Nassau County Family Law Blog

Monday, April 25, 2016

How Divorce Mediation Allows for Mature Discussion

What are the alternatives to divorce litigation?

There are many reasons why marriages end in divorce: financial problems, falling out of love, extramarital affairs or other difficult situations. In the end, problems often arise between spouses because they fail to communicate, and being an effective communicator is really a matter of listening. Because contentious divorce litigation does not foster listening, many couples today are choosing other alternatives.
Read more . . .

Monday, March 21, 2016

Sen. Gillibrand Seeks to Modernize Foster Care System

U.S. Sen. Kirsten Gillibrand (D-NY) is sponsoring legislation that is designed to enable states to use a standardized interstate system to streamline the placement of children in adoptive or foster homes. The bill, Modernizing the Interstate Placement of Children in Foster Care Act, has bipartisan support.

"Thousands of children in New York and across the country urgently need a loving home, but often child welfare agencies don't explore the option of placing them with a foster family out of state because of long paperwork processing delays," Gillibrand said. 

There is such a system already in use in five states and the District of Columbia, the National Electronic Interstate Compact Enterprise (NEICE) which proponents say has reduced the time it takes to place a child in an adoptive of foster home by 45 days. The legislation, if approved, would provide temporary funding for states to implement the NEICE system and by 2022, all states would be required to join the system.

Lawmakers contend that foster children typically face long delays getting placed in a loving home because they often need to move to another state in order to live with a relative, adoptive parent or foster family. The current system requires exhaustive paperwork and often gets entangled in governmental bureaucracy. The bill is intended to cut red tape and speed up the process.

Several organizations, including the American Academy of Adoption Attorneys, and the American Public Human Services Association, support the proposed legislation. The groups believe that when NEICE is implemented, it will also help to ameliorate other risk factors for children, including illegal re-homing and sex trafficking.

Toward Legal Adoptions

Adoption is the legal process whereby parental rights are transferred to the adopting parents, creating a new parent-child relationship. A legal adoption gives the adoptive parents the same rights and responsibilities as parents of a biological child. At the same time, the adopted child is granted the same legal rights as a biological child, including inheritance rights and child support.

One of the most common adoptions is a stepparent adoption in which the stepparent becomes the child’s new legal parent. Some states also recognize domestic partner adoptions which follow the same general format and procedure as stepparent adoptions. If you have questions about adoptions in New York, you should consult with an attorney with expertise in family law.

Friday, March 18, 2016

Special Issues Confronting Lesbian and Gay Parents When They Adopt

What areas of concern face gay and lesbian when they adopt?

Adopting children is a life-changing event for any couple, but it becomes a more complicated legal process when the adopting couple is gay or lesbian. Now that homosexual marriage is legal in all 50 states, the problem is being given more serious attention. One of the difficulties for these couples is that laws governing adoption differ from state to state.

How Lesbians and Gay Men Become Parents

In some cases, one member of a gay or lesbian couple already has a child or children, but, if they are starting a family by adopting a child, the possibilities include:

  • One partner in a lesbian couple gives birth to a child (usually through artificial insemination)
  • One partner in a gay couple donates sperm to fertilize a donor egg and uses a surrogate mother

In either of these cases, the nonbiological parent becomes a legal parent through second or stepparent adoption.

In some states, same-sex couples can adopt children jointly, meaning that both partners are legal parents from the outset. For same-sex couples in some states, however, such as Mississippi and Utah, same-sex couples are still forbidden to adopt. It is, therefore, essential that gay couples investigate the laws in the state in which they reside.

Because the decision to legalize gay and lesbian marriages throughout the U.S. is still new, attorneys continue to recommend that the nonbiological parent in same-sex couples complete stepparent adoptions so that there is no remaining ambiguity should the couple move to another state or split up or should the biological parent predecease the nonbiological parent. The adoption also protects the parent-child relationship in regard to Social Security and other federal benefits.

