I Thought That The One-Year Requirement to Get A Divorce in New York Is Gone. Is that Right?
Fred, Expert Divorce Mediator Long Island, Discusses Divorce Mediation and No-Fault Divorce in New York
Let’s consider divorce mediation long island and no-fault divorce in New York. In the past three weeks I have had three people call me who wanted a divorce. It appeared that they did not meet the jurisdictional requirements. What does that mean? Now that New York has no-fault divorce, can’t you just get a divorce on Long Island if you want one?
New Ground For Divorce – Irretrievable Breakdown of Divorce
New York does not technically have “no-fault” divorce. What the state legislature has done is to add a new ground for divorce — an irretrievable breakdown in the marriage, which has lasted for six months or more. That is the reason upon which a New York divorce court can grant a divorce. However, there is an issue that is more basic. It comes up before the issue of grounds. That is – jurisdiction. To learn more about mediation vs. litigation, read this article.)
What is Jurisdiction to Grant a Divorce?
Jurisdiction means that the Court has the authority to deal with an issue. If the Court does not have jurisdiction to deal with your divorce, the issue of grounds never arises. The Court cannot deal with your divorce at all.
What Is The Jurisdictional Basis for a Long Island Divorce Court to Deal with a Divorce?
Domestic Relations Law (the New York law that deals with most divorce issues) § 230 provides five bases upon which a New York divorce court can hear your divorce case. What are they?
1. The marriage ceremony took place in New York state. Either one of you is a resident of New York state when you file for the divorce. The person who filed for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.
One of the couples who called me for a mediated uncontested divorce had moved to Long Island five months ago from Florida. They were married in Florida. It appears that they do not qualify as residents. Could a Long Island divorce court grant them a divorce? Are they going to have to wait?
2. You have lived together as husband and wife in New York. Either one of you is a resident of New York state when you file for the divorce. And the person who files for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.
Same problem — what is the answer?
3. The grounds for divorce ( there are 7) must have occurred in New York state. Either one of you is a resident of New York state when you file for the divorce. And the person who has filed for divorce has lived continuously in New York state for one year or more prior to filing for the divorce.
Same problem. They need to meet the one year requirement (or do they?).
4. The grounds for divorce occurred in New York. You are both New York state residents at the time one of you files for divorce.
It is not clear what the requirement for residency is if you file based on irretrievable breakdown of the marriage. The statute is silent.
What if you allege irretrievable breakdown for more than six months and you just moved to New York two weeks ago? In fact, I could not find any cases on that, so we shall have to see.
No-Fault Divorce and Divorce Mediation in Suffolk County, NY
It makes sense, though, that the six months must have all occurred in New York. So it looks like the residency requirement has been reduced to six months.
5. You were not married in New York. You have never lived together as husband and wife in New York. And the grounds for divorce did not occur in New York. One of you must be a resident of New York when you file for divorce and must have continuously been a resident of New York for two or more years.
This is really for someone who has moved separately to New York and now wants a divorce. It appears that the two years still applies. How could you allege that the marriage has irretrievably broken down for more than six months in the State of New York when your spouse has never lived here and your moved here by yourself? You may be stuck with the two-year rule.
So, Is There Any Requirement to Reside In New York For A Minimum Period to Get A New York divorce?
In regard to divorce mediation and no-fault divorce in New York, it appears to me that there is at least a six month residency requirement to get divorced in New York. This is a major issue. Either the Courts or the legislature will have to resolve it.
Time To Get Divorced – Is it Now? Discussed by Fred Klarer, top Divorce Mediator Attorney at the Long Island Center for Divorce Mediation, Suffolk County, NY
It is strange how events seem to come in threes. In the past six weeks I have seen clients from years ago — one couple from two years ago, one from four years ago, and one from nine years ago.
Each couple had begun divorce mediation long island and then somehow just disappeared. Two couples had finished the mediation process but never finalized one or two issues. One had reviewed the proposed settlement, then never gotten back to me. Each couple now wanted to finish up. Now it was time to get divorced.
