Maximizing Spousal Maintenance (Alimony) Payments with an Attorney

Spousal maintenance (‘alimony”) is a type of support that a court may order one spouse or former spouse to pay to the other spouse or former spouse. The purpose of spousal maintenance to help the economically disadvantaged spouse maintain his or her standard of living after a divorce.

Spousal maintenance may be ordered for a set period, or in rare cases in New York, it may be ordered as permanent support.   Prior to October 26, 2015, the Court would consider certain factors in making an alimony award, which included the length of the marriage, the financial resources of each spouse, the earning capacity of each spouse, the age and health of each spouse, and the contributions that each spouse made to the marriage.  In sum, the emphasis by the Court was on the needs of the economically disadvantaged spouse, more than the ability of the advantaged spouse to pay. 

Since October 26, 2015, New York has had a presumptive formula to decide how much support or “temporary maintenance” should be paid. Temporary maintenance is maintenance paid in the time between the commencement of a divorce action and the issuance of a judgment of divorce. On January 25, 2016, a new law took effect setting presumptive amounts and length of time for maintenance after a divorce.  Post-divorce maintenance is maintenance paid after the parties are divorced and for a duration determined by agreement of the parties or by decision of the court. The statutory maintenance formula, as amended in 2015, is used to determine the guideline amounts of both:

 Both calculations are strictly applied to an income cap up to $203,000.00. 

The percentages used in the 1st calculation are determined as follows:

 If child support is to be paid, and the maintenance payor is not the custodial parent (i.e., the maintenance payor is also the child support payor), 25% of payee’s income is subtracted from 20% of payor’s income.

If child support is not to be paid, or, if child support is to be paid, but the maintenance payor is the custodial parent (i.e., the maintenance payor is not the child support payor), 20% of payee’s income is subtracted from 30% of payor’s income.

The “payor” is the spouse with the higher income.

 In a litigated divorce, the court may deviate from the guideline amount of temporary or post-divorce maintenance at or below the income cap if it finds that, upon consideration of one or more of the factors set forth in DRL § 236(B)(5-a) (h)(1) or DRL § 236(B)(6)(e)(1), respectively, strict application of the statutory formula would be unjust or inappropriate.

With or without the application of the Advisory Schedule, the court must consider any one or more of the factors set forth in DRL § 236(B)(6)(e)(1) in determining the duration of post-divorce maintenance

Some ways Garden City lawyers can help to maximize the amount of alimony you can receive include:

1. Ensure that full financial disclosure is made by both parties. 

2. The most important factor in deciding if you are entitled to alimony is the difference in your incomes.   You will need tax returns, w-2 forms, 1099, and any other documentation which proves income and or ability to earn income based upon past earnings. 

3.  Exploring the possibility of a lump sum payment instead of periodic payments.  

When negotiating the terms of alimony, it is important to consider whether to agree to a lump-sum payment or periodic payments. There are advantages and disadvantages to each option, and the best choice depends on the individual circumstances of the divorcing couple.

4.  Separation attorneys Garden City NY can negotiate terms that are favorable to you and that meet your unique needs and circumstances.

 If you are seeking alimony, it is important to consult with an experienced divorce lawyer garden city who can help you understand your rights and options.

Fass & Greenberg practices Divorce Law Garden City NY and can help you with your alimony case. Their team of Garden City divorce attorneys understands the unique circumstances of each case and can help you negotiate terms that are favorable to you and that meet your unique needs and circumstances.

There are many reasons for divorce, which can be considerations for filing your NY divorce. Before no-fault divorce was available, spouses seeking divorce would often allege false grounds for divorce. Whereas California was the first, New York was the last state to enact a no-fault divorce law.  That law, i.e., Domestic Relations Law 170(7) was passed in 2010. 

Irretrievable Breakdown

New York is a no-fault divorce state which will allow the filing of “marriage is irretrievably broken” as a reason so long as it has been broken for a minimum of six months. This reasoning tells the court that the marriage is broken beyond repair with no one at fault.

No-fault divorces like this are faster and more private than fault cases, as you don’t have to prove the fault of the marriage breakdown. This makes it an easier divorce case as well.  However, there is another component to the granting of a ‘no fault” divorce.  The parties, or the court (in the event a trial is required), must first resolve all economic property issues before granting the divorce.  Fass & Greenberg, LLP, divorce lawyers in Garden City, New York, can help you better understand this and other filing statuses. If you need a family law attorney in Nassau County, give us a call.

Moreover, this type of reason for divorce will not necessarily need the parties to be living apart from each other prior to filing as long as they can show that their marriage is no longer working and they’re not actively in a relationship. Some at-fault filings will need the parties to be separated or living apart at the time of the filing, but an irretrievably broken status can occur without physical or formal separation.

