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New York No-fault Divorce Law is a Big Hit!

divorcering-150x150On October 12, 2010, New York became the 50th state to embrace no-fault divorce.  The new ground for divorce in New York is that there has been an irreparable breakdown in the marriage for a period six months.Husbands and wives have been eagerly going to lawyers offices to take advantage of the new no-fault divorce law.  Individuals who, in the past, did not have an appropriate ground to obtain a divorce no longer have to be concerned about this issue.

Although fault is no longer a significant matter in the state of New York, financial issues such as child support, spousal maintenance and issues involving custody, visitation and equitable distribution of property must be dealt with in a divorce.

The First Change in Grounds for Divorce since 1966

From 1787 until 1966, the sole ground for divorce in the state of New York was adultery.  In 1966, the grounds of abandonment, cruel and inhuman treatment and living separate and apart under a written separation agreement were also added to the New York divorce law.

Spousal Maintenance

Simultaneously with the new law going into effect, New York also has new standardized criteria for the payment of temporary spousal maintenance.  This new spousal maintenance law has been severely criticized by divorce lawyers as putting an unreasonable financial burden on the spouse with the greater income.

The point of the no-fault law is to avoid the necessity of grounds trials that sometimes put litigants’ dirty laundry before the court.  The new law also requires the state Law Revision Committee to study the effectiveness of the new spousal maintenance law to determine if the court should take into consideration financial factors that might unfairly create a disadvantage for the non-monied spouse.

Law Offices of Schlissel DeCorpo

For more than thirty years, our law office has been handling all aspects of matrimonial and family law.  We represent individuals regarding divorces, orders of protection, child custody and child visitation matters.  We litigate matters involving child support and spousal maintenance, as well as support modification proceedings.

Should you find yourself needing legal help regarding a divorce or Family Court proceeding, call us at 1-800-344-6431, 516-561-6645 or 718-350-2802.

Mother Cannot Modify Custody of Children

FathersRights-150x150In a Westchester Family Court case, a mother sought to modify a judgement of divorce in which the father had received custody of the children. The judgement of divorce gave the father sole legal custody of his two young children.

The mother petitioned the Family Court in Westchester County to enter a new order giving her physical custody of the children. She claimed there had been a change in circumstances. She claimed further that the children now wished to live with her. The mother asserted that she was the superior parent and that the father was “unfit to be the custodial parent“.

The mother’s claims were rejected. The court found the mother’s claims were spurious. The father did not neglect the children. The court also placed on the record the facts and circumstances concerning the mother’s past substance abuse history. The mother also suffered from depression, had been involved in suicide attempts and had abandoned the children.

The children’s wishes were not controlling. The court stated in the decision that the desire of the children to live with their mother is not the sole controlling factor involving who should be the custodial parent. The judge found the father was a good parent and that there was no evidence that he had neglected his children. The mother’s argument that there had been a change in circumstances was not proven and it was in the best interests of the children to remain with their father.

Fathers’ Rights

Fathers have equal rights to custody in the state of New York. God gives each child two parents. The state of New York says that both parents have equal rights to be the custodial parent of their children. Fathers should be more aggressive in seeking custody of their children. They should be sensitive as to whether the mother is involved in parental alienation of their children.

The fathers’ rights attorneys at the Law Offices of Schlissel DeCorpo for three decades have been helping fathers obtain custody and visitation rights with regard to their children.

We take an aggressive stand on all fathers’ rights, custody, child support, parental alienation, orders of protection and visitation issues. In cases where there are orders of protection issued against fathers, we fight the orders of protection. We get the fathers back into their homes.

The fathers’ rights attorneys at the Law Offices of Schlissel DeCorpo have more than 30 years of experience helping fathers maintain relationships with their children. Contact us at 1-800-344-6431 or by email. We can help you!

No-Fault Divorce (Finally) Comes To New York

NoFaultDivorce-150x150Governor David A. Patterson recently signed a new groundbreaking “no-fault” divorce statute into law. The statute goes into effect on October 15, 2010 and brings New York into conformity with the other 49 states concerning the issue of no-fault divorce.

The statute provides for a new ground for divorce which does not assign blame or fault to either party. Instead, one of the parties to the marriage need only swear in an affidavit that the marriage is irretrievably broken for a period of six months. This becomes the sole basis for the divorce. All other issues involving child support, spousal maintenance, custody, equitable distribution of property and other issues that arise in a divorce are not effected by the new divorce law. These issues will still need to be worked out.

Prior to the new law, one of the parties either had to prove adultery, abandonment, cruel and inhumane treatment or imprisonment for a period of three years or that the parties were living separate and apart (pursuant to a written agreement of separation or a separation decree) for a period of one year. An individual seeing a divorce under the old law often had to lie in order to obtain a divorce with regard to the issue of grounds.

In addition to implementing no-fault divorce in New York, Governor Paterson also signed into law a number of other statutes related to divorce. One of these new statutes provides new guidelines for temporary spousal support during the course of a divorce. It also authorizes the court to grant a financially dependent spouse up-front attorney fees if necessary.

Although the legal process in dealing with the issue of fault in divorce has been simplified, their are still many complicating factors each of the parties must face involving issues such as custody, visitation, child support, spousal maintenance and equitable distribution. Should you be facing the prospect of a divorce, contact the attorneys at the Law Offices of Schlissel DeCorpo for a free consultation at 1-800-344-6431, or by email.

“Parenting Plan” Not A Substitute For A Separation Agreement

Handshake-150x150The State of New York has a very narrowly defined requirements regarding what needs to be in a separation agreement and how it is executed.