Legal parents have certain rights and responsibilities. They have the right to live with the child, either full-time or part-time and to make decisions about the child's health, education and well-being. Legal parents are also responsible for financially supporting the child. When they adopt jointly, whether gay or straight, both partners are automatically considered legal parents, whether they stay together or eventually separate or divorce. In states in which it is legal, not only can same-sex couples adopt jointly, but they can adopt the biological child of the other partner, ensuring legal parenthood.

What Happens if a Gay or Lesbian Couple Breaks Up?

If the nonbiological parent has not legally adopted the child, his or her relationship with the child may be in jeopardy if the couple divorces. While some courts recognize the concept of a "de facto " or "psychological" parent, signifying that the individual has lived with the child and fulfilled parental duties, and that it would be detrimental to the child to be completely separated from this "parent," there have been many instances where the nonbiological parent has been treated as a stranger and prevented from having visitation with the child when the couple splits up. Such decisions are clearly cruel to both nonbiological parent and child and will likely cause permanent psychological damage.

Benefits of a Parenting Agreement

No couple, gay or straight, enters into a marriage with the expectation that the relationship will end, but we all know the grim statistics. It is always best to plan for the worst case scenario. If joint parenting isn't available to you as an option, you should consult with a highly competent family attorney to write up a legally binding parenting agreement.

Such an agreement will make clear that, though only one of you is the legal parent, you both consider yourself parents of your child, even if your marriage ends in dissolution. This parenting agreement should cover all issues that may become relevant in case you separate, including visitation, access to school and social events, and the financial responsibilities of both partners.

Wednesday, February 24, 2016

Primary Reasons for Divorce

Why do marriages so frequently result in divorce?

No matter what the statistics report about the high rate of divorce, couples still seem determined to take that walk to the altar, each believing that they will be the pair to defy the daunting odds and bond for life. It is true that the peak rates of divorce have diminished from 50 percent during recent decades to 42 percent in the present. This may indicate that more and more couples, though not always able to achieve ongoing wedded bliss, seem to be taking their vows with their eyes open wider to the possibility that their marriage will require not only commitment, but hard work.

While the tabloids would have us believe that extramarital affairs are at the root of most marriage dissolutions, according to 100 experts at YourTango, a media company focused on romantic love, this is not actually the case. Reviewing the evidence of 100 break-ups, the following causes of divorce have been isolated.

[1] Communication Problems -- According to these pundits, most marriages dissolve because of an inability to communicate. It appears that nearly any problem, even straying from the marriage bed, can be solved if the paths of communication remain open.

[2] Marrying for the Wrong Reasons -- Sometimes one or both partners get roped into marriage for inappropriate reasons.  We have all heard the sad tales of couples "having to get married" because the woman is pregnant, but what about the couples from strict backgrounds who marry in order to have sex?  Other poor reasons for marriage include: because of one's age, because parents or friends encourage the union, for money, because time-consuming, expensive preparations have already taken place, or because you are in love with the idea of being married.

[3] Submerging Oneself in One's Partner -- The poet Theodore Roethke said, "Love consists in this, that two solitudes protect and touch and greet each other."  Two often, infatuation leads to one partner "drowning" in the other, losing sight of his or her own interests, values, desires, and visions for the future. For many such couples, the person who has become submerged finally reaches a point where divorce is necessary for the individual to survive.

[3] Neglecting the Partnership -- It is not uncommon for married couples to pull away from the friends and activities they most enjoyed before they tied the knot. This can be especially true if they have children and become caught up in their individual roles are parents, neglecting to nourish themselves as a twosome. For many couples who lead lives like these, by the time the children leave the nest, the parents find there is nothing left to hold them together.

[4] Not Having Clarified Issues Beforehand -- Each member of a couple has grown up in a different (sometimes very different) household. Unless issues about household chores, finances, tidiness, discipline of children, sexual intimacy, vacations, etc. have been discussed prior to marriage, there is likely to be discord after the honeymoon.

[5] Lost Intimacy -- The interplay between romance and sexual intimacy is usually fine premaritally, but may be more difficult to balance when there is less time for relaxation and foreplay during the marriage. Couples must learn to accommodate varying libidos if the marriage is to survive.