NY Divorce Residency Requirements

New York has specific residence requirements before a Court will assume jurisdiction.   An action for divorce, annul a marriage, to declare the nullity of a void marriage, or for separation, may only be maintained if one of the following requirements are met: 

• 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 prior to filing an action; or
• The parties have resided in the 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 
• The cause occurred in the state and either party has been a resident thereof for a continuous period of at least a year immediately preceding the commencement of the action; or 
• 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. 

Resolution of all Financial Issues

There are several issues that you’ll need before a NY divorce court will issue you a divorce, notwithstanding the ease with which the court dispenses with the fault requirement.  Both spouses will need to come to a mutual agreement on several factors before the judgment of divorce is issued. Some of these issues are:

• Spousal support and maintenance – deciding what spouse gets support, if any, and if so, the appropriate level of support in accordance with prevailing guidelines. 
• Marital property classification, i.e., whether an asset and or liability is classified as marital or separate, and subsequent distribution of each asset and or liability. 
• Child custody arrangements and visitation – where the child will live, the level of input each parent has with respect to major decisions regarding the child’s health, education, and welfare, how often visitation will occur, and other aspects surrounding the child.
• Child support and maintenance terms – how much is paid and how often it is received.
• Attorney’s fees- in cases where there is a significant disparity in the parties’ incomes, there will often times be an agreement between the parties or a court directive that the monied spouse make a contribution towards the less monied spouse’s attorney’s fees. The extent of the contribution will depend upon the amount of the attorney’s fees in question, along with the amount the less monied spouse receives as a property distribution. 

If the parries are unable to decide any of these issues amongst themselves, then the court must step in and make that decision for them. It’s faster and smoother for the spouses to decide than to leave it to a judge.

These issues must be agreed upon and all agreements finalized before the proceedings are able to continue and before the official divorce is made.   It is almost always quicker and more cost effective for the parties to mediate all unresolved issues before going to trial. 

If your marriage is irretrievably broken, call Fass & Greenberg at 516-742-8111 to obtain the most practical and effective way to proceed with your divorce action.  

Child custody issues can be complicated, but never more when one of the parents
needs or wants to move out of state. Perhaps they have landed a better job, their new
spouse has been transferred, their health (such as asthma) requires a dryer climate, or
they simply want a change.

Such a situation can affect custody, but Fass & Greenberg is here for legal assistance.
Here are some of the most important things every parent should know about moving out
of state with a child.

First Look to the Agreement

When minor children are involved, some, but not all divorce and or separation
agreements contain “radius clauses”. These clauses are usually helpful in cases where
the parents share joint physical custody of minor children, whose schedules require that
the parents reside in close proximity to minimize travel and disruption to the children’s
schedules. Such a clause will typically require the parents to live within a few miles of
one another, and require the consent of the non- moving parent to effectuate the move.

If the other parent agrees, then the parties need to hire a family law attorney to help
draft an amendment to the agreement, which both parties must sign. This amendment
will also require other changes to the parental access schedule, and sometimes a
modification to the child support arrangement to accommodate travel schedules if the
distance is significant.

If the other parent doesn’t agree to the other parent’s request, the parent desiring to
move must file an application with the Court. It would help to get a family law attorney in
Nassau County to streamline the process for both parents.

The judge will assess the situation to see whether your motion should be granted or not.
The primary factor to be considered by the Occur tis the best interest of the child or
children. The Court will also consider an existing “radius clause”, but notwithstanding, if
the Court believes it is in the best interest of the children to permit relocation, then the
Court will permit it.

Both parents will have to create a new visitation plan to allow the non-custodial parent
more visitation time. Some of the factors that come into play when creating the plan
include:

● The child’s school and recreational activity schedules
● Each parent’s work schedule
● Visitation by phone or video chatting when the child is with the other parent

Most importantly, the court should be convinced that the intentions for relocating are fair
and not meant to frustrate the other parent.

The Effect on Child Support

Besides affecting the visitation schedule, moving to a different state affects the child
support agreement. For instance, there will be additional travel costs—both parents
must determine who will step in for that.

Besides, child support laws vary from state to state. For instance, NYS custody laws
might vary from the laws in the state you move to. However, in most cases, the original
child support order stays in place after moving to another state to ensure that the
children continue enjoying the support they were getting before the move.

What About Spousal Support?

Spousal support orders aren’t controlled by the Uniform Child Custody Jurisdiction and
Enforcement Act (UCCJEA). If one of the parents moves and the ex-spouse is ordered
to pay spousal support, their obligation will still stay in place.

However, the court can make changes to the order. For instance, if you’re relocating to
get remarried, your spouse can petition the court to terminate their obligation.

