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Equitable Distribution Law

Property divisions, title state, & the Equitable Distribution Law

Prior to July 1980, New York was known as a “title state.” That is, property distributions between spouses in divorce cases were governed by in whose title the asset was held. For example, if a spouse owned a business, pension or even the marital residence, that spouse would retain title to the asset and the other spouse had no rights to the property or a distributive award.

In order to temper what was often an inequitable result, New York passed the Equitable Distribution Law. This was a compromise between the old “title” law which favored monied spouses and the “community property” law (such as in California) which provided that everything was divided on a 50/50 basis.

The definition of “property” was subsequently expanded by the O’Brian case and its’
progeny to include advanced degrees and licenses such as medical, law, accounting,
nursing, teaching, stock brokers, MBA’s and the like. This is referred to as enhanced

Issues often arise when assets are “part marital” (property acquired during the marriage) and part “separate” (property acquired prior to the marriage) property. In those instances, a fraction is often used by the court to determine the percentage of marital as opposed to separate property. Following that determination, the court then sets a percentage of distribution (both in marital and separate property or in partial marital and partial separate property cases) to determine the entitlement of the titled and non-titled spouse.

Businesses are also valued, normally with the assistance of forensic experts. The court further determines the percentage of entitlement of the titled and non-titled spouse. Normally, the titled spouse or the spouse that devotes substantially all of her or his energies to developing, managing and improving the asset receives a higher distribution of the business asset than does the non-titled or non-working spouse. Businesses and enhanced earnings cases are treated differently than are liquid assets such as bank accounts, brokerage accounts and pensions, are more commonly divided on a 50/50 basis between spouses.

The kind of valuation method is often critical to the determination of the value of an asset. Such different definitions of value may include fair market value, liquidation value, going concern value or value agreed upon in a shareholder’s agreement.
In valuing a business, a determination as to whether the books, records and tax returns accurately reflect the income stream is …

Why Should You Hire A Long Island Immigration Lawyer?

The immigration process can be one of the most important events in a person’s life. An immigration application / appeal process can make all the difference in where your children grow up, education and their quality of life, as well as the opportunities they could have. Because immigration law can be so complex, and because major changes happen all the time, finding a good immigration lawyer in Long Island can make all the difference in the world. Do not let bad advice and / or experience from co-workers, friends or relatives lead to your immigration chances being dashed, before you ever get started. 

A good immigration lawyer can advise you concerning every detail of Long Island immigration law, the latest changes in the law, as well as your best course of action. They will carefully determine every fact, and every aspect of your individual situation, and give you the best advice, as well as the best chance for emigrating successfully. Your Long Island immigration lawyer will work closely with you, whether it’s by the phone, or in person, and will prepare your case accordingly so that you have the best chances for success. The immigration lawyer will be able to decide exactly what individual immigration benefits you may be eligible for, as well as what immigration agencies you might have to go through. 

Even if the immigration process doesn’t seem too complicated, there are plenty of setbacks that may occur, which may disrupt your immigration efforts. Even filling out the immigration application can be confusing, and making one or two mistakes could cost you extra time and money, and possibly could disrupt your whole immigration process. A small mistake could have major effects, as it could limit your immigration options; it could limit your stay in the Long Island, or could result in a complete visa denial. If you end up having to hire an immigration lawyer later on in the process to appeal a decision or prepare a fresh application, it will only cost you more money and aggravation. The smart move is to consult with an immigration lawyer from the very beginning, so that the process will run smoother in the end. 

Oftentimes your friends or co-workers, and even some immigration consultants, do not have the necessary training or in-depth knowledge to thoroughly understand and apply complex immigration case- law and statutes, and sometimes are not qualified to …

Restraining Order Information

Restraining orders come in two basic varieties – those relating to domestic violence and those affecting the transfer of property or creation of debt.

He also recognizes that domestic violence claims are sometimes overused and under-supported by competent evidence or a history of abuse. Domestic violence restraining orders may give a spouse or domestic partner a strategic advantage over the control of a family residence, custody of children, or the obligation to pay spousal support. This is because DV orders often include “kick out” orders, they create a legal presumption that the domestic violence perpetrator should not share joint legal and physical custody of minor children, and a person who has had any domestic violence orders issued against them may be deemed ineligible to receive alimony from the victim spouse. Of course, persons who have had these types of orders issued against them on a permanent basis are not entitled to own or possess firearms – possibly forever.

