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Archives for the ‘Divorce News’ Category
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Wednesday, June 2nd, 2010
The Hon. W. Dennis Duggan of the Albany County Family Court recently held that a non-custodial parental still retains parental decision-making authority even when that parent is not empowered to make decisions regarding the health, education and welfare of a child.
In this case, the custodial mother sought to have the non-custodial father held in contempt due to changing the dosage of their fifteen-year-old daughter’s medication during the father’s parenting time. The father is a physician and believed that the dosage of their daughter’s prescription was inappropriate.
Judge Duggan stated, “While it is the general principle that the custodial parent possesses the sole authority to make medical decisions for her child, this does not relegate a non-custodial parent to the status of a potted plant….the parent who is caring for a child, whether or not he has sole custody, has a residual authority to make decisions in the child’s best interest that are called for by the immediate circumstances–even if those decisions might overlap with or intrude upon the other parent’s ‘sole custody’ authority”. Judge Duggan determined that overmedicating a child is an exigent circumstance, requiring immediate action.
Posted in Custody and Visitation, Divorce News | Comments Off
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Thursday, May 20th, 2010
The New York Times printed an article on September 2, 2009 bringing light to an often unrecognized wartime stress on military families: custody battles during and after service abroad.
The article focused on Leydi Mendoza, a specialist with the New Jersey National Guard who returned from fighting in Iraq to confront a custody battle with the father of her two-year-old daughter.
Mendoza and the child’s father had established a written family care plan with military officials that provided for shared custody when she returned from service in Iraq. Upon her return, however, the father demanded full custody of their daughter, claiming that it was too disruptive for their daughter to spend more than a few hours with a mother she did not know. After a three month battle, the Family Court judge granted temporary residential custody to the father but permitted daily visits and weekly sleepovers to Mendoza.
In a similar New York case, when Tanya Towne’s National Guard unit was deployed to Irag in 2004, a family court judge granted temporary of her son to the father. Towne and the child’s father were divorced and Towne had had primary custody of the child. Before Towne returned home from service, the father sought permanent custody of the child. Family Court granted that request and Towne appealed. The Appellate Division affirmed the Family Court’s ruling. Though calling her an excellent mother, the judges determined that the deployment and other changes in Towne’s life, including the breakup of her second marriage, contributed toward an unstable home life.
A 2008 New York statute does provide some protection for military parents in custody cases. The statute requires that custody cases be delayed for at least 90 days during a parent’s overseas deployment and attorneys must be appointed to represent military parents. However, there is still no protection against a change in custody based upon military service.
Posted in Custody and Visitation, Divorce News | Comments Off
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Wednesday, April 28th, 2010
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 not be able to use the information that you obtained doing so 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”.
If you record your spouse’s electronic communications through the use of keystroke software, automatic session logs, or the copying of sent or received emails, your may be charged with eavesdropping.
If you simply possess eavesdropping technology or equipment which is designed to wiretap or mechanically overhear a conversation, you may be charged with a class A misdemeanor.
New York 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, Divorce News | Comments Off
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Thursday, October 29th, 2009
A not uncommon tactic of matrimonial litigants is to consult with a number of prominent local attorneys with the express purpose of narrowing the availability of those attorneys to represent their spouses due to conflict of interest. This practice is called “attorney shopping” and is engaged in to prevent the other spouse from retaining a top divorce attorney or to narrow the availability of matrimonial attorneys to the other spouse.
The new Rules of Professional Conduct became effective in New York State on April 1, 2009. Rule 1.18(a), entitled “Duties to Prospective Clients”, states that “a person who discusses with a lawyer the possibility of forming a client-lawyer relationship with respect to a matter is a ‘prospective client’”. Section (b) of this Rule states that “even when no client-lawyer relationship ensues, a lawyer who has had discussions with a prospective client shall not use or reveal information learned in the consultation”.
However, Rule 1.9 (e) states that “a person who communicates with a lawyer for the purpose of disqualifying the lawyer from handling a materially adverse representation on the same or a substantially related matter, is not a prospective client…” Thus, the new rules provide protection to a party whose spouse has purposefully attempted to disqualify representation by an attorney.
Posted in Divorce Laws/ Issues, Divorce News | Comments Off
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Saturday, October 24th, 2009
An “Automatic Orders” bill was signed by Governor Patterson and effective on September 1, 2009 in New York.
