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Husband’s Personal Injury Award Converted Into Marital Assets And Subject to Equitable Distribution

divorce lawyer New YorkIn a case before Justice Stacy Bennett sitting in a Divorce Part in Nassau County, a wife brought a divorce lawsuit against her husband. They had been married in 2001. Issues involving parental access, grounds, custody, and all other issues had been decided by the court. The issue presented to Justice Stacy Bennett was whether a personal injury settlement of $1,638,348.90, which had been initiated prior to the marriage was converted from separate property into marital property. And then, if it was marital property, what portion of the marital property would the wife be entitled to?

The wife in this case alleged the personal injury settlement award to the husband was converted and transmuted into marital assets and were no longer separate property. The husband alleged that since the assets involved were all the proceeds of a personal injury award, and personal injury awards are not subject to equitable distribution, all of said assets belonged to him.

Assets Converted Into Marital Property

Justice Stacy Bennett held a trial with regard to this matter. After reviewing the evidence, she found the husband had converted the separate assets into marital assets and therefore these assets were subject to a distributive award.

The usual manner in which separate property assets are converted into marital assets is by putting one’s spouse on an account where those assets are located. Another way of converting them would be to spend them on improving a marital asset, such as the marital residence which is in both parties’ names.

Conclusion

If you want to maintain separate assets, separate and not have them become marital property, you should maintain them in a separate bank account or investment account and not put your spouse’s name on the account.divorce attorney

Custody: Who Is The Parent?

Who Is The ParentThere has been an unusual, and highly publicized case in Kentucky. This case involves a nine year old girl. She uses the middle and last name of a woman who is not biologically related to her. She lived with this woman and the woman’s partner until she was four years of age.

The girl’s biological mother became pregnant in 2006. The father was a sperm donor. The woman maintained a same sex relationship until 2011. The biological mother has now married a man. She has cut off the non-biological mother from having contact with the child. The man now seeks to adopt this child.

What Does It Mean To Be A Parent?

The case in Kentucky deals with the question of what it means to be a parent. Although the United States Supreme Court has legalized same sex marriage, the issue surrounding custody of children and visitation with children involving non-biological parents is still up in the air. The long and short of the issue is this, can the non-biological parent obtain visitation or custody of their child from a same sex relationship after the relationship ends? In a heterosexual relationship the answer to this question would be yes. However in many states in the United States, the answer to this question is still no. Same sex marriage has not created a biological relationship with the non-biological same sex partner. Although the marriage may be legal, many states are reluctant to give parental rights to non-biological partners. The solution to this issue is for the non-biological parent to adopt the child.

custody attorneyElliot S. Schlissel is matrimonial and family law attorney representing clients in same sex and heterosexual relationships throughout the Metropolitan New York area with an emphasis on custody and parenting time issues.

The Grounds For Divorce in New York

The Grounds For Divorce in New YorkIrretrievable Breakdown of the Marriage

The newest ground for divorce is a no fault ground. This no fault ground is used in the large majority of divorce cases today. It simplifies the divorce process because it is a ground which does not usually have an available defense to it. The ground specifically states the relationship between the spouses has been irretrievably broken down for a period of at least six months. You do not have to specifically allege any details or information as to why the parties aren’t getting along. Although the irretrievable breakdown between the parties establishes a no fault ground for divorce, the issues of child custody, visitation, equitable distribution of property, child support, spousal maintenance, and other financial and custody related issues need to be resolved before the court actually grants a divorce.

Living Separate and Apart Under A Separation Agreement
or Court Judgment for Separation for One Year

This ground is not often used anymore. It had been used often in the past, but when the new ground, irretrievable breakdown of the marriage, came into existence a number of years ago, this ground for divorce fell largely into disuse. However, it is still a valid reason to get divorced. If the parties to the marriage enter into a validly executed separation agreement and live separate and apart pursuant to the terms of this agreement and comply with the terms of this agreement, this becomes a ground for obtaining a divorce. This also applies to judgments of separation issued by courts for a period of one year. It should be noted the grounds for bringing a proceeding for judgment for separation are exactly the same as the grounds used to obtain a divorce and therefore it is usually cheaper to go straight for the divorce and not for a judgment of separation.