Moving During a Divorce

If you’ve been served with divorce paperwork, it’s vital to talk to a family law attorney in
Garden City before moving a minor child out of state. Such a move can be considered
“self-help” and may result in losing custody. You have to make sure that you are not
violating any court orders which could jeopardize your standing with custody.

Finding a Reputable Attorney

Child custody matters are incredibly sensitive, especially when the court is involved.
That’s why it helps to work hand in hand with family law experts like Fass & Greenberg
to help you navigate the complex legal system. If you require assistance with out-of-
state custody, we’re ready to help. Contact us today to schedule a consultation.

While we all hope it’s “till death do us part,” for over half of marriages, for some couples, it just isn’t meant to be. Legal separation in New York is not as simple as you think, and requires attorneys to assist with the process. Fass & Greenberg, LLP is here to help.

How To File for Separation in NY

A separation agreement is a contract between you and your spouse in which you both agree to live separately and apart, and decide all of the issues relating to the marital relationship, including child custody, spousal support, child support, and property distribution.  These issues need to be negotiated and memorialized in a written document drafted by an attorney. 

The least common method is a judgment of separation from the New York Supreme Court.  However, a couple may choose to obtain a judgement of separation after they execute their written separation agreement if they want to effectuate a division of retirement assets while remaining married.  

Separation Agreements Can Be Incorporated into a Future Divorce

A properly negotiated and executed separation agreement can be incorporated into a judgement of separation or a judgement of divorce; both of which are court orders.  The difference between the two is that after a judgment of separation is entered, the parties are still legally married and can file joint income tax returns, and in most cases, remain on one another’s health insurance policies.  

Is There a NY Residency Requirement to Legally Separate?

There’s no residency requirement if you both are already NY state residents and the reason for the separation was in the state of New York. If that isn’t the case, then at least one spouse needs to have been a resident of New York for at least two consecutive years prior to the filing, or one spouse has been a resident of New York for at least a year prior to the agreement filing and:

• The reason separation started in NY, or
• The two of you married in NY, or
• When the two married, you lived in NY.

How Legal Separation Attorneys Can Help

Did you know that temporarily reconciling with your ex could cause your separation agreement to be invalidated? Experienced family law attorneys do. 

Suppose you’ve decided on legal separation in NY; attorneys can help you understand your situation. By getting professional advice and assistance, you will ensure that your contracts are valid and fair. They know all the ins and outs of separation agreements and can make sure that yours will stand up in court should it happen. With legal separation in NY, anyone should turn to experienced attorneys to ensure there are no mistakes.

If you require separation attorneys in Garden City, NY, Fass & Greenberg is here to help. Call our office today to talk with an expert about your filing needs at 516-742-8111.

While New York requires that both parties fully disclose assets and liabilities during a divorce, people do not always provide the courts with accurate information. Some people may even go so far as to forge documents or signatures. This kind of fraud can lead to an unfair judgment.

If you have discovered evidence of fraud after a divorce agreement, it is not too late for you to take action. New York courts do not tolerate divorce fraud, and a judgment based on fraud can be vacated. Fass & Greenberg can help you find evidence and pursue a more favorable result.

Finding Fraud in a Divorce Agreement

Financial fraud is one of the most common forms of divorce fraud. There are many ways that a person can hide or misrepresent their finances, such as:

• Giving away assets
• Engaging in excessive spending
• Concealing assets from the courts
• Undervaluing assets
• Misrepresenting their income

This type of fraud is not always easy to spot. During divorce proceedings, you should watch out for warning signs of financial fraud, such as:

• Restricting your access to bank accounts or financial statements
• Pressuring you to sign documents that you have not had the chance to read
• Frequent cash transactions
• Selling assets to friends or family members
• Costly habits like gambling and substance abuse
• Constantly moving around money
• Missing assets

You will need statements for all of your former spouse’s accounts to establish fraud. If they do not provide these statements willingly, or if you believe that some accounts are being hidden from you, your lawyer can request these documents from the court. Once you have the documents, your attorney can look for evidence of financial fraud.

While most fraud involves finances, other types of fraud can occur during a divorce. For example, one party might forge another party’s signature on legal documents or obtain a signature on false premises. If you suspect your signature was forged, you can request copies of your divorce papers from the County Clerk’s Office where the divorce was entered. 

What Can I Do When I Believe My Divorce Agreement May Have Been Based on Fraud?

A claim for a cause of action sounding in fraud must include the following elements: 

1. a material misrepresentation of an existing fact, (2) made with knowledge of the
2. falsity, (3) an intent to induce reliance thereon, (4) justifiable reliance upon the misrepresentation, and (5) damages. Orchid Construction Corp. v. Gonzalez, 89 AD3d 705, 707 (2d Dept. 2011).

