Family Law FAQ's
What is involved in starting the process for a divorce or dissolution?
The first step would be the filing of a summons for a separation of divorce with the court in the appropriate county and then personally serving the summons on the other spouse. Each state has its own residency qualifications. New York has residence requirements depending upon the circumstances. For example, one of the residence requirements is that the parties have resided in the state as husband and wife and either party has been a resident, when the action is commenced, for a continuous period of one year immediately prior to the action. The statute should be consulted to determine your residency qualifications.
What are grounds for divorce?
The grounds for divorce are: a) irreconcilable differences for more than six months; b) adultery; c) cruel and inhuman treatment; d) abandonment for more than a year, or; e) the confinement of the Defendant to prison for three or more consecutive years. The failure to have sexual relations with a spouse for more than a year constitutes abandonment. Most divorce actions are brought for irreconcilable differences for more than six months.
How are the marital assets distributed?
New York is not a community property State. It requires the marital property to be divided pursuant to Equitable Distribution. The statute mandates that the court consider a number of guidelines in determining how the property acquired during the marriage is to be distributed to the parties. It is up to the court to apply those guidelines depending upon the circumstances of each case.
How are Custody and Visitation issues decided?
No area of family law brings to the courtroom the tension, anxiety, hostility, volatility and raw emotion as child custody and visitation litigation. Due to the emotional aspects of divorce, it is difficult for the parties to set aside personal differences and agree as to what is best for the children involved. It is therefore most important that the parties to a divorce be represented by experienced and compassionate counsel who know how to deal with this most sensitive issue.
It is best if the parties agree on the custody of the children. When that is not possible the judge in charge of the case will appoint a law guardian to represent the children and appoint a forensic expert who will interview and test the parents and the children and file a report with the court. The judge will thereafter hold a custody hearing at which the parents, family, friends, the experts and sometime the children will testify. A custody hearing is a very painful and costly experience for the parties and their children and every effort should be made to resolve the issue without such a hearing. Often the report of the forensic expert will act as a catalyst to resolve custody. If the question of custody is actually resolved by the judge, the standard used is the "best interests" of the children and not whether either parent is unfit to have custody.
What about visitation?
Generally a court will grant reasonable visitation rights to the non-custodial parent unless it is shown that the visitation will be detrimental to the best interests of the child. A non-parent can, in the discretion of the court, also be granted visitation if he or she has an interest in the welfare of the child and it is the best interests of the child to grant such visitation. This is generally limited to grandparents, step-parents and other close relatives.
How can a parent remedy the frustration of visitation rights?
A variety of remedies are available to provide relief to the non-custodial parent who has had visitation rights frustrated. The non-custodial parent may bring a show cause order for contempt against the custodial parent for violating the court`s order pertinent to visitation or may bring a habeas corpus petition against the custodial parent.
How is the amount of the Child Support determined?
Federal law now requires that the amount of a child support payment be set in accordance with a guideline. Having a guideline is believed to prevent widely different amounts of child support being ordered from courtroom to courtroom. Guidelines provide an objective basis for the determination of the amount of support to be paid. As a result, most states have established formulas that are used to determine the amount of the payment from one parent to the other. Child support is in New York is determined by a percentage of the combined income of the parties pursuant to the New York Child Support Standard's Act. In New York, generally child support is required until the child has reached the age of 21.
What is Child Support used for?
Child support covers everything a child needs, and even more, during the growth and formative years. Keep the following in mind:
- A parent`s first and principal obligation is to support his or her minor children according to the parent`s circumstances and station in life; and
- Children should share in the standard of living of both parents. Thus, the amount of a child support award is more than a question of bare necessities.
Where the non custodial supporting parent enjoys a lifestyle that far exceeds the custodial parent`s living standard, child support must to some degree reflect that more opulent lifestyle. Children are entitled to share in non-custodial parent`s elevated standard of living despite custodial parent`s substantially lower income. Child support may therefore improve the standard of living of the custodial household to improve the lives of the children.
What is probate?
Probate is a legal process during which the court oversees the distribution of assets that were left in a Will.
This process can take a matter of months or even a number of years to be completed.