[6] Expecting Your Partner to Become the Person You Envisioned -- Everyone has seen the sitcoms in which criticizing, blaming, nagging and bribing are presented as part and parcel of marriage. Though it is true that some amount of complaining is inevitable, the person you married will change when he or she feels the need to, not when you expect capitulation. This is where the ability to communicate becomes so essential.

[7] Financial Disagreements -- There is no question that when finances become tight, marriages become strained. Couples also have serious difficulties, however, when they are not in difficult economic straits. Spending and saving habits have to be discussed and agreed upon if a marriage is to have a stable foundation.

[8] Lack of Physical Intimacy -- The sexual underpinnings of most marriages are extremely important, but so are the smaller intimacies expressed by handholding, gentle kisses, warm hugs, easy caresses. If physical intimacy is limited to the bedroom activities, the sense of estrangement can become unbearable for one or both parties.

[9] Absence of Time Together as well as Time Apart --While it is important for couples to maintain a sense of their identities are individuals and spend time independently of one another, there is also a need to do pleasant things together, things that both enjoy.

[10] Inability to Resolve Conflicts -- Many therapists teach couples how to have productive arguments in which each person feels not only heard, but respected for his or her opinion. A third party can be very helpful in setting up ground rules to keep disagreements from becoming name-calling events or escalating to abusive words or behavior. 

If you are experiencing difficulties in your marriage and divorce seems to be on the horizon, you would be wise to contact a fine family attorney promptly to guide you through the process.

Monday, February 22, 2016

A Strange Part of Adoption History

Why did gay adult adoption take place?

 Now, when gay marriage has become a legal right in all parts of the United States, looking back at the rampant discrimination against gays since the founding of this country may seem almost surreal. In some ways, it's like looking back at the history of civil rights in general, full of nearly unbelievable injustice. We are all aware that discrimination of all types is still alive and well in the United States, but legal advances have certainly been made.

The question is: What did gay couples do to ensure their partners inherited their estates before laws were changed? In some cases, long-term gay couples turned to the only legal recourse they had in order to enable their partners to inherit their estates: one partner legally adopted the other.

When Discrimination Was Legal

Below are some examples of how far we've come in gay rights, even during the past decade.

[1] In an attempt to liberalize the laws of his day, Thomas Jefferson wrote a law in Virginia in 1779 proposing castration as a punishment for men who engaged in sodomy, instead of the punishment of death that was on the books.

[2] Prior to 1962, when Illinois decriminalized consensual homosexual acts, such acts were considered felonies in every state in the Union, punished by long prison sentences.

[3] The Supreme Court did not strike down laws against sodomy throughout the U.S. until 2003.

[4] As late as 1966, gays and lesbians could not legally buy a drink in a NYC bar.

[5] Even after the Stonewall riots of 1969, the American Psychiatric Association still categorized homosexuality as a mental illness. The designation of homosexuality as a mental disorder did not occur until 1973.

[6] Until gay civil unions became legal, at first only in Vermont in 2000, gay couples had no legal rights to be considered "family" when it came to many important matters, such as visiting partners in the hospital or inheriting assets.

Reading these examples, it becomes clear why gay couples felt they had to find a legal loophole to keep their families intact and financially solvent. In a notable case of adult gay adoption, Bayard Rustin, an early proponent of civil rights, adopted his partner, 27-year-old Walter Naegle, in 1977.

Rustin was no stranger to fighting the system -- he was in charge of logistics for the Rev. Martin Luther King, Jr.'s March on Washington for freedom and jobs, and he was instrumental in working to integrate the New York City schools. Realizing that, since he was more than 30 years older than his partner, he would almost certainly predecease him, he wanted to ensure that his life partner would inherit his estate. In 1982, there were few options available, but the couple saw a newspaper article about a Midwestern couple who had tried (unsuccessfully) to adopt one another in order to form a legal bond. Rustin suggested that they might try the same tactic.

It was far from simple. First, Naegle's biological mother had to legally disown her child. Then a social worker had to visit the Rustin-Naegle home to determine if it was "fit for a child." The social worker, Naegle recalled, understood perfectly well what the situation was, but was actually there to determine that neither the older man, nor the younger one, was being preyed upon.