The Automatic Orders bill amends the Domestic Relations Law and requires that specific automatic orders be served upon the Defendant along with the Summons. The automatic orders are binding upon the Plaintiff when the action for divorce is commenced, i.e., when the Summons is filed in the County Clerk’s office, and binding upon the Defendant when he is served with the orders. The orders remain in effect during the matrimonial action unless terminated or modified by court order or stipulation of the parties. There are five automatic orders as follows:
1. Neither party can sell, transfer, encumber, conceal, assign, remove or dispose of any property (including real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with the matrimonial action.
2. Neither party can transfer, encumber, assign, remove withdraw or in any way dispose of any tax deferred funds, stocks or any other assets held in any individual retirement accounts, 401(k) accounts, profit sharing plans, Keogh accounts, or any other pension or retirement account, and the parties can further refrain from applying for or requesting the payment of retirement benefits or annuity payments of any kind, without the consent of the other party or order of the court.
3. Neither party can incur unreasonable debts, such as by borrowing against any credit line secured by the family residence, further encumbering any assets, or unreasonably using credit cards or cash advances against credit cards, except in the usual course of business or for customary or usual household expenses, or for reasonable attorney’s fees in connection with the matrimonial action.
4. Neither party can cause the other or the children of the marriage to be removed from any existing medical, hospital and dental insurance coverage and each party must maintain the insurance coverage in full force and effect.
5. Neither party can change the beneficiaries of any existing life insurance policies and each party must maintain the existing life insurance, automobile insurance, homeowners and renters insurance policies in full force and effect.
Posted in Divorce Laws/ Issues, Divorce News, Pre-Trial Motions | Comments Off
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Wednesday, October 21st, 2009
In 2008, a new statute was passed in New York State that required that language pertaining to health insurance coverage and a spouse’s ability to obtain COBRA coverage be contained in all Separation Agreements. That statute, Domestic Relations Law §177, has since been repealed and Domestic Relations Law §255 was passed in its stead, effective October 1, 2009.
The new DRL §255 provides that, prior to signing a judgment of divorce or separation, the Court must ensure that both parties have been notified that eligibility to be covered under a spouse’s health insurance plan may terminate. Notice is sufficient if a party has received service of a Summons with Notice stating that once the Judgment is signed by the judge, heath coverage may be terminated.
If the parties have entered into a settlement agreement, the agreement must contain a provision that the spouse will be provided with health coverage under the other spouse’s policy or the agreement must state that each party is aware that he or she will no longer be covered by the other party’s health insurance plan and that each party shall be responsible for his or her own heath coverage, and may be entitled to insurance through a COBRA option.
Posted in Divorce News, Spousal Maintenance | Comments Off
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Saturday, October 17th, 2009
In a matrimonial action out of the Nassau County Supreme Court, a husband filed a motion to call a physician as an expert witness to testify regarding the “measurable monetary value” of a kidney he had donated to his Wife in 2001. The husband claimed that his donation of a kidney to his wife constituted a gift worth $1.5 million, subject to equitable distribution. The Court held that, though gifts between spouses are normally deemed marital property subject to equitable distribution, a human organ donated to a spouse does not constitute a “gift” for public policy reasons. Specifically, New York Public Health Law §4307 prohibits the purchase and sale of human organs. The Court denied the husband’s motion after determining that his attempt to violate this statute may expose him to felony criminal prosecution.
Posted in Divorce News, Property Division | Comments Off
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Friday, October 2nd, 2009
A bill proposed to extend the statute of limitations for victims of sexual abuse was pulled from the calendar after the NYS Assembly decided it did not have enough votes to pass. The current version of the Child Victims Act provides victims of child sexual abuse to report the crime and/or file a civil action for damagers against the abusers five years from their 18th birthdays. The proposed bill attempted to extend the statute of limitations such that the five year period began to run on victims’ 23rd birthdays, allowing them to press charges or file a civil action until age 28. The bill also offered a one-year period of time during which any victim of childhood sexual abuse could press charges and/or file civil actions against their abusers, no matter when the alleged act occurred, with this time period to expire one year after the law became effective.
The bill was also proposed during the 2006, 2007 and 2008 legislative sessions, having passed the NYS Assembly but failing to receive the necessary votes from the Senate.
The Catholic Church has been one of the most vocal opponents of the Child Victims Act, fearing that a significant number of lawsuits would be filed during the one year suspension on the statute of limitations, and thus bankrupting the church.
Posted in Divorce News | Comments Off
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