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Nassau County Family Law Blog

Friday, July 10, 2015

Star Chef’s Divorce Heats Up

When is a prenuptial agreement considered invalid?

Food Network personality Bobby Flay and his wife, Stephanie March, a television actress filed for divorce in April.  Following the split, March filed court papers to set aside the prenuptial agreement.  The prenuptial agreement requires Flay to pay March a monthly alimony of $5,000 and provides an option to buyout the family home for $1 million.  March alleges that she played a major part in helping Flay build his net worth to almost $20 million during their ten year marriage.  She did this through making integral decisions to help Flay’s restaurants including taste-testing menu items, suggesting menu items and introducing the chef to tapas, a type of Spanish cuisine later offered in Flay’s restaurants. 

Flay’s attorney filed with the court to affirm the validity of the prenuptial agreement.  The prenuptial agreement allegedly contains a no infidelity clause meaning the agreement stays in effect regardless if either spouse has an affair.  March has alleged Flay had multiple affairs during their marriage.  Flay recently accepted a star on the Hollywood Walk of Fame during which a plane flew by dragging a banner displaying a single word - “cheater”.  March denies any involvement in the plane incident. 

March alleges her health problems leave her unable to work causing her to face an undue financial hardship.  Flay says those health problems are the result of an elective breast enhancement surgery.  March has also filed for the winnings and sale of a racehorse Flay gifted to her as an anniversary present in 2009.  March argues the winnings totaled $130,000 and the horse sold for $60,000.  Flay denies keeping the earnings from the racehorse.  

Courts can consider many options when determining the validity of a prenuptial agreement.  Couples married in New York can set aside a prenuptial agreement for different reasons but must have concrete evidence to support those reasons.  These are typically based on the health and financial situations of each spouse.  Marital assets are valued on the worth obtained during the marriage and affect the division of assets during a divorce. 

While couples never plan on a divorce before the marriage even begins, prenuptial agreements are useful in helping families sort out marital assets when a couple does decide to part ways. If you are considering divorce but have a prenuptial agreement, it’s important that you contact an experienced family law attorney. For over 35 years, Howard B. Leff has helped New Yorkers develop prenuptial agreements and has represented clients in complex divorce proceedings where a prenuptial agreement is in place.  Contact his office at (516) 739-7500 today for a free consultation.       


Friday, June 26, 2015

New York Senator Introduces Bill to Eliminate LGBT Bias in Adoption

What is the legal landscape for same-sex couples looking to adopt a child? 


Adoption is a highly-regulated matter, and is accordingly treated very differently in the various U.S. jurisdictions. Some states, including New York, have explicitly prohibited any form of discrimination in the adoption process, and prohibit adoption agencies from refusing adoption consideration based on one’s status as an LGBT individual. Other states have taken the opposite view, and are openly biased against same-sex couples seeking to adopt a child in need of a family. 

In the eyes of U.S. Congresswoman Kirsten Gillibrand (D-NY), this bias simply must end – and the proposed Every Child Deserves a Family Act is drafted to yank federal funding from any adoption agency refusing to work with LGBT applicants solely based on their sexual orientation and/or marital status. 

Basics of the Act

There are a variety of avenues through which children are adopted in the United States. In many cases, children are adopted through the foster care system – often by the foster parents themselves. Other children are required to live in a shelter or facility until a family becomes available, while some remain wards of the state until age 18 and are never offered the opportunity of experiencing a cohesive family. 

In several states, LGBT individuals or couples are either subjected to more rigorous evaluation standards, or are excluded from eligibility all together. Under the proposed Act, any agency that accepts federal funding for assistance with adoption services would be prohibited from engaging in any discriminatory practices with regard to vetting potential foster or adoptive parents – or the agency’s funding would be revoked. 

The statistics surrounding un-adopted children are staggering, with as many as 23,000 American youths aging out of the system before ever being adopted. Currently, there are over 102,000 children awaiting adoption in the United States. 

If you are considering adoption, or would like to discuss the New York laws surrounding adoption procedures, please do not hesitate to contact Nassau County family law attorney Howard Leff today at (516)739-7500.
 

Monday, June 22, 2015

Study Shows Drop in Severe Mental Illness Cases in Children

Which parent is responsible for healthcare decisions of children after divorce?