In their case, the strategy proved successful. When Rustin was hospitalized with a perforated appendix and peritonitis, Naegle was able to visit him in the hospital. When Rustin died, Naegle was executor of his will and inherited as planned.

Fortunately such manipulations are no longer necessary in this country, but adoption, even of the ordinary kind, can require jumping through some legal hoops and a great deal of patience. Any couple, gay or straight, interested in adopting a child should work with an experienced family lawyer to facilitate the process.

Saturday, January 30, 2016

Two Cases in Washington State Highlight Painful and Ambiguous Paternity Issues

 Who is the "real" father?

It seems that in this day and age, when DNA tests are readily available, it should be easy enough to determine paternity and to assign clear rights and responsibilities. Two cases have arisen in Washington State, however, that bring paternal rights into question, in spite of DNA and paternity affidavits. A group of dismayed men and women are trying to get legislation passed to clarify the situation. This bill is known as the "Stop Paternity Fraud" bill or "the Brandon Jones Act."

Lost Son/ Lost Family

Brandon Jones has not seen the boy he called his son for more than 10 years. He says, "We were both robbed." Believing that he was indeed the boy's father, Jones had signed a paternity affidavit at the time of the boy's birth. For the next several years, which included a deployment to Iraq, Jones considered the boy a close member of his family. The boy bonded not only with him, but with his parents and grandparents, and, later, when Jones married, with wife and daughter. 

When the boy was 7 years old, Jones went to court in an attempt to increase his visitation rights. It was only then that the boy's mother presented DNA evidence showing that it was impossible that Jones was the boy's father. In a nightmarish twist of the King Solomon story, the court then declared that Jones had no visitation rights at all. To paraphrase Jones, the boy he called his son was "ripped out" of his life and out of the life of his extended family.

Ironically, and tragically, since Jones' name is still on the paternity affidavit, and since that document cannot be changed after four years have passed, he is still legally considered the boy's father and is required to pay monthly child support for a boy the court will not permit him to visit.

The Other Side of the Coin Is Equally Painful

C.J. Abernathey's case is a terrible reversal of the Jones case. Abernathey has not seen his 5- year-old daughter for a year and a half. He says losing the child "destroyed me." In his case, DNA proved that he is the child's biological father even though the child's mother was married to someone else at the time of the girl's birth. The mother's husband's name has been on the paternity affidavit right along, and though all parties knew and understood the actual situation, no one ever informed Abernathey about the four-year rule governing paternity affidavits. Recently, when visitation rights became a source of conflict, a judge ruled that Abernathey no longer has rights to see his biological daughter.

The System Fails

Clearly, in both of these cases, the legal system, complete with paternity affidavits and DNA evidence, has failed the children and "fathers" in question. Both men have now joined the group mentioned earlier that is attempting to change paternity laws so they do not "chop up" loving relationships. The group is working toward establishing the right of presumed parents to have two years from the time of the paternity test to take the case to court.

Although paternity laws differ from state to state, they are often complex and sometimes contradictory. No matter which state a parent resides in, it is always in his or her best interest to engage the services of a skilled and knowledgeable family attorney when dealing with paternity, visitation, and custody issues.

Friday, January 29, 2016

Handling Your Finances During Divorce

What are some tips for dealing with your assets during a divorce?

We know you think it will never happen to you, however 50% of marriages end in divorce.  Moreover, divorces are messy, both emotionally and financially. A divorce could end up costing you tens of thousands of dollars in legal fees and other expenses related to the terms of the divorce agreement such as alimony and child support. Why should you let it cost you any more as a result of mishandling assets? You shouldn’t. Here are some tips to help you determine what assets are in play and to assist you in dealing with them.

You might think that dealing with your assets during your divorce is above your head. However, the simple solution is to talk to a financial advisor or even a certified divorce financial analyst that specializes in this area. 