In late 2009 the Appellate Division for the Fourth Department (an upstate appeals court) held that a separated couple’s agreement which dealt with terms of custody and visitation for their three children did not satisfy the minium statutory requirements to constitute a Separation Agreement in New York. Therefore the parties living separate apart under the terms of this agreement for a period of one year could not use this as a basis for obtaining a divorce.

The court held that “it is a physical separation of the parties, not the written agreement, that supplies the grounds for divorce under the New York Domestic Relations Law section 170(6).”

Donald J. Scully and Carol M. Harr married in May of 1993. They separated in December of 2005. The couple executed a “parenting plan agreement” on May 11, 2007.

On May 13, 2008, one year and two days after they entered into this parenting plan agreement, Mr. Scully filed for divorce. Ms. Harr contested the matter. Her position was that the parenting agreement did not constitute a separation agreement under New York law. The Fourth Department of the Appellate Division agreed with her. They held that the agreement dealt solely with matters of custody and visitation, and even though it was signed and acknowledged by the parties, it did not constitute a separation agreement in conformity with New York State Law.

Separation agreements are complicated detailed documents. Should you and your spouse seek to enter into a separation agreement, feel free to contact the divorce lawyers at the Law Offices of Schlissel DeCorpo to discuss this matter at 1-800-344-6431, by email or on facebook.

Lesbian Obligated To Pay Child Support

lesbian_parents1-300x200Under current law, if a heterosexual male has a one night stand with a woman and she becomes pregnant, the man is legally obligated to pay child support. Furthermore, in situations where a male is paying child support to a woman even when he is not the father, he cannot discontinue payments under the doctrine of “equitable estoppel“. This doctrine states that a man with no biological or adoptive connections to a child cannot stop paying child support if he has established a history of providing for the child.

In the case of H.M. v. E.T., the mother had conceived a child through artificial insemination. She had relied on her lesbian partner’s assurances that she would receive child support for the baby. When her partner backed out on her commitment to provide financial support, the mother brought the matter to court.

The Second Department of the Appellate Division (an appeals court) held that the assurances of support by a non-adoptive, non-biological adult who engages in a same sex relationship is also subject to the doctrine of equitable estoppel. Therefore, the lesbian woman would have to continue paying child support even though her relationship with her lover had ended.

New York does not grant the non-biological woman in a lesbian relationship visitation unless she formally adopts the child. Query: will the courts look differently on a lesbian partner’s request for child visitation where the partner is obligated to pay child support?

Should you have issues concerning child support, custody or visitation, feel free to contact the family lawyers at the Law Offices of Schlissel DeCorpo, by email or at 1-800-344-6431.

Mother Can Relocate As Long As She “Skypes”

skype2-videocall-150x150James and Debra Baker were married in the year 2000. Their Marriage lasted until 2008, when they were divorced. They have two children, a six year old daughter and a nine year old son.

The Bakers’ home recently went into foreclosure. Mrs. Baker had lost her job as a bookkeeper. Mr. Baker, a construction worker, has a take home pay of only $600 a month.

Mrs. Baker brought a proceeding in Suffolk County court before Supreme Court Judge Jerry Garguilo, requesting that she be allowed to move to Venice Beach, Florida, so she could live with her parents. It was her hope that she could obtain full-time employment in Florida.

Skype Visitation:

Judge Garguilo conducted a two-day trial with regard to the proceeding. Judge Garguilo rendered a decision granting Mrs. Baker’s petition that she facilitate visitation by using SKYPE. In fact, the relocation was conditioned on Mrs. Baker having a computer and maintaining SKYPE capability. When Judge Garguilo authorized Mrs. Baker to move, he made it conditional on the children being available three times to communicate with their father through SKYPE.

This is a very innovative way of dealing with a relocation issue. Perhaps if the mother had greater financial resources, she would also be responsible for providing the children with round-trip airfare to facilitate in-person visitation with the father.

Should you have visitation or relocation questions or issues, call us at 1-800-344-6431, or contact us by email.

No Fault Divorce Comes To New York

dealdivorce-150x129New York is now joining the other 49 states in the United States with regard to divorce laws. The New York State Assembly has passed a no fault divorce law. Now both the State Senate and the Assembly have passed the liberalized New York divorce law, and it is anticipated that Governor Patterson will sign the new no fault divorce law very soon.

The new no fault divorce law will provide a ground for divorce where one spouse can unilaterally end a marriage by swearing under oath that the marriage has been broken beyond repair for at least six months. This is a major change in the divorce laws of the State of New York. New York was the last hold out to the modernization of its divorce laws; New York is now in synch with the other 49 states.

Up until now to obtain a divorce in New York, one party had to prove a fault ground such as cruel and inhuman treatment, abandonment, constructive abandonment, or adultery. The only ground for a no fault divorce was living separate and apart pursuant to a written separation agreement for one year.

It should be noted that the new divorce law only deals with the issue of fault. It does not deal with issues concerning child custody, visitation or division of property (equitable distribution).

The new law will allow individuals in an unhappy marriages to get divorced more quickly than they could have in the past. Critics claim that the new divorce law will allow people to place less importance on marriage and therefore increase the divorce rate.

Some critics have raised issues concerning the new divorce law with regard to individuals abandoning critically ill spouses. In situations where a spouse may need to go into a nursing home, obtaining a divorce may free the individual from supporting the spouse and create a further burden on Medicaid or other publically funded programs to pay the expenses for the nursing home. There is also concern that more affluent spouses will use the new divorce law to quickly end marriages and leave the less affluent spouses destitute.

I believe the new New York No Fault Divorce Law is a good thing for the residents of the State of New York. It may help simplify some divorces and make the system more efficient and user friendly. Query: Should marriage now become contract that is subject to renewal every 5 years?

If you have any questions concerning New York Divorce, contact the divorce attorneys at the Law Offices of Schlissel DeCorpo by email or at 1-800-344-6431.

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