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Family Law Blog New City, New York

News and insights about divorce and family law in New York.

5 Benefits of Family Law Mediation

5 Benefits of Family Law MediationTraditionally, family law cases are decided in the court system. However, some parties choose a type of alternative dispute resolution known as mediation to resolve their family law cases. Below are five benefits of choosing mediation for your New York family law case.

1) Cost-effective

Families that choose mediation over conventional court proceedings save money. Mediation typically costs thousands of dollars less because attorneys typically charge a lower rate for mediation services. Also, a resolution is reached through mediation much faster than a case would be decided in court so both parties save money on accumulated attorney fees, excessive court costs and other associated expenses.

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Divorce Mediation

divorce mediationDivorce mediation is a type of voluntary alternative dispute resolution that allows divorcing couples to forego traditional court proceedings in favor of a less contentious and more cost-effective compromise-based resolution of their marriage.

In a typical divorce mediation, the mediator will help you and your partner reach an agreement on several important issues, including but not limited to:

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Violation of New York Custody Order

visitation new york custody orderWhen parents enter into a custody order with the courts, the arrangements set forth in the order are legally binding and should be adhered to at all times. Sometimes, one parent violates the custody order in such a way that the other parent is forced to go back to court. In this situation, an experienced New York family law attorney can help guide you through the process in order to protect your parental rights.

How are custody orders violated?

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Modifying a Custody Order in New York

child custody modification new yorkEstablishing a custody order that works for your family is an important aspect of any divorce. However, many post-divorce couples find themselves in situations where their custody order no longer works for their families. In New York, custody orders can be modified at any time in certain limited circumstances.

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An Overview of New York Visitation Laws

Establishing visitation is an important part of any custody arrangement and can be invaluable in fostering family continuity after a divorce or other domestic parting. If you are considering enforcing your visitation rights, a basic understanding of New York visitation laws will help you be better informed of your rights as well as prepare you for your first consultation with a qualified New York family law attorney.

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Grandparent Visitation Rights When Parents Object

grandparents rights when parents objectUnfortunately, grandparent rights are not automatic. A parent may object to grandparents visiting and otherwise interacting with their child for many reasons. Some parents may object due to a strained relationship with the grandparents while other parents object to a continued relationship after a contentious divorce. Whatever the reason for the objection, it is up to the grandparents to establish that they have legal standing to participate in a visitation court proceeding and that being granted visitation of the child is in the child’s best interest. In order to pursue your right to visitation of your grandchild, you will need to take legal action with the help of a qualified New York family law attorney.

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An Overview of Grandparents’ Rights in New York

Divorce grandparents rights new yorkBeing a grandparent is one of life’s greatest joys but, when grandparents are denied visitation or custody of their grandchild, the sense of loss and feeling of hopelessness can be overwhelming. In New York, grandparents may have a legal right to visitation or custody of their grandchildren in certain circumstances. Although visitation rights or custody are not guaranteed, the courts will allow grandparents’ rights when the following three elements are proven to exist: 1) that the grandparents have legal standing to participate in a court proceeding; 2) granting visitation rights or custody is in the best interest of the child; and 3) the grandparents have a pre-existing relationship with the child.

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How Children Affect an Uncontested Divorce in New York

Uncontested divorces can be time-efficient, cost-effective and less stressful than traditional divorces. However, when the parties are parents of children, the process can become significantly more complicated. If you have children and are considering an uncontested divorce in New York, a qualified family law attorney can help ensure that the rights of you and your children are best represented.

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An Overview of Uncontested Divorce in New York

What is an uncontested divorce?

An uncontested divorce is a type of divorce in which the spouses have agreed on all major issues surrounding the marriage’s end, such as, but not limited to, the division of any property and child custody, prior to filing. A divorce can also be considered uncontested if one spouse files for divorce and the other fails to appear at the divorce proceedings.

What are the requirements for obtaining an uncontested divorce in New York?

There are several requirements under New York law that must be met in order to obtain an uncontested divorce. These include:

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The Elements of an Uncontested Divorce in New York

Many people assume a divorce must be contested if there are a large number of assets, minor children involved or many years of marriage. This is untrue. It is possible to have an uncontested divorce in New York even with these factors involved, as long as both spouses are in agreement.

The best way to proceed is by reaching an agreement with your spouse prior to filing.  Before filing a divorce action, if both parties agree on the grounds for divorce, division of assets, property and debt, child custody & visitation & visitation, support, and any spousal support, the divorce can be uncontested and appearance in court is not mandatory.

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No-Fault Divorce and Uncontested Divorces in New York

On August 15, 2010, Governor David Paterson signed a bill that created no-fault divorces in New York. Previously, only fault based criteria or separation could be cause for divorce.

No-fault divorces occur when two actions are completed: first, one party testifies that the spousal relationship has been broken “irretrievably,” meaning beyond repair, for at least six months. Second, spouses must have resolved all economic issues of property distribution, spousal and child support, fees, as well as custody and visitation issues. The settlement of the economic and domestic issues may be settled through a final judgement as determined by the Court.

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Lincoln Hearing

Sometimes in the course of a custody or visitation proceeding, a judge may choose to conduct a Lincoln hearing. Lincoln hearings occur when a judge chooses to hear the testimony of a child regarding custody or visitation preferences, and does so in a controlled environment; only the judge, a stenographer, the child, and the child’s attorney are present. The purpose of maintaining a controlled environment is twofold: first, it prevents a child from undue stress associated with open court testimony. Second, and closely related, it better allows for a child to relate parental preferences and family difficulties.