Even if you did not handle  the money while you were married, now is the time to get familiar. The best way to do this is by reviewing tax returns. Tax returns will divulge what assets you and your spouse have. If you know your spouse has an asset that is not listed, he or she might also be trying to hide it from the divorce court. Once you become familiar with the information on the tax returns, you should then turn to non-paper records. We live in a digital world and many financial records are now stored electronically. You should to get comfortable with this medium.

At some point, you are going to have to determine what you will need to live as a single as opposed to in a couple. Be realistic and understand that you may have to shift things around to suit your new lifestyle. 

Most importantly, try to be civil. It is always the case that much more can be accomplished when the parties are willing to work together without malice.

If you are facing a divorce and have considerable assets, you should speak to an experienced divorce attorney as soon as possible. 

Friday, December 25, 2015

Protecting Children in a Divorce

What is the role of psychology in divorce?

In spite of the fact that divorce has become common in our society, children of divorce still suffer from mental and emotional problems. Some psychologists contend that divorce is not merely a temporary obstacle that children overcome, but rather a life-changing episode that affects their self-image and their view of the world.

The Emotional Damage of Divorce

For some children, divorce is not a single injury suffered in childhood, but a lingering wound that can last for years and, in some cases, follow them into adulthood. Children, however, do not suffer alone, as divorcing parents struggle to resolve feelings of failure, loss and abandonment. At the same time, children are believed to suffer ongoing feelings of insecurity and self-doubt because of absent parents.

These problems can be made worse in cases where parents overtly use the child as a pawn in fighting over child custody and visitation rights. While this is all too common, many parents also lay a guilt trip on their children for wanting to share time with the other parent. Children may also experience awkwardness after returning home from a weekend visit with the noncustodial parent. In the end, these issues can cause a child to falter at school or worse, turn to alcohol and/or drugs.

Protecting the children

There is a growing recognition that families can benefit from court-appointed therapy which often takes place as reunification counseling usually at the request of one parent’s lawyer, but some judges are proactive in making this decision. This is typically well-suited for situations where the relationship between a parent and child has been damaged or become estranged due to the divorce.

Utilizing court-ordered therapy can allow legal dilemmas to be solved emotionally and allow the parent and child adjust to the new circumstances. If divorce is inevitable, children can be protected from the emotional fall-out by this type of therapy.

Divorcing couples can also minimize the damage by doing what is in the best interest of the child. In some cases, divorce mediation is an alternative that may take some of the bitterness out of the process and allow the healing to begin before the damage is done. In any case, if you are considering a divorce, you should seek the advice of a qualified attorney.

Wednesday, December 23, 2015

Family Denied Guardianship of Down Syndrome Relative Who Wants to Wed

When is guardianship of a disabled person unreasonable?

Family members, objecting to the impending marriage of their relative, a 29-year-old man with Down syndrome, petitioned for his guardianship. A Brooklyn Surrogate Court judge, however, denied that guardianship petition, stating that the relatives' objection to his marrying did not provide a reasonable cause for guardianship. The Surrogate Court judge, Margarita Lopez Torres, said that "the yearning for companionship, love, and intimacy is no less compelling for persons living with disabilities."

While the mother and brother of the disabled man, known as D.D., produced certificates from two physicians stating he was "indefinitely incapable of managing himself and/or his own affairs," Judge Torres ruled that guardianship, which takes away all vestiges of independence, should be a last resort in such a situation. She pointed out that the certificates produced were generic in nature and did not specify which particular actions the man in question was able, or unable, to perform.

Since she felt the information she had been given was incomplete, the judge appointed an ad litem guardian from an innovative clinical program at Brooklyn Law School designed to represent individuals with intellectual disabilities. The program, Advocates for Adults with Intellectual and Developmental Disabilities Legal Clinic, thoroughly researched D.D.'s situation and provided an extensive report based on interviews with the parties involved and with many friends and coworkers of the disabled man.

