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The #1 Most Important Fact About Being Abused by A Wife or Abused by a Husband and Child Custody

Gary Port
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The #1 Most Important Fact About Being Abused by A Wife or Abused by a Husband and Child Custody

Abused by a Husband or Wife: Introduction

If you are abused by a husband or abused by a wife, it could affect child custody. The courts consider the best interests of the child, and domestic violence is a factor it will consider.

Understanding the legal implications of such cases, especially in the context of family law, is crucial for those navigating this challenging landscape. We’re going to look into how domestic violence is factored into child custody considerations, highlighting why it’s essential for individuals to understand the law.

As we look into the impact of domestic violence on child custody in New York, we will explore the legal definition of domestic violence within the state, examine the “Best Interests of the Child” standard, and identify how these elements influence custody outcomes. Protective measures, legal provisions, case studies, and the crucial role of legal representation and support services will provide a comprehensive overview for those seeking to understand or navigate such situations.

Also, we will look at how domestic violence affects the child, whether it is directly on the child or if the child witnesses it.

Before we start, remember never compromise your safety. If you are being physically abused and are in danger of physical harm, always call 911.

Orders of protection are also available if you have been abused.

Finally, please don’t lie or exaggerate. Lying to get an order of protection to gain an advantage in a custody case is very damaging to your child. Your child will be mentally harmed, however pure you think your motives are.

Also, when the child finds out, and they will, they will blame you. I have seen many cases where one parent lied about abuse, and in the end the child cut off all contact with that parent. So, think of your child first, and only use these tools if real abuse has occurred.

Before we can even address how domestic violence affects child custody, we need to take a deep dive into what domestic violence is, and how the courts deal with it.

If you want to jump right into custody, go to headers #3, #4 and #6.

In New York, domestic violence is defined as any behavior that is physically, sexually, emotionally, psychologically, or economically abusive within an intimate relationship. This encompasses a broad range of actions intended to control or harm a partner or family member. It is also child neglect if the child is a witness to the domestic violence.

Intimate Relationships and Family Offenses

  1. Intimate Relationships Defined:
    • Intimate relationships are not limited to romantic involvements. New York law extends the definition to family members, people living together, and individuals who have children in common.
  2. Classification as a Family Offense:
    • Domestic violence is categorized under “family offenses” in New York State law. This category includes various forms of abuse such as assault, sexual misconduct, stalking, menacing, and strangulation.
  1. Criminal and Civil Actions:
    • Victims of domestic violence have the option to pursue civil charges in family court or criminal charges in criminal court. They may also choose to pursue actions simultaneously in both courts depending on the situation.
  2. Orders of Protection:
    • Courts can issue orders of protection, which may require the offender to stay away from the victim and any children involved. These are legal tools designed to provide immediate safety and set legal boundaries for the offender.
  3. Penalties for Offenders:
    • Penalties for committing family offenses can range from class A misdemeanors to violent felony offenses if pursued in criminal court. The severity of the penalties, including imprisonment and fines, depends on the gravity of the offense. Both Family Court and Criminal court can issue orders of protection.

Support and Resources

  1. State Support Services:
    • The New York State Office for the Prevention of Domestic Violence offers confidential assistance to victims. This includes access to support services and legal guidance tailored to the needs of individuals facing domestic crises.
  2. Hotline and Emergency Services:
    • Victims can contact the New York State Domestic & Sexual Violence Hotline for confidential help. In cases of immediate danger, calling 911 is advised to ensure prompt assistance from local law enforcement.
  3. Hospital Policies and Training:
    • Under New York State Public Health Law 2805-z, hospitals are mandated to have specific policies and training programs related to the identification, assessment, treatment, and referral of domestic violence cases. This includes coordination with local domestic violence or victim assistance organizations.

By understanding these legal definitions and provisions, individuals affected by domestic violence in New York can better navigate their options and seek the necessary protection and justice. This information aims to clarify the legal landscape for those unfamiliar with the intricacies of family law related to domestic violence, ensuring they are informed and prepared to take appropriate actions.

The Best Interests of the Child Standard

In New York, child custody decisions are primarily guided by the principle known as “the best interests of the child.” This standard is designed to ensure that all custody and visitation decisions promote the welfare and happiness of the child involved. Understanding this standard is crucial for parents navigating custody proceedings, especially in cases involving domestic violence.

Key Factors Considered by the Court

The courts in New York consider a variety of factors to determine what arrangement best serves the child’s interests:

  1. Primary Caregiver: Identification of the parent who has been the main caregiver or nurturer of the child.
  2. Parenting Skills: Evaluation of each parent’s parenting abilities, including their strengths and weaknesses, and their capacity to meet the child’s special needs.
  3. Parental Health: Assessment of the mental and physical health of the parents.
  4. Work and Childcare: Consideration of the parents’ work schedules and their childcare plans.
  5. Sibling and Family Relationships: Importance of the child’s relationships with siblings and other family members.
  6. Child’s Preferences: Depending on the child’s age and maturity, the child’s preference may be considered.
  7. Parental Cooperation: Each parent’s ability to cooperate with the other and encourage a relationship with the other parent, when safe to do so.

Safety and Welfare Prioritization

The child’s health and safety are paramount. Decisions are made with these as the foremost concerns, ensuring that the child is not placed in a dangerous or unhealthy environment. Factors such as evidence of drug and alcohol misuse, untreated mental illnesses, or severe physical disabilities that could impair a parent’s ability to care for the child are heavily weighed. Additionally, the court evaluates which parent can better provide financially and offer superior educational opportunities.

Non-Discrimination in Custody Decisions

It is important to note that New York courts do not favor one parent over the other based on gender or financial status.

Put another way, Mom does not always win. I’ve gotten fathers custody over mothers. It is very fact-specific. Your case is not the case as your co-worker’s case.

The focus is always on the child’s best interests. The initial custody arrangement, whether ordered by the court or agreed upon voluntarily, often sets a status quo but can be revisited if circumstances change.

Consideration of Educational and Environmental Stability

Courts also place significant weight on the stability of the child’s environment. This includes the potential impact of changing the child’s living arrangements and the benefits of maintaining continuity in the child’s education, community, and social relationships. The aim is to minimize disruption in the child’s life while providing a nurturing and stable environment.

By focusing on these factors, the New York family courts strive to make informed decisions that safeguard the child’s well-being and foster healthy development, even in complex scenarios involving domestic violence. This approach ensures that the child’s needs are at the forefront of all custody-related deliberations.

Impact of Domestic Violence on Child Custody Decisions

In New York, the presence of domestic violence within a family is a critical factor that courts consider when making child custody decisions. This section explores how domestic violence influences these decisions, focusing on the legal frameworks and considerations aimed at protecting the welfare of children.

  1. Safety and Best Interests of the Child:
    • The primary concern in custody cases involving domestic violence is the safety and well-being of the child. Courts prioritize these factors above all else to ensure that children are not placed in harmful environments.
  2. Evidence of Domestic Violence:
    • When allegations of domestic violence are presented, the court requires substantial evidence to support these claims. This might include medical records, police reports, witness testimonies, and any legal documentation such as existing orders of protection.
  3. Impact of Domestic Violence on Custody and Visitation:
    • A proven history of domestic violence can lead to the court deciding against granting custody to the abusive parent. However, in cases where a risk to the child is not perceived, limited or supervised visitation might still be considered.

Types of Domestic Violence Considered

  • Physical and Sexual Abuse: Direct physical harm or sexual misconduct towards the partner or child. Remember if the child witnesses abuse, it is considered abuse towards the child as well.
  • Emotional and Psychological Abuse: Non-physical behaviors such as threats, intimidation, or manipulation that mentally and emotionally harm the victim.
  • Economic Abuse: Actions that control or limit the victim’s financial resources and independence.

Court Decisions and Parental Rights

  • Supervised Visitation:
    • In cases where there is a risk but not enough to completely sever parental ties, the court may order supervised visitation. This ensures that the parent can maintain a relationship with the child but under strict and controlled conditions to safeguard the child’s welfare.
  • Restrictive Parenting Time:
    • If the evidence suggests that unsupervised time with the parent could be harmful to the child’s physical, emotional, or mental health, the court may impose restrictions such as designated pick-up and drop-off points or supervised exchanges.
  • Complete Denial of Custody:
    • In extreme cases, where the safety of the child cannot be assured even with restrictions, the court may deny custody rights to the abusive parent altogether. This only happens in the most dire of situations, such as when the parent has sexually abused the child or caused serious physical injuries.

Protective Measures for Victims and Children

  • Confidentiality of Addresses:
    • To protect the safety of the victims, courts allow the concealment of addresses during the legal proceedings. This measure helps prevent further harassment or harm by keeping the victim’s location undisclosed.
  • Evidence Requirements:
    • Victims must provide a preponderance of evidence to prove domestic violence. This comprehensive approach ensures that decisions are based on reliable and substantiated information, thereby protecting the legal rights of all parties involved.

By understanding these legal concepts and how they are applied in child custody cases involving domestic violence, individuals can better navigate the complexities of family law in New York. The courts’ rigorous consideration of all forms of abuse and their implications on child safety underscores the state’s commitment to protecting its youngest and most vulnerable citizens from domestic harm.

Address Confidentiality and Court Safety

Victims of domestic violence in New York have the option to keep their addresses confidential during court proceedings. This measure is crucial for protecting their safety and ensuring that perpetrators cannot easily locate them.

Screening and Safety in Foster Care and Adoption

  1. ACS Screening:
    • The Administration for Children’s Services (ACS) in New York City and the Child Protective Services (CPS) outside of the city must check all potential adoptive and foster homes against the Domestic Violence Registry. This step ensures that these homes are free from violence, providing a safer environment for children.
  2. Interviewing Household Members:
    • It is essential to interview all household members in potential foster homes. This process helps identify if young people in the home might be experiencing violent dating relationships, thereby ensuring the foster child’s safety.