A recent study by The New England Journal of Medicine reported a substantial drop of severe mental illness in the past generation of children.  This finding was a surprising one due to the general criticism of current health trends including over-diagnosing and treating kids.  Although some child psychiatrists do find some kids are treated when they do not need it, more often than not, kids who need the treatment are the ones who go without treatment.  It appears the percentage of children with a severe mental illness dropped approximately two percent from 12.8% to 10.7%  
 
Some doctors believe that the explanation for the drop is that parents are monitoring children at an earlier age and getting psychiatric care at an earlier time.  Parents are educating themselves about mental health care treatments for children.  Although this is good news, doctors are still concerned for those children whose parents are waiting too long to seek treatment for children.  

This issue may come to a head in a situation when there is a custody agreement in place under which one parent is primarily responsible for a child’s health care.  In this case, the parent who is responsible for the child’s healthcare may be reluctant or even refuse to seek mental health treatment for a child with a psychological disorder, while the other parent believes it is necessary.  While custody agreements can be difficult to modify, in situations like these the court may feel that it is necessary to change the arrangement or order the parent with primary custody to seek treatment for the child in question.

If you are concerned that your spouse or former spouse is making poor decisions regarding the health of your child or about your role as a parent in making health decisions for your children, contact attorney Howard B. Leff.  Howard B. Leff is an experienced family law attorney based in Nassau County, New York who can help you with your child custody case.  Please contact his office at (516) 739-7500 for a consultation. 

Wednesday, June 3, 2015

Woman Sentenced to Probation For Leaving Kids in Car

What are the consequences of being accused of child abuse?

In 2014 a jobless and allegedly homeless mother made national news for leaving two of her kids in a hot car in Arizona with the windows cracked for an hour in 70-degree temperatures while attending a job interview at an insurance agency.  The woman claimed she was unable to afford a sitter or childcare for the children and was arrested immediately after the interview for felony child abuse.   

After the incident made the national news, strangers donated over $100,000 to the family which the mother allegedly spent the money on nonessential items such as cell phones, cable TV, and other entertainment for the family.  The court initially agreed that it would dismiss the felony abuse charges if the mother put some of the donation money into a trust fund under all of her children’s names.  The mother missed deposit deadlines relating to that court agreement because she was concerned that the trust was written to restrict the children’s access to the money to use only if they attended college.  After she missed the deadline, the court reinstated the felony abuse charges, and the mother recently pled guilty to the felony abuse charges.  

The court was concerned about the mother’s apparent lack of responsibility and determined the mother lied during trial regarding her status as homeless and jobless.  During the trial, the court found the mother was living with family and had turned down job offers prior to attending the interview where police arrested her.  Attorneys for the mother argued she is a military veteran, which makes it hard for her to admit the reality of her situation.  The mother also requested a transfer to Chicago where she expects to have better familial support.

The court referred to the mother’s decisions as “criminally poor judgment” and developed a probation sentence to coincide with her children’s status as adults based on the youngest child’s age.  The mother will serve 18 years supervised probation, which includes a court’s monitoring of the trust funds and she must attend a parenting class and a treatment program for domestic violence offenders.

While tough to be a part of, child abuse and other family offense situations are never easy for family members or those associated with family members, and can have a huge impact on family law cases such as custody battles. Also, donations made towards the welfare of the children need to be properly managed according to court requirements and using this type of money improperly can reflect on a litigants character.

Howard B. Leff is an experienced New York family law attorney who can help you through the process of defending yourself or complying with court orders regarding children’s trusts or alleged abuse cases and any other family law issue.  Please contact his office at (516) 729-7500 for a consultation. 


Tuesday, June 2, 2015

One Set of Twins, Two Different Fathers?

I’ve heard it is possible for a set of twins to have two different fathers. How would New York family law handle this scenario? 


In an unbelievable feat of fertility, a woman in New Jersey recently gave birth to a set of twins with two distinct and distinguishable sets of DNA. In other words, the twins were half-siblings – with two different fathers. As implausible as this scenario may seem, statistics reveal that one in 13,000 paternity actions involving twins reaches the same result – and family law attorneys must be prepared for the unexpected, notwithstanding the seemingly impossible odds. 

