Meeting with a divorce attorney for the first time can be scary as you start to navigate through the unknown. Many individuals describe the divorce process as one of the worst/most vulnerable times of their lives, so finding an attorney that you feel comfortable with is very important.

During a consult you may feel as though you don’t even know where to begin. If I had to put myself into the shoes of a potential new client, the following list of questions would be what I would ask:

  1. What is the first step?
  2. Does my case have to go to Court?
  3. What happens if my case ends up going to Court?
  4. What can I do to protect myself financially from the moment the divorce starts?
  5. What financial information do you need from me?
  6. How are assets divided during a divorce?
  7. How is separate property defined?
  8. If children are involved, I would ask for an explanation of custody and parenting time.
  9. Based on my income and the income I know my spouse to make, am I entitled to maintenance?
  10. Based on my income and the income I know my spouse to make, am I entitled to child support?
  11. What are the key things you tell clients not to do during the divorce process?
  12. Who will be responsible for paying my attorney fees; my spouse or me?

These questions are aimed to be more basic questions and as you speak with a divorce attorney your questions will most likely evolve into additional questions. The most important thing to keep in mind is that a good attorney will guide you through the process and always be there to answer any question pertaining to your divorce matter.

Our team at Jaspan Schlesinger Narendran LLP offer free matrimonial consults. If you would like to schedule a consultation with one of the members of our matrimonial team, please contact us at (516) 746-8000.

Domestic violence

As we join the nation in recognizing Domestic Violence Awareness Month (“DVAM”) one of our goals is to help disprove some of the biggest myths surrounding Domestic Violence, some of which could be the largest factors preventing victims of domestic violence from seeking help.

  1. Domestic violence is only physical abuse.

Domestic violence is not limited to only physical abuse. Domestic violence also constitutes mental, sexual, verbal, psychological, and financial abuse. In a world where technology and electronics now play an everyday role in our lives, cyber abuse and intimate partner surveillance is becoming increasingly alarming. Domestic violence may be one act, or it can be a pattern of acts.

  1. Domestic violence only affects women.

Domestic violence is most commonly thought of as intimate partner violence toward women. However, domestic violence affects both men and women. Domestic violence occurs in heterosexual and/or same-sex relationships. It may also affect children and domestic animals.

  • 1 in 4 women and 1 in 7 men will experience severe physical violence by an intimate partner in their lifetime.
  • 2 in 5 lesbian women and 1 in 4 gay men will experience rape, physical violence, and/or stalking by an intimate partner in their lifetime.
  • Nearly half of all women and men in the United States will experience psychological aggression by an intimate partner in their lifetime.

These statistics are made available from Safe Horizon, which incorporates statistics derived from the Centers for Disease Control and Prevention.

  1. Domestic violence is due to anger management or impulse control problems.

While anger management and impulse control problems can play a role, this is not always the case. Domestic violence is intentional abuse against specific victims, often perpetrated so as not to be discovered. Often abusers control their anger and wait until there are no witnesses. In some cases, abusers strategically plan their abuse or subject their victims to a repeated pattern of abuse.

  1. Domestic Violence only happens in low-income families.

As the saying goes, we never truly know what goes on behind closed doors. What we do know is that domestic violence occurs in all socioeconomic levels, regardless of wealth, race, religion, or sex. Sometimes abusers and their victims are those you would least expect.

  1. Domestic violence is a private family matter.

Sometimes an element of the abuse itself is the abuser causing the victim to feel ashamed, embarrassed and at fault. As a result, they are made to feel like it is a private family matter and they are too ashamed to seek help. This could not be further from the truth. Domestic violence can be a crime. If you suspect you are a victim of domestic violence or are concerned that someone you love is a victim, there are a plethora of resources and organizations that you can turn to for help. In a previous blog we shared numerous organizations who can be of assistance.

  1. Victims can easily leave an abusive relationship.

Leaving an abusive relationship is never easy. There are many factors at play which can make it feel impossible. Often abusers create a situation where the victim is left feeling like they have no viable option but to stay. Abusers often control the victim’s finances and isolate victims from family and friends. In some instances, abusers may threaten to kill or hurt the family pet if they leave or threaten the victim that they will never see their children again. Many victims have also been made to feel like they do not deserve better, or they still love their abuser and recognize that they made marriage vows “for better or for worse.”