System Manipulation by Batterers

Batterers may attempt to manipulate legal systems to continue their abuse. This includes:

  • Harassing victims through relentless court actions.
  • Using child welfare systems to levy false allegations against the victim.

Support and Training Initiatives by ACS and CPS

  • Clinical Consultation Teams (CCTs):
    • ACS has partnered with nonprofit human service organizations to establish twelve CCTs across New York City. These teams are based in ACS field offices and provide specialized consultation services.
    • Depending on your county CPS will have similar services
  • Mental Health Support Shortages

There is a notable shortage of mental health programs in New York City specifically targeted at children who have witnessed domestic violence. This gap indicates a need for specialized services that cater to the emotional and psychological needs of these young witnesses.

The State Child Protective Services System

The New York State’s Child Protective Services System is designed to safeguard children from abuse and maltreatment. Key components of this system include:

  • State Central Register:
    • This register maintains a statewide database of reports concerning child abuse and maltreatment, ensuring a systematic approach to handling such cases.
  • County Child Protective Services:
    • Each county in New York State has a mandated child protective service that is responsible for receiving and investigating reports of child abuse and maltreatment. These services also provide necessary rehabilitative support to children, parents, and other family members involved.

Victims of domestic violence can take several legal steps to protect themselves and their children:

  • Order of Protection:
    • Victims can file a petition for an order of protection, which may include provisions for child custody and support, apart from prohibiting the offender from making any contact.
  • Mandatory Reporting and Support:
    • The law requires certain professionals to report instances of domestic violence, which can help in mobilizing support and services for the victims.

Court Assistance and Resources

The complexity of legal processes can be overwhelming, especially for individuals experiencing domestic violence. New York courts provide several resources to assist:

  • Legal Help Resources:
    • Resources such as Legal Glossary, DIY Forms, and LawHelp are available through CourtHelp, providing crucial information and assistance.
  • Live Chat Assistance:
    • The New York courts offer live chat services to help individuals find legal information and access free legal services nearby.

By understanding and utilizing these protective measures and legal provisions, victims of domestic violence in New York can navigate the legal landscape more effectively, ensuring their safety and the well-being of their children.

Nicholson v. Williams

In the landmark case of Nicholson v. Williams, the court looked at domestic violence and child custody.

The mother of two children, found herself entangled with the legal system when the Administration for Children’s Services (ACS) removed her children following an incident of violence by father of her infant daughter. The court ultimately held that a mother’s inability to protect her child from witnessing abuse should not be the sole basis for removal, setting a significant precedent in New York for cases involving domestic violence.

Let’s break that down. The mother did not abuse the child but the father did. Yet, ACS tried to remove her child. The takeaway is that if one parent abuses the child, the other must take immediate action, such as calling the police and/or filing a petition in the family court.

Matter of Aisha R. (Ariel T.)

This case further explores the relationship between domestic violence and child custody. The court recognized “coercive control”—a form of emotional and psychological abuse—as particularly harmful.

It underscored the importance of considering all facets of domestic violence, including non-physical elements, in custody determinations. The pattern of behavior by Mr. T., which included severe restrictions on Ms. R.’s movements and financial autonomy, highlighted the nuanced understanding required in these cases.

The takeaway here is that abuse can be psychological as well as physical.

Ms. W. vs. Child Protective Services (CPS)

Ms. W., a victim of physical abuse witnessed by her toddler, faced ongoing challenges despite being deemed capable of caring for her daughter. She was subjected to CPS supervision, which allowed extensive access to her home. The case raised questions about the appropriateness of such invasive measures against survivors of domestic violence, with legal arguments pointing to potential constitutional violations.

In the Matter of Warda NN

Now, let’s look how the court applies these principles to a custody dispute.

This case involves a mother and father from Pakistan who married in an arranged marriage in 2009, later remarrying in Brooklyn. Their relationship was marred by allegations of domestic violence, with the mother eventually fleeing with their two children to Albany in 2018. Subsequently, she filed for sole legal and physical custody, alleging various family offenses against the father.

Family Court awarded sole legal and physical custody to the mother, citing her testimony of being the primary caregiver and the father’s lack of involvement post-separation. The court also considered the impact of domestic violence on the children, emphasizing the father’s failure to acknowledge or express remorse for his actions.

As we discussed above, the court looks to the best interests of the child. And that is what it did here. The court was concerned about the proven allegations of domestic violence.

The court then limited parenting time to the father once a week over the telephone and once a month in a therapeutic supervised setting.

Note, the father still had access, albeit limited.

In the Matter of Jacklyn PP

Let’s look at one more case where the court made a custody award after domestic violence had been proven at trial.

The mother (petitioner) and father (respondent) who shared a child born in 2017. Their six-year relationship ended in July 2020. The mother filed a family offense petition alleging disturbing behavior by the father, including harassment, stalking, and forcible touching. Simultaneously, the father initiated custody proceedings, setting the stage for a contentious legal battle.

After trial, the court found the father guilty of stalking, based on compelling testimony from the mother and corroborating evidence.

Central to Family Court’s deliberations was the paramount concern for the child’s well-being. Despite vehement denials from the father, the court meticulously examined the impact of his actions on the child’s welfare. The breakdown in communication between the parents and the father’s documented history of family offenses significantly influenced the court’s determination.

Sole legal and primary physical custody was awarded to the mother, reflecting the court’s unwavering commitment to prioritizing the child’s best interests based on the factual narrative presented.

Role of Family Law Attorneys in Child Custody

  • Navigating Custody Issues:
    • In cases involving domestic violence, family law attorneys are vital in navigating custody issues. They provide guidance and ensure that the child custody arrangements uphold the best interests of the child, particularly in safeguarding them from further exposure to violence.
    • The court will also appoint an attorney for the child. I have addressed that in this article.

Challenges in the Family Court System

  • Process and Oversight:
    • The family courts in New York handle disputes with little oversight or accountability, which can sometimes complicate the resolution process. Legal representation ensures that the rights of the involved parties are adequately represented and protected.
  • Understanding Legal Implications:
    • Consulting with experienced domestic violence lawyers helps complainants understand the implications of their decisions and strategize effectively to protect their rights and ensure a fair legal process.

By providing detailed explanations of these legal concepts in accessible language, this section aims to demystify the legal processes for non-lawyers, ensuring they understand the critical role of legal representation and support services in cases of domestic violence.

Conclusion

Navigating the complex and confusing legal landscape of domestic violence and its profound impact on child custody decisions in New York requires a clear understanding of complex legal concepts, even for those without a legal background.

While I have tried to simplify this topic, this is one of the longer articles I’ve written. And the reason is that this a very complex topic.

Don’t confuse what happened with a friend or relative with what could happen in your case. These cases are very individualized.

It’s imperative for victims and those caught up in custody disputes to recognize the importance of legal representation and support services that uphold the best interests of the child while safeguarding the rights of all parties involved.

In the quest to further empower readers to take actionable steps toward securing their legal rights and the welfare of their children, it’s essential to seek professional legal counsel who specializes in navigating these sensitive matters.

For those who find themselves at the crossroads of domestic violence and child custody issues, reaching out for professional advice can be a pivotal first step. Call Port and Sava for a free 15-minute telephone consultation (516) 352-2999.

Remember that understanding your legal options and the implications of your decisions within the framework of New York law can provide a beacon of hope and a path forward for those ensnared in the complexities of domestic violence and familial legal battles.

Can You Reverse a Divorce? 3 Vitally Important Factors.

Gary Port
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Can You Reverse a Divorce? 3 Vitally Important Factors.

Can I Reverse A Divorce?

No, you can’t reverse a divorce but may try to set aside the agreement or judgment if you can prove fraud, unconscionability, or duress. So, while the court won’t reverse the divorce, it can revisit and redo the property settlement.

This discussion dives into three New York court cases, dissecting complex legal concepts such as fraud and unconscionability in the context of divorce settlements. These terms are crucial for anyone navigating a divorce to understand, as they significantly influence the fairness and enforceability of settlement agreements.

In this article, I discuss hidden assets and how to find them. Now, this look at the next steps

Case 1: Overseas Assets and Acknowledgement

In a pivotal 2022 case from the New York County Supreme Court, a wife contested her divorce settlement, alleging that her husband had concealed assets in Taiwan. However, the twist in the tale was that these assets were not actually hidden; they were disclosed in the husband’s financial statements during the divorce proceedings. The wife had previously seen and acknowledged these assets on his net worth statement, which was a crucial piece of evidence.

The court used this acknowledgement to dismiss her claims of fraud, highlighting a key legal principle: a party cannot claim to be deceived about assets they knew about at the time of the settlement. This case underscores the importance of thoroughly reviewing and understanding all financial disclosures made during divorce negotiations.

Case 2: The Implications of Asset Awareness in Westchester County

A similar theme surfaced in a 2001 Westchester County case where a husband attempted to overturn a divorce settlement. He claimed that there were undisclosed assets, yet evidence showed that he was aware of these assets before agreeing to the settlement terms.

The court’s decision to uphold the settlement rested on the principle that prior knowledge of assets precludes a party from later claiming that they were misled or that the agreement was fraudulent. This reinforces the necessity for both parties in a divorce to fully grasp the extent of their marital assets and to clarify any ambiguities or uncertainties prior to finalizing any agreements.

Case 3: Erie County and the Stark Reality of Unconscionability

The 2021 Erie County case provides a stark illustration of unconscionability in divorce settlements. Here, a plaintiff pushed to enforce a separation agreement, but the defendant countered, arguing that the terms were not just unfair but unconscionably so.