Reasons:
The reasons that they had not finished when they first started the mediation differed, but all had the same basic problem. They just were not willing to confront one major issues.
Visitation Schedule Problem
For one couple it was the visitation schedule. Mom wanted to exclude Dad as much as possible; Dad was not willing to do that. What was their solution? They just waited until all three children were over 18 and no longer subject to custody issues.
In the meantime they had used the schedule I had helped them work out and had kept to it. Dad got more time than Mom wanted and less than he wanted. I supposed you might think — so what that they waited to finish things up. I will come back to that in a minute.
Sale of House Problem
One of the other two couples had a problem about the house. Dad wanted to sell it; Mom wanted to stay in it until the children were grown and gone. Again, they just waited it out. Finally, the kids were off to college and Mom was willing to sell. Again, I will come back to this in a minute.
Child Support Payment Problem
The third couple had a slightly different problem. Mom had custody; Dad didn’t want to put child support payments in writing. He was will to pay the amount based on the standard formula — just didn’t want to put it in writing.
He was afraid of losing his job and being stuck with child support payments he could not make. In fact, he went ahead and paid the formula amount voluntarily for a while, but slowly but surely stopped paying. Mom didn’t do anything about it. So what is the problem?
Problems When Time to Get Divorced is Delayed
The problems that happened by waiting are these. The first couple had lived their lives as if they were divorced. Now, when they are getting ready to make it official, Dad was in for a surprise. As far as he was concerned he had been divorced. Now he was getting ready to retire from the NYPD and was very surprised when his wife insisted she wanted her full share of the pension, right through until the date they were officially divorced in the future. They were still married, so why should she take less?
Dad kept saying — you’re my ex; we have been separated for four years — you don’t get that part of my pension. Unfortunately for Dad Mom was determined, and she was correct. Whether you live together or not, married is married. Just because you feel like you are divorced doesn’t mean that you are.
Mom was still entitled to a portion of the pension even thought they did not live together and, in fact, they lived completely separate lives. Dad could have kept a lot more of his pension if he had confronted the visitation issue at the time.
The couple with the house issue had a similar problem, but in reverse. Mom had been paying the mortgage all those years; Dad had been paying her child support according to the standard formula. Now Mom was claiming that she should get credit for every monthly payment she made on the house mortgage — on that basis Dad would get nothing.
Dad’s point of view was that he had been paying child support, which paid the mortgage, so she shouldn’t get any credit at all. In fact, they were both partially correct.
Mom should get a credit for the amount by which she reduced the principal balance of the mortgage — in this case not much — and Dad still gets his 50% of the net value of the house, after credit to Mom for the mortgage reduction. Mom was really surprised, but that is how it works.
The third couple had, in some ways, the biggest issue. Mom wanted all the back child support that she had not received — quite a bit of money. The problem was that she did not have a court order directing her husband to pay child support. You cannot get child support that you never had a legal right to receive. She was out of luck, as he was not about to pay voluntarily. If she had had a signed agreement, or at least a Family Court order she could have collected. Without that, she was just out of luck.
Candidly, these are typical cases. Don’t think that, just because you think of yourself as divorced, you are. Don’t think that your separated husband or wife will just agree to whatever you thought you had agreed to years ago but never bothered to get in writing or a court order.
People change. People’s lives change. Better to get it all set when you are ready to end the marriage than to bet on your former partner’s good will. And if you are ready to end the marriage, please visit our services page to learn how to proceed. We have two service area offices in Suffolk for your convenience – in Huntingtonor Yaphank.
Mediators Suffolk County – Here are my insights into what it takes to be an expert Suffolk County Divorce Mediator. The key factors are those I, myself, would consider if I had to choose from a host of Suffolk County divorce mediators.
As I am always learning and developing as a mediator, I take these factors very seriously.
Length of Experience as Divorce Mediator
My other professional service is Long Island Marriage Counseling Center. It took me years to become an expert in marriage counseling – such that I am really good at predicting the results for couples who come to see me. I am really good at helping those who are committed to making their marriage work.