  In making such a claim, you must allege any justifiable reliance on alleged

 misrepresentations by Defendant. In short, if you contend that the basis of the fraud is

that you relied, to your detriment, on Defendant’s purported failure to disclose certain

 “marital property at the time of your Settlement Agreement you must be able to prove that you were not aware of such purported assets at the time you entered into the Settlement Agreement. Your own knowledge and awareness of the existence of those very assets you claim Defendant failed to disclose defeats any fraud claim. NM IQ, LLC v. OmniSky Corp., 31 AD3d 315, 316 (1st Dept. 2006) (where plaintiff received independent analyst report of defendant’s need for capital, reliance upon defendant’s representation that it had sufficient capital was unreasonable), app. denied, 2006 NY App. Div. Lexis 12559 (1st Dept. 2006), app. denied, 8 NY3d 804 (2007); AIX Partners I, LLC v. AIX Energy, Inc., 2013 NY Slip Op. 32003U, (Sup. Ct., New York Co. 2013) (plaintiff’s actual knowledge of facts defeated claim for fraud in the inducement as a matter of law). 

Bald assertions, without more, also are insufficient for a fraud cause of action. You must also be able to provide facts or submit documentary evidence to support any contentions that Defendant forged your signature on documents and authorized bank transactions that required your signature. 

The claims must sufficiently detail the allegedly fraudulent conduct to permit a reasonable inference of the alleged conduct, as required by CPLR § 3016(b). Sargiss v. Magarolli, 12 NY3d 527, 530 (2009), and to meet the statutory requirement that a cause of action in fraud be pleaded with particularity. Greschler v. Greschler, 51 NY2d 368, 375 (1980); Rubin v. Rubin, 33 AD3d 983, 985-86 (2d Dept. 2006). 

Most recently, in Wong v. Wong, 11/9/2022 NYLJ 1668764201 (Sup. Ct. Kings Cnty, Shlomo Hagler, J.), the Court denied Plaintiff’s motion to rescind provisions of the parties’ Stipulation of Settlement and her application for summary judgment based upon fraud, in the inducement and breach f fiduciary duty claims.  Plaintiff claimed that Defendant failed to disclose assets he owned in Taiwan in his Statement of Net Worth.  Defendant moved to dismiss claiming he disclosed many of the assets and claimed Plaintiff agreed that the property in Taiwan was his separate property.  In dismissing the Wife’s argument, the Court stated, “A husband’s failure or refusal to disclose his financial circumstances when the agreement is executed is not sufficient to void an agreement fair on its face.”, and it is not considered fraud (citing Dayton v. Dayton, 175 A.D.2d 427, 428 93^rd Dept., 1991). Further, the settlement agreement stated that each party’s separate property shall remain so “notwithstanding the discovery of assets that either party failed to disclose.  

How a Divorce Lawyer Nassau County Can Help

Establishing and providing fraud is not always easy, so working with an experienced family law attorney in Nassau County is best. 

It is not always easy to detect fraud during divorce proceedings, and it can be even harder to establish fraud once a divorce has been finalized. Thankfully, you still have options if you have found evidence of fraud after a divorce. Your lawyer can gather evidence, file a motion to vacate the order, and represent you in court. 

At Fass & Greenberg, we have handled many divorce cases and are familiar with the warning signs of fraud. It is not too late for you to take action and prove fraud. Call us at (516) 742-8111 to know more.

While a prenuptial agreement can help resolve issues about property division and support during a divorce, certain factors could cause some if not all provisions to be invalidated. If you believe you may need a prenuptial agreement before marriage, or your prenuptial agreement has been challenged, you will want to work with the experienced Garden City lawyers at Fass & Greenberg. We have decades of family law experience and can help you draft a proper agreement that will withstand scrutiny, or mount a strong defense to a challenge to an existing one. 

When Can a New York Prenuptial Agreement Be Challenged?

Duly executed prenuptial agreements are generally valid and enforceable given the strong public policy favoring individuals deciding their own interests through contractual arrangements. Herr v. Herr, 97 A.D.3d 961 (2012).  A prenuptial agreement is binding, but contracts can be invalidated if they do not meet legal requirements. In New York, a prenup is vulnerable to attack if:

• It was not executed properly 
• The parties did not have separate attorneys
• One or both spouses failed to disclose debts and assets fully
• The terms (specifically with respect to spousal support) are manifestly unfair

Even though a prenup can be challenged under certain circumstances, that does not necessarily mean the agreement will be invalidated.  While a mere unequal division of assets is insufficient to establish unconscionability, an agreement that might not have been unconscionable when entered into may become unconscionable at the time a final judgment may be entered. Taha v. Elzemity, 157 A.D.3d. 744 (2^nd. Dept 2018). With the help of litigation attorneys Garden City, you can fight to ensure that your agreement is upheld.

