Joint Decision Making New York Divorce The Importance of the Agreement

Joint Decision Making New York Divorce The Importance of the Agreement.

Joint Decision Making New York Divorce The Importance of the Agreement

When custody is an issue in New York, as an incentive to the residential parent, i often put the following wording in my Agreements:

The parties shall have joint custody of the unemancipated children. The parties will discuss all major decisions and the residential parent shall have final decision making and said final decisions shall be reasonable.

Drafting Divorce Agreements involves a comprehensive knowledge of New York Domestic Relations Law and the Family Court Act

Call the experts at the Guttman Law Group at 631-777-3900 or visit our website at http://www.guttmanlawfirm.com

Divorce New York Adulterous Relationship and Child Support

Husband and Wife have 3 children. It is suspected that Husband fathered a 4th child from an adulterous relationship. What is the status of Child Support?

It becomes a race to the court as to which mother files first. If the Mother, of the adulterous relationship, files first and it is proven that Husband is the Father of the child, then she will be awarded 17% of Father’s income (less FICA and Medicare); If wife then files she will be awarded 29% of Husband reduced income (reduced by FICA and Medicare and the 17% that he will be paying in Child Support to the Mother of his 4th child); if Wife files first then there will be no reduction in her support order for child support for the 4th child; there will be a reduction in the support order for the mother of the adulterous relationship

New York Child Neglect / Divorce

Rising to the level of Neglect is more than being in a separate room away from your kids. Neglect is defined in FCA 1012 (f) where child’s physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of the failure of his parent or other person legally responsible for his care to exercise a minimum degree of care.

Joint Custody vs Sole Custody Divorce Long Island New York

Most Long Island Divorce matters settle at some point during the litigation process.  The spouses enter into an agreement which resolves most if not all of the issues of the divorce rather than elect to have a trial where a judge decides the parties’ and the parties’ children’s future.

As part of the settlement, the parties can reach agreement on custody of the infant children.

If the divorcing husband and wife reach an agreement on issue of custody then it is possible to have Joint Custody of the children. Joint Custody usually means that there is joint decision making.  In order for Joint Custody to work, parents must cooperate on issues involving the children. 

The remaining custodial issue is Residential Custody which determines which party receives child support.  It is therefore possible to have joint custody but still be required to pay Child Support.  For questions on this issue, you can either go to our website at www.guttmanlawfirm.com or contact me directly at bruce@guttman.com

Divorces can be bitter and contentious. When parents divorce, often the biggest losers are the children as they are deeply affected by the breakup of their family.  Divorced parents who have Joint Custody and Joint Decision Making must make joint decisions involving the children.  It is in the children’s Best Interest for the parents to be amicably involved in the decision making process and have parenting time with the children.

Divorced parents of infant children, who are able to set aside their differences when discussing issues involving the children are candidates for Joint Custody.  The alternative is Sole Custody

We are here to guide you through the process

Long Island Divorce Court procedure

A motion brought before the Court involves the following:

(1) A motion (or an Order to Show Cause) is written stating exactly what you want the Court to do (the relief). Attached to the motion are or is an (a) affidavit by the client stating the facts of the issues brought to the attention of the Court and (b) an affirmation by the attorney applying the law to the facts. The attorney affirmation provides the legal authority for the Court to grant the requested relief.

(2) The motion / Order to Show Cause is then brought to the appropriate Court, a fee is paid and the motion is brought to the Judge for signature. The Judge will indicate how the motion is to be served, usually by personal service (which involves a process server) and it must then be served on the other party.

(3) The other party must then put in their opposition to the original motion.

(4) The party introducing the original motion must then “Reply to the opposition (their final word). This also involves a client affidavit and an attorney affirmation which must be served on the other party.

(5) Then, after all the documents (papers) have been exchanged and submitted to the Court, the Judge will have to appear to argue the motion.

The process is complicated, labor intensive and costly.

Long Island Divorce Lawyers – Child Custody

Who gets Custody? How is it decided? The Court applies 14 factors to decide which parent will become the custodial parent of the children.  For those people who are considering fighting for custody, review the following:

Who is the primary caregiver? (who takes care of the kids when they come home from school? Who gives them dinner? Who does their homework with them? Who Attends Parent-Teacher Conferences? Who takes the children to doctors?)

Who has the established Psychological Bond? (who does the child go to for love and affection?)

What are the work schedules of the parents? (for example: if one parent is a school teacher and is home when the children get home from school and the other parent travels two or three days a week)

Mental Health of the parents.  ( if one parent is receiving medication for mental health issues, has that parent been effectively treated? The courts do not want to put children at risk)

Physical ability to parent (does one of the parents have a physical challenge?)

Past performance (parenting history)

Sexual activity of the parents (the Nexus rule – does the sexual activity of the parent occur in the presence of the child?)

Substance abuse (note this can be a disqualifying factor even at low levels of substance abuse)

Financial advantages of one parent (the financial advantage must be overwhelming)

Race

Religion

Child preference (especially for older children)

Who is the parent most able to foster a relationship between the children and the noncustodial parent? (Parental Alienation)

Domestic violence (Orders of Protection, arrests / convictions)

False allegations by one parent about the other parent (especially false allegations of sexual abuse)

The above factors are designed to help determine the Best Interests of the children. Once custody is decided it cannot be changed absent a showing of substantial changed circumstances and that it is in the best interests of the children for there to be a change in custody.