As Fred developed his expertise, he learned how to influence different personalities to make Win/Win deals. At the beginning of his practice, he lost clients because he didn’t have enough experience to bring both sides of a difficult couple to agreement. From experience, he developed the ability to bring many difficult cases to a successful divorce or separation.
If I were choosing a Suffolk County mediator, it would be someone with many years of experience who convinces me that he or she can handle or case.
Mediators Suffolk County, Key Factors to Consider – Mediation Training for Divorce Mediators
I highly recommend finding a mediator who has gone through a mediation training program. But, you might say, can’t a lawyer do mediation without special training? The answer is that some can and some can’t. Why? Divorce lawyers are trained to represent one side against the other. Mediating, where the needs of both Spouses need to be kept in mind, is a very different pattern. If you are going to go to a lawyer mediator, it is safer to find one who has had the divorce mediation training.
And what if you have decided to go to a mediator who is not a lawyer? I have a friend who is a great divorce mediator. She was a real estate agent before becoming a mediator. She has excellent abilities to stay neutral and encourage both sides to make a deal.
Negotiation Skills As a Divorce Mediator
Another key skill for Divorce Mediators is the ability to lead negotiations between two sides to a successful conclusion. That skill is taught in official divorce mediation training. It is needed during the divorce mediation sessions for deciding all issues.
Legal Knowledge, Divorce Mediation, Suffolk County, NY
Divorce Mediation is a method of divorce that allows the spouses to make their own agreements, separate from what the courts would say. However, there are court mandated rules for spousal and child support. There are many decisions made by Judges regarding all divorcing issues.
Knowing the rules and laws for support and for ownership of property solves many divorce mediation problems when the couple is stuck on an issue. Often the spouses will go along with what the Judge might say.
Suffolk County Divorce Mediators, Key Factors to Consider – Experience in the Courts as a Suffolk County Divorce Mediator Attorney
Along with legal knowledge, experience in the courts is a good factor. Why? Often the Judge varies any of the divorce laws and guidelines on a case by case basis. In that case, if the mediator is using the courts as a way of influencing the spouses, the more knowledge the better.
Suffolk County Divorce Mediators, Key Factors to Consider – General Factors – Like and Respect
In all cases, for any kind of professional, including a divorce mediator, one important criteria I use is: Do I like and respect the person? That seems to be the criteria used by Warren Buffet in selecting business partners. It is a good criteria.
Spousal Support & 2018 Tax Law Changes – How is Spousal Support Calculated?
Often in divorce one Spouse ends up paying Spousal Support (“maintenance” or “alimony”) to the other. In New York, to set Spousal Support or Maintenance, we have a formula that Judges are required to use, established by the New York State Legislature. Judges can vary it, but Judges generally follow the rules as set out by the Legislature.
Spousal Support kicks in when there is a large gap between the income of the two Spouses. The formula awards the Spouse who makes substantially less a monthly maintenance award that boosts the income of that Spouse.
There are guidelines suggested for how long the Maintenance payments should last, but it is usually left up to the Judge. A rough and ready rule-of-thumb is one year of maintenance for three years of marriage. However, it is up to the Judge’s discretion.
Spousal Support & 2018 Tax Law Changes – The Pre-2018 Rules on Tax Deduction or Liability Regarding Spousal Maintenance.
In the past, any Spousal Support payment was a tax deduction to the one who paid it. It was taxable income to the one who received it. So, a sizable monthly Spousal Support payment reduced the income tax due from the Spouse who was paying it. It increased the income tax payable from the one who received it.
Sometimes the Maintenance payment to the Spouse with lesser income taxes had a big impact. It changed that person from someone who paid no income tax to someone who had taxable income.
All that has now changed.
Spousal Support & 2018 Tax Law Changes – Deduction of Spousal Support (Maintenance) Prior to January 1, 2019
For any Stipulation of Settlement or Separation Agreement signed prior to January 1, 2019, maintenance will still be deductible for the one who pays this Spousal Support. It will be taxable to the one who receives it.