Cruel and Inhuman Treatment

This ground for divorce involves physical or mental cruelty which puts the victimized spouse at risk. The allegations of physical or mental cruelty have to be specifically stated with regard to time, place, location and specificity regarding what took place to utilize this grounds for divorce.

Adultery

Adultery is the most difficult grounds of divorce to prove. In addition to being difficult to prove, there are defenses to adultery. Some of these defenses are that you forgave your spouse for having sexual relations with him or her after discovering the adultery. If the person alleging their spouse committed adultery also committed adultery, this can be a defense to the action for adultery.

Abandonment

Abandonment involves leaving your spouse for a period of one year.

Sexual Abandonment: Sexual abandonment involves refusing to have sexual relations with your spouse for a period of one year.

Conclusion

Although there are a variety of grounds for divorce in New York, today almost all divorce lawyers in New York recommend to their clients to use the no fault ground of irretrievable breakdown of the marriage. It is less expensive, less difficult to prove, and to a large extent fool proof.divorce attorney

Dealing With Parental Alienation Problems – Part II

custody attorney in New YorkFighting Parental Alienation

The best way to deal with a situation involving parental alienation is for the alienated parent to take immediate legal action to ask for either a change in custody, an order enforcing visitation, an order of protection, and/or other legal remedies. The longer the parental alienation is allowed to go unrestrained, the harder it is to stop the programming of the children against the alienated parent. When parental alienation exists for a substantial period of time, it is often necessary to reestablish the relationship with the alienated parent through a family therapist or psychologist helping de-program the children with regard to the negative feelings and attitudes they have against the alienated parent.

Parental Alienation and Child Abuse

Parental alienation is a form of child abuse. The long term effects of parental alienation upon children are still being determined by psychologists and therapists. However, I have personally been involved in numerous cases representing individuals who have been alienated from their children. A common factor in many of these cases is, once undergoing therapy, the children come to realize they really don’t understand why they dislike or don’t want to spend time with one of their parents. Through therapy the children can be made to realize the alienated parent really loves them, and has done nothing wrong. In these situations the alienation can be overcome and this parent can re-establish his or her loving relationship with the child. The problem with the therapeutic approach is it can be a long drawn out process. For it to succeed, the alienation by the alienating parent must stop and there is no guarantee that it will work.family law attorney

Dealing With Parental Alienation Problems – Part I

divorce and custody attorneyIn divorce and Family Court litigation involving custody and spending parenting time with children, sometimes one parent seeks to alienate the children from the other. God gives each child two parents. A parent who estranges the children from the other parent for selfish, inappropriate and/or vindictive purposes, doesn’t understand the damage they are doing to their children. Unfortunately, family law attorneys see parental alienation situations all too often.

Parental alienation usually occurs when one parent tries to isolate the other parent from the children by engaging in conduct or saying things to the children which causes an estrangement between the children and the other parent. The alienation can be subtle and inadvertent or it can be very straight forward. In these cases, both the parent who is the object of the parental alienation and the children are victimized. The victimization can cause an estrangement between the alienated parent and the children and, sometimes, a total breakdown in that relationship.

The development of the parental alienation can be either a subtle or an overt series of actions which manipulates children into believing a parent who loves them is evil, dangerous, or really doesn’t love them.

Custody and Parental Alienation

Sometimes the parental alienation by one parent against the other is a tactic used in divorces and/or Family Court custody proceedings to try to guarantee the success of the alienating parent to obtain custody of the children.family law attorney

Child Removal Proceedings by Child Protective Services – Part II

family lawyer New YorkLevels of Proof

In proceedings brought in the Family Court by CPS, the level of proof necessary to establish child abuse or child neglect is minimal.  The formal rules of evidence which apply in other courts do not apply here.  CPS workers can present hearsay evidence from third parties.  They can present statements from three year olds or four year olds who have no clue as to what they are talking about.  The exercise of power by CPS in abuse and neglect proceedings can be abusive and inappropriate.  Allegations by CPS workers the parents failed to use appropriate standards of care concerning their children are extremely general and are difficult to defend against.

Children’s Injuries

In the normal course of their lives, children may be injured.  They will fall.  They will get knocked down by their friends or while playing.  They will be bruised.  They will have bumps.  Sometimes they will require stitches.  Sometimes children will break bones.  None of these events specifically is indicative of a parent being abusive or neglectful.  These injuries and maladies which children suffer are indications they are living fulfilling lives, playing and participating in sports, social and other recreational activities.  Children do not live in foam, rubber worlds where they don’t receive nicks and injuries.