The review concluded that D.D. is able to work, has an active social life, can attend to his own personal and hygiene needs, and can travel independently on public transportation when going to familiar destinations. In accordance with D.D.'s abilities and desires, the ad litem recommended alternatives to guardianship, such as durable power of attorney and a health care proxy. The judge concurred that such measures, if agreeable to D.D., would meet the financial and healthcare concerns of the family.
The director of the legal clinic pointed out that the person in an Article 17-A proceeding, for whom guardianship is proposed, is routinely denied due process, even though the individual stands to lose all "autonomy, the right to vote, the ability to marry, to have a say in health care and financial matters."

In her decision, Judge Torres quoted from the recent U.S. Supreme Court decision legalizing gay marriage, in which it was stated that marriage "rises from the most basic human needs; marriage is essential to our most profound hopes and aspiration." In the meantime, D.D., who presently lives with his mother, stated under oath that he had spent several years saving for an engagement ring for the woman he wants to marry and that he wants to live with her independently in the future.

Legal rights can be cloudy and contradictory even within the boundaries of a family and conflicts can arise even when all parties are well-intentioned. When such situations arise, it is always a good idea to contact an informed and skilled family attorney.

Sunday, November 29, 2015

Pre-Divorce Agreement Between Spouses Found Unenforceable

Do courts always enforce agreements made between spouses before divorce?

When couples hit a rough patch in their marriage, they begin to prepare for the day that they will be divorced. This usually involves making certain agreements with one another that will help them to transition smoothly. Unfortunately, sometimes these agreements don’t hold up in court. Recently, an agreement made between a husband and wife prior to their divorce was called into question by a New York court.

In 2014, a man (whose name was not revealed) entered into an agreement with his then wife to pay rent for their two adult children until the children turned 30. The man’s obligation would end if the child married or lived with his or her significant other for 6 months or more. It seems the couple entered into this agreement in order to attempt to preserve their somewhat rocky relationship. Unfortunately, the effort was in vain, and the couple divorced 2 months later.

The agreement was then called into question by the Nassau County Supreme Court where the couple’s matrimonial case was being adjudicated. After reviewing the agreement, Judge Sharon Gianelli decided that the agreement could not be enforced because it lacked consideration. Specifically, the judge found that the wife did not have to do anything in exchange for the husbands promise. The wife’s argument, specifically that she had to wait a period of time before filing for divorce in exchange for her husband’s promise, was rejected by the court.

This case demonstrates that you must be diligent when entering into agreements with your soon to be ex-spouse. You want to be sure that the court will recognize the agreement and that its terms will be enforced. If you and your spouse are considering divorce, you need a skilled matrimonial attorney by your side.

Friday, November 27, 2015

New York Times Reports on Dramatic Increase in "Gray Divorces"

What is a “gray divorce?”

According to a recent article published in The New York Times, the concept of a “gray divorce” – or, later-in-life dissolution –- is becoming a less-stigmatized, more accepted course of action for older couples seeking a fresh start.

Where many couples may have historically opted to just “stick it out,” today’s Baby Boomers are choosing to pursue happiness and freedom from the confines of a marital union long past its expiration date. If you, too, are considering a gray divorce, make sure to be advised by an experienced and reputable family law attorney.

According to statistics, in 2014, couples over the age of 50 were twice as likely to pursue divorce as their 1990 counterparts. The National Center for Family and Marriage Research reports that divorce rates in couples aged 65 and older is even higher. This is, at first, surprising, considering that divorce at this stage would have been unthinkable just a generation ago.

Reasons for Divorces in Later Years

What are the contributing factors to this dramatic increase in divorces among older couples? For one, life expectancies in the United States continue to rise, leading many seniors to yearn to seize their remaining years cloaked in happiness and contentment. Moreover, couples at this age are typically parents to adult-age children, who no longer feel the need to stay together to keep the family intact while children grow up and develop. Also, since older individuals are more likely to have been married before, and since there is a higher rate of divorce among people who have already been divorced, the statistical cards are somewhat stacked against the longevity of a second or third marriage.

Pursuing a divorce later in life presents in own set of challenges, particularly when it comes to dividing assets and marital property. To ensure fair and adequate treatment throughout the process, be sure to contact a knowledgeable and skilled family law attorney.

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