The court agreed with the defendant, pointing out several alarming aspects of the agreement: it lacked complete financial disclosure; it excessively favored the monied spouse by requiring the non-monied spouse to forfeit almost all claims to significant marital property, including a business; and it contained clauses that were fundamentally unfair, such as automatic changes in child custody contingent upon the non-monied spouse’s future marital status.

The court’s ruling emphasized that unconscionability involves a degree of unfairness that “shocks the conscience,” a term that describes agreements so imbalanced that they are inherently unjust.

Unpacking Unconscionability and Its Impact

Unconscionability in legal terms refers to an agreement that is so unjust, one-sided, or overly harsh that it defies good conscience and fair dealing. In the context of divorce, where there is supposed to be a fiduciary duty of fairness and transparency between spouses, such terms are scrutinized under a more stringent standard than typical contracts.

An agreement may be deemed unconscionable if it is the product of overreaching by one party, taking unfair advantage of a less informed or financially weaker spouse. This can include not providing complete financial disclosures or leveraging the other spouse’s lack of legal representation.

Can Duress Reverse a Divorce?

Duress, if proven can reverse a divorce settlement or judgment on property. However, the courts have set a pretty high bar for proving it. Duress is more mere pressure.

In contract law, duress refers to a situation where a person enters into an agreement as a result of coercion, using either unlawful threats or pressure exerted by another party. This coercion undermines the person’s free will, leading them to enter into a contract that they otherwise would not have agreed to. The legal definition of duress involves a few key elements:

  1. Threats or Pressure: This can include physical violence, unlawful threats, or psychological coercion. The threats may target the individual directly, or they could be directed towards family members or close associates.
  2. Lack of Free Will: The person under duress must demonstrate that the threats or pressure left them with no reasonable alternative but to agree to the contract. Essentially, their consent to the agreement was not given freely.
  3. Illegitimacy of the Pressure: The coercion exerted must be improper or illegal. This includes threats of physical harm, unlawful financial pressure, or other actions that are not acceptable practices in negotiating contracts.
  4. Causation: There must be a clear connection between the duress applied and the victim’s decision to enter into the contract. The victim needs to prove that the contract was entered into primarily due to the undue pressure exerted.

If a contract is proven to have been signed under duress, it may be declared voidable. This means the party coerced into the agreement has the right to cancel or void the contract, thereby releasing them from their obligations under that agreement. The victim of duress must take action to rescind the contract promptly upon cessation of the duress.

The cases of Chalos v. Chalos and Groper v. Groper provide valuable lessons for anyone going through a separation and dealing with legal agreements. These cases center around the idea of duress and the importance of acting quickly if you feel coerced into signing a separation agreement.

In Chalos v. Chalos, one person tried to challenge a separation agreement by claiming it was signed under pressure or duress. The key point from this case is that if you keep benefiting from an agreement (like receiving money or property) and don’t quickly challenge its validity, the law assumes you’ve accepted the agreement’s terms. Essentially, if you take the benefits, you’re also accepting the deal as it stands, even if you initially felt pressured.

Groper v. Groper touches on similar themes. Here, someone accepted the benefits of a separation agreement for a long time before trying to say it wasn’t valid due to duress. The court decided that by accepting those benefits without complaining for so long, the person had essentially agreed to the terms of the agreement. In other words, if you wait too long to dispute the terms, you might lose the chance to argue that you were coerced.

How Does This Relate to You?

  1. Act Quickly: If you believe your agreement was signed under unfair pressure, it’s crucial to act immediately. Waiting too long or accepting benefits from the agreement can imply that you agree with everything in it, making it much harder to contest later.
  2. Consistency is Key: Claiming that you were pressured into signing while continuing to accept the agreement’s benefits doesn’t look consistent and can weaken your case. Your actions after signing are important; if you act like the agreement is fine by taking its benefits, the court might assume it was fairly agreed upon.
  3. Get Good Advice: Having a lawyer during the negotiation and signing of any legal agreement is a big advantage. It shows that you understood what was happening and had a fair chance to negotiate or refuse terms, making it less likely for duress claims to stand.

Key Takeaways for Navigating Divorce

  1. Thorough Asset Disclosure: Both parties must disclose all assets comprehensively and transparently. Hidden assets can later invalidate a settlement if discovered, while known assets cannot be claimed as undisclosed.
  2. Critical Assessment of Settlement Terms: It is essential for divorcing parties to critically assess and understand each term of their settlement agreement. Look out for any clauses that seem excessively punitive or one-sided.
  3. Professional Legal Advice: Given the complexities and potential pitfalls in divorce settlements, seeking advice from a knowledgeable attorney is invaluable. An experienced lawyer can provide critical insights into whether a settlement is fair, legally binding, and enforceable.

In sum, these cases illustrate the vital need for fairness, transparency, and legal awareness in the process of negotiating divorce settlements. Understanding and applying the concepts of fraud and unconscionability can protect against unjust outcomes and ensure that agreements are both equitable and enforceable.

Call Port and Sava for a free 15 Minute Telephone Consultation (516) 352-2999

The 12 Tools Used When a Spouse is Hiding Money in a Divorce

Gary Port
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The 12 Tools Used When a Spouse is Hiding Money in a Divorce

Hiding Money in a Divorce does happen, but it is not as easy to do as people think. Also there are ways to defeat stealing marital assets. Since New York is an Equitable Distribution state, it is important to discover all of the marital assets.

This act of hiding, dissipation or marital waste is illegal and can drastically change the outcome, influencing aspects such as alimony and the division of assets. New York courts take hiding of money in a divorce or hiding other assets very serious. Yet, the challenge of hiding assets, from bank savings to investments and property, often complicates achieving a just division.

Recognizing the methods of hiding money in a divorce, from dissipation to utilizing businesses as cover or creating offshore accounts, is essential in combatting this fraud. Equally, there exists the legal ramifications such as money fines and awards of attorney’s fees. The next sections will delve into strategies for uncovering these covert practices—employing forensic accountants and rigorous financial investigation—to safeguard one’s financial interests and ensure an equitable resolution in divorce proceedings.

Understanding Financial Disclosure Requirements

In New York, the process of divorce mandates that both parties adhere to strict financial disclosure requirements. This starts with Filling out and Swearing to the Statement of Networth. This document is a comprehensive form created by the Courts to capture all of the financial information of the parties. It is also a sworn statement, so lying on it is perjury. It is an initial tool to help determine if a spouse is hiding money in a divorce. The essence of financial disclosure is to provide a clear and complete picture of each spouse’s financial situation. Also the parties are required to produce:

  • Tax returns
  • Bank account statements
  • Investment and retirement account statements
  • Property ownership documents
  • Debt statements
  • Life insurance policy details
  • Paystubs for both parties
  • Comprehensive information on any business owned

This exchange of information, known as ‘discovery,’ is critical for both spouses to engage in informed negotiations and make equitable decisions regarding asset division. Spouses are bound by law to fully disclose all material facts and information regarding all assets whether marital or claimed as separate property.

This duty continues throughout the litigation. Parties will be required to update the Statement of Networth several times during the course of the litigation.

As you can see, because the courts and law require complete transparency, hiding money in a divorce is not that easy.

Common Tactics for Money in a Divorce as well as other Assets

Hiding money in a divorce is a tactic employed with the intent to stack the deck. Spouses resort to various methods to hide money, each with its twist:

  • Temporary Transfers and Purchases:
    • Transferring stocks or investment accounts to another person’s name.
    • Buying high-value items such as antiques or art, which might be overlooked or undervalued during asset division.
  • Income Manipulation:
    • Deferring salary, commissions, bonuses, or other income until after the divorce is finalized.
    • Overpaying on taxes or debts to secure a refund post-divorce.
  • Secret Accounts and Overpayments:
    • Stashing cash or assets in a safe deposit box or setting up custodial accounts under a child or third party’s name.
    • Overpaying credit cards or debts, then requesting refunds or using the credit for purchases later.

Signs that a spouse might be engaging in these tactics include sudden claims of lower asset values or income, reluctance to share financial details, and unexpected changes in spending or saving habits. Business owners might delay lucrative deals, pay non-existent employees, or inflate expenses to reduce apparent profitability. Non-business owners could set up trusts, “gift” money with the expectation of its return post-divorce, or divert marital assets for a new partner’s expenses.

Uncovering these hidden assets often requires a meticulous approach, involving:

  • Investigation of Financial Behavior: Monitoring for sudden changes in financial habits, secret accounts, or defensive attitudes regarding finances.
  • Professional Assistance: Engaging divorce attorneys and forensic accountants who specialize in discovering hidden assets, including those tucked away in unpredictable places like undisclosed accounts, investments, or even cryptocurrencies.
  • Lifestyle Audits: Here we look to what a person spends to determine what they earn.

These strategies underscore the importance of vigilance and professional guidance in ensuring a fair and equitable division of assets during a divorce.