Allegations by CPS are difficult to deal with.  Should you be contacted by CPS workers who are investigating allegations of child abuse or child neglect, you should immediately contact an attorney familiar with handing these types of cases.  Be very careful what you say to CPS workers.  Be advised that without a search warrant CPS workers do not have a right to enter your home.  The fourth amendment to the United State Constitution prevents the unreasonable search of parent’s homes.  If the CPS worker comes to your door and says they are there to investigate you, you can tell them you wish to seek consult with your attorney before meeting with them or discussing anything with them.  They may tell you you do not have a right to an attorney.  They are lying to you if they say this.  You have an absolute right to be represented by counsel in these proceedings.

Obtain Competent Legal Counsel

Getting involved in CPS proceedings without the appropriate legal representation puts you at great risk of saying something that can be misinterpreted and later used against you in an administrative proceeding involving your children.

family law attorney Elliot S. Schlissel is an attorney who has written numerous articles about CPS and ACS cases.  He represents individuals being investigated or charged with child abuse and child neglect throughout the Metropolitan New York area.  Elliot and his associates have been representing family members regarding CPS and ACS matters for more than 35 years.

Child Removal Proceedings by Child Protective Services – Part I

family law in New YorkChild Protective Services (hereinafter referred to as “CPS”), provides an important public service by protecting innocent children from difficult circumstances. We applaud CPS workers for protecting children from violence, negligence and inappropriate circumstances. This article, however, is about CPS workers threatening to remove or removing children from situations involving no violence and parents who have neither neglected nor abused their children.

CPS Filing Charges Against An Innocent Parent

If one parent is involved in child abuse or child neglect, CPS can file child abuse and child neglect proceedings against both parents. If one parent should have a proceeding brought against him or her because they were the neglectful or abusive parent, CPS files proceedings against the other parent claiming they endangered their children’s health and welfare by letting the other parent act in an abusive or neglectful manner. This is the case even if the innocent parent was not around, unavailable or was unaware of the allegations of the abusive or neglectful parent. This is also the case if the allegations against the abusive or neglectful parent are simply not true.

CPS Controlling Family Situations

In these situations CPS seeks to establish control over the family situation. They seek to force the parents into programs under threats they will lose their children. CPS sets extremely high standards in these programs and the goals that must be met by the parents to comply with CPS to their satisfaction to either avoid the children being removed from the home or to have the children returned to the family’s home.

CPS As An Adversary

The parents often find instead of CPS helping them to be better parents, that they are in an adversarial situation with CPS wherein CPS is both the investigator and the de facto prosecutor of the parent.family law attorney

The Removal of Children From Their Parents’ Homes by CPS and ACS Workers

parents attorney on long islandChild Protective Services (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) are social service agencies which have one extreme power. This is the power to have children removed from their parents’ homes. The intent of this power is to avoid children from being exposed to future child abuse or child neglect. The intent of this power is not to punish parents and their children. In this writer’s experience this power unfortunately punishes both the parents and their children! Children have two parents. Sometimes the parents live together in the household and sometimes they live in separate households. Even if the non-offending parent lives in a separate household than the alleged offending parent, CPS and ACS will often bring child abuse and child neglect allegations against the non-offending parent too.

When Abuse or Neglect is Suspected Action Needs To Be Taken by CPS and/or ACS

When a CPS or ACS worker reaches the decision the allegations made against the parents may be true, he or she must decide how to best protect the children from future abuse. The issue then becomes if one parent is the individual who caused the child abuse or child neglect, can the children be maintained by the other parent. In these cases, CPS and ACS then investigates the non-offending parent. They investigate as to whether the non-offending parent should have known about circumstances and events which may involve child abuse or child neglect. CPS and ACS will virtually always take the position that in the event there is domestic violence in the household, both parents are exposing the children to child abuse. In these cases the victim of the domestic abuse is also guilty of exposing the children to a dangerous situation. This makes the victim of domestic abuse doubly abused. Once abused by the perpetrator of the abuse and secondly abused by CPS or ACS.

