ARTICLES

Can I Bring a Divorce Action in New York? What is Residency?

Depending on which side of the litigation a spouse is on, New York's laws can be much more generous than the laws of other states. In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., "forum shopping," New York requires that a plaintiff establish a sufficient connection to the State of New York  in order to commence a matrimonial proceeding in New York.  Proving this connection to New York is commonly referred as establishing "residency." Residency can be met by proving that: The parties…

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Equitable Distribution of Marital Debts

I.      Equitable Distribution of Marital Debts A.     Can a Court Distribute Debts as Well? Simply put, yes.  In effecting equitable distribution of property, a court can also allow marital debts to be split between the parties. Nielsen v. Nielsen, 256 A.D.2d 1173 (4th Dept. 1998).  However, the court has discretion to refuse to take into consideration marital debts that are unproven. Fabricius v. Fabricius, 199 A.D.2d 695 (3d Dept. 1993). In determining whether the debt is marital or separate, the court will look at the nature of the debt itself, the manner in which and for…

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Equitable Distribution Overview

I.      What is Equitable Distribution of Marital Property? During a marriage, each spouse will usually accumulate assets in his or her name.  Frequently, there will also be assets titled in the name of both spouses, jointly.  "Equitable distribution" is the equitable, and not necessarily equal, division of those assets between the spouses pursuant to a matrimonial action. Absent an agreement between the parties, a court will determine each parties respective rights to "marital property" and "separate property," and will provide for the disposition thereof in the final judgment. DRL 236-B(5)(a).  Marital property "shall be distributed equitably between the…

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Temporary & Post-Divorce Maintenance

I.      WHAT IS MAINTENANCE? https://www.youtube.com/watch?v=YITVVSBP-5o&feature=youtu.be   New York calls "maintenance" what other states call "alimony."  However, there are two different types of maintenance and the lingo can be quite confusing.  Even more importantly, the Legislature has recently enacted, and is expected to enact even more, major changes to the statutes controlling maintenance. The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting. Gordon v. Gordon, 979 N.Y.S.2d 121, 123 (2d Dept. 2014) (citing, Sirgant v.…

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Sanctions for Frivolous Conduct in a Civil Proceeding

A court may also order counsel fees to sanction "frivolous conduct" by a party during the proceeding. 22 NYCRR 130-1.1.  Conduct is frivolous if it: is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law; is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or asserts material factual statements that are false. Id.  Interestingly, frivolous claims of frivolous conduct are, in and of themselves, frivolous conduct! If you have any questions or concerns, click the "Contact Us"…

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Obtaining Attorneys & Experts Fees from the Other Party

In the United States, we follow what is commonly referred to as the "American Rule": that a "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyseka Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247 (1975).  Accordingly, it is the rule in New York that "a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule. No. 1 Funding Center, Inc. v. H & G Operating Corp., 49 A.D.3d 908, 911 (3d Dept. 2008) (internal citations omitted).  Thus, unless…

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When Does Child Support End?

Child Support will end upon the child reaching the age of 21 or is sooner emancipated by way of his or her's actions. In New York, a parent's duty to support their child lasts until the child is emancipated. FCA § 413.  The child may be deemed emancipated by any number of events, including, not necessarily limited to: Reaching the age of twenty-one (21) years; Marriage, even if void, voidable or annulled; Death; Entry into the armed forces of the United States or a United States Service Academy; Becoming substantially self-supporting, although substantial self-support shall not involve part-time school year…

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How Much is Child Support?

I.    HOW MUCH IS CHILD SUPPORT? VIDEO: NY Child Support Basics https://www.youtube.com/watch?v=_4ISK9SmYiQ&feature=youtu.be   Years ago, the New York Legislature passed the Child Support Standards Act ("CSSA") to add consistency to awards of child support.  The CSSA sets forth a formula for calculating orders of child support. DRL § 236-B(7); DRL § 240; FCA § 413. However, there are several components of a support order and it can become fairly complex.     Basic Child Support - Mandatory Support Based off of the Parties' Incomes     Purpose of Basic Child Support The purpose of basic child support is to provide for…

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