reaching a settlement at any stage of the litigation, this agreement resolves any and all issues that arise from the breakdown of the marriage. This is typically the document my clients refer to as his or her "divorce papers." (However, see my blog on "When am I divorced?")

The most important thing to remember when signing an agreement is to remember how important what you are signing is, because it can be, and sometimes is impossible, to undo the Agreement. Contact a lawyer at our firm to learn what type of agreement works for you.

Contempt and Enforcement

Andrea B. Friedman, Esq. — Wed, 13 Jul 2011 02:17:00 GMT

Perhaps you are right in the middle of your divorce and there is a pendente lite order in place. Or, perhaps the divorce is finalized and you have your Judgment of Divorce. Now, your ex-spouse, or soon-to-be ex- spouse violates the terms of the Order or Stipulation. The question is, what can you do about it.

At the outset, the immediate response to a violation of an Order or Stipulation is to seek enforcement of the order or stipulation and if the violation of an order was willful, to seek contempt. Enforcement is a means to enforce the stipulation or order , to alert the violating party that their conduct is inappropriate, and to remedy the issue or issues at hand. Contempt is more serious as a finding of contempt requires a willful violation of an order, which means a deliberate interference which prejudices the rights of the other party. The harshest punishment for a finding of contempt is incarceration.

However, depending on the circumstances, different remedies are appropriate at different stages for different issues. For example, let's assume your ex- spouse is never on time to pick up the children for parenting time. This situation should be addressed, however it is not as egregious as a parent who refuses to allow the children to go with the other parent for their visitation at all, and in essence is deliberately interfering with that parent's parenting time. Both situations require attention, but the remedies by which you approach these issues should be handled differently. This is the reason it is so important to speak with an attorney in our office to learn what best fits your situation.

A Court Order and the terms of a parties' Stipulation should be abided by. However, situations arise where parties intentionally or unintentionally violate the terms of a stipulation or order, and thus the remedies of contempt or enforcement may be useful and necessary. If this situation sounds like something you are going through contact the office to get started so you can have an agreement and/or order that works.