As I write this, this deadline of January 1, 2019, is only 7 months away. If you are in the process of divorce you need to know those deadlines.
Why?
New IRS Rules and Deduction of Spousal Support (Maintenance) After January 1, 2019
The new Internal Revenue Service changes apply to any Stipulation of Settlement, settling the terms of a divorce signed after January 1. 2019. They also apply to any Separation Agreement, signed after January 1, 2019.
For those divorces or separations:
Spousal Support will no longer be an income tax deduction for the person who is paying the support.It will not be included as additional taxable income for the person who will receive the support.
Spousal Support & 2018 Tax Law Changes – How These New IRS Rules Will Impact Divorce Negotiations
This is not such a simple issue as it might seem.
Currently, the person paying Spousal Support receives a tax benefit. The person receiving Spousal Support may have to pay additional income tax on the received money.
That has make certain choices in negotiating Spousal Support clear. Here is an example:
Now, (before January, 2019), let’s assume a former or legally separated Spouse retains the use and occupancy of the marital residence. This Spouse elects to indirectly receive Spousal Support by having the other Spouse pay the mortgage, taxes, and homeowner’s insurance directly to the bank.
In other words, this Spouse residing in the marital home does not receive a Support payment in his or her name. He or she does not show an increase in income and thus an increase in income tax.
Meanwhile, the Spouse paying support gets his or her tax benefits by deducting the real estate payments rather than by deducting Spousal Support. Since the real estate payments are often larger deductions than the Spousal Support, the paying Spouse pays less in taxes. Win-Win.
For any agreement signed after December 31, 2018, the above trade-off strategy will not help either party pay less in taxes. That is because the person paying the Support will no longer receive any tax benefit for paying maintenance. It doesn’t matter whether he or she pays the Support directly to the Spouse or indirectly to the bank. He or she must pay full tax on the money. It is no longer deductible to this Spouse.
The person receiving the Support will pay no taxes on it, so he or she does not need the trade-off strategy in order to save on taxes.
The outcome of this is clear. It makes negotiation of support amounts much more difficult.
The person paying Support will have to make more money to pay the same amount in Support.
The person receiving the money will not typically understand or appreciate that the person paying Support will have to pay the taxes on the Spousal Support, thus further reducing the paying Spouse’s income.
Spousal Support & 2018 Tax Law Changes – Additional Spousal Support Guidelines:
A couple of other interesting issues to note are these:
1. Before January 2019, after the Stipulation of Settlement or Separation Agreement is signed, both Spouses need to live in separation residences and not file a joint income tax return. That is the only way that Spousal Support payments can be deductible on the paying Spouse’s federal tax return.
2. Before and after January 2019, Spousal Support obligations must terminate with the death of the person receiving them. You cannot leave any remained Spousal Support payments to your children. You could use insurance to leave that amount to your children.
Next Blog: How the Maintenance Changes Affect the New York State Maintenance Formula.
If you would like to learn more about our divorce mediation services at the Long Island Center for Divorce Mediation, please call or email us. We have two convenient Long Island Divorce Mediation nearby offices in Huntington and Yaphank.
My Spouse Won’t Come to Divorce Mediation in Suffolk County –
My Spouse Won’t Come to Divorce Mediation, Suffolk County, NY – From Dr. Diane Kramer, Long Island Center for Divorce Mediation
In this article, I am going to discuss what to do if your Spouse won’t come to Divorce Mediation.
People call us all the time at our Long Island Divorce Mediation Centers saying they want a divorce. These individuals say they would rather do divorce mediation than divorce litigation. They say they are ready to move forward. I say: Does your Spouse know you want a divorce? Has your Spouse agreed to go forward with a divorce?
About 40% of the time, the person who has called me says “Yes, my Spouse has agreed to go forward with a divorce and has asked me to find a divorce mediator. We are ready.