Hiding assets during a divorce is not only unethical but also illegal, carrying severe legal consequences that can significantly impact both the process and the outcome of a divorce settlement. Understanding these consequences is crucial for anyone going through a divorce, as it underscores the importance of transparency and honesty in financial disclosures. The penalties for hiding assets can vary by state but generally include:

  • Financial Penalties and Legal Costs:
    • The court may order the guilty spouse to pay fines or cover the attorney fees and court costs incurred by the other party.
    • In cases where hidden assets are discovered, the division of property may be adjusted to favor the innocent party, potentially awarding them a larger share of the marital assets.
    • States like New York go further by requiring the spouse who hid assets to pay for any investigative or legal costs the other spouse incurred because of the deceit.
  • Criminal Prosecution and Jail Time:
    • Spouses caught hiding assets can face criminal charges, including fraud, contempt of court, and perjury. The severity of these charges can lead to jail time, particularly if tax fraud is involved.
    • Similar actions can result in contempt of court charges among other criminal penalties, emphasizing the serious legal repercussions of such behavior.
  • Impact on Divorce Proceedings and Settlements:
    • The court can dismiss claims or set aside a divorce settlement if it’s found that one party hid assets, leading to a reevaluation of asset division, alimony, and child support calculations.
    • Loss of credibility in court is another significant consequence, as it can influence the judge’s decisions on various aspects of the divorce settlement, further disadvantaging the deceitful spouse.
    • Non-compliance or deceitful behavior during the financial disclosure process can lead to sanctions, including being compelled to answer truthfully under the risk of perjury charges.

These consequences highlight the critical importance of full transparency in financial disclosures during divorce proceedings. Engaging in the concealment of assets not only jeopardizes one’s financial future but also carries the risk of criminal prosecution and lasting legal repercussions.

Methods for Uncovering Hidden Assets

Hiding money in a divorce can leave a trail. To effectively unearth hidden assets during a divorce, a meticulous and strategic approach is essential. Here are the key methods for uncovering hidden assets, structured to enhance understanding and action:

Examination of Financial and Business Records

  • Financial Documents: Start with a thorough review of bank records, tax returns, and credit card statements. Look for discrepancies or irregularities that might indicate concealed assets.
    • Tax Returns: Pay special attention to tax returns from previous years to spot inconsistencies or hidden income sources.
    • Bank Accounts: Scrutinize all bank statements, including joint and personal accounts, for unusual transfers or transactions.
  • Business Records: If either spouse owns a business, delve into its financial records. Watch for signs of manipulated records, such as inflated expenses or underreported profits. This could hint at attempts to hide money.

Investigative Techniques

  • Property Searches: Utilize the Tax Assessor’s Office to check for any additional properties owned by either spouse. Uncovering undisclosed real estate can significantly affect asset division.
  • New Financial Activities: Investigate recent financial activities and property acquisitions. This includes probing into the existence of crypto accounts, where assets might be hidden in digital currencies.
  • Subpoenas: Attorneys can subpoena bank and business records directly from the bank or business. We had a case where we subpoenaed one account, and it ultimately led us to 13 different bank accounts in four different banks.
  • Forensic Accountants: Hiring a forensic accountant can be pivotal. They specialize in analyzing financial records to detect anomalies and hidden assets, ensuring a comprehensive account of the estate.
  • Legal Support: Engage with a divorce attorney to explore options like retaining a forensic accountant or obtaining financial documents through discovery.
    • Subpoenas: Attorneys can issue subpoenas to banks, investment firms, and employers to disclose documentation of accounts owned by a spouse.
    • Depositions: Deposing your spouse or those privy to their financial affairs under oath can unearth valuable information.

By employing these methods, spouses can systematically search for and potentially uncover hidden assets. This process not only aids in ensuring a fair division of assets but also upholds the integrity of the financial disclosure process in divorce proceedings.

Protecting Yourself Against Asset Hiding

To safeguard against the concealment of assets in divorce proceedings, individuals can take proactive steps at various stages of their marriage and divorce. Implementing preventive measures and consulting professionals are key strategies in protecting one’s financial interests:

  • Stay Involved in Finances:
    • Regularly review bank and credit card statements, and match transactions with receipts.
    • Keep track of all financial records, including the status of stocks, retirement accounts, and significant purchases.
    • Run monthly financial checks to detect any unusual or fraudulent activity.
  • Legal and Financial Consultation:
    • Engage an experienced family law attorney if you suspect your spouse is hiding assets.
    • Consult with a financial advisor to assess both assets and liabilities, ensuring a comprehensive understanding of your financial standing.
    • A forensic accountant can be invaluable in identifying discrepancies and hidden assets.
  • Preventive Legal Measures:
    • Consider a prenuptial agreement to clearly delineate what constitutes separate property, protecting it in the event of a divorce.
    • In community property states, understand that marital property is equally divided, while separate property remains with the original owner. Conversely, equitable distribution states divide property based on fairness, taking into account various factors.
    • Create an inventory of all assets, including those owned jointly and individually. Know the details of all financial accounts and who has access to them.
  • Asset Protection Strategies:
    • Utilize Trusts for Divorce Planning, such as a Domestic Asset Protection Trust (DAPT), to safeguard assets for children, ensuring they are not considered marital property.
    • After divorce, close joint credit card accounts and establish an emergency fund to maintain financial independence.

Implementing these strategies not only aids in maintaining transparency and fairness but also fortifies one’s financial security against the risks associated with asset hiding. Monitoring accounts, maintaining thorough records, and seeking professional assistance are crucial steps in navigating the complexities of divorce and asset division.

In navigating the complexities of a divorce, especially when it comes to the division of assets, the role of legal professionals becomes indispensable. An attorney is not just a legal representative but also a crucial advisor who ensures that all financial aspects are transparently and fairly managed. Here’s how they make a difference:

  • Gathering and Organizing Financial Information:
    • Documentation: Attorneys facilitate the collection of necessary financial documents. This includes bank statements, property deeds, tax returns, and more.
    • Interrogatories and Inspection Demands: They draft detailed questions and demands for documents that the other party must answer or produce, which can reveal hidden assets.
    • Testimony: Legal professionals can arrange for depositions, where parties and witnesses provide sworn testimonies that can uncover discrepancies or hidden assets.
  • Strategic Legal Actions:
    • Discovery Process: This critical phase involves demanding documentation, conducting interrogatories, and executing inspection demands to uncover any hidden assets.
    • Categorization of Assets: Lawyers help in distinguishing assets as separate, marital, or commingled, which is key in determining how they should be divided.
    • Out-Spouse Support: For a spouse unfamiliar with the household’s financial intricacies, attorneys serve as the guiding hand in understanding and uncovering the full financial picture.
  • Expertise in Uncovering Hidden Assets:
    • Specialized Knowledge: Experienced family law attorneys possess the acumen to track down and identify assets that a spouse may attempt to conceal.
    • Professional Network: They often work alongside forensic accountants and other specialists to thoroughly investigate and uncover hidden assets or income streams.

The collaboration between a client and their attorney is crucial in ensuring that all assets are accounted for and that the division is as fair and equitable as possible. By employing a combination of legal knowledge, investigative techniques, and strategic planning, attorneys play a pivotal role in protecting their client’s interests and ensuring transparency throughout the divorce proceedings.

Conclusion

Navigating the treacherous waters of divorce, particularly when it involves the concealment and division of assets, underscores the critical need for transparency, legal acumen, and a meticulous investigative approach. Through the examination of common tactics used to hide assets, the legal repercussions of such actions, and the strategic methods for their discovery, this article has laid a comprehensive foundation for understanding the complexity of ensuring equitable asset division. It is evident that the vigilant involvement of legal professionals, coupled with an informed and proactive stance by the involved parties, plays an indispensable role in safeguarding financial interests and upholding the integrity of the divorce process.

In light of the challenges and intricacies presented, the importance of seeking expert legal guidance cannot be overstated. For those facing the often daunting prospect of asset division in divorce, the support of knowledgeable and experienced legal advisors is invaluable. If you or someone you know is navigating these challenging waters, consider reaching out to Port and Sava at (516) 352-2999 for a Free 15 Minute Telephone Consultation. By ensuring all assets are transparently accounted for and equitably divided, parties can look toward a resolution that respects the financial rights and futures of everyone involved, paving the way for a fair and just closure.

3 Key Critical Facts about Health Insurance After Divorce

Gary Port
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3 Key Critical Facts about Health Insurance After Divorce

Introduction

One of the more critical issues in a divorce is the question of Health Insurance After Divorce. In many marriages, one spouse gets family health insurance coverage for the entire family. On divorce, spouses can no longer cover each other with employer-based health insurance. Unfortunately, this is federal law and a requirement of many employer-based health insurance plans.

Understanding Health Insurance After Divorce

Divorce significantly alters your financial and legal obligations, directly impacting your insurance needs. Whether it’s life insurance policies that need beneficiary updates or health insurance plans requiring reevaluation, it’s crucial to assess your post-divorce insurance requirements.

In divorce, health insurance is an important topic. When children under 21 are involved, the Courts will require health insurance coverage. However, the court is less concerned about the former spouse losing coverage. This isn’t because the courts are insensitive, but due to the limitations of the law.

Health Insurance and Children

As part of any Judgment of Divorce, the court will order the minor children to be covered with health insurance. Generally, the parties will put this into the divorce settlement.

One party will cover the children under his/her health insurance policy. The parties would then agree to split the unreimbursed medical expenses, such as co-pays and deductibles. I often like to include in my divorce agreements that the parties will share the cost of the family plan. Coverage for a single person is a lot lower than the family plan. It is fairer if both parents contribute to the difference between the cost of the family plan over the single plan.

Something else which is a “best practice” for the agreement is to use timetables. I’ve seen cases where the custodial parents save up medical bills for a year or more and then demand immediate payment. This generally winds up in court. The judges don’t particularly like this and I’ve seen many impose a cap. If the bills are too old, the judge will not order the noncustodial parent to pay them.

What I do is write that the party paying the bills must give them to the other parent in 30 days and then that parent must pay the bill in 2 weeks.

I also like to put in my agreements that out-of-network doctors would not be used unless consented to by both parents or on the advice of a medical health provider.

