September « 2009 « Jean Mahserjian, Esq. PC

Archive for September, 2009

Legal Fees While Divorce is Pending

Wednesday, September 30th, 2009

The court can order one spouse to pay legal fees on behalf of the other spouse while an action for divorce is pending.

According to Domestic Relations Law §237, the Supreme Court has the discretion to award counsel fees and expert fees to a spouse who earns significantly less money than the other party in an action for annulment, separation or divorce. The award can be made by the Supreme Court either in the final judgment or while the action is pending.

In most cases, the spouse with lesser financial resources requests an award via a motion while the action is pending.

All requests for counsel fees must contain a Statement of Net Worth by the requesting party and a copy of his or her retainer agreement with their attorney.

For expert fees, the requesting party must disclose to the Court the nature of the marital property involved, the reason for retention of the expert, the difficulties in identifying or valuating the marital property, the services rendered by the expert and an estimate of the time and cost associated with retention of the expert.

The party requesting an award of counsel and/or expert fees need not be indigent for the Court to make such an award. The Court will consider the following factors when such a request is made:

1. Whether one spouse has substantially more income and assets than the other;

2. Whether or not the services performed by the attorney were necessary;

3. Whether the amount requested is reasonable under the circumstances of the case;

4. Whether the spouse with greater financial resources is better able to pay the fees of the requesting spouse;

5. Whether the conduct of the spouse with greater financial resources caused the requesting spouse’s counsel fees to be greater than they should have been, given the circumstances of the case;

6. Whether the litigation was commenced in good faith;

7. The value of the services rendered;

8. The standing of the attorney in the legal community and nature of services;

9. The complexity of the litigation;

10. The results obtained by the attorney;

11. The customary legal fees charged by the legal community as compared to the amount of fees requested.

Posted in Divorce Laws/ Issues, Pre-Trial Motions | Comments Off

Child Support Arrears – No Passport

Saturday, September 26th, 2009

If you are considering travel, beware. An application for a passport can be denied if you owe child support.

The U.S. Department of State issued rules requiring the denial of a passport application if the applicant is in arrears on his or her child support obligation in the amount of $2,500 or more. If the applicant remedies the issue and satisfies the child support arrears, he or she must notify the Department of Health and Human Services.

The Department of State advises applicants that it will take approximately 5 to 10 business days from the date the arrears are satisfied for the applicant’s name to be removed from the list of persons to be denied a passport.

Posted in Child Support | Comments Off

Loss of Employment and Modfication of Child Support

Tuesday, September 22nd, 2009

Everyone understands that the economy is lousy and the unemployment rate has skyrocketed. But, if you lose your job or if your child’s other parent loses their job, can child support be modified?

In a case where the burden of proof was “substantial and unanticipated change of circumstances”, the Appellate Court in the Second Department has said that the loss of a job is not sufficient to modify child support.

In Awaad v. Awaad, 62 A.D.3d 695 (2d Dep’t 2009), a father filed a petition in Family Court seeking a downward modification of his child support obligation due to loss of employment. Family Court granted the father’s application; however, the Appellate Division reversed on appeal, finding that the father’s loss of employment is not enough to pass the threshold of demonstrating a substantial and unanticipated change of circumstances such that his support obligation should be modified. Rather, the father must have provided proof to the Family Court of his good faith efforts to obtain new employment commensurate with his qualifications and experience to warrant a modification of his child support obligation.

If you have a written Separation or Opting Out Agreement, you have the same burden of proof that the Court addressed in Awaad. If you have a court order for support that is not based on an Agreement, you have a different burden of proof that can be much easier to meet.

Posted in Child Support | Comments Off

Electronic Eavesdropping and Divorce

Saturday, September 19th, 2009

In our age of technological advancement, it is not that difficult to engage in electronic eavesdropping. However, if you are involved in a divorce, you could face criminal penalties for doing so, and you will be able to use any of the information that you obtain in court.

New York Penal Law §250.05 provides that a spouse is guilty of eavesdropping, a class E felony, when he or she unlawfully “engages in wiretapping, mechanical overhearing of a conversation or intercepting or accessing of an electronic communication”. A party who records a spouse’s electronic communications through the use of keystroke software, automatic session logs, and copying of sent or received emails may be guilty of eavesdropping. A spouse who possesses eavesdropping technology or equipment designed to wiretap or mechanically overhear a conversation may be guilty of a class A misdemeanor.

Civil Practice Law and Rules §4506(1) provides that any communication obtained through the use of illegal eavesdropping cannot be used as evidence in any trial, hearing or proceeding before any court, except in a civil or criminal hearing against the person alleged to have eavesdropped.

Posted in Divorce Laws/ Issues | Comments Off

Using an Occupational Expert to Determine Maintenance or Support

Sunday, September 6th, 2009

In a Divorce Action in Supreme Court or a Support Proceeding in Family Court where one spouse is seeking maintenance or support from the other, it may be helpful to retain the services of an occupational or vocational evaluator to assess the request for financial support.

An occupational expert can be very helpful if a spouse is voluntarily unemployed or underemployed merely to receive a maintenance or support award. The vocational expert can be hired to provide an opinion on the spouse’s ability to earn future income and therefore be self-supporting.

The data that an occupational expert will need to develop their expert opinion is usually obtained by the vocational expert from objective sources, such as national and local salary statistics, and can be used to impute future income to the spouse seeking maintenance or support. Typically, the expert also delves into the education, licensure and/or certification, employment history, and medical history (including any disabilities and impairments) of the spouse requesting financial support. The expert’s opinion can be a useful tool in eliminating or minimizing the amount or duration of any maintenance award.

Posted in Spousal Maintenance | Comments Off

Use of Facebook, My Space and YouTube During Divorce

Wednesday, September 2nd, 2009

Many people use social networking sites to keep in touch with family and friends and to post updates and pictures of their children’s milestones. However, the use of these websites during a matrimonial action can be detrimental for your claims of grounds for divorce or custody of the children. For instance, a spouse who claims that her husband is not involved with the children could easily be countered by videos she posts to her account of her husband playing with the children. Or a spouse’s post that she is “out drinking with the girls” does not bode well in a custody dispute. Even worse is posting negative comments about your spouse when you are the one claiming to be the victim of his or her cruel and inhuman treatment. If you are unable to refrain from disclosing details of your divorce action online for all to see, perhaps it would be wise to avoid social networking sites until a Judgment of Divorce is issued.

Posted in Custody and Visitation, Fault Divorce, Pre-Trial Motions | Comments Off