What Are the Defenses?

To defend a contested prenup, you will need to demonstrate that the contract is valid under New York law. Potential defenses to a questioned prenup include:

Calling Witnesses

It is common for people to challenge prenups by claiming that they were under duress or mentally incapacitated at the time that the document was signed. If witnesses were present when the document was signed, these witnesses could potentially provide testimony that counters these challenges.

While courts are more likely to scrutinize a prenup in cases where both parties did not have independent representation, an agreement will not be invalidated solely because a spouse did not have a lawyer. If witnesses state that a spouse refused independent representation, the courts may be persuaded to ignore these challenges.

Providing Evidence That Supports the Prenup

A prenup must include full disclosure of assets and liabilities, and the information in the agreement must be accurate. However, when a person challenges a prenup based on fraud, the burden of proof lies with the challenger. The more evidence you can provide in support of your prenup, the more likely courts will uphold the agreement as valid.

When defending a prenup, an attorney will collect documents and other evidence that shows that demonstrate the prenup is accurate. Evidence is always the best defense against untrue accusations of fraud.

Avoiding Prenup Challenges

It is not always possible to defend a prenuptial agreement. For example, in Carter v. Fairchild-Carter, 187 A.D.3d 1360, (3^rd Dept., 2020), it was established that the Husband knowingly and fraudulently induced the Wife to sign an agreement in which he intentionally misrepresented the fair market value of the marital residence so as to deny her a fair distribution upon divorce.  In addition, given the disparity of the parties’ wealth and the fact that the agreement was unilaterally drafted by the Husband’s attorney and executed less than 24 hours prior to the wedding supported the trial court’s determination that the Husband made a deliberate effort to conceal the nature of the agreement. If you want to ensure that your prenup is upheld, drafting a prenup with the guidance of an experienced prenup agreement lawyer in New York is best. An attorney can help you to create a contract that is fully compliant with New York laws.

If your prenuptial agreement has been contested, or if you want to ensure that your prenup is airtight, you will want to work with an experienced family law attorney in Garden City. While the laws surrounding prenups can be complex, Fass & Greenberg will fight to ensure your rights and interests are protected. Call us today at (516) 742-8111 to learn more.

Not disclosing financial information during a divorce can be very dangerous. If one party hides assets or fails to disclose important information, it can create an unfair situation. It can also lead to the loss of certain property rights. 

In some jurisdictions, not disclosing all financial information can result in criminal penalties. Therefore, it is always best to consult with a divorce attorney in Garden City to ensure that all relevant information is properly disclosed.

To-Do List: Disclosing Assets and Liabilities in a Divorce

Before and during a divorce, you must assemble a complete inventory of all of your assets and liabilities.  Without this information, your attorney will be unbale to give you the proper advice and guide you through the process.  Disclosing your assets and liabilities, and exchanging this information with your spouse’s attorney is the most critical aspect of the divorce process.  Here are some reasons why:

• It is important to have full financial disclosure in divorce because it provides both parties with a clear understanding of the financial situation.
• It allows both parties to negotiate a fair and equitable division of property.
• Disclosing all assets and liabilities helps to ensure that the property settlement is final and cannot be contested later.
• It can help to prevent one party from hiding assets or failing to disclose important information.

• Not disclosing assets in divorce can result in severe penalties, including the possibility of losing certain property rights.

Dividing Assets During a Divorce

Once full disclosure is made and exchanged by both parties, they can be divided equitably and fairly if the parties are so inclined.  Only when one party refuses to disclose or distribute a “marital asset” should the parties engage in litigation.  In many cases, the family home is one of the biggest assets to be divided. In most cases, where young children are involved, the parent assuming primary custody of the children will remain in the family home until the youngest child enters college at age 18.  In a short-term childless marriage, the family home will be purchase by one party from the other, or sold to a third party. Other assets may include cars, savings and investment accounts, retirement accounts, personal belongings, and business interests.  Retirement benefits are waived by the non-titled souse in exchange for other assets (i.e., house for pension), or divided upon retirement. The most difficult asset to distribute is the titled spouse’s interest in a business.  Forensic experts must be hired in order to determine the value of the business.  The non-titled spouse’s share of said business will be determined by the length of the marriage, whether there were children involved, and the extent of contributions to the business. In rare cases will the non-titled spouse’s interest be 50%. 

The division of assets is often one of the most difficult aspects of a divorce, which is why it is important to have an experienced divorce lawyer in Garden City, NY, on your side.