  1. Domestic violence plays no role in divorce/Family Court matters.

Domestic violence against either parent or a child is considered in deciding custody and visitation matters. As addressed above, domestic violence is also a predicator of child abuse and can be central to any custody dispute.

On April 3, 2020, the New York State Legislature amended the Domestic Relations Law (“DRL”) by adding domestic violence as a factor to be considered in making a distributive award. We previously blogged about this new addition to the DRL and how domestic violence can also impact maintenance awards.

Domestic violence can also play a role in which court your case is heard in. Some counties within New York have specialized courts that focus on domestic violence cases and have a multitude of resources available for victims. The Judge and staff that work there are specially trained on domestic violence issues, and they often have domestic violence community partners at the courthouse.

You can also obtain an Order of Protection in Family Court, requesting that your abuser “refrain from” engaging in certain behaviors. In some cases, you can even obtain a complete “stay-away” order of protection. We previously published an Article setting forth tips to obtaining a Family Court order of protection.

  1. If I leave and file for divorce/custody of my children, then he/she will know where to find me.

There are safeguards in place within the court system to help you keep your address confidential. This means that your address will not appear on any court documents, but rather will remain “confidential” throughout. There are two ways in which you can do this: (1) you can either request from the clerk of the Family Court an “Address Confidentiality Affidavit”; or (2) you can apply to the New York State Address Confidentiality Program. Further details are available on the official New York Court Website.

  1. All couples argue, it does not mean that I am the victim of domestic violence.

There is a clear distinction between abuse and a “normal” argument between a couple. Abuse is not a simple disagreement but is about coercive control over another person’s thinking, opinions, emotions, behavior, relationships, and/or finances. While it is not always easy to recognize signs, there are resources available to help you identify if you are in fact suffering at the hands of an abuser.

Domestic Violence Awareness Month concept. Banner template with glowing low poly purple ribbon. Futuristic modern abstract background. Vector illustration.

The Matrimonial and Family Law Group at Jaspan Schlesinger proudly joins the nation in recognizing October as Domestic Violence Awareness Month (“DVAM”).

Throughout the month of October, we will be updating our blog with relevant and timely information and resources regarding Domestic Violence and the interplay with matrimonial and family law.

Colorful chalk drawing on asphalt: words CHILD SUPPORT

We previously blogged about New York Legislature’s expanding a parent’s duty to support their disabled adult child until the age of 26, which was signed into law on October 8, 2021. As we approach the one-year anniversary of this new law, a decision was recently decided in Queens County which provides some insight as to the impact the expansion of child support has had on families who have disabled children.

On August 5, 2022, in the case entitled Pettway v. Pettway, 2022 NYLJ LEXIS 1182 (Sup. Ct. Queens County 2022), Referee Maria L. Bradley granted a mother’s application to extend child support until the age of 26 for the parties’ two youngest children due to their respective disabilities.

In accordance with the parties’ judgment of divorce, which incorporated their stipulation of settlement, the father was to pay child support for the parties’ three children until they each reached the age of 21. The mother moved to extend child support until 26 years old for two of the parties’ children in accordance with Family Court Act §413-b. The mother submitted her own affirmation and medical evidence which supported her contentions that two of the parties’ three children have significant medical conditions. Specifically, the mother averred that the daughter who was 22 was diagnosed with Bi-Polar Disorder, and the son, who was 21 was diagnosed with Autism.

The mother’s medical documentation demonstrated that the son had a full-scale IQ of 46, which is the age equivalent of 5 years and 5 months. The mother further submitted the report of a licensed therapist stating that the daughter is on medication and in continued psychotherapy. The mother also attested to the fact she must continuously monitor the daughter to take her medication.

The Court acknowledged that “the medical evidence establishes that both [of the children’s] impairments are of a continuous nature that would impair their ability to function in society” (see Mental Hygiene Law §1.03[22][d]) and granted the extension of child support through the age of 26 for both children.