Health Insurance After Divorce: Children Over 21

A New York Divorce Court cannot order a parent to supply health insurance to a child over 21. However, the parties in their divorce settlement can agree to do just that. If they place this requirement in their divorce settlement, a Judge can enforce it.

Under the Affordable Care Act (“ObamaCare”) employers and insurance companies, if asked, are required to keep children of the employer on the Family Health Plan under age 26. The advantage to this is obvious that employer-provided health coverage is relatively inexpensive.

New York has an add-on. Under the Age 29 law, employer-based health insurance can cover a child up to age 29. This is not as great as it sounds. First, and most importantly, the child over 26 is NOT covered by the family plan. Instead, the cost of the premium will be the single plan and can be very costly.

Not everyone over 26 is eligible for age 29. First, one of the parents must be in a group policy that has family coverage. Second, the insurance must be issued by a New York State company or the insurance company is subject to New York State laws. Third, the child must be unmarried but can have a child. The grandchild is not eligible for insurance coverage. Fourth, the child cannot be eligible for insurance from their employer. Fifth, they must live work, or reside in New York.

There was a recent court decision where the divorce agreement stated that the father shall be responsible for health insurance “until each Child is no longer allowed by law to be covered under a parent’s insurance.” If I were to guess everyone was thinking about the age 26 limit under ObamaCare, and no one knew about the Age 29 law.

The father argued to the court that he should only be responsible up to age 26. The appellate court disagreed and said the language of the agreement was clear, and since the law went up to age 29, he was stuck for the 3 extra years. The cost for this was $1,300 a year.

The lesson here is to be careful in what is drafted in your agreement and don’t be vague.

Health Insurance After Divorce: The Spouse

As I mentioned above upon divorce, neither spouse can remain on the other’s health insurance policy. There is a COBRA option.

COBRA (“Consolidated Omnibus Budget Reconciliation Act”) allows someone who loses their employer-provided health insurance to continue on the policy for between 18 to 36 months. Employers with 20 or more employees are mandated to provide COBRA.

COBRA is not cheap. It does not fall under the Family Plan, and so has a much higher premium.

I have rarely seen a judge order one spouse to pay for the COBRA of the other. But, it does happen. The court will look at the ages of the parties, the health of the parents, the length of the marriage, the ability for employment, and the incomes of the parties.

For example, let’s assume a 30-year marriage, one spouse didn’t work and is in poor health. The working spouse is making over 6 figures and is in good health. In this situation, a court might well order payment for COBRA.

Health Insurance After Divorce: Not Getting Divorce?

The best way to ensure the continuation of Health Insurance After Divorce is not to get divorced. If parties remain married, then there is no issue of maintaining health insurance after divorce.

In these cases, it makes more sense to get a separation agreement and not to get divorced. For the party with the insurance, this may make a great deal of financial sense. I’ve had cases where the nonworking spouse has cancer. I have little doubt that the judge will order COBRA in this circumstance. As I said above, COBRA is expensive. In this situation, it is cheaper to keep the spouse on the family plan and not be ordered to pay COBRA.

The advantage to the nonworking spouse is clear, the continuation of health insurance.

Life Insurance After Divorce

Life insurance often plays a pivotal role in divorce settlements, particularly if child support or alimony is involved. It’s essential to review your policy, considering whether you need to maintain coverage to secure alimony or support payments. Updating beneficiaries on your life insurance is also a crucial step post-divorce to reflect your current wishes.

Generally, a court will order life insurance coverage if there is Child Support or Post Divorce Maintenance.

Health Insurance after Divorce: Conclusion

On divorce, the parties can no longer cover each other on their employer-provided health insurance policies. Children may be covered up until age 29. You need to be conscious of the law, and your needs. Consult with a lawyer before making any irrevocable decision.

Call Port and Sava for a Free 15 Minute Telephone Consultation (516) 352-2999

Alimony, Maintenace and Remarriage after Divorce: The 3 Critically Important Points

Gary Port
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Alimony, Maintenace and Remarriage after Divorce: The 3 Critically Important Points

Remarriage After Divorce: The Basics

When post-divorce spousal support (we no longer use the term “alimony” in New York) is being paid, Remarriage After Divorce will end it. In some circumstances living with another person (“cohabitation”) could also end spousal support (“maintenance” or “alimony”).

Post-Divorce Maintenance (“Support” or “Alimony”): The Definitions

As I said above, we don’t use the term “alimony” in New York. That was an old legal concept where after divorce the husband would have to support his ex-wife for the rest of her life or upon remarriage. Alimony has been deader than disco since well before disco. Instead, New York uses the terms “maintenance” or “spousal support.” These terms are used pretty much interchangeably.

Maintenance or spousal support is money that one person might need to pay the other after they get divorced. It’s like financial help for the person who might not earn as much money or maybe didn’t work because they were taking care of the family or the house. The main idea is to make sure that both people can live okay after they are no longer together.

A common misconception is that maintenance is always paid by the husband to the wife. This is based on the old concept of alimony where that did happen. Under the current law, there is no gender or sex distinction. The statute may require the person who makes more money (“the payor spouse”) to pay money to the person who makes less money (“the payee spouse.”)

The amount to be paid and the length of time it will be paid is beyond this article. But, no worries, I have written a few articles on the topic. Here’s the link to the article that addresses the basics:https://nydivorcefacts.com/spousal-support/

Remarrying: The Real Cost

Now, a big question many people have is, “What happens to my support if I decide to get married again or if I start living with someone new?” It’s a good question because the answer can change a lot depending on the language in your divorce agreement, or if you went to trial, the judge’s decision.

Let’s talk about what happens in New York since this is a New York Divorce Blog. There’s a law called Domestic Relations Law section 248. This law says that if the person getting the support gets married again, and nothing is restricting the law in the divorce agreement then the court can stop the payments.

This is a pretty hard and fast rule. Support isn’t meant to go on forever. It’s there to help the person get back on their feet financially until they can support themselves. Sometimes, the agreement made when getting divorced might say the maintenance stops if the person getting it remarries.

If you’re getting remarried, you also need to think about how it will affect the support you’re getting or paying. Plus, if you have kids from your first marriage, you’ll need to see how your new marriage might affect child support. And no, child support does not stop if the custodial parent remarries.

Most of the time, child support doesn’t change because of remarriage unless something big changes in how you or your ex-spouse can take care of the kids.

Dealing with money after a divorce can be tricky, especially with support in the mix. Making a budget that includes your income, expenses, and alimony can really help. If you’re getting maintenance, keep in mind it might not last forever, so planning for your financial future is smart.

Living Together: Cohabitation and Support

But, what happens if you decide to live with your boyfriend or girlfriend? The question often goes like this: “If I live with my boyfriend (or girlfriend) will that stop my alimony (support)?”

If the person is not getting married but is living with someone else in a way that seems like they are married, the court may also decide to stop the alimony. But, this decision is up to the court, and they’ll look at each situation carefully.

I use the word “may” because absent specific language in the divorce agreement cutting off maintenance is very hard.

Let’s go back and look at Domestic Relations Law Section 248. Absent an agreement defining what cohabitation is, the statute controls. To be honest, the statute makes it almost impossible to prove cohabitation. The text of the statute can be found here: https://newyork.public.law/laws/n.y._domestic_relations_law_section_248

But, before you wade through all that legalese, let’s focus on the real meat of the statute: “The court in its discretion upon application of the payor on notice, upon proof that the payee is habitually living with another person and holding himself or herself out as the spouse of such other person, although not married to such other person…”

The court must find that the payee ex-spouse is not merely “habitually living with another person” but must also be “holding himself or herself out as the spouse of such other person.”

If you live with your boyfriend and tell everyone, including posting on Facebook and Instragam that you are living with your boyfriend, the court cannot terminate support. Because you never held him out as your husband.

But, if you tell people he is your husband and post on Facebook something like “Love my husband” or “Hubby is mowing the lawn” etc. Then you may be holding yourself out as being the spouse of the other. Other things, such as joint bank accounts, owning property or businesses together, and even wearing a wedding ring, can trigger the statute.

My advice is that before you start cohabitating, talk to your lawyer.

Pre-nuptial and Post-nuptial Agreements

For both parties, entering a new marriage brings up the topic of prenuptial agreements. These agreements can clarify what will happen with support if the new marriage doesn’t work out. It’s a way to protect both of your financial futures and ensure that there are clear expectations about money.

Generally, the courts will enforce a prenuptial or postnuptial maintenance clause if it was fair at the time the agreement was signed and fair at the time of the divorce. Here’s a link to an article I wrote on that topic: https://nydivorcefacts.com/prenuptial-agreement-and-postnuptial-agreement/

Defining Cohabitation in Agreements

As I said above, in the absence of an agreement, the courts will apply Domestic Relations Law 248. However, the parties can agree in their divorce settlement to define cohabitation and when maintenance ends.

A cohabitation clause is generally much easier to prove than the statute. In these clauses, we usually write that maintenance will end if the ex-spouse cohabitates with a non-relative adult for a period of 90 days or more.

The dodge around that is for the boyfriend or girlfriend to maintain a separate residence and only sleep over several nights a week.

Exceptions to the Rules

Hey, this is the law, so of course there are exceptions. But, they are few and very narrow. I don’t want to address them in this article as they are very individual. And very rare. I don’t want someone thinking that they found the escape hatch and then act on it. If you are interested in exceptions and whether they apply to you, please consult with a lawyer.

Financial Planning

Another aspect to consider is how changes in your life affect how you see your finances and plan for the future. Whether you’re receiving or paying maintenance, it’s a good time to reassess your financial goals and how you’re going to reach them. This might include saving more, investing wisely, or making changes to your budget to ensure you’re prepared for what’s ahead.

