Articles Posted in Divorce

Most divorces in New York are resolved through a settlement agreement.  Written Settlement Agreements set forth the terms of the parties’ division of property and support obligations. Generally, the courts will incorporate such settlement agreements into the final divorce decree and enforce them as they would other contracts. This means, as discussed in a recent New York ruling, that any modifications of such agreements must be in writing. If you intend to seek a divorce, it is smart to meet with a New York divorce attorney to assess your options.

Case Background

It is reported that the parties were married in 1998 and divorced in 2013, with a judgment that incorporated a separation agreement. The judgment stipulated maintenance payments of $400 per month while the wife resided in the marital residence or until its sale, and $900 per month afterward. The separation agreement allowed both parties to continue living in the marital residence and listed it for sale in 2013. The agreement specified that it could only be modified in writing with formal signatures. The husband moved out in March 2013, no maintenance was paid, and the residence was not sold.

Allegedly, in 2019, the wife moved to hold the husband in contempt and sought maintenance arrears, sale of the residence, return of personal property, and counsel fees. The husband presented a written modification agreement dated February 2013 stating that maintenance would end when the wife resided with another person. The husband argued this agreement modified the maintenance terms to allow postponement until their child’s graduation. The trial found the modification valid and enforceable, awarding counsel fees to the husband, and denied the wife’s claims. The wife appealed. Continue reading

In New York divorce actions, the lesser-earning party will often seek spousal or child support from their spouse. The courts typically rely on income-based guidelines when evaluating such requests. In cases in which the higher-earning spouse’s income exceeds the income cap, the courts have the discretion to include income above the cap when making their decision. In doing so, however, they must consider certain factors, as discussed in a recent New York ruling. If you are interested in learning more about the economic consequences of ending your marriage, you should speak with a New York divorce attorney as soon as possible.

Procedural and Factual History

It is reported that in February 2018, the husband initiated an action for divorce. In August 2018, the court issued a temporary order that mandated the husband to cover all marriage-related expenses except for cell phone bills for the wife and their three children. The order also obliged him to pay $300 weekly as “unallocated support.” Subsequently, a parenting agreement was established in May 2019, leading to a financial hearing that month. Although the parties initially agreed on financial matters in July 2019, the wife never ratified this stipulation; as such, the financial hearing resumed in May 2021.

It is alleged that during this hearing, the parties settled on numerous issues, including maintenance and child support. The referee issued a memorandum decision post-hearing, which the court partially adopted and modified, culminating in the final judgment. The parties both appealed, asking the court to modify the awards for child support and maintenance. Continue reading

Pursuant to New York law, when a married couple divorces, the court will typically distribute their marital property in an equitable manner. While in some instances, the process is relatively straightforward, in others, it can be complicated. For example, if the parties comingle separate and marital assets, they may have to provide proof of the nature of the property to establish their ownership interests. Recently, a New York court discussed what level of proof is required in an opinion in which it upheld the trial court’s equitable distribution determination. If you need assistance ending your marriage, it is prudent to consult a New York divorce attorney to evaluate your options.

Background of the Case

It is reported that the husband and the wife divorced. The trial court entered a final judgment in which it determined that the husband’s business held a value of $691,000. Additionally, it granted the wife a credit of $150,000 for her separate property contribution to the marital home. The court made additional determinations with regard to imputed income, attorneys’ fees, and child support calculations. The husband appealed, arguing in part that the trial court erred in granting the wife credit for a portion of the value of the marital home and for adopting her expert’s assessment of the value of his business.

Evidence Used in Making Equitable Distribution Determinations

On appeal, the court affirmed the trial court ruling. In doing so, the court stated that the trial court’s decision to grant the wife a separate property credit amounting to $150,000 for the acquisition of the marital apartment was deemed appropriate. The court explained that the trial court’s reasoning aligned with established New Your case law holding that a spouse’s entitlement to receive credit for their contribution of separate property toward the purchase of a shared marital residence, which includes any contribution that can be directly traced to separate property. Continue reading

In New York divorce actions involving children, the courts’ driving concern is what is in the best interest of the children, and they will issue custody orders accordingly. As such, a parent that wants to modify an existing custody order must meet a significant evidentiary burden, not only to demonstrate that a change is necessary but also to be granted a hearing on the issue. In a recent New York ruling, the court discussed what a party needs to demonstrate to obtain a hearing on a request for a custody modification.  If you are involved in a dispute over custody of your child, it is advisable to meet with a New York child custody attorney as soon as possible.

Factual Background

It is reported that the mother and the father were married and had two children together. They subsequently divorced. In the divorce judgment issued in November 2019, the court granted joint legal and residential custody of the children to both parents. The order specified, however, that the mother would be the custodial parent for child support purposes only. In May 2022, the father filed a motion to modify the custody provisions and secure sole legal and residential custody of the children. The trial court denied the motion without holding a hearing; the father appealed.

Grounds for Modifying Child Custody Orders

On appeal, the court affirmed the trial court ruling. In doing so, it explained that in order to modify an existing custody agreement, the moving party must present evidence of a subsequent change in circumstances that necessitates modification in the best interests of the child. Further, the petitioning parent must make a threshold evidentiary showing of such a change in circumstances to be entitled to a hearing on a modification petition. Continue reading

In many divorce actions, the parties will determine how any marital property should be divided without intervention from the courts and will set forth the terms of their decision in a marital settlement agreement. While parties have the right to independently decide what is considered a fair distribution of assets, they should be careful when entering into marital settlement agreements, as they are typically upheld by the courts. In a recent New York opinion, the court discussed the grounds for setting aside a marital settlement agreement, ultimately rejecting the husband’s argument that the agreement in question was unconscionable. If you are contemplating ending your marriage or were recently served with divorce papers, it is prudent to speak with a New York divorce attorney.