When filing an application seeking to extend child support through the age of 26 based on a child’s disability said disability needs to fall within the definition of a “developmental disability” as set forth in Mental Hygiene Law §1.03(22)(a-d). We will continue to monitor and update our readers with any new decisions that may address the extension of child support until age 26 in accordance with §413-b of the Family Court Act and §240-d of the Domestic Relations Law.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna Kirkpatrick or Mariselle R. Harrison at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or mharrison@jaspanllp.com.

Coronavirus COVID-19 vaccine

We have published various blogs regarding the on-going struggles to co-parent during the COVID-19 pandemic. This sentiment still rings true today in regard to the differing views parents may have with respect to vaccinating their children against Covid-19. The issue of vaccinations was recently addressed in S.M. v. E.M., 2022 NYLJ LEXIS 722 (Sup. Ct., Nassau Cty. 2022), wherein the Hon. Stacy D. Bennett, A.J.S.C. of the Nassau County Supreme Court, granted a father’s application for a change of custody on the limited issue of medical decision making specifically related to vaccinations of the subject children.

The parties to this action had been divorced since 2016. In accordance with the terms of their Stipulation of Settlement, the parties had joint decision making for all matters involving their children, including, in pertinent part, medical decision making. As has proven true for many families in the wake of the COVID-19 pandemic, the parties could not agree on whether to vaccinate the children against the COVID-19 virus. While the father was himself vaccinated, testimony offered at the hearing (as memorialized in the Court’s decision) showed that the mother was not vaccinated, and that she “believes the vaccine is at ‘its infancy stages’ and more research is necessary.” S.M., supra. The substance of the litigation involved each party’s desire to have sole decision making so as to determine whether the children would, or would not, receive the COVID-19 vaccine.

In a hearing held over the course of three trial days, each party testified as to the reasons they supported or opposed the children receiving the vaccine. Additionally, each party testified to specific conduct engaged in by the other parent (both before and during the time of COVID-19) which each claimed was indicative of poor co-parenting and poor parental decision making sufficient to form a basis to change custody. While no testimony was offered from a doctor, the parties stipulated that the children’s long-standing pediatrician supported the children receiving the COVID-19 vaccination.

In rendering its decision after trial, the Court did not address, in any manner, the efficacy of the vaccine. Rather, the Court looked to the best interest of the children, “[t]he paramount concern in making decisions regarding custody.” Id. Toward that end, the Court found it in the children’s best interest to follow the recommendation of the children’s pediatrician, a medical professional jointly selected by the parties and in whose care the children had been for more than ten years. The Court also relied upon, and cited to, other cases addressing COVID-19 related matters, including J.F. v. D.F., 74 Misc.3d 175 (Sup. Ct. Monroe Cty. 2021) and C.B. v. D.B., 2021 NY Misc. LEXIS 5111 (Sup. Ct. New York Cty. 2021). Citing to the J.F. v. D.F. decision, Justice Bennett acknowledged and noted that, “New York State is ‘transitioning towards a “new normal”; citizens are taking precautions to balance staying safe from Covid-19 and its variants alongside the desire to return to some semblance of regular life.” Weighing the totality of the circumstances before her, Justice Bennett determined that, “based on the testimony, evidence and articulated medical opinion of the children’s long-time pediatrician”, best interests of the children supported an award of medical decision making authority to the father, solely and specifically regarding vaccinations.

The material in this blog is only meant to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  In the event that you need legal assistance, please contact Kara K. Miller at kmiller@jaspanllp.com or (516) 746-8000.

Word CHILD SUPPORT composed of wooden letters.

Often times parents do not take into consideration the financial component of having a child. Let’s be realistic, who wants to put a “price tag” on their child? However, this is something that parents are forced to deal with in the context of a divorce or separation when children are involved. Upon the commencement of a divorce or separation proceeding, parents may find themselves asking “what exactly is child support and how is it calculated?”

What is child support?

Simply put, child support is the monetary contribution one parent makes to the other parent to assist with supporting a child financially. In New York, child support includes a “basic child support” figure together with child support “add-ons”. “Add-ons” include but are not limited to unreimbursed health insurance costs, the cost of health insurance, extracurricular activities, and childcare expenses.

Who pays child support?

Child support is paid by the “noncustodial parent” to the “custodial parent”.