New Jersey Mom Delivers Twins, Paternity Challenge Ensues

In the case out of nearby New Jersey, the issues surrounding paternity began once the twins reached approximately 18 months of age – at which point the putative father (of both children) initiated a lawsuit challenging his status as the party legally responsible for the children. Turns out, he was half right. The results of the DNA test revealed that he was, in fact, the father of one of the twins, with a former paramour revealed to be the father of the remaining child. 

Impact Under New York law

Under New York law, a man is presumed to be the father of a child if, at the time of birth, the man is married to the child’s mother. If, however, the mother is unmarried at the time of birth, establishing paternity may be more of a conundrum. If both mother and presumed father (known as the “putative” father) are in agreement, the father may voluntarily consent to paternity, sign the birth certificate, and continue with the full rights and obligations of a biological parent. Otherwise, the father or mother may petition to establish paternity by filing for recognition as the father in a New York court of law, which will require the administration of a DNA test. 

If you are considering a paternity action or would like more information about the process under New York laws, contact experienced family law  and paternity attorney, Howard B. Leff, right away by dialing (516)739-7500.


Monday, June 1, 2015

Alternatives to Traditional Divorce

My spouse and I would like to pursue an amicable divorce and stay out of court. Is this possible?

With the dawning of no-fault divorce in New York, couples looking for a more amicable, less-stressful dissolution experience may be able to achieve such results through the use of alternative dispute resolution. Namely, mediation and collaborative divorce models have proven successful in New York, allowing couples the opportunity to transition their family dynamics with dignity and grace, as opposed to name-calling and vitriol.

Collaborative Divorce

As the name suggests, a collaborative divorce is one in which all parties agree to forgo litigation (i.e., court intervention) in lieu of working together to arrive at a practicable solution. Issues ranging from spousal support to child visitation are negotiated in a non-adversarial environment, and parties are encouraged to work together – rather than in opposition – to arrive at a settlement agreement that meets the needs of the family as a whole. Collaborative divorce relies on the mutual agreement by both spouses to engage in full disclosure during all negotiations, as well as treat all parties involved with respect.

Mediation

 As a component of the traditional divorce model, mediation is often used when parties are stuck on a particular issue, and is designed to avoid the costs and time investment of full-blown litigation. In lieu of the formal adversarial process, parties are seated at a table before a neutral third party. This third party will then work with both sides to determine the most important factors at play, as well as offer solutions for both parties to consider. If, at the conclusion of the session, an agreement cannot be reached, parties will be scheduled for a full hearing before a New York judge.

Contact a reputable Nassau County family law attorney today

If you are in search of less combative, more productive options for your divorce, please contact Howard B. Leff, P.C. right away for help. We have experience with collaborative divorces and divorce mediation. Our offices serve Long Island and the metropolitan New York area. Call (516)739-7500 for a free initial consultation.


Wednesday, May 20, 2015

Tips for Working with a Law Guardian During a Custody Dispute

The court wants to appoint an Attorney For The Child in my custody dispute. What does this mean? 

An Attorney For The Child is not necessarily something to worry about and, in many cases, might be a welcome party to a hotly contested child custody matter. Under New York law, a judge may appoint an Attorney For The Child to a case in any of the following types of matters:
* Cases involving allegations of abuse, neglect and/or drug dependency
* Custody and visitation
* Termination of parental rights
* Child support
* Adoption
* Permanency
* Paternity
* Juvenile delinquency

For the custody and visitation litigant, the court may deem it necessary to inject an Attorney For The Child into the matter if there are allegations of domestic violence or abuse, if the matter is extremely contentious, or upon the request of one or both parties. If you are involved in a case and an Attorney For The Child is appointed, remember that he or she is there to help – and is focused entirely on the best needs of the child. 

Working with an Attorney For The Child during the case

New York law grants an Attorney For The Childs broad powers to investigate the many facets of a child custody dispute. For instance, the attorney may review the child’s medical, counseling or school records without interference. Likewise, the attorney is permitted to interview individuals who play a role in the child’s life, including teachers, caretakers and extended family members.