Fass & Greenberg has experience handling all aspects of divorce, from asset and liability disclosure to property settlement negotiation. As Garden City divorce attorneys, we understand how emotionally and mentally draining the divorce process can be, which is why we are here to help our clients at every step. 

If you are going through a divorce, contact us today and let us help you with the divorce process, including properly disclosing your assets and liabilities and ensuring that your soon-to-be ex-spouse is 100% disclosing everything. 

Both parents lived in New York with their child.  When the relationship broke up, the custodial parent remained residing in New York, and the the non-custodial parent relocated to another state.  The non-custodial parent commences a proceeding in a New York Family Court because the custodial parent and the child reside there.  While the proceeding for modification of custody is pending in New York, the custodial parent relocates to another state as well.  The question is whether New York has lost continuing exclusive jurisdiction over this proceeding, because neither of the parents, nor the child, currently reside in New York. In addition, even if New York  were to determine that it lost continuing exclusive jurisdiction, does it continue to have jurisdiction under DRL §76(1)(b)(i-iii) and (d) (Initial Child Custody Jurisdiction).

Point I

Jurisdiction is Fixed as of the Date of the Commencement of the Modification Proceeding.

There is no doubt that the New York Court had exclusive continuing jurisdiction when the non-custodial parent filed their modification proceeding in New York because the custodial parent filed papers admitted residing in the State of New York at the time.

The custodial parent’s subsequent unilateral move after that date did not divest this Court of that exclusive jurisdiction, merely because the custodial parent elected to move with the child from New York.  Jurisdiction is fixed as of the date of the commencement of the modification proceeding, and the fact that a parent moves out of the State after the date of commencement does not defeat continuing exclusive jurisdiction.  J.N. v. S.S.F. 70 Misc.3d 1075 (Fam. Ct., Nassau Co. 2020)(Singer, J) (the case is attached for the Court’s ready refeence)..

In the J.N. v. S.S.F case, supra, the Father attempted to divest the Court of jurisdiction over a violation petition brought against him by the out-of-State Mother (with whom the child resided).  In denying the Father’s motion to dismiss the Mother’s petition, and holding that :

“the Court finds that is has not been divested of its continuing and exclusive jurisdiction with respect to the mother’s February 2020 Violation Petition”. (Emphasis added)

The Court’s reasoned as follows:

“Likewise, the father relocating his residence from New York to N.J. did not divest this Court of jurisdiction over the mother’s February 2020 Violation Petition, as the relocation occurred in October of 2020, well after she filed her petition. (See, DRL §§ 76-a and 76-b; Matter of Guzman, 92 A.D.3d at 680, 938 N.Y.S.2d 195 [2d Dept. 2012]; Prof. Merril Sobie, Supplementary Practice Commentaries, McKinney’s Cons Laws of NY, Book 14, 2012 Electronic Update, DRL § 76-b (the petition filing date controls when determining whether there is jurisdiction under the UCCJEA); Uniform Child Custody Jurisdiction and Enforcement Act, 1997, National Conference of Commissioners on Uniform State Laws, Comment to Section § 202 [“Jurisdiction attaches at the commencement of a proceeding. If State A had jurisdiction under this section at the time a modification proceeding was commenced there, it would not be lost by all parties moving out of the State prior to the conclusion of proceeding”]).

Guzman v Guzman, supra, was a Second Department case, in which the out-of-State mother had commenced a modification proceeding in Family Court, Queens County, seeking to modify the custody and visitation provisions of a 2008 Florida judgment of divorce, which awarded the Father primary residential custody of the child.  Both the Father and child resided in New York, when the Mother’s proceeding was commenced in New York of a Florida.  Before a determination was made by the New York court, the Father move himself and the child to Florida, and moved to dismiss the Mother’s pending proceeding on the ground that New York had lost jurisdiction.  The Family Court, Queens County granted the Father’s motion, and the Appellate Division reversed.

In its reversal of the lower court, the Second Department stated:

 “At the time the mother commenced this modification proceeding in November 2009 (see Matter of Andrews v. Catanzano, 44 A.D.3d 1109, 844 N.Y.S.2d 147; Matter of Rey v. Spinetta, 8 A.D.3d 393, 777 N.Y.S.2d 746), the Family Court, Queens County, had jurisdiction over it pursuant to Domestic Relations Law § 76–b, based on the fact that the parties and the subject child lived in New York, and none of them had resided in Florida for over a year (cf. Matter of Saunders v. Hamilton, 75 A.D.3d 1172, 904 N.Y.S.2d 856; Matter of Calvo v. Herring, 51 A.D.3d 916, 858 N.Y.S.2d 731). Further, the subject child was enrolled in school in New York, her sister had resided in New York with the mother since 2007, the father had commenced a proceeding in New York to modify the custody provisions of the Florida judgment of divorce with respect to the sister, and the Family Court, Queens County, had obtained a forensic study of the parties for use in that proceeding. Therefore, the parties and the subject child had significant connections with this State, and it appears that “substantial evidence [was] available in this state concerning the child’s care, protection, training, and personal relationships” (Domestic Relations Law § 76[1][b] [ii] ). Accordingly, New York had jurisdiction to modify the custody and visitation provisions of the parties’ Florida judgment of divorce with respect to the subject child. (Emphasis added).