How is basic child support calculated?

Calculating the appropriate amount of child support is a process.

The first step is to determine what is known as the combined parental income. In order to arrive at the combined parental income, you simply take each parents income (less the required deductions pursuant to DRL § 240(1-b)(b)(5)(vii)) and add them together. It is important to note, in New York there is a cap utilized for the combined parental income. As of March 1, 2022, the combined parental income cap is $163,000. By capping the combined parental income at $163,000, the court does not need to (but can and often does) consider any combined parental income which exceeds this amount.

The second step is to determine the pro-rata share of the combined parental income for each parent. In order to figure this number out take each parent’s income separately and divide it by the combined parental income.

For the third step you will multiply the combined parental income (up to the cap or above the cap in certain circumstances) by the proper “child support percentage”. The “child support percentages” are as follows: (i) 17% of the combined parental income for one child; (ii) 25% of the combined parental income for two children; (iii) 29% percent of the combined parental income for three children; (iv) 31% percent of the combined parental income for four children; and (v) no less than 35% percent of the combined parental income for five or more children.[1] Therefore, if you have one child, you would multiply the combined parental income (up to a cap) by 17%.

The final step is determining how much your actual obligation for child support may be. In order to arrive at this amount, you take the sum you were left with after step three and multiply it by your pro-rata share that you calculated in step two. This will then provide you with your yearly child support obligation.

Conclusion

The unfortunate reality is that in the context of a divorce or separation action, children do come with a “price tag”, which is calculated using a specific formula. While each situation and fact pattern are different the child support formula explained above is utilized in calculating the presumptive appropriate amount of child support.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Mariselle R. Harrison at (516) 746-8000 or via e-mail at hkirkpatrick@jaspanllp.com mharrison@jaspanllp.com.

[1] DRL § 240(1-b)(b)(3)(i-v).

login and password, cyber security concept, data protection and secured internet access

On June 30, 2022, Governor Hochul signed legislation[i] that: “expands which documents can be used to show identity theft in certain circumstances relating to debt collection.”[ii] “Under current law, a principal creditor shall cease collection activities until completion of the review of certain information submitted by a debtor who claims they were the victim of identity theft. The victim must have filed a police report alleging the identity theft; there is no alternative reporting permitted under the law.”[iii]

However, not all identity theft occurs between parties that do not know each other.  Often identity theft “occurs as a result of a domestic violence or an elder abuse situation, where the perpetrator is known to the victim. Under circumstances where the victim is familiar with the perpetrator, the victim may not be able to or may not wish to pursue criminal charges.”[iv] “The current law compels a victim of identity theft to report such crime to law enforcement, whether they wish to or not or whether it is safe for them to do so or not, in order for collection activities against them to be suspended as further investigation is made into the legitimacy of the debt.”[v]

Recognizing the difficulties presented where the perpetrator is known to the victim, the law now expands the types of documents which can be used to show identity theft relating to debt collection in lieu of a victim reporting the identity theft to law enforcement. Under the new law, these new documents include Federal Trade Commission and law enforcement reports, as well as criminal and family court documents which support the statement of identity theft.[vi]

If you are the victim of identity theft and need assistance with the types of documents needed to report the theft of your identity, please contact Christopher E. Vatter at cvatter@jaspanllp.com

[i] https://www.nysenate.gov/legislation/bills/2021/S9359

[ii] https://www.governor.ny.gov/news/governor-hochul-signs-legislative-package-empower-victims-crime

[iii] https://www.nysenate.gov/legislation/bills/2021/S9359

[iv] Id.

[v] Id.

[vi] Id.

American Rescue Plan Act of 2021

We previously posted a blog discussing how a party may be able to secure a decree of separation and enumerated five (5) ways you can seek a judgment of separation from a court under Domestic Relations Law (“DRL”) § 200. We also previously noted that a party is extremely limited in the circumstances for which they may seek a formal judgment of separation from the court, which is why many spouses opt to enter into a separation agreement instead.