I like to have my clients seek advice from a financial planner or their accountant before we strike a deal. This arms the client with financial knowledge before they even start negotiating.

Conclusion

Remember, everyone’s situation is unique. So, it’s really important to understand what your divorce agreement says. If you’re thinking about remarrying or moving in with someone, it might be a good idea to talk to a lawyer to see how it could affect your support.

If you’re getting remarried, you also need to think about how it will affect the support you’re getting or paying. Plus, if you have kids from your first marriage, you’ll need to see how your new marriage might affect child support. Most of the time, child support doesn’t change because of remarriage unless something big changes in how you or your ex-spouse can take care of the kids.

Dealing with money after a divorce can be tricky, especially with support in the mix. Making a budget that includes your income, expenses, and maintenance can really help. If you’re getting support keep in mind it might not last forever, so planning for your financial future is smart.

If you’re thinking about big changes like getting remarried or changing who you live with, talking to a lawyer is a smart move. They can help you understand how these changes might affect your support and guide you through any needed updates to your agreement.

Lastly, remember that the emotional and financial aspects of divorce and remarriage are complex. It’s not just about the money; it’s about transitioning to a new phase in life and ensuring you’re prepared for what that brings. This includes understanding your legal rights and responsibilities and making informed decisions that align with your goals and values.

In summary, whether you’re considering remarriage or a new partnership, it’s crucial to understand how these changes could impact your support. With the right information and legal advice, you can navigate these changes confidently, ensuring a stable and secure financial future post-divorce. Remember, each situation is unique, so personalized advice tailored to your circumstances is key. Here’s to moving forward with clarity and confidence in your post-divorce life.

If you have questions, call us at Port and Sava (516) 352-2999 for a free 15-minute consultation.

The Critical Importance of Marriage: The Number 1 Reason Islamic Marriages are Recognized in New York

Gary Port
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The Critical Importance of Marriage: The Number 1 Reason Islamic Marriages are Recognized in New York

Introduction

Bottom line: Islamic Marriages are recognized in New York even if there is no civil marriage license. New York has a statute and a public policy that recognizes legitimate marriages, even when there is no marriage license. However, there is confusion even among Islamic religious leaders about whether an Islamic Marriage is valid in New York without a license. This article will address this question, but remember, no internet blog is a replacement for consulting with an attorney.

A Deeper Dive in the Recognition of Islamic Marriages in New York

Whether to recognize a marriage is a matter of state law, not federal. A marriage might not be legal in one state but could be legal in another. Since this is a New York legal blog, I will address New York Law.

New York will recognize a marriage if properly “solemnized.”

Understanding ‘Solemnization’:

In New York, a marriage is ‘solemnized’ when the parties declare in the presence of a clergyman or magistrate and witnesses that they take each other as husband and wife. If the person who performed the wedding was a recognized member of the clergy and there were witnesses present, the court would view this as a valid wedding.

Respect for Islamic Marriages

This law and policy of the state of New York values the intentions and cultural practices of its residents. By acknowledging the Islamic marriage ceremony as valid solemnization, New York law demonstrates respect for cultural and religious practices.

Impact on Islamic Marriages:

For the Muslim community, this is significant. It validates the religious ceremonies conducted in accordance with Islamic law, even when a civil marriage license is not obtained. This acknowledgment ensures that Islamic marriages are given equal respect and legal standing under New York law.

Proving the Islamic Marriage

In recent years there have been a number of divorces between Muslim couples where one party or the other tries to deny the validity of the marriage. Whether this is an attempt to avoid enforcing the Mahr or for other reasons. Typically, one party seeks for the court to dismiss the divorce action because no marriage license was ever filed.

The New York Domestic Relations law will recognize a marriage as long is it solemnized, as we discussed above. As a practical matter, the parties in this dispute will need to fight it out in a trial. Trials are very expensive and time-consuming.

A party who thinks they can win this argument merely because there is no marriage license is generally wrong. First, the court will consider the Mahr (more on that here). If a Mahr doesn’t exist, the party trying to prove the marriage can call as a witness the person who officiated at the wedding and the wedding guests. People have also produced receipts from the catering hall, and shown the court wedding pictures and videos. Further, living together afterward and declaring to the world that they are married are all proofs that the marriage occurred.

New York Courts Have Preference for Marriages

The New York courts have a preference to find a marriage if taking into account all the surrounding facts, the parties intended to be married.

Foreign County Marriages

If the wedding was legally recognized in the country where the ceremony was held, then New York will recognize the marriage.

Other States

There is a fairly recent decision from one of the New York Appellate Court which found that a marriage which was not valid under New Jersey law, was valid under New York law. New Jersey will not recognize a marriage without a property marriage license. However, if the parties marry in New Jersey and then live in New York, without ever getting a marriage license, New York may still recognize the marriage.

Key Takeaways:

  1. Cultural Sensitivity: New York law shows a willingness to respect and incorporate cultural and religious marriage practices.
  2. Legal Recognition: Islamic marriages without a civil license can be legally recognized in New York.
  3. Jurisdiction Matters: The state where the couple resides and holds their matrimonial home plays a crucial role in determining the legality of the marriage.

Conclusion:

The general recognition of Islamic marriages without a civil license in New York is a testament to the state’s commitment to cultural inclusivity and legal flexibility. However, that does not mean that they will always recognize the marriage. The rules need to be followed and if a party cannot prove the property solemnization of the wedding, the court might not find a valid marriage.

Call Port and Sava for a Free 15 Minute Telephone Consultation, (516) 352-2999

The 2 Vital Issues Enforcing A Mahr in New York

Gary Port
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The 2 Vital Issues Enforcing A Mahr in New York

As the number of followers of Islam increases in New York the courts are often being tasked with determining the question of enforcing a mahr. The New York courts have often had to address the intersection between civil divorce and religious marriage. While the courts have had extensive experience with Catholic divorces, the law involving Islamic marriages is still relatively new. Many lawyers and judges are still learning how to bridge this civil-religious divide when enforcing the New York equitable distribution laws.

The Essence of Islamic Divorce

Islamic divorces, like their counterparts in other faiths, are shaped by religious teachings and cultural traditions. At the heart of Islamic divorce law is the concept of the “Mahr” (or “Mehr”), also known as “Mehrieh.”

This religious agreement entails an agreed-upon sum, which could be money, property, or gold coins, to be given to the wife in the event of a divorce. This agreement serves as a financial safety net for the wife, ensuring her economic stability post-divorce.

In New York, these agreements can be legally binding contracts, often catching those involved in Islamic divorces by surprise. These agreements often become central to divorce negotiations, with parties sometimes seeking guidance from religious leaders in their mosque.

When and how they are binding in a New York divorce depends on when, where, and how the agreement was created.

If the agreement was executed in New York, it must be signed and notarized by the parties in the same manner as a deed for real property.

In a case where a New York court upheld an Abu Dhabi Mehr agreement. The court stated that Mehr agreements if in line with neutral legal principles, are constitutionally sound and enforceable as contractual obligations. This ruling set a precedent for recognizing Mehr agreements, even those made outside the United States.

The Agreements and New York Law: A Complex Mix

New York courts recognize the enforceability of Mehr agreements, but not without complications. One court faced the challenge of an agreement executed in Iraq but not formally recognized under New York law and hence was initially unenforceable. However, the court applied comity, a principle of extending respect to foreign agreements unless they conflict with New York’s strong public policies.

Let’s break this down. Since the agreement was not signed and notarized by New York law, the court found it unenforceable under New York law. However, because it was properly signed and executed in Iraq, under Iraqi law, the court found that it could enforce the agreement under this principle of recognizing valid foreign agreements (“comity.”)

Interpreting The Agreements

The interpretation and application of these agreements in court can be intricate, especially given the varying interpretations of Islamic law. Some courts have had to consider the religious and cultural contexts of the Mehrieh to reach a fair decision, treating it as a distinct legal entity separate from typical prenuptial or postnuptial agreements.

Neutral Principles of Law

The “neutral principles of law” doctrine has been key in resolving disputes involving these agreements. This approach enables courts to apply established secular laws without delving into religious doctrines. This can be a tricky area for the courts. They are not allowed to issue religious decisions, yet, they must still be mindful of the cultural implications.

Controversies Surrounding Mehrieh Agreements

Despite legal recognition, these agreements remain controversial and sometimes difficult to enforce. Critics argue they may inadvertently encourage divorce or separation by providing a settlement only in such events. However, this view overlooks Mehr’s protective role for the wife’s financial interests.

Further, the laws regarding prenuptial agreements may also apply. As I explain in this article, prenuptial agreements are not always enforceable. The agreement cannot be enforced if obtained under duress, if manifestly unfair, or if fraud is involved. For a more in-depth treatment, please read the article on prenuptial agreements.

The Challenge of Duress

Allegations of duress are common in disputes over the agreements. Courts have ruled that duress exists if the party was unaware of the Mehr or its specifics until the signing, or if he could not comprehend the negotiations due to language barriers.

The distinction between civil and religious marriages adds complexity to enforcing the agreements. If a civil marriage precedes the religious ceremony where the Mahr is typically signed, this sequence can affect the agreement’s enforceability.

The Future of Mahr Agreements in New York

The evolving recognition of Mahr agreements in New York reflects an ongoing effort to balance religious freedom, contractual obligations, and public policy. Future legal developments and societal shifts will likely continue to shape the role of Mahr agreements in New York.

Conclusion: Charting the Complexities of Islamic Divorce

Understanding Islamic divorce in New York requires a nuanced grasp of Islamic law, cultural practices, and New York’s legal framework for contract enforcement and matrimonial law. The varied cases discussed underscore the critical role of the agreements in resolving Islamic divorces.