See also, Matter of Andrews v. Catanzano, 44 A.D.3d 1109, 844 N.Y.S.2d 147 (3d Dept. 2007) (UCCJEA proceeding is commenced upon the filing of the first pleading, not the date of service (Domestic Relations Law § 75–a [5]); New York Family Court proceeding had priority over the subsequent proceeding commenced by the father in North Carolina.)

Point II

The Loss of Continuing Exclusive Jurisdiction Does Not Divest This Court of Jurisdiction Altogether

Even if the New York Court were to determine that it had lost continuing exclusive jurisdiction, it could still exercise jurisdiction under DRL §76(1)(b) or (d).  Matter of Rey v. Spinetta,8 A.D.3d 393, 777 N.Y.S.2d 746 (2d Dept. 2004)(the Family Court had jurisdiction to hear the mother’s petition for modification pursuant to Domestic Relations Law § 76–a(2), since it would have had jurisdiction for an initial child custody determination under Domestic Relations Law § 76(1)(d)).

The Commentary to DRL §75-b clearly sets forth the “road map” for the court, when it determines that it does not have continuing exclusive jurisdiction under that section.  That Commentary provides:

“If the state which issued the initial decree does not possess exclusive, continuing jurisdiction, or, alternatively, declines jurisdiction to modify based on a statutorily enumerated ground, the analysis shifts back to Section 76, i.e. the “new” court may take jurisdiction only if a Section 76 basis is established. That is the inevitable Section 76-b result. … Section 76 provides the sheet music for initial jurisdiction, and is heavily weighted toward home state jurisdiction (see the Commentary following Section 76). In other words, in the absence of exclusive, continuing jurisdiction the home state of the child on the date a modification action is filed becomes paramount (or the state which was the home state within the preceding six-month period). That state and only that state may exercise modification jurisdiction, unless the relevant home state court declines pursuant to Section 76-b’s provision regarding forum non convene. In the absence of both a) exclusive, continuing jurisdiction, and b) home state jurisdiction, the Court must turn to one of alternative Section 76 bases, such as the absence of any other state’s jurisdiction. And under Section 76-a(c) a court which has made an initial custody determination, but has lost exclusive, continuing jurisdiction, is placed in the same boat as every other state. It can assume jurisdiction only if the Section 76 criteria are satisfied.”

Even if the New York Court determines it does not have continuing exclusive jurisdiction, it will still maintain jurisdiction over the matter under DRL §76.

DRL §76-a(2) (Continuing, exclusive jurisdiction) specifically provides:

“A court of this state which has made a child custody determination and does not have exclusive, continuing jurisdiction under this section may modify that determination only if it has jurisdiction to make an initial determination under section seventy -six [76] of this title”

Section 76(1)(b) (Initial child custody jurisdiction) provides that a court of this State will have jurisdiction, if:

“(b) a court of another state does not have jurisdiction under paragraph (a) of this subsection …, and

(i) the child and the child’s parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this state other than mere physical presence; and 

(ii) substantial evidence is available in this state concerning the child’s care, protection, training and personal relationships”

All of those factors are present under this set of facts.  No other state has jurisdiction of the modification proceeding, because the home state of the child remains New York.  Moreover, there is clearly substantial evidence in New York  regarding the child’s care and training, particularly its schooling, medical records and the personal relationships the child would have  developed over the past years of its life in New York State. The child would only have spent a short time in the new State. 

Section 76(1)(d) further provides that a court of this State will have jurisdiction, if:

“( c) no court of any other state would have jurisdiction under the criteria specified in paragraph (a), (b) or ( c) of this subdivision.”

As stated above, as long as New York  State remains the home state of the child, no other State would have jurisdiction over any custody matter involving (except emergency jurisdiction under DRL §76-c (Temporary emergency jurisdiction).

New York is one of many states that is known as a “no-fault” divorce state. It is a place where you should get Garden City lawyers to work with you to figure out the particulars of the divorce process that you are working through. Doing so can help you figure out how to best proceed with your case as it moves through the system.

What is a No-Fault Divorce?