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Child Custody

On April 2, 2014, the Appellate Division of the Supreme Court of New York decided the child custody case of Law v. Gray. In this case, the mother, Shalaine Gray, appealed the decision of the Family Court to grant, without a hearing, fully custody of the child Lawrence Jr. to the father Larry Law. The Appellate Court’s affirmation of the Family Court’s decision provides a good example of both what rules and standards are used by the Family Court and how they are applied.

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Troxel v. Granville and Grandparent’s Rights

The Supreme Court case of Troxel v. Granville, decided in 2000, has had an important influence on New York law surrounding grandparents’ rights (and the rights of non-parent relatives like aunts, uncles, and stepparents).

In Troxel, the Court struck down a Washington state law that gave visitation rights to non-parent relatives even when parents objected to non-parent relatives having contact with their children. The Court reasoned that Courts should presume that a “fit” parent acts in the best interest of his or her child. Indeed, parents have a constitutional right to rear their children as they see suitable, and inclusive of this right is the ability to refuse to associate with any particular party. Thus, any law that sought to override the “special weight” assigned to a parent’s decision was unconstitutional.

However, the Court did set a limit on parental rights. The deference afforded to a parent can be overcome by a compelling government interest supported by facts. Therein, in the event of government intervention into a family, it may be possible for grandparents or other non-parent relatives to gain visitation or custody rights.

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Legal Separation in the State of New York

legal separation new yorkIf you and your spouse decide to separate, but not yet divorce, then it will be advantageous to create a separation agreement. A separation agreement, in the State of New York, is a detailed contract that establishes how issues of finance, division of assets, visitation and other marital circumstances will be treated while you and your spouse live apart yet are still legally married. The contact is enforceable by the courts in the event of non-compliance, and it will also provide the baseline for a divorce agreement should that situation arise.

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Relocation

divorce child relocation new yorkAfter a divorce settlement has been reached, including details about child care and visitation, disputes may arise if a former spouse seeks to move for work or quality of life reasons. In all instances, a desire to relocate must first be approved by Family Court.

In determining whether or not to allow a parent to relocate, the Court primarily concerns itself with the well-being of the child.

The New York Court of Appeals, in Tropea v. Tropea, noted that each relocation request must be considered individually, taking into account all of the relevant facts and circumstances to decide what outcome is most likely to serve the best interests of the child. This made clear that while the rights of the parents are significant factors that must be considered, the child's rights and needs must be given the greatest weight.

The Court’s assessment of how relocation will affect the child takes into account questions like: strength of the relationship and attachment between the child and the non-custodial parent, ability for visitation to be maintained, impact on a child’s education and community ties, and potential effect on quality of life. If it is shown that a relocation will not adversely affect the child, a relocation request is more likely to be granted.

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Post-Judgment Divorce Litigation in New York

post judgment divorce litigation new yorkA divorce may be settled… yet fighting in court, or litigation, may continue if a former spouse wants reconsideration of the divorce judgment. Three types of post-divorce litigation are appealing a divorce judgment, appealing the marital settlement agreement, and modifying the divorce decree.

Appealing a divorce judgment in New York is not very common and very difficult to successfully carry out. A divorce judgment may be successfully appealed when it is shown that the judge in charge of the divorce settlement misapplied the law when making the final decision. This is different than contesting a fact. Rather, it must be shown that the judge reached an incorrect decision because he or she misapplied legal procedure or reasoning.

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Grounds for Divorce in New York

grounds-for-divorce-new-yorkIn New York, there are seven grounds, or actions, for divorce. This means that in order for a divorce to be procured, one partner must maintain at least one of the following reasons:

  1. The relationship between spouses has broken down irretrievably for a period of at least six months. A divorce will only be granted on these grounds if there has been prior, equitable settlement of economic and child related issues, including financial support, division of assets and payments.
  2. Cruel and inhuman treatment causing physical or mental damage making cohabitation dangerous or unsuitable.
  3. Abandonment for at least one year.
  4. Imprisonment for at least three consecutive years during the marriage.
  5. Adultery, which is defined as any voluntary act of sexual intercourse.
  6. Separation according to decree or judgment for one or more years.
  7. Separation according to agreement of separation for one or more years.
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Uncontested Divorce in New York

uncontested-divorce-new-yorkAn uncontested divorce occurs when two conditions are met. First, when there are no disagreements between you and your spouse over divorce related issues, including financial and child custody arrangements. Second, when either both you and your spouse agree to divorce, or when your spouse does not appear in divorce proceedings. In other words, an uncontested divorce occurs when all issues related to division of assets, property, liabilities, payments, etc. are settled, and also when either both parties agree to the settlement, or when one party does not oppose the divorce.

How to File for an Uncontested Divorce in the State of New York?

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Equitable Distribution of Marital Property in New York

New York law requires a judge to divide property between two divorcing spouses as fairly as possible. The division of property is governed by the Equitable Distribution Law, which recognizes that marriage is an economic as well as a social partnership. The Law does not require the court to divide the assets 50-50, instead the court considers a variety of factors in determining the most fair distribution of assets.

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