As a litigant, it is important to allow the Attorney For The Child the opportunity to fulfill his or her role as outlined by the law; obstructing the Attorney For The Child’s access to evidence will not only prove futile, but could also result in a contempt of court violation. As the child’s parent or guardian, you are also under a duty to reveal material information to the Attorney For The Child upon request, and you should never appear combative or uncooperative – as this will undoubtedly get back to the judge. 

Contact a reputable Nassau County family law attorney today

If you are considering a child custody action against your co-parent, contact Howard B. Leff right away by calling (516)739-7500. He has the experience and knowledge needed to zealously advocate for you. His office serves clients in Nassau County and Suffolk County on Long Island and in the five boroughs of New York City.


Monday, May 18, 2015

Asset Appreciation and Divorce Settlements

Will a spouse pay a lower financial settlement if his fortune was gained through luck?

Business executives have become notorious for their high salaries, benefits and perks. To justify this compensation they often talk about how skilled they are, how knowledgeable they are about the market and what great decisions they made over the years. If they are in court because of a divorce, however, a business executive may instead say how lucky he was. That’s because it may result in a lower financial settlement.

This “Jed Clampett defense” has gotten more attention due to the divorce of Harold G. Hamm from Sue Ann Arnall. Mr. Hamm, the chief executive and founder of Continental Resources, who had his wealth peak at more than $18 billion, sent his ex-wife a check in January for $974,790,317.77 to settle their separation. She is appealing the divorce decision to get more, and he is appealing to pay less.

Mr. Hamm claims he should not need to pay as much money as his ex-wife seeks because he was only responsible for a fraction of his great wealth. According to him, the monetary success largely came from forces beyond his control, such as global oil prices, the efforts of his employees and other people’s technology. During a nine week divorce trial, Hamm’s attorneys stated that though Hamm founded Continental Resources and led it to its multibillion-dollar size, ultimately he was only responsible for less than 10 percent of his personal and Continental’s corporate success. His ex-wife and her attorneys have a much higher opinion of Hamm’s abilities. They say he and his business success are more than 90 percent his responsibility.

Why does it matter? In certain jurisdictions, if a spouse owns an asset prior to the marriage, any increase in its value during the marriage is not subject to division if that increase was due to “passive” appreciation (its value grows by itself due to reasons beyond either spouse’s control, like undeveloped land or passively held stocks that increase in price). If the value is not “passive,” it is considered “active” (the increased value came about due to the efforts, skills or funding by a spouse) and can be subject to division in a divorce. The judge in this case sided with Hamm, but he is not happy with the settlement amount the judge calculated.

Whether an asset’s appreciation is “passive” or “active” is just one of many legal and financial issues for a divorcing couple with a family business. If you are going through a divorce and want the help of an experienced divorce attorney who is knowledgeable about equitable distribution and other key issues, contact Howard B. Leff today at (516)739-7500. He serves clients on Long Island and in all five boroughs of New York City.


Wednesday, May 6, 2015

Overview of New York State Child Custody

Are There Different Types of Child Custody?

There are several different types of child custody under New York State law and there are many factors that are considered in deciding what type is appropriate in any given case.  Courts presiding over these types of issues are bound by the best interests of the child standard in all cases and will make their decisions accordingly.

The types of custody are:

• Physical custody: This type of custody encompasses where and with whom the child lives. That parent is responsible for the practical, day-to-day decisions concerning the child and keeping him or her safe, fed, happy and healthy. This is also known as "residential custody." 

• Legal custody: This is where one or both parents have the legal authority to make decisions affecting the child, such as his or her religious upbringing, educational issues and medical treatment. 

• Joint custody: This type of custody occurs  when both parents share legal custody and more often than not, have equal decision making authority. Each side has an equal role in making decisions for the child and each can “veto” the other's decision. This type of custody requires the parents to work together and if there is a disagreement the issue can be decided in court, or in some cases, a "parent coordinator" is chosen by the parties to assist them in coming to a mutually agreeable decision.

• Pendente lite or temporary custody.  This type of custody is the result of an order usually pertaining to the time between the case filing date and the ultimate resolution of the case, either through a trial or agreement. 

How is custody decided? The judge will decide based on the facts and circumstances of the particular case and the best interests of the child, considering many factors, including, but not limited to:

• Availability of parents: The judge may favor placing the child with the one parent who has more time to spend raising the child, rather than a parent who needs to have the child cared for by others during extended periods of time.