One of the first things that your divorce lawyer Garden City will let you know is that New York is a no-fault divorce state. What this means for you and your family lawyer Garden City NY is that you do not have to prove a reason why you are divorcing your partner outside of the fact that the two of you have differences that you are unable to resolve at this time. In other words, it is not necessary for your Garden City divorce attorneys to go out of their way to prove that you had committed adultery or some other violation of your marriage in order to get the divorce.

The fact that divorce law Garden City NY is written this way makes it easier for couples that are not getting along well to go their separate ways. Honestly, this is a great thing for society in the sense that couples that have no business staying together are finally able to call it quits without having to come up with a reason to do so. However, keep in mind that the court will not grant a no-fault divorce to either party unless and until all of the other financial issues have been resolved, either by written agreement, or court order. 

How Does a No-Fault Divorce Work in New York?

Various issues will be determined by the court during the course of this process. The court will first identify the assets, arrange for certain of the assets, such as real estate, pension, and businesses, to be valued by experts.  Once they are valued, the court will determine how certain assets will be distributed. 

Why You Need a Lawyer

If you have been wondering what to do following word that you may be going through the divorce process soon, please get in touch with us and allow us to explain the next steps in the process. We firmly believe that we can explain it in ways that will make sense and will bring you some inner calm about the whole situation. We want to be your Family lawyer Garden City NY.

There are many reasons why you need to contact a lawyer if you are going through the divorce process. At Fass & Greenberg, the process of getting started on a divorce is something that we look at very closely. We want to make sure our clients understand the work that we do for them, and the necessity for thorough preparation. We aim to provide the highest quality work for every client that retains us.  Our aim for our clients is that they walk away from the transaction quickly and happily. When a quick resolution is not possible, we work very hard with our clients to minimize the conflict and focus on making sure they walk away with what is most important to them, whether it is their house, their pension, or their business, if possible.  We help them understand that everything is a trade off and although nobody can have it all, they can negotiate for what they value most. When there are children involved, we do our best to guide our clients into taking all steps that are in the children’s best interests. 

If you have been wondering what after finding out that you may be going through the divorce process in the near future, please get in touch with us and allow us to explain the next steps in the process. We firmly believe that we can explain it in ways that will make sense and will bring you some inner calm about the whole situation. We want to be your Family lawyer in Garden City NY.

Those who are going through a divorce must ask themselves what they can do to work on the distribution of tangible and intangible assets they have accumulated during their marriage.  Garden City divorce attorneys can go over these details in greater depth with you, but the important thing to remember is that both types of assets must be distributed to the couple in a way that is fair to them. Figuring out precisely how to fairly distribute them is often difficult. 

Equitable Distribution

In the event the parties cannot reach a settlement among themselves, they rely upon the court to assist. The role of a court is to determine an equitable distribution of the couple’s assets. Your divorce lawyer in Garden City will do everything that he or she can to try to win a fair distribution for you, but they lose control over the distribution once it is in the hands of the court. This is the way that Divorce law Garden City NY works, and people simply have to accept the fact that if they are unsuccessful after many rounds of negotiation, a disinterested third party will determine their fate. 

What Kind of Factors are Considered?

There are a number of factors to discuss with your family lawyer Garden City NY before you ever get into the courtroom. You will want to make sure you stand the very best chance possible of coming out with a winning outcome. This means, you need the court to consider:

• Loss of health insurance benefits due to divorce
• Length of the marriage
• Age of each spouse
• Tax consequences for all parties involved
• Any wasted assets

These, and many other factors, are the critical factors considered by the court.  It seems that there are many things that you will want the court to pay attention to when you are going through a divorce, and you should be prepared to provide support for your position. 

Distribution of Marital Property

At the onset of your case, you need to identify all of the tangible and intangible assets which will have to be distributed.  Examples of tangible assets are houses, cars, bank accounts, and retirement benefits.  Intangible assets are a spouse’s interest in a business, stock options, partnership interests, and present value of a defined benefit plan. These assets often require the services of expert appraisers to determine their value.  There comes a time when Garden City lawyers will explain which assets need to be professionally valued and will recommend various experts depending upon the nature of the asset. The services of Garden City lawyers are particularly useful in this part of the fight because they can help make sure you get your fair share of the assets that are to be divided. You don’t want to leave it up entirely to a court that may not have your best interests at heart. Instead, you need to turn to the help that you can get from Fass & Greenberg for the assistance that you require.

You don’t want to leave the valuation and distribution of assets to chance. Instead, you need to speak with a qualified attorney who knows what they are doing and who is willing to go the extra mile to help you get the help that you need to come out of this situation with the assets that are most important to you. 

It is definitely the case that many people are going to suffer emotional damage when they go through a divorce, but it may be possible for a better outcome to come out of all of this when they speak with the right kind of attorneys who know the ropes and can help you come out on top.