Call Port and Sava for a Free 15 Minute Telephone Consultation (516) 352-2999

The Number 1 Reason Why an Annulment is not Better than a Divorce

Gary Port
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The Number 1 Reason Why an Annulment is not Better than a Divorce

There is a lot of misunderstanding about what an Annulment, or marriage annulment is, and when it should be used. It is a legal holdover from a time when no-fault divorce was not available in New York. It is a process that significantly impacts a person’s marital status. Equitable distribution and maintenance (alimony) are still available to be awarded in an action for annulment. In this blog, I will discuss the pros and cons of annulment v. divorce. Spoiler alert: divorces are generally the better option.

What is Annulment?

Let’s start by describing exactly what an annulment is. It is a legal procedure that renders a marriage null and void. Unlike a divorce, which dissolves a legal marriage, it treats the marriage as if it never occurred. This can be crucial for individuals who wish to sidestep the societal stigma associated with divorce. But, I will repeat this several times, an action for annulment does not get rid of maintenance, equitable distribution, or issues of child custody and child support.

Grounds in New York

New York law provides several grounds to annul a marriage. Understanding these requirements is key in determining if getting one is possible in your case.

Age at the Time of Marriage

If one or both parties were under 18 at the time of marriage. However, this ground is waived if the parties continue to live together after turning 18, answering the question of how long can you be married and still get an annulment.

Mental Incapacity

A marriage can be annulled if one or both spouses lack the mental capacity to consent to the marriage. This ground can be invoked while the mentally incapacitated spouse is alive.

Physical Incapacity

If either spouse is physically incapable of consummating the marriage and this was unknown at the time of marriage. This request must be made within the first five years of marriage.

A marriage can be nullified if consent is obtained through force, duress, or fraud, or in cases of bigamy. Examples of fraudulent practices include marrying for immigration status or lying about the desire to have children.

Incurable Mental Illness

If a spouse has been mentally ill for over five years and the illness is incurable, an annulment can be sought.

Annulling a marriage in New York requires a trial. This is unlike a divorce. New York is a no-fault divorce state, and the judge MUST always grant the divorce. The person filing must prove at least one of the grounds in court. A judge does not have to grant annul the marriage. In fact, if the person filing does not prove the case, then the judge won’t.

Notice, I use the term “person filing” and not “spouse”? That’s because an interested third party can file. Most frequently this is seen when an elderly relative marries a person whom it is alleged is taking advantage of them. In these cases, a child, or other relation will ask the court to declare the relative incompetent and void the newly entered marriage.

Submit the Necessary Paperwork

The process starts by filing an action in the Supreme Court. The other party is served and is given 20 days to answer. From there, unless one or the other party asks for a court conference, the matter will languish until that does happen. At the first conference, called the “preliminary conference” the court will set dates to exchange discovery. The conference will occur within 60 to 90 days of the request for it. This puts you around 100 days from the filing of the action.

The discovery will include the exchange of documents, perhaps depositions and motion practice. In addition to providing documents relating to the annulment, the court will also want disclosure on financial records to include, tax returns, bank records, pay stubs, business records, retirement accounts, etc. In other words, an exchange of all the financial documents required in a divorce. Again, in an annulment, the court will issue orders for equitable distribution of property and post-divorce maintenance (alimony).

Prove Your Grounds

The next step involves gathering evidence to support your grounds. This can include documents, witnesses, or medical reports.

Discovery can be very expensive as you will have to pay your lawyer to conduct it. There may also be motion practice as the other side may not be willing to voluntarily turn over documents.

Attend a Hearing

Finally, a hearing before a judge is mandatory. The judge will review the evidence and decide whether an annulment should be granted.

The trial will be expensive. Anytime your lawyer enters a courtroom to try a case, it will be expensive. If it is granted, then you will still need to deal with equitable distribution, maintenance, as well as custody and child support.

Effects of an Annulment

An annulled marriage is considered void, as if it never happened. This is what is meant by an annulled marriage. However, this does not affect the legitimacy of children born during the marriage. Both parents are presumed to be the biological parents of any children born during the marriage.

Additionally, the court can make orders for custody, visitation, and financial support of minor children.

Also, the court can distribute marital property fairly between the former spouses. That means, even if an annulment is granted you may still have to divide houses and bank accounts acquired during marriage. Even retirement assets acquired during marriage may be divided.

Why Annulment is Difficult: Considering No-Fault Divorce

While the annulment, process may seem like a clean way to end a marriage, it’s not always the best option. Proving the grounds for an annulled marriage can be complex and requires a trial, making it a lengthy and potentially expensive process.

In contrast, a no-fault divorce allows spouses to dissolve their marriage without assigning blame. This can make the divorce process smoother and less contentious.

The Recurring Myths

There are two recurring myths about annulment. One is that the winning spouse will be vindicated. While I realize that a person may be hurt if deception was practiced, under the law, there is no “vindication.” There is only a legal result and a hefty legal bill. My advice is do not unnecessarily increase your legal bills, and the time to resolve the litigation merely because you want emotional satisfaction. Emotional satisfaction is moving on with your life, not paying for your lawyer’s new car.

The second is that with an annulment there is no equitable distribution, post-divorce maintenance, or other orders. The false belief is that an annulment is like an eraser. This, as I have pointed out many times is utterly false.

When is an Annulment a Necessity?

As I have discussed above, there are times when a third party will intervene. One example is when underage children marry. In that case, the parents can file to annul the marriage.

The second, and more common situation, is the mentally incapacitated person who gets married. Here, if a guardian has already been appointed, the guardian will apply for the annulment. If no guardian has been appointed, the relatives will move to get a guardian appointed

Conclusion

Understanding the annulment process and the annulment laws in New York, including both religious annulment and legal annulment, is crucial when deciding how to end a marriage. While it may appear that an annulment can provide a fresh start, it’s not always the easiest or most practical solution.

Call Port and Sava (516) 352-2999 for a free 15-minute consultation.

4 Critical Property Issues When People Are Not Married But Living Together

Gary Port
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4 Critical Property Issues When People Are Not Married But Living Together

Not Married But Living Together: Breaking up is Hard to Do

People think it is easier when they are not married but living together. Unfortunately, that is not always the case. Sometimes it is harder and more expensive to break up when unmarried but living together than to get a divorce. In fact, there may be greater pitfalls to not getting married, than when an unmarried couple breaks up. When unmarried couples in New York face a breakup, understanding the legal landscape regarding property rights, especially for shared real estate, is crucial.

To be very clear, New York DOES NOT RECOGNIZE COMMON LAW MARRIAGES. You are either married by a person authorized to perform a marriage, or you are not married. When you are unmarried and living together, you are NOT married and do not get any of the protections afforded to a married couple.wl

This article aims to provide a friendly yet professional overview of these rights under New York law, focusing on scenarios where both parties are on the deed and when only one party is on the deed.

Buckle up, this is unfortunately a long article.

1. Joint Ownership: Both Parties on the Deed

Not Married but Living Together: Less Rights than Marriage

In New York, if people are not married but living together buy a house together and both names appear on the deed, they are considered joint tenants or tenants in common. This distinction is vital in understanding each party’s rights upon separation. A married couple automatically buys a house as “Tenants by the Entirety.” This is similar to Joint Tenants.

Unlike Tenants by the Entirety, whether to be joint tenants or tenants in common is not automatic. You have to tell your lawyer before the deed is drafted and signed.

Joint Tenancy vs. Tenants in Common

  • Joint Tenancy: In this arrangement, both parties own the entire property together. If one party passes away, the other automatically inherits the entire property, a right known as the right of survivorship.
  • Tenants in Common: Here, each party owns a specific share of the property (not necessarily 50/50). There is no right of survivorship, meaning if one party dies, their share passes according to their will or state law if there is no will.

Resolving Disputes When Unmarried but living together

When parties are not married but living together, the issue of a house is very complex. The way the law treats a house owned by parties unmarried but living together is fundamentally different from how it treats it with a married couple.

By the way, the rules I’m setting out below work for any group of people who jointly own property, including siblings, parents and children, business partners, etc.

When a couple is married and gets divorced, the Divorce Court has more flexibility. The Judge can sell the property by hiring a realtor to get the best and highest price. The judge can also trade assets. For example, let’s say the Husband’s share of the house is $150,000 and the Wife’s share of his pension is $150,000. The court can trade the two so that the Husband walks away with his pension and the Wife walks away with the house.

This type of flexibility is simply not available when the parties are not married but living together.

Upon breakup, the parties can agree to sell the property and divide the proceeds. If they cannot agree, one party may file a partition action in court. The court can order the sale of the property and divide the proceeds according to each party’s contribution or agreement.

The Partition action is not pretty.

The Partition Action: The Cons and the Cons (not really any Pros)

Lawyers hate partition action on residential homes because there are no winners. The idea of a partition action arose from farmland. Unfortunately, the law has not kept pace with the reality of unmarried people buying houses together and then splitting up. The original idea was that, if say you and your business partner had 100 acres of land, but couldn’t work together anymore, the court would give each of you 50 acres.

Clearly, this doesn’t work for a residential home bought by a couple who is not married but living together, or as I said above, any group of people owning property. The house has to be sold.

Any co-owner of real property can file a partition action, regardless of the type of property (residential, commercial, or undeveloped land). As mentioned above Co-ownership can arise from a variety of sources not just with people who are not married but living together, such as:

  • Inheritance
  • Joint purchase
  • Business partnership
  • Dissolution of a partnership or limited liability company

Filing a Partition Complaint

To file a partition action, the plaintiff must file a complaint in the Supreme Court of the county where the property is located. The complaint must identify the property and all of the co-owners. The plaintiff must also serve the complaint on all of the other co-owners.