On January 7, 2021, New York Assembly Bill 1128 (“A.B. 1128”) was introduced, entitled “An act to amend the domestic relations law, in relation to allowing for no fault separation” (the “proposed amendment”).[i] Currently, DRL § 200 lists only fault grounds as a basis for a judgment of legal separation. This proposed amendment will permit spouses to obtain a judgment of legal separation based upon an irretrievable breakdown of the marriage for at least six (6) months. The amendment would mimic the language set forth in DRL § 170(7) providing for a no-fault divorce.

Although there has not been much movement on this proposed amendment in the legislature; should this proposed amendment become law, many people could benefit, especially individuals who are attempting to avoid the loss of health insurance coverage (which would occur with the issuance of a judgment of divorce) but also want court-ordered relief.

The information in this blog is subject to change as further developments with the proposed amendment to DRL § 200 may arise. Any person contemplating a legal separation should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com.

[i] 2021 N.Y. A.B. 1128 at “Synopsis”.

British Shorthair and Golden Retriever

We previously posted about Senate Bill S4248 which, if enacted, would add a fifteenth factor to New York’s equitable distribution statute to allow courts to consider the best interests of a companion animal when awarding possession in a divorce action.

Since this previous post, Senate Bill S4248 was signed by Governor Hochul on October 25, 2021, thus officially amending Domestic Relations Law (“DRL”) § 236 to include the following factor:

  • In awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law.

As previously noted, “[t]he purpose of this legislation is to ensure that the best interests of pets are taken into consideration during divorce or separation proceedings.”[1]

Samantha Guido focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement. Samantha believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, Samantha can be reached at sguido@jaspanllp.com or (516) 393-8250.

[1] https://www.nysenate.gov/legislation/bills/2021/s4248

According to the United States Census Bureau, women make up nearly half of the United States work force.[i] Notwithstanding, as of 2019, women make up only 27% of workers in the fields of science, technology, engineering and mathematics (“STEM”).[ii]  “Women employed full-time, year-round in STEM occupations earned more than their non-STEM counterparts but the gender earnings gap persisted within STEM occupations.”[iii] Men also outnumber women majoring in most STEM fields in college. [iv] “The gender gaps are particularly high in some of the fastest-growing and highest-paid jobs of the future, like computer science and engineering.”[v]

“Women and minorities are severely underrepresented in STEM, often because they were not encouraged to early on. In a 2010 survey by the Bayer Corporation of female and minority chemists and chemical engineers, 77 percent said significant numbers of women and minorities are missing from the U.S. STEM work force because ‘they were not identified, encouraged or nurtured to pursue STEM studies early on.”’[vi]

In an attempt to address this issue, on December 22, 2021, Governor Hochul signed a Bill[vii] “directing the urban development corporation to conduct a study regarding the assistance needed to encourage women and minorities to pursue technology careers in science, technology, engineering and mathematics (STEM)”. It is hopeful that: “[t]his bill will help identify the types of assistance necessary to encourage more women and minorities to enter STEM fields.”[viii]

According to Senator Anna M. Kaplan, “[s]o many employers in today’s high-tech, global economy consistently struggle to find enough qualified individuals to fill the high-skill, high-paying jobs they create, and the workforce has never been truly reflective of the diversity of our community. It’s time we helped more young women and people of color to pursue careers in the fields of science, technology, engineering, and math, and by encouraging these underrepresented groups to pursue STEM studies, we can provide greater opportunities for more young people in our community, and fill a critical need for workers skilled in the areas of demand in today’s economy.”[ix]

According to Assemblymember Linda B. Rosenthal, “[t]his new law will help increase the numbers of women and minorities who pursue technology-based careers. While some of the fastest-growing and highest-paying jobs are in the STEM field, the number of women and people of color employed in these fields continues to lag behind. A better understanding of the availability of grants designed to encourage underrepresented people to pursue careers in STEM is vital to help level the playing field and ensure access to well-paying and intellectually stimulating jobs.”[x]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.census.gov/library/stories/2021/01/women-making-gains-in-stem-occupations-but-still-underrepresented.html (men make up 52% of the workforce).

[ii] Id.

[iii] Id.

[iv] https://www.aauw.org/resources/research/the-stem-gap/

[v] Id.

[vi] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vii] https://www.nysenate.gov/legislation/bills/2021/s531/amendment/b

[viii] Id.

[ix] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[x] Id.