The rest of the time, about 60% of the time, the person says: “I haven’t talked to him or her yet, but I have been wanting to do this for a long time.” Then these individuals usually tell me how their Spouse is abusive or an addict or out of work for years.
Alternative 1 – “My Spouse and I Agree Together to Come to Divorce Mediation”
The first group of people – the 40% – make an appointment to come in for a free divorce mediation consultation, or to start the first mediation session. Both Spouses are ready to begin the process. Both Spouses have decided that it is better for them to mediate their divorce than to fight it out through divorce litigation. This group starts divorce mediation with us as their mediators. We guide them through the issues. They reach settlements. Then Fred, our lawyer, writes up the Stipulation of Settlement (the contract between the spouses) and the Divorce Papers. They are submitted to the Judge and around six months later, the couple is divorced.
What about the 60% – where one Spouse is all ready for the divorce but the second is not? What happens? Do they come to mediation? Do they go to litigation? Do they stay together?
It is our best guesstimate at the Long Island Center for Divorce Mediation that that 60% divides into 1/3, or 20%, eventually come to mediation, 1/3, or 20%, go to litigation and 1/3, or 20%, find a way to stay together.
Lets play this out:
Alternative 2 – “My Spouse Finally Has Agreed to Come to Divorce Mediation”
First, the 1/3 that eventually bring their Spouse to Divorce Mediation at the Long Island Center – they are the individuals who have really decided they want a divorce. They talk to their Spouse. Either also wants a divorce, or realizes that he or she cannot stop the divorce. (In New York State, we have no-fault divorce. If one spouse wants a divorce, they get it. Grounds do not have to be proven anymore.)
In the above case, the other Spouse comes to mediation because they know divorce is inevitable. They know or are told that if they don’t come to mediation, their Spouse will start an expensive litigation case. These Spouses would rather save the money.
Alternative 3 – “My Spouse Won’t Come to Divorce Mediation”
What about the 1/3 that eventually go to Divorce Litigation? Our experience is that these spouses tell their mates that they want to divorce. These Spouses suggest going to mediation. The other Spouse simply refuses. Finally out of desperation to get free, this 1/3 hires a separate lawyer and starts the litigation process.
The last 1/3 – These are the Spouses who neither come to Divorce Mediation or go to Divorce Litigation. What happens to them? The first Spouse tells the other that she or he wants a divorce. That is a wake-up call to the other Spouse. Some change then occurs in the relationship. The Spouses may even go to marital therapy to see what they can work out.
So in conclusion, the Spouse leading the way to divorce can bring their mate to mediation, which is far less stressful, less expensive and faster. Or they can start a litigation case, more struggle and expense for both and for the family. And finally, the call for divorce can lead to a revitalization of the marriage.
If you are ready and want to learn more about or come to Divorce Mediation, please call for a Free Consultation/First Session at 631-757-1553.
About mediation at the Long Island Center for Divorce Mediation – We have been doing divorce mediation for 25 years. Fred is our mediator / divorce lawyer who keeps updated on all the divorce laws and what will happen if you go to courts. I am a mediator and psychologist. I give lots of support and help with figuring out how to deal with the children. Together we are your mediation team. Not one of our agreements has ever been overturned in the courts. And 98% of our mediations complete. Please read our reviews here.
Please contact us below if you would like to learn more about our services. We have two locations in Suffolk County, Huntington and Yaphank
Fred Klarer, Divorce Mediator Attorney, discusses the issue of support of Special Needs Children and Divorce Mediation vs. Litigation.
In Divorce Litigation and Divorce Mediation, an issue that comes up sometimes is how to address the custody and support of Special Needs Children (Special Needs Children and Divorce Mediation). This article attempts to shed light on this issue. It focuses on how custody is determined. Then it talks about whether better to litigate or mediate Child Custody in the case of Special Needs Children.
Child Custody — The Basic Factors
We start by considering Child Custody in general. Here is how it works, if parents end up in Court, arguing over Custody:
In any custody issue, including those related to special needs children and divorce mediation or litigation, the primary concern is the best interests of the child.