• Health of the parent: Both the physical and mental health of the parents and the child will be considered if they impact how well a parent can care for the child.

• Neglect or abuse: If there is a finding of child neglect or child abuse it will nearly always result in the other parent being awarded custody.

• Psychological evaluation: Otherwise known as  "forensic evaluations" are performed by a mental health professional to judge the mental fitness of the parents. If the issue is decided at a trial, this report is normally given great weight after testimony is elicited from the forensic expert as to his or her findings.

Other issues include home environment, how a parent behaves in court, willingness to have the other parent involved in the child’s life, the child’s preference, which parent was the primary caregiver in the past and keeping siblings together.

If you live in Nassau County and have questions or concerns about an upcoming or current child custody issue, call child custody attorney Howard B. Leff today at (516)739-7500 for a consultation.


Friday, March 13, 2015

Court Finds Spouse Does Not Meet Requirements in New York's No-Fault Divorce Law

What is the residency requirement for a New York divorce?

To obtain a divorce in New York, the parties must meet residency requirements. Their purpose is to ensure that a plaintiff does not simply look for the state with the most favorable laws, relocate, and commence divorce proceedings there. In New York, either the plaintiff or defendant must have lived in the state continuously for two years.

There are exceptions, however, if certain conditions are met. According to New York's No-Fault Divorce Law, if "the cause occurred in the state," the parties need only be in New York for one year.

In Stancil v. Stancil, the plaintiff had lived in New York for only 14 months before seeking a New York divorce from her husband, a resident of Virginia. He objected, citing her lack of two years residency in New York. In response, the plaintiff claimed that the ground for her divorce was the breakdown of the marriage, which was a "cause" that occurred "in the state." If her theory were accepted, she would only need to have been in the state for one year, a requirement she could satisfy.

The court had to determine whether, in passing the no-fault divorce legislation, the New York State legislature meant for the grounds of a no-fault divorce to serve as a "cause" triggering a shorter residency requirement. Unfortunately for the plaintiff, the court found that this was not the legislative intent. The court also noted that the plaintiff's ties to New York were weak, as she had moved to the state to enter a graduate school program of short-term duration. Her husband, meanwhile, had no connection to New York at all.

Howard B. Leff has more than 35 years of family law experience, including cases involving divorce. Call him today at (516)739-7500 for a free initial consultation.


Tuesday, February 17, 2015

Legal Rights and Religious Law in New York

Can You Bring Your Spouse to Civil Court for a Religious Law Issue?

When a Jewish individual faces a religious law challenge, he or she usually first turns to a rabbi, family member or other member of his or her faith community for assistance and resolution. The result, sometimes, is a failure to obtain the solution sought, and, for many, that is the end of the matter. But what if the individual could seek a solution in a civil court of law?

Civil courts can, in fact, be used to address religious law questions. In a case currently unfolding in the Brooklyn Supreme Court, a wife desperate to obtain a “get” (a document that allows for a divorce under Jewish marriage and divorce religious law) may soon prevail.

In 2008, 18-year-old Rivky Stein married 26-year-old Yoel Weiss. In the following seven years, Stein claims Weiss raped her, punched her when she was pregnant, locked her out of their house in winter and withheld food from her and their children. Weiss now adamantly refuses to grant Stein the get she needs to obtain a divorce, remarry and pursue the life she wants. 

Stein may have a better than usual chance of securing her get in court, because the judge presiding over the case, Esther Morgenstern, faced a similar legal battle in civil court when divorcing her husband in 1987. Morgenstern’s current inclination seems clear: she has threatened Weiss with “alimony for life” if he doesn’t relent and grant Stein the get. Stein’s lawyer sees eye to eye with Morgenstern, stating that, without a get, future financial support for Stein would be “virtually impossible.”

If you face a civil or religious law challenge regarding divorce or any element of family law, exercise your legal rights with the help of Nassau County family law attorney Howard B. Leff. Attorney Leff has more than 35 years of matrimonial and family law legal experience in New York and can provide dedicated and effective counsel and representation. Call (516)739-7500 for a consultation today.


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