For assistance and free consultation call the lawyers at The Guttman Law Group LLP 631-777-3900

Long Island Divorce Lawyers, preparing for the Deposition

How can I prepare for an Oral Deposition?
Preparation by your lawyer is critical. You will be asked a number of questions by your spouse’s lawyer and the actual deposition can go on for hours. The questions and answers are recorded, become a record of your testimony and are under certain situations, admissible at trial.
The following are some pointers that will help you through a trying ordeal:
1. Your spouse’s lawyer is not your friend. He or she has a job to do and that includes asking a number of questions and getting you to admit things that can negatively impact your case. 2. Do not get angry. 3. Do not argue. It shows the other side that they can push your buttons. 4. Stay calm. 5. Treat the opposing attorney with respect. 6. Answer only the question that you are asked. 7. Do not offer additional information. 8. Do not guess at answers. If you do not know the answer say “I don’t know” or “could you rephrase the question”. You are allowed not to know the answers to all of the questions. 9. Do not speculate or talk in the hypothetical. Remember to specifically limit your answers to the specific question. 10. Tell the truth. The opposing attorney usually knows the correct answer. 11. Do not be sarcastic. The tone of your sarcasm never makes it to the transcribed testimony. 12. Beware of compound questions. Compound Questions are questions that contain more than one question? You should be on the alert for compound questions as they are designed to confuse and to get you to admit something that may not be true.. Your comment to a compound question should be: “could you rephrase the question?” You should only answer one question at a time. 13. Beware of questions that are attached to a summary. Your response to questions that follow a summary should be: Please rephrase the question.” 14. Beware of fake premise questions. When did you stop taking drugs. Note that the questions asked by the adversarial attorney have not asked if you do drugs. 15. Do not let the opposing attorney put words in your mouth. 16. Do not agree to false, misleading or confusing questions. 17. Do not characterize your answers by using such words as “honestly”, “in all candor”, “believe me” “I am doing the best I can” etc. It gives the appearance that this is the only time that you are telling the truth.
Avoid words that box you in to an answer such as “never” or “always. If you are asked questions that use these words, your answer should be “I don’t remember” or “can you rephrase the question?” or “do you have any documents that may trigger my memory” How can you remember “everything”
Preparation for your Oral deposition is very important. PREPARE, PREPARE, PREPARE. Your lawyer must prepare you and help you to be prepared. We can help. Call us at The Guttman Law Group 631-777-3900.

New York Divorce the Marital Home – to stay or to go

Very often, during a divorce, one spouse, usually the husband, elects to leave the Marital Home.  To stay or to go is a very difficult decision and the following should be considered:

What can happen if I leave?

If there is no visitation agreement in place prior to the departure, the departing parent will have to negotiate a parenting schedule in order to see his or her children. The parent who remains with the children may and probably will be presumed to be the primary caretaker of the children.  This places the departing parent in a difficult position should that parent seek child custody after the departure.

The remaining spouse may, at some point in divorce litigation, seek exclusive occupancy of the Marital Home.  The remaining spouse will easily be able to show that the departing has established alternative residence and that it is in the best interest of the children to preserve the status quo.  The result is that the parent who remains in the Marital Home usually gets to stay unless and until the Court or the parties decide otherwise.

Once exclusive occupancy of the Marital Home is established, the remaining spouse will be able to change the locks on the doors and legally prevent the departing spouse from entering the home.  Should the departing spouse want personal belongings, they will be obtained with the permission of either the remaining spouse or the Court. The remaining spouse becomes the guardian of the departing spouses personal belongings left in the home.  Sometimes things mysteriously disappear like your baseball card collection, a silver plate given to you by your grandmother etc.

What happens if I stay?

There are instances where the Husband and Wife are arguing in front of the children, that it is in the childrens’ best interest for either the Husband or Wife to leave.  This becomes especially critical if the police become involved as it does not take much for one parent to be removed from the Marital Home or for one spouse to obtain an Order Of Protection against the other spouse.

Divorce can become very complicated as it is possible to be in Supreme Court for the divorce, Family Court for an Order of Protection and District Court or Criminal Court if either party is accused of a criminal activity such as assault, harassment, stalking, menacing etc.

Call us with your questions at 631-777-3900 or visit our website: http://www.theguttmanlawfirm .com

 

The Guttman Law Group LLP

 

Long Island Divorce The Automatic Restraining Orders

A major problem when people decide to divorce is the sudden disappearance of assets.  To some extent the flurry of activity to conceal money and other valuable assets can be restricted by Automatic Restraining Orders that must be attached to a properly drafted Summons and Complaint or Summons With Notice. The Summons And Complaint commence the divorce action by notifying the other party (the husband or wife) that an action for divorce has been commenced.  It also puts the Court on notice that their assistance is required.

The Automatic Restraining Orders are designed to:

1. Prevent one or both Parties from removing funds without the written consent of the other party.  Funds are still allowed to be used to pay household bills and usual and customary expenses.

2. Withdrawals from pensions 401(k), Individual Retirement Accounts etc. are not permitted

3.  Neither party is allowed to incur unreasonable debts.  This includes mortgages and home equity lines of credit against the Marital Residence, the unreasonable use of credit cards and cash advances.

4.  Parties are required to maintain existing medical, hospital and dental insurance etc.

5.  The Parties are required to maintain in full force and effect all existing life insurance, automobile insurance, home owners insurance etc.

Failure to obey the Automatic Restraining Orders are punishable by fine or Imprisonment or both.

The Automatic Restraining Orders work when used by a skilled matrimonial attorney.

We can help

Call the experts at The Guttman Law Group LLP.

Visit our website or email Bruce Guttman at bruce@guttman.com