Neither parent has an automatic right to custody of any child. Whether you are the mother, or the father, the Court will look first to the needs of the child. A Court will consider the “totality of the circumstances”, including the relative fitness of the parties and “quality of their home environments.”
In more detail, the Court will consider:
“The quality of the home environment and the parental guidance the custodial parent provides for the child
The ability of each parent to provide for the child’s emotional and intellectual development
The financial status and ability of each parent to provide for the child
The relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child’s relationship with the other parent.”
A Court has wide discretion in evaluating the above factors. “The Court requires the evaluation of the testimony, character, and sincerity of each of the parents. While the child’s preference must be considered, it is not determinative, especially where the child is of young age or cannot articulate a position.”
In evaluating Custody, the Court will look at “whether each parent would foster the relationship of the child with the other parent.” Parents who withhold the child from visitation, or seek to control the child inappropriately, or who talk badly to the child about the other parent, are not going to do well in this Court evaluation. The Court will usually decide that “joint custody is inappropriate where the parties are antagonistic towards each other. Especially bad is a demonstrated an inability to cooperate on matters concerning the child.”
Court Evaluation and Joint Custody
The only way that the Court will agree to joint custody is if each of you shows a genuine concern for your child’s welfare and a genuine desire to cooperate with each other in parenting. Otherwise, the Court will award custody to one parent and visitation to the other.
Opting for Divorce Mediation and the Special Needs Child
If you really care about your child’s welfare, and agree that your spouse is a competent parent, you don’t really need to endure a Custody Case and go through Court Evaluation. Rather, it is better to seek out a skilled and knowledgeable Divorce Mediator who can guide you to a resolution. All it really takes is a concern for the child’s welfare rather than a stubborn insistence on your own point of view, without considering the other possibilities.
Special Needs Children and Divorce Mediation – Child Custody and Special Needs: A Case Study
Below is a Case Study that sheds light on what the Court might decide in a Child Custody Case regarding a Special Needs Child:
In a New York Supreme Court case in Richmond County (Staten Island, in New York City), B. K., Plaintiff vs. J. N., Defendant, the Court dealt with the custody of a young, autistic, child. The parents were not living together. The mother was extremely hostile to the father and refused to inform him of any actions she had taken with respect to the child’s need and did her best to exclude him. In contrast, the father, while he initially made a number of poor decisions, was found to be much more attentive to the child’s real needs.
The father recognized early on that the child had special needs and immediately took steps to seek professional diagnosis and treatment. The mother initially refused to acknowledge the child’s needs. When the father invited the mother to participate in the discussions with the professionals the mother participated only to the extent that she did not accept the diagnosis. She believed that there was nothing wrong with the child.
The professional who did the initial evaluation and treatment pointed out to the Court that the mother’s position was in direct contradiction to the child’s behavior and developmental record. When pressed on this by the therapist, the mother insisted that anything wrong with the child was based on some sort of trauma caused by the father.The therapist found this completely unsupportable.
When the mother finally accepted that, perhaps, her child needed some level of special services, she then engaged in impulsive, and to some extent, reckless behavior. She engaged duplicate services, ignoring that the child was already receiving services arranged by the father. The mother did not even tell the father this, and, in fact, did not inform the service providers of the father’s name and contact information.
The father only found out about these duplicate services in Court during the trial. There was no attempt to coordinate the services the child was receiving in two different places. “Wife’s failure to coordinate also makes no therapeutic sense. Since the service providers were unaware of each other, there has been no sharing of information regarding [the child], her status, her treatment goals or strategies being used to reach them. Regardless of what [the mother’s] feelings are towards [the father] or what she believes he is or is not entitled to in terms of parental rights, it was reckless to subject this child to such a scheme.”
Child Custody of Special Needs Children and Divorce Mediation or Litigation: Ability of Parent to Promote the Stability of the Child
When evaluating cross claims for custody, the Court is charged with determining which parent presents as better suited to provide for the subject child’s moral and emotional development.