History of the Case

It is reported that in July 2013, the husband initiated divorce proceedings. In September 2016, the parties, both of whom had legal representation, entered into a settlement agreement. The agreement included provisions stating that the husband transferred his rights to the marital residence to the wife and that he would settle the outstanding mortgage.

Allegedly, in January 2017, the husband tried to invalidate the settlement agreement, claiming it was unfair and obtained through coercion. The trial court denied the husband’s request and subsequently issued a divorce judgment that incorporated but did not merge the agreement. The court then divided the marital property in accordance. The husband appealed. Continue reading

The cost of raising a child increases each year, and few people can afford it alone. As such, in cases in which parents split custody of a child, the courts will often order one parent to pay the other child support. If a parent refuses to pay child support, they can be held in contempt and may be incarcerated. As discussed in a recent New York ruling, however, the courts may be reluctant to both sentence a parent to serve time in prison and order them to pay child support arrears. If you have questions about your rights pertaining to child support, it is wise to confer with a New York child support attorney as soon as possible.

Factual and Procedural History of the Case

It is reported that the husband filed a motion requesting the court to find the wife in contempt of court for deliberately failing to comply with court orders to pay monthly child support and maintenance. The amount in arrears exceeded $48,000. The court ordered the wife to pay half of the arrears by a certain date in order to avoid further sanctions.

Allegedly, the wife failed to fully pay the purge amount. Consequently, the court issued an Order of Commitment, resulting in the wife’s imprisonment for a maximum term of three weeks. After the wife was released from custody, the court addressed the issue of whether the wife’s incarceration satisfied the purge amount. Continue reading

It is not uncommon for married couples to share finances, regardless of each party’s individual earnings. If they divorce, though, they may disagree regarding property rights.  New York is an equitable distribution state, which means that the courts divide assets in a fair, rather than equal, manner in divorce actions. As discussed in a recent New York opinion, however, in many instances, the courts aim to distribute property as equally as possible. If you are contemplating ending your marriage, it is in your best interest to speak to a New York divorce attorney regarding what actions you can take to protect your interests.

Factual and Procedural Background of the Case

It is reported that the parties, who were married for seventeen years, divorced. The court issued an order dividing the couple’s marital assets. Specifically, among other things, the order determined that one of the couple’s businesses had no value at the time the divorce action began and, therefore, made no distribution for that business. The court granted the wife 30% of the value of another business and 40% of the value of third. The wife appealed, arguing in part that the trial court improperly valued and divided the couple’s business interests.

Equitable Distribution in New York Divorce Actions

On appeal, the court modified the trial court ruling. With regard to the valuation of the first business, the court noted that the parties agreed to value their marital business interests near the start of their proceedings. Continue reading

In New York, parties entering into marriage have the right to protect their interests via prenuptial agreements. Generally, the courts will enforce valid prenuptial agreements, but parties may attempt to challenge enforcement by arguing, among other things, that the provisions of the agreement are vague. As demonstrated in a recent opinion issued in a New York divorce action, however, such challenges will not be successful if the court finds the agreement is written in plain language that has a precise meaning. If you have a prenuptial agreement and you want to end your marriage, it is smart to talk to a New York divorce attorney to determine how the agreement may impact your case.

Factual and Procedural Background

Reportedly, the parties married in December 2008. The wife came to the United States on a 90-day fiancée visa that was set to expire shortly before the marriage. The husband asked the wife to sign a prenuptial agreement that his attorney drafted, and the wife complied, signing the agreement two days prior to the wedding.

Allegedly, the agreement contained an escalator clause that required the husband to transfer certain assets to the wife on the tenth anniversary of their marriage. The husband filed for divorce in May 2018 but argued that the prenuptial agreement was unenforceable because it was vague. The court found in favor of the wife and enforced the agreement. The husband appealed. Continue reading

Discovery is an essential part of family law cases, as it allows the courts to evaluate parties’ rights and obligations with regard to child support, spousal support, property division, and other matters. If a party fails to engage in a discovery process, therefore, it can be prejudicial to their opponent and may be grounds for the court to sanction them, as demonstrated in a recent New York child support case. If you share custody of a child, it is important to understand your parental rights and duties, and it would benefit you to speak to a New York child support lawyer.

History of the Case

It is reported that the husband and wife married in 2001. They had two children during the marriage before the wife filed for divorce in 2013. She subsequently moved to compel the defendant to comply with specific discovery requests, and if he did not, requested that the court bar him from offering evidence at trial regarding financial matters. The court granted the motion, stating that if the defendant declined to comply with the discovery order, the court would evaluate child support based on the needs of the children instead of the factors and formulas defined in the Child Support Standards Act.

Allegedly, the husband appealed the order, but it was affirmed. He then failed to comply with the order and as such, was precluded from presenting evidence regarding his finances at trial. The court then directed him to pay approximately $5,600 per month in child support. The husband appealed. Continue reading

The following questions are examples of frequently asked questions during a consultation as it relates to contested divorces for parties with children. These are typically the topics that cover most contested divorce proceedings with children.

Divorces for people with children:

  1. How long do Contested Divorces usually take?
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