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What warrants custody modification in New York

Published on: February 11, 2020 | by Rudyuk Law Firm

In many cases in which a couple with a child divorces, absent an agreement, the court will issue an order granting one parent primary physical custody and award the other parent parental access. Custody orders are not permanent, however, but can be modified upon a showing that a modification is necessary due to a change in circumstances. Recently, a New York appellate court once again discussed what constitutes a sufficient change in circumstances to warrant a modification in a case in which a mother appealed the dismissal of a petition to modify custody. If you wish to seek a modification of an existing custody order, it is in your best interest to meet with an experienced New York child custody attorney to help you seek an arrangement that is in the best interest of your child.

Facts and Procedure

It is reported that the mother and the father divorced in 2013. Initially, the mother was awarded physical custody of the couple’s sole child. Custody was then modified via a consent order in December 2015, which granted father physical custody and awarded the mother parental access. Subsequently, in April 2018, the mother filed a petition to modify the 2015 order to grant her physical custody of the child. Following a hearing, the father moved to dismiss the petition, arguing that the mother failed to establish a change of circumstances sufficient to warrant a modification. The court granted the father’s motion, dismissing the mother’s petition. The mother appealed.

Evidence of a Change in Circumstances

Under New York law, an order establishing custody or parental access will only be modified if the party seeking the modification establishes that there has been a change of circumstances that requires a modification to meet the best interests of the child. A court will review the entirety of the facts and circumstances presented in determining what is in a child’s best interests. Further, in determining whether to dismiss a petition for failure to establish a prima facie case, the court is required to accept the evidence presented by the petitioner as true and grant the petition every favorable inference that can be drawn from the evidence.

New York Court Explains Distribution of Contributions to Property in Divorce

Published on: January 28, 2020 | by Rudyuk Law Firm

Under New York law, property acquired during a marriage is considered marital property, which means that it belongs to both parties. Thus, if a couple divorces, the court will equitably distribute any marital property. In many cases, however, the parties will not only dispute what constitutes a fair division of any marital property but also whether an asset is, in fact, marital property or the separate property of one spouse. In a recent case decided by the Supreme Court, Appellate Division, Third Department, New York, the court explained the process of determining the value of contributions to separate property during divorce. If you and your spouse intend to divorce, it is essential to retain an experienced New York divorce attorney to help you understand how any property may be divided and what steps you can take to protect your interests.

Facts of the Case

The husband and the wife married in 1999 and had four children. In 2013, the wife filed an action for divorce, and the court entered an interim order for child support and maintenance. A trial was subsequently held, after which the court issued a judgment that, in part, awarded the wife a distribution from the appreciation of the marital home, and ordered the husband to pay the wife child support and maintenance until their youngest child reached the age of eighteen. The court also found that the wife owed the husband child support, since he had sole custody of the couple’s oldest child, but stated the payment was in abeyance until the husband paid the wife maintenance that was in arrears. The court also directed the husband to pay the wife’s counsel fees. The husband appealed on several issues.

Marital Versus Separate Property

The first issue the appellate court addressed on appeal was whether the trial court erred in awarding the wife $25,000 for the appreciation of the marital home. The court stated that it is clear under New York law, equitable distribution does not mean equal, and that a trial court has substantial leeway in determining what constitutes a fair division of assets. In the subject case, the court noted that the husband purchased the marital home prior to the marriage, and it was therefore separate property that was not subject to equitable distribution.

New York Court Discusses the Role of Religion in Child Custody Cases

Published on: November 25, 2019 | by Rudyuk Law Firm

In many marriages, one spouse will hold strong religious beliefs and will provide religious guidance to any children born of the marriage, while the other spouse will not actively practice religion. Accordingly, when a couple with such differing religious beliefs decides to divorce, the issue of what religious upbringing the couple’s children will have is often a point of contention. Recently, a New York appellate court discussed what role religion should have in determining what custody arrangement is in the best interest of a child in a case involving the divorce of a mixed-faith couple. If you and your child’s co-parent have different religious beliefs, it is advisable to speak with a proficient New York child custody attorney to discuss how those beliefs may affect your custody arrangement.