When determining the custody specifically of a Special Needs Child, the Court must consider which parent “will best promote stability”. “Stability relates, among other things, to an ability to provide financial support, and a stable household.”In the B. K., Plaintiff vs. J. N., Defendant case we are discussing, the Court was very concerned about the mother’s ability to provide the kind of stability required. The Court said about this:
When considering the factor of stability, despite listening to extended testimony on the subject of finances, this Court remains unsure as to how [the mother] supports herself and by extension, how she would support the subject if custody to be granted to her.
Despite having obtained a Bachelors Degree in Business Administration, [the mother] has not worked since she became pregnant . . . While this Court does not credit [the wife’s] claim that she stopped working because [the father] wanted her to, even if that testimony were credible, it would not explain why [the mother] has not secured employment since the parties separated. [The mother] testified that she has simply chosen to stay home, despite the fact that she currently shares parenting time with [the father]”
Special Needs Children and Divorce Mediation – The Court Considered the Role of Primary Caretaker
Both parents claimed to have been the primary caretaker. However, the mother spent most of her testimony to the Court addressing her past mistakes and her complaints about the father rather addressing the positive interactions she had had with the child. The father focused considerably more on the various exercises, routines, and positive activities enjoyed between father and daughter. The Court said:
It appears that Husband has played the role of primary caretaker since he was awarded considerable parenting time with [the child]. Accordingly, an award of custody to Husband would preserve his role as primary caretaker.
The Special Needs Child and Parenting Time for the Non-Custodial Parent
B. K., Plaintiff vs. J. N., Defendant, continued – The Court recognized the importance of maintaining a close and loving relationship for the child with each parent. The forensic evaluator (the therapist), at first suggested that the mother have alternating weekends with two consecutive overnights when it was not her weekend. However, once it was realized that the mother had moved from Staten Island to the Bronx after the beginning of the dispute, the evaluater changed his suggestion. In fact, he said that the originally proposed schedule was “the exactly wrong thing to do.”
He felt that so much traveling would be a burden on the child. The Court agreed and, in the best interest of the child, awarded the mother every other weekend, with the child to be returned to the father on Sunday evening, and two evenings a week, but not overnights. That would reduce the burden on the child. The Court awarded alternate holidays to each parent, which is pretty standard.
Child Custody,the Special Needs Children and Divorce Mediation: Some Conclusions
This case is an example; every marriage and every child is different. But clearly, we can draw some useful conclusions from this case.
1. First, any court will determine on its own what the best interests of the child are, based on certain standard criteria. It is easy to say, “It is in the best interests of my child to be with me,” but without an analysis based on the criteria I have laid out in this article, that is a risky bet. It is really important to be honest with yourself about what is really in the best interest of your child. Assuming that what you think is in your best interests is in the best interests of your child may lead you astray.
2. Merely having been at home with the child more than the other parent is a factor, but it is not the determining factor. The quality of your parenting of the child, your cooperation with the other parent, and your providing an environment in which your child can grow and thrive is more important.
3. Stability and the ability to support yourself is crucial. Sometimes you have a parent who expects to stay home with the kids while the other parent gets visitation and to financially support the stay-at-home parent and the children. That just does not happen. Any court what has to deal with these issues expects both parents to work and does take into account the ability of each to financially provide a stable home environment for the child.
In conclusion re Child Custody and Special Needs Children in divorce mediation and litigation, the situation is complex and depends on many factors. If you and your spouse are locked in conflict about these factors, Divorce Litigation, meaning a Court fight, is almost inevitable. If instead, the two of you can work together in the best interests of your Special Needs Children, then Divorce Mediation is a far more affordable, faster and much less stressful solution.
If you are interested in learning more about how we can help you at our offices for Divorce Mediation nearby contact us below.
The New York State Court of Appeals, the highest court in New York, is about to take up a case that may require it to define what a “parent” is. As the Wall Street Journal says on Thursday, June 2,
“[T]he case was brought by a gay woman seeking visitation rights for a young boy she says she helped raise. The suit challenges a New York state law that limits the scope of parental rights to those with a clear biological or adoptive tie to a child.