Keeping Families Together

There are other options that CPS and ACS can take instead of removing children from a family’s home. CPS and ACS are required to preserve the family situation and the children’s safety. They must make reasonable efforts to establish a service plan the family can follow so the children can be maintained in their home. However, it should be noted even if CPS and ACS established a service plan for the family, they are still acting in an adversarial relationship to the parents. The service plan actually means that if you don’t do what they are telling you to do pursuant to this program we are going to take your children away from you. Instead of providing families with help it terrifies victims of domestic violence that they will lose their children. CPS service plans can also be hostile and punitive instead of educational and helpful.

Cooperating With Service Plans

When CPS or ACS establishes a family service plan, family members should use their best efforts to participate and cooperate with these plans. If the plans become overly burdensome you should notify the CPS or ACS worker in writing about the burdensome nature of the plans and discuss with them alternative plans. Simply not complying with the service plan is usually a mistake. The failure to comply with service plans will usually cause CPS or ACS to bring proceedings for the removal of the children from the family’s home.attorney for parents dealing with CPS

Child Protective Services and Mandatory Reporters

family law in New YorkThe purpose of this article is to provide a discussion on how innocent parents can sometimes fall into the net of Child Protective Services’ (hereinafter referred to as “CPS”) and the Administration for Children’s Services (hereinafter referred to as “ACS”) investigations even when they have done nothing wrong.

Mandatory Reporters

The laws in the State of New York make many individuals mandatory reporters of potential child abuse or child neglect. These mandatory reporters include police officers, counselors, teachers, doctors, psychologists, psychiatrists, social workers and other individuals who work with children. Many of these workers are under the mistaken belief that any possible incident of suspected child abuse or suspected child neglect must be reported. This is not necessarily what the law requires and/or the intent of what the reporting statutes are. Mandatory reporters actually have a choice. Not every skinned knee, skinned elbow, black and blue mark, or bump on a child is an indication a child has been abused or neglected. These minor bruises can be indications the child actually has a fulfilling, playful, athletic life. These bruises can be an indication the child rough houses with his or her friends, or participates in sports, karate, and other activities.

What mandatory reporters do not seem to understand is they have a choice as to whether or not to report an innocuous injury to child protective services.

Powers CPS and ACS Workers Do Not Have

The following is a list of powers that CPS and ACS workers do not have:

  1. They cannot arrest you.
  2. They are not law enforcement officers.
  3. They cannot open up a criminal investigation. CPS and ACS workers are social service employees. They are a branch of social services’ departments. They are not part of the criminal justice system.

CPS and ACS and Your Rights

Even though CPS and ACS workers are not involved with prosecutorial or criminal justice powers, they can initiate a series of events which can lead to investigations by police agencies. It is therefore in your interest should you be contacted by a CPS or ACS worker related to an investigation either concerning child abuse or child neglect that you consult with an attorney experienced in representing individuals subject to CPS and/or ACS investigations. CPS and ACS investigations can lead to decisions that you have committed child abuse or child neglect. This material can be maintained in computers in New York State for a period of up to 28 years and have a negative impact on employment situations involving children.family law attorney

New York Orders of Protection Explained

family lawyer orders of protectionAn Order of Protection is an order granted by a court which protects one individual from another. Individuals who are threatened or who have been abused or assaulted can request an Order of Protection in New York. If an Order of Protection is granted, it can require the alleged abuser to:

  • stay away from the home or other location of the individual who alleges he or she was abused
  • cause the individual to be removed from his home if the other party lives there
  • prevent the individual from telephone contact, verbal contact or contact through third parties with the individual who was allegedly abused
  • surrender all of his or her guns

Who Issues Orders of Protection?

Orders of Protection can be issued by the Family Court, Supreme Court or by Criminal Courts in the State of New York.

Family Court Orders of Protection in New York can be issued against spouses, persons related by blood or marriage, individuals who have a child in common, or individuals who have an “intimate relationship” with each other.

Criminal Courts issue Orders of Protection after an individual has been arrested and charged with a crime. A Criminal Court Order of Protection usually is issued against the person who was arrested and prevents him or her from contacting, communicating or threatening the alleged victim of a crime.

Term of Order of Protection

Orders of Protection usually last for one year but can last for as long as five years. If an Order of Protection is taken out against you, you should consult with competent legal counsel. Orders of Protection can be modified, changed, or rescinded. An application can be made to the court which issued the original Order of Protection and evidence presented that the Order of Protection as it currently exists is not appropriate.family law attorney

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