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Family Law

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.


Monday, February 2, 2015

Judge's Decision in Child Custody Matter Seeks to Expand Discovery

Can parents have access to child custody forensic reports prepared by court-appointed evaluators?

 

One of the hardest parts of a divorce proceeding can often be determining custody of the children. When custody is disputed, the court generally appoints an attorney to represent the children's interests, as well as a forensic evaluator to assess family dynamics and recommend custody arrangements. The report prepared by the court-appointed evaluator is almost always available for review by the the attorneys in the case, but historically was not made available to the parties themselves. A recent decision seeks to change this and might usher in a new era of discovery in child custody litigation.

In J.F.D. v. J.D., each parent was seeking sole custody of the couple's two children. A forensic report was prepared and released to counsel for both sides. The husband requested that the court-appointed evaluator's entire file be provided to his own forensic expert. The husband's request was granted, and it also prompted the judge to examine the larger issue of discovery during custody litigation.

Since forensic reports are relied upon so heavily by the court, the judge reasoned that the parties should be given an opportunity to review them as well as the underlying data. Without such an opportunity, the judge found it unreasonable to expect parties to identify deficiencies in the report or evaluator bias; it also made preparing for cross examination of the forensic evaluator more difficult.

The judge ruled that, going forward, parties will be allowed to view the forensic reports and underlying data in their attorney's office with an attorney present. Parties will not receive a copy of the report or other materials but will be permitted to take notes (not pictures).

Nassau County attorney Howard B. Leff has more than 35 years of experience with family law matters, including child custody litigation. He serves clients on Long Island and in all five boroughs of New York City. Call him today at (516)739-7500.


Wednesday, January 7, 2015

Dealing With Hidden Assets During Divorce

What can be done if you suspect your soon-to-be ex-spouse is hiding assets during your divorce proceedings?


Some of the most hotly contested issues in divorce proceedings are financial.  Instead of fighting over money, some people attempt to hide it from their spouse and the court.  Some of these assets have been accumulated because the person knows that divorce is imminent and some are assets that the other spouse never knew anything about. Regardless, hiding assets is a violation of the law.  If you are facing a divorce and you think that your spouse is hiding assets, there are a number of things you can do.

If you suspect that your spouse is hiding assets but you have no real evidence yet, you should investigate to see if there is any basis for your suspicion.  As these matters are usually handled over the Internet today, a good place to start to look for financial information is on electronics.  You should use the computer and smart phone to your advantage.  A web browser can give you a lot of information just by looking at the history and cache.  This will show you what sites have been visited and sometimes information will also be left on the page.  Social media can be utilized to prove that your spouse has money he or she claims not to have.  It is shocking how many individuals make posts and share pictures that are incriminating in this way.  If your spouse claims not to have a retirement account, check the company website, if one exists, to determine what benefits are available to employees.  If you have access to your spouse’s emails because he or she uses a shared family computer or you are authorized to use that computer, you can peruse them as well for anything suspicious.

Another way to discover hidden assets is by hiring a private investigator to determine where your spouse has been or goes to when he or she has unexplained absences from your residence, if you're living together, or otherwise, 

Even in the digital age, we should not forget about paper mediums of investigation.  Tax returns (interest and dividends earned during that tax year) and bank statements can also be examined to determine if there are any assets that your spouse is trying to hide from you during a divorce.

If you do find some evidence that your spouse is hiding money, you should consult with an attorney right away.  An experienced divorce law attorney will know exactly where to look for hidden assets as well as what evidence will be needed to prove these claims to a court.

Howard B. Leff has over 35 years of experience as a divorce and family law attorney.  He assists clients in Nassau and Suffolk Counties, all of the boroughs of New York City and the surrounding Counties and can help you discover if your spouse is hiding assets.  Contact him today at (516)739-7500 for a consultation.

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