Court Appointment of a Referee

Once the complaint is served, the court will appoint a neutral third party, known as a referee, to evaluate the property and make recommendations on the most appropriate partition method. The referee will typically visit the property and inspect it. The referee may also order an appraisal of the property. The referee is paid for by the parties. So, in addition to paying for your lawyer, you will have to split the cost of the referee.

Referee’s Report

The referee will submit a report to the court detailing their findings and recommendations. The report will typically address the following issues:

  • Whether the property can be physically divided
  • If the property can be divided, how the property should be divided
  • If the property cannot be divided, whether the property should be sold and the proceeds divided among the co-owners

Court Decision

Based on the referee’s report, the court will issue a judgment determining the appropriate method of partition and outlining any necessary steps to complete the process.

Partition by Sale

If the court determines that the property cannot be physically divided, or if the parties cannot agree on a physical division, the court will order a partition by sale. In a partition by sale, the property is sold and the proceeds are divided among the co-owners in proportion to their ownership interests.

The sale is an auction on the courthouse steps. When a realtor sells the property, s/he is seeking the best and highest price. That doesn’t always happen at an auction.

The house may be sold for undervalue, and in fact, be sold for under the outstanding balance of the mortgage. That means, the parties no longer own the house, but are still liable for the mortgage.

As I said, when there is a partition, there may not be any winners.

2. Single Ownership: One Party on the Deed

Situations where only one party is on the deed are more complex. The non-titled partner may still have rights based on contributions to the property’s purchase or maintenance.

When parties are married, all property acquired during marriage is marital property regardless of whose name is on the deed.

But, when the parties are not married but living together, the person whose name is on the deed is the owner. Period.

Establishing a Claim

The non-titled partner must prove their contributions to have a claim. This can include financial contributions towards the mortgage or significant contributions to the property’s upkeep and improvement. This is not easy and does not always work.

  • Constructive Trust: A court may impose a constructive trust if it finds that the non-titled partner made contributions with the expectation of a shared interest in the property. This is very complex and very difficult to establish. You really need to consult with an attorney who knows this area of the law, and not hire someone who will wing it.
  • Partition Action: While typically used for joint owners, a non-titled partner who establishes a claim may seek a partition action to receive a portion of the property’s value. This is also tough. You will have to convince the judge that you have an “equitable ownership” in the property, mainly but creating a constructive trust. Again, this is very tough

The Role of Cohabitation Agreements

Unmarried couples are encouraged to have a cohabitation agreement. This contract outlines each party’s rights and responsibilities regarding property and can be crucial in resolving disputes efficiently.

If you really, really don’t want to get married, and really want to buy a house together, go to a lawyer and get a cohabitation agreement. Yes, you can save money and pull a blank from the interest. But, do you really want to take a chance when hundreds of thousands of dollars are on the line?

Enforceability and Requirements

A cohabitation agreement must be in writing, signed by both parties and executed voluntarily. It should be clear, specific, and fair to be enforceable. Courts are very strict when examining and applying contracts to real property. Again, you are strongly advised to get an attorney to draft the agreement.

4. Protecting Your Rights

Considering the complexities of New York property law, seeking legal counsel is advisable. An attorney can provide tailored advice and represent your interests, whether in negotiating an agreement or litigating a dispute. Yeah, I keep beating this drum. But, when a client walks into my office with an internet document one of two things happens:one, I can’t help them because the matter is totally screwed up or two, I can help but the cost is greater than if they’d used a lawyer in the first place.

Documentation

Maintain thorough records of all contributions towards the property, including mortgage payments, renovations, and major repairs. This documentation can be pivotal in establishing your claim.

5. Conclusion

Navigating property rights in the context of a breakup for unmarried couples in New York requires an understanding of the legal framework and the different scenarios that can arise. Whether both parties are on the deed or only one, there are legal avenues to protect your interests. Having a cohabitation agreement and seeking legal advice are key steps in ensuring a fair resolution.

Not married and living together may seem like an easier option, but as seen above it can lead to greater complications. My advice? Don’t buy a house together and if you are going to do that, then get a cohabitation agreement

If you have questions, call us at Port and Sava at (516) 352-2999 For a free 15 minute telephone consultation.

The Critical 2-Prong Test for Grandparent’s Rights

Gary Port
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The Critical 2-Prong Test for Grandparent’s Rights

Understanding Grandparents’ Rights to Visitation: A Legal Blog

The issue of Grandparent’s rights, and more specifically what are the rights of grandparents to see their grandchildren is asked a lot. The short answer is that the right of a grandparent to see or get custody of their grandchild depends. I’ve addressed some issues in a previous article https://nydivorcefacts.com/grandparents-rights/. Legal Zoom also has a good basic article on the topic

However, since the questions still come up, I thought I’d take another look at the issues. Also, I will solely focus on New York law. Different states have different rules.

The Bedrock of Grandparents’ Visitation Rights

Starting at the beginning, originally, grandparents did not have an inherent right to visitation with their grandchildren. But, over the years the law has evolved as people have pushed for grandparent’s rights. The question of “what are the rights of grandparents to see their grandchildren” has gone from “none” to “possibly visitation or even custody.”

At the heart of the legal system’s approach to grandparents seeking visitation rights is a principle of equity – fairness, in common parlance. Courts are guided by what is fair and just under the circumstances. For grandparents, this means they must demonstrate a meaningful existing relationship with their grandchildren or show they have made substantial efforts to establish one when such efforts have been thwarted by the parents.

The Two-Pronged Test for Grandparent’s Rights to Visitation

  1. Sufficient Existing Relationship: If grandparents can prove a significant ongoing relationship with their grandchildren, they lay the groundwork for the court to intervene. Such relationships are often demonstrated through a history of regular visits, caregiving, or consistent communication.
  2. Sufficient Effort to Establish a Relationship: When parents impede the relationship between grandparents and grandchildren, the law requires grandparents to show they have done everything reasonably possible under the circumstances to maintain that connection. This could include frequent attempts to reach out to the grandchildren through calls, messages, or other means of communication.

Grandparent’s Rights Case Scenarios: From Standing to the Child’s Best Interests

In legal terms, ‘standing’ refers to the right to bring a case to court. To gain standing, grandparents must pass the two-pronged test mentioned above. Once standing is established, the court will then consider what serves the child’s best interests.

Consider a grandmother who has been part of the child’s life from birth until a falling out with the parents. If she then makes regular attempts to maintain contact, the court is likely to find she has standing for visitation rights. The grandmother’s actions reflect a clear intention to remain part of the child’s life, showcasing the law’s preference for maintaining existing familial bonds when it’s feasible and reasonable.

However, a grandfather who has had little contact over several years with his grandchildren is unlikely to meet the threshold required for standing. The law expects proactive and consistent efforts to maintain a relationship, not sporadic or minimal attempts.

Grandparent’s Rights: Equity, Efforts, and Existing Bonds

The concept of equity remains a central theme in the discussion of grandparents’ rights. Courts look for fair and equitable circumstances to justify their intervention. When a grandparent demonstrates ongoing, loving involvement in a grandchild’s life, equity tends to favor allowing that relationship to continue, barring any countervailing concerns about the child’s welfare.

When Efforts Are Met With Resistance

It is particularly challenging when grandparents have to prove their efforts in the face of parental opposition. The law understands that there can be genuine cases where parents may unjustifiably prevent a healthy grandparent-grandchild relationship. In such instances, the grandparent’s persistence is key. The court examines whether the grandparents have consistently attempted to overcome the barriers erected by the parents.

Best Interests of the Child: The Ultimate Decider

Once standing is established, the focus shifts to the best interests of the child. This involves a holistic look at the child’s needs, including emotional and psychological well-being. Regular contact with a loving grandparent can be beneficial, but each case is assessed on its merits. Sometimes, despite a grandparent’s best efforts and intentions, the court might conclude that visitation is not in the child’s best interests, especially if it disrupts the child’s stability or involves conflicting familial dynamics.

The Grandparent’s Burden of Proof

When trying to establish Grandparent’s rights to visitation the onus to prove they deserve the court’s intervention lies with the grandparents. This isn’t a mere assertion of affection or a generic claim of attachment. It’s a substantive demonstration of an ongoing, meaningful relationship or significant efforts to create one. The grandparents must present concrete evidence of their involvement or attempts at involvement in their grandchild’s life.

The Court’s Discretion in Granting Visitation Rights

It’s important to recognize that the court has broad discretion in determining whether the equitable circumstances necessary for granting visitation rights exist. This discretion allows the court to tailor its decisions to the specific facts of each case, considering the unique dynamics and history of the family involved.

Conclusion

As can be seen from this article, when both parents are still alive, the answer to the question of “What are the grandparent’s rights to visitation” is not easy or clear. The law, while complex, strives to honor and protect these relationships, balancing the need for family continuity with the paramount importance of a child’s welfare.

The grandparent fighting for custody must be able to demonstrate they have and have had a relationship with the grandchild. That is critical. And the grandparent must show that the relationship is beneficial to the children.

Keep in mind that the Judge has broad discretion in this area. Being able to convince the judge is the key to winning the case.

Understanding these legal principles empowers grandparents to navigate their rights and responsibilities and enables parents to understand the scenarios under which the courts may intervene.

For grandparents, the path to securing visitation rights is paved with evidence of love, effort, and persistence. It’s a journey that requires demonstrating not only a desire to be part of a grandchild’s life but also taking concrete steps to make that a reality. For those grandparents faced with legal hurdles, knowing the foundational principles can be the first step towards maintaining that precious bond with their grandchildren.

If you have questions, please call Port and Sava for a free 15 minute telephone consultation at (516) 352-2999

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