Where does probate occur?
The Will is probated in the Court of the county and state in which deceased lived at the of death. If the deceased owned any property in another state, another probate proceeding will be started in that state and county.
What assets are subject to probate administration?
All assets owned by the deceased in the deceased's own name, not in joint tenancy, in trust or with a beneficiary designation, are subject to probate administration upon death.
How is the Will probated?
The following is a very simplified outline the general probate process:
The original of the Will is deposited with the Court (if any).
The filing of the Petition for Probate first needs to be completed, before the Executor named in the Will (if one exists) or Administrator (if there is no Will) is appointed.
Executors and Administrators are commonly referred to as the Fiduciary.
Generally, for a period of seven months from the date of letters appointing the Fiduciary, creditors of the Estate can file claims against the Estate. This would include any prior creditors or judgment holders, debts resulting from last illness, funeral expenses, taxing authorities, etc.
During this time period, the Fiduciary has to identify and collect assets of the Estate. To do this, the Fiduciary finds all bank and security accounts, debts owed to the Decedent, property owned by the Decedent, etc. The Fiduciary also has to maintain the assets in good condition, and to collect income for the Estate. This consists of maintaining insurance coverage, collecting rent, protecting assets from theft or damage, etc. The Fiduciary may also liquidate assets such as cars, real estate, etc.
When the Claims period has expired, and when all assets have been collected, real property sold, and assuming no problems have presented themselves such as the Will being contested, the Fiduciary then files a petition with the probate court to allow a distribution of all remaining assets to the beneficiaries/heirs, and files a detailed accounting with the Court setting forth all monies received, monies disbursed, how assets were invested, and the proposed plan for distribution.
If the Court approves the plan, the Fiduciary then divides the assets as instructed in the Will, or as required by statute if no Will exists.
The minimum amount of time that the probate process can be completed is approximately six months, but it normally takes longer. Reasons for delays can include Will contests, property cannot be sold, one or more claimants not being notified in the original four-month Claim period so they end up having to be re-noticed, etc. This is among the reasons why it is important to have a good probate attorney as it reduces the chances of complications during the probate process.
Is there any way to avoid probate?
Yes, most states have a summary procedure whereby probate is avoided if the value of your assets is less than a certain value, or if the only heir or beneficiary is the deceased's spouse. Otherwise, you will need to prepare a Trust in order for your assets to be distributed outside of probate court. It`s in your best interest to consult with an attorney to minimize the chance of legal complications in trying to avoid probate.
The following cited cases were handled by Field Lomenzo, P.C. They are a matter of public record and may be found in the official and unofficial reporter law books under the citations set forth after the name of the case.
- The first appellate case interpreting the Equitable Distribution Law of New York relating to divorces was Jolis v. Jolis, 98 A.D.2d 692, 470 N.Y.S.2d 584 whereby the wife's contribution to the economics of the marriage was in issue in determining the amount of the martial assets to be distributed to her upon the dissolution of the marriage.
- The Appellate Court set a new standard in determining that the wealthier spouse must pay the legal fees of the less wealthy spouse to even the balance of power between the two litigants in Charpié v. Charpié, 271 A.D.2d 169, 710 N.Y.S.2d 363, whereby the court ordered the husband to pay the wife's legal fees during divorce litigation where the husband's assets were far greater than those of the wife.
- The United States Second Circuit Court of Appeals forged new grounds in the landmark employment age discrimination case of Bonura v. Chase Manhattan Bank, N.A., 795 F.2d 276.
- The United States Second Circuit Court of Appeals, in an employment age discrimination case, set forth the standards in affirming a jury finding of willfulness in Benjamin v United Merchants and Manufacturers, Inc., 873 F.2d 41.
- The New York Court of Appeals reaffirmed the concept of attorney participation fee sharing agreements; and in a case of first impression the Court affirmed the non-forfeiture of entitlement to fees by an attorney who was delinquent in paying his registration fees to the Office of Court Administration, holding that such conduct did not constitute the unlicensed practice of law in Benjamin v. Koeppel, 84 N.Y.2d 549, 626 N.Y.S.2d 982.
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