Facts of the Case

Allegedly, the husband and the wife were married in 2009 and had two children shortly thereafter. The husband and the wife both practiced Hasidic Judaism when they were married, but at some point, the husband became non-religious. The couple subsequently separated, and the wife filed for divorce. The court ultimately awarded the wife sole legal custody of the children and granted the husband parental access. The court also directed the husband to attempt to only provide the children with kosher food and to make reasonable efforts to ensure that the children complied with the requirements of the Hasidic religion. The husband appealed, arguing that the trial court erred in granting the wife sole legal custody and that it was unconstitutional to impose religious obligations on him.

Religion as a Factor in Determining Custody

In any case, in which a court must determine custody, the court’s main concern is what is in the best interest of the child or children involved. The court will assess several factors in determining what is in a child’s best interest, including the health of the parents and child, which parent can better provide for the child, and if a child has existing ties to a religious community, which parent can better serve the child’s religious needs. Religion alone cannot be the determining factor in deciding a custody arrangement, however.

New York Court Discusses Factors Weighed in Granting Spousal Maintenance

Published on: November 7, 2019 | by Rudyuk Law Firm

In many marriages, one spouse will earn substantially more than the other, causing a disparity in income. Thus, in many cases in which spouses do not earn similar wages, the courts will order the higher-earning spouse to pay spousal maintenance. Recently, a New York appellate court discussed the factors weighed in determining whether maintenance should be paid, in a case in which the plaintiff alleged the trial court awarded an inappropriate amount. If you and your spouse earn unequal wages and you are considering filing for divorce, it is wise to consult a knowledgeable New York family law attorney to discuss whether a court is likely to impose a spousal maintenance obligation.

Factual and Procedural Background of the Case

It is reported that the husband and the wife married in 1986. During the course of the marriage, the husband, who is a dentist, opened a dental practice. The wife worked at the practice as a hygienist for most of the marriage. The couple also formed an LLC to purchased commercial real estate. In March 2009, however, the wife filed a divorce lawsuit. A bench trial was ultimately held on the issues of spousal maintenance and the equitable distribution of marital property. At the conclusion, the court granted the wife spousal maintenance in the amount of $50.00 per week, from the date the action was instituted until March 2014, and divided the couple’s property.

Allegedly, the wife subsequently filed a motion to set aside the parts of the court’s decision pertaining to spousal support. The court denied the motion on the grounds that the majority of the arguments in the motion relied on evidence not introduced at trial. The wife then appealed.

New York Court Discusses Consequences of a Party’s Failure to Pay Marital Debt in a Divorce Action

Published on: October 1, 2019 | by Rudyuk Law Firm

One of the most contentious issues in many divorce cases is how marital assets should be disbursed and what support if any, one spouse should be obligated to pay the other. Unfortunately, parties do not always agree with support orders issued by the court and in many cases, a party will refuse to pay money owed without additional court intervention. Recently, in a divorce case decided by the Appellate Division of the Supreme Court of New York, the court discussed the consequences of one party’s failure to pay his or her share of marital debt. If you are deliberating filing for divorce it is prudent to speak with a seasoned New York family law attorney to discuss your rights and obligations.

Facts of the Case

It is reported that the wife filed an action seeking a divorce in 2012. The parties entered into a stipulation in which the husband agreed to pay the wife maintenance and child support, and the wife agreed to use the funds she received from the husband to pay for fees associated with the marital home where she resided with the couple’s children. The wife wanted to sell the home, but the husband did not and sought to buy the wife’s share of the property, but the parties could not agree on a fair amount. The husband subsequently failed to make the stipulated maintenance and support payments, and the house went into foreclosure.