Who Is A Parent?
Who Is a Parent? Fred Klarer, Divorce Mediator Attorney, shares the latest legal controversy regarding defining a parent.
The woman who brought the lawsuit (the “Plaintiff”) argues that the term “parent” should include anyone who has played a key role in raising the child, with the support of the birth parent, even when not connected with the child either by adoption or biology.
While this is, on the surface, a gay-rights case, it has move broader implications — if the Court agrees with this argument it opens the door to parental claims by a whole host of people — the nanny, the friend who looked after the child for two hours everyday after school, the babysitter.
Who Is a Parent? Opponents of the Ruling
Opponents of the ruling that the Plaintiff seeks make just that argument — it would open a pandora’s box of child custody and visitation litigation, as well as child support, and generate more and more litigation in this deeply contested area. Supporters of the Plaintiff say that the American family has radically changed and the law needs to recognize that.
There is no telling how many families this ruling would effect.
Research from the University of California, Los Angeles School of Law Williams Institute estimates that in 2013, 15% of unmarried, same-sex couples nationwide were raising children.
Who Pays Legal Fees in Divorce Mediation? from Fred Klarer, Suffolk County Divorce Mediator Attorney
I didn’t do anything wrong — why am I being financially punished in divorce?
Recently I had a couple for mediation with an issue that comes up a lot. For whatever reason, Mom is moving out but the parents are going to share the time with the children equally. Dad wants to stay in the house, which he really can’t afford. His solution is to pay Mon some small amount of child support and spousal support — maybe 10% of what the formulas would provide. His reasoning is understandable but is not really relevant.
Mom (or Dad) Had an Affair. Shouldn’t she (or he) just get out with nothing?
Mom has had an affair, or she is just determined to live a life without her husband — divorce is the solution in her mind to whatever it is that is wrong with the marriage. Dad’s view is s — “I don’t want this. It’s your fault; I didn’t do anything wrong.” And therefore — “I shouldn’t have to suffer any inconvenience or reduction in my lifestyle.” “You want to go, go ahead, but I am not paying for it.” Underlying that is a simple reality — after Dad prepares his budget, carrying all the expenses of the house, there is nothing left to pay Mom. His attitude is: “You want to leave, you can suffer the consequences.”
Support Issues and Fault for the Divorce Are Completely Separate.
The problem with this approach is that does not take into account what the New York divorce laws and the provisions for the custody and support of children provide. Certainly, for any judge in a Nassau or Suffolk court, the welfare of the children comes first. Any Long Island court is going to look at these issues from the best interests of the children. Dad staying in the house, and not paying Mom any support for the children so that he can afford the house, is not necessarily what is in the best interests of the children. Children need two loving and involved parents. In a joint custody arrangement, each parent has to have housing that is at least minimally acceptable. Throwing Mom on the street, since she wanted to leave, is not a solution that considers the children.
From the Court’s perspective, supposed fault by one parent is just not relevant, unless it directly impacts the welfare of the children. Exposing children to a registered sex offender, or a drug addict, or some other extreme example of inappropriate behavior might be an issue. Moving on to another intimate relationship, and ending a marriage because of that, is not.
Who Pays Legal Fees in Divorce Mediation?: Courts Rarely Award Less Child Support than the Formula Amount.
On an even more basic level, the courts are very unlikely to vary the basic child support obligation. Certainly, the most common complaint from the person paying child support is “I can’t afford that.” It’s probably true, but entirely irrelevant. While you can vary virtually anything in a mediated divorce, it takes both parties’ agreement. If one wants to vary the child support payment, but the other doesn’t agree, you are stuck with the formula. That is almost assuredly what any court would do.
Yes, you have a great deal of flexibility in mediation, but the laws and courts of the State of New York are still there in the background to serve as a basis for making decisions. Fault in ending the marriage is just not an issue when it comes to children, and support looks to the best interest of the children, not each of the parents.