It is alleged that the wife moved to enforce the stipulation and direct the husband to pay his arrears so that the marital residence could be sold. The trial court granted the motion and ordered the marital home to be sold and directed that the husband’s arrearages would be taken from the proceeds of the sale. The order also stated that the wife would receive credits from the sale due to the husband’s dissipation of marital assets. The court ultimately issued the wife credit for 50% of the payments she made on the mortgage and taxes of the home, child support arrears, and a portion of the defendant’s business. The husband appealed, arguing that the court erred in granting the wife credits for her portion of the payments on the house, as it resulted in him making double payments due to the fact that he was paying child support during that time. The court rejected the husband’s argument.

PARENTAL ALIENATION – A FACTOR CONSIDERED BY THE COURTS IN DETERMINING CHILD CUSTODY IN NEW YORK

Published on: August 5, 2019 | by Rudyuk Law Firm

Parent alienation is a significant factor which New York courts consider in child custody cases. Parental alienation can strain parent-child relationships if not identified and handled correctly. Parental alienation occurs when one parent influences the child to have “unwarranted feelings of fear, anger and/or disrespect towards the other parent.” This can cause the child to push away the alienated parent. Often in divorce cases, one parent will let their negative emotions consume them and allow them to manipulate the way their child perceives their other parent.

There are ways to spot parental alienation. Some signs include the child’s emotional withdrawal from a parent, the child’s display of separation anxiety, and the child refusing to spend time with the alienated parent. One clear sign is when the child asks about specifics regarding the divorce case, which they would have picked up from the other parent. To avoid parental alienation, the court can order both parents to attend a parenting education program, avoid using the children as messengers between the parents, and to communicate directly.

Often, it becomes necessary to take legal action in cases where a parent exhibits alienating conduct to prevent further damage to the parent-child relationship.

DIVISION OF A BUSINESS DURING DIVORCE

Published on: July 17, 2019 | by Rudyuk Law Firm

office-accounting
During a divorce, it is essential to keep in mind that the family business is an asset and a source of income. The parties to a divorce are entitled to divide the marital portion of the business as part of the equitable distribution of their marital assets, and the income the business earns will be considered in determining child and spousal support.

How is the value of the family business determined, then? Besides business tax returns, which do not show the full financial picture of the business, it is important to review and analyze all records. Additionally, “lifestyle analysis” is a viable option since business cash transactions are hard or almost impossible to track.

Rudyuk Law Firm, PC works in close collaboration with highly regarded professional business evaluators and forensic accountants to establish and present to the Courts a true value of the business.

Child Custody in New York

Published on: May 9, 2019 | by Rudyuk Law Firm

baby foot in hands

New York courts always determine custody based on what is in the best interest of the children. If there is no court order or a written agreement between the parties, then both parents have equal rights to physical and legal custody of the child. Where modification of existing order of custody and parental access is sought, the party seeking it must make a showing of a change in circumstances such that modification is required to protect the best interests of children. “Substantial change in circumstances” is a high standard. Courts tend not to disturb custody arrangements ordered or agreed to by the parents unless the change in circumstances is such that the child’s best interest is no longer served. The best interests of a child are determined based upon the totality of circumstances. One of many factors the courts look at is the custodial parent’s willingness to foster a meaningful relationship between the child and the noncustodial parent. Contact Rudyuk Law Firm to speak with attorney Ksenia Rudyuk for more information. 212-706-2001

Service of Divorce Summons by Email

Published on: January 7, 2019 | by Rudyuk Law Firm

Quite often I receive phone calls from people who seek a divorce but cannot locate their spouses. Such a situation is not uncommon in our immigrant community. Some people simply go back to their home countries leaving their spouses clueless of their whereabouts.

The due process clauses in the Constitution require the defendant to have notice of a legal proceeding and the right to be heard. But what if you cannot locate the Defendant? Or what if he/she is evasive of service?

In 2015, a New York court granted the plaintiff in a matrimonial case permission to serve the defendant with a divorce summons solely by sending it to him in a private message via Facebook. Since that time, the courts have permitted plaintiffs to serve papers in part through social media platforms and by email.