For these reasons if the other spouse or domestic partner has accused you of abusive conduct or behavior and has filed for these types of orders, you may want to take the proceedings very seriously. Because rules of evidence govern the admissibility of your proof that you did not commit the alleged acts of abuse, you probably want to have a competent legal professional at your side at once.

At the same time, if you are a victim of domestic violence, We are eager to assist you. Like many attorneys who become devoted to family law, he takes pride in protecting people who are victimized by others.

Garden variety property restraints are not nearly as complicated but they may have important consequences for you. It is essential that early on in a dissolution or legal separation that the status quo be frozen so that one spouse is not able to conceal or squander valuable assets in which you may have a community property interest. While it is true that the California Family Law Summons contains Automatic Temporary Restraining Orders (ATRO’s) this may not be enough to ensure that your interests are preserved. If you share substantial assets or there are things that are important to you that deserve being preserved, consider contacting our office.…

Maintenance And Spousal Support

In New York spousal support or “maintenance” (formerly called “alimony”) is
defined as the payment of money from one spouse to another under a court order or written agreement for living expenses. The object of maintenance is to provide support while the recipient spouse gains the necessary skills and employment to be self-sufficient. Court’s consider the pre-separation standard of living, duration of marriage, sacrifice of career by recipient spouse, earning capacity and supporting spouses ability to pay. Maintenance is taxable to the recipient and tax deductible to the paying spouse.
After the commencement of an action and prior to trial a party may seek an award
of temporary maintenance from the court. This is called “pendente lite” maintenance. Pendente lite awards seek to maintain the status quo while the action is pending and usually result in the monied spouses’ payment ofthe carrying charges of the marital home and normal and customary living expenses These temporary awards terminate upon the resolution of the case and are, if appropriate, replaced with a final order of maintenance.
Unlike child support, there is no set formula for maintenance. Accordingly, in order
to determine a final award of maintenance the courts consider the following factors set forth in Domestic Relations Laws §236-B(6):
the income and property of the respective parties including marital property distributed pursuant to equitable distribution;

the duration of the marriage and the age and health of both parties;

the present and future earning capacity of both parties;

the ability of the party seeking maintenance to become self-supporting and, if
applicable, the period of time and training necessary therefor;
reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
the presence of children of the marriage in the respective homes of the parties;
the tax consequences to each party;
contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
the wasteful dissipation of marital property by either property;
any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
any other factor which the court shall expressly find to be just and proper.
Maintenance payments are made at fix intervals for either the lifetime of the spouse
or a fixed period of time. The …

Orders Of Protection in NY

In New York State, Orders of Protections may be obtained in Supreme Court,
Criminal Court and in Family Court. In Supreme Court, an Order of Protection may only be obtained when a matrimonial action is pending. In Family Court, an Order of Protection may only be obtained, when the parties involved are spouses or former spouses, parent and child, or “members of the same family or household.” More specifically, parties are members of the same family or household when:

The persons are related by consanguinity or affinity;
The persons are legally married to one another;
The persons were formerly married to one another; or
The persons have a child in common regardless whether such persons have been married or have lived together at any time.
Such incidents which would give rise to the need for an Order of Protection between
two people having a relationship as enumerated above, is where one person assaulted, attempted to assault the other person, or engaged in disorderly conduct, harassment, stalking, menacing or reckless endangerment toward any such person.

After such an incident, the victim (the petitioner for purposes of the Court
proceeding) can go to the Family Court in their county and fill out a petition (a form), where they should be as specific as possible, detailing the time, place and manner in which the offense occurred. The person committing of offense will be referred to as the respondent for purposes of the Court proceeding. For example, a party, seeking an Order of Protection against another, may put in his/her petition the following:

On March 25, 2008, at approximately 1:15 p.m., Respondent and I were
engaged in an oral argument in the kitchen of our marital residence. The
Respondent raised his left hand and struck me across the face with an open
fist, hitting the right side of my cheek, leaving a red mark and bruising. This
caused me to fear for my safety.

It is also important to list any medical treatment received as a result of the
incident(s), or any police reports that were filed.

After the petitioner fills out the petition, they will go before a Judge of the Family
Court, who may issue a temporary Order of Protection. This may occur without the
Respondent having notice of the proceeding or being present. Therefore, the petitioner will usually be given a date to return to Court within a short period of …

Child Custody Law Information

Issues in determining who is awarded child custody

The issue of child custody is one of the most important and critical issues in the
dissolution of a marriage. The separation of parents may adversely affect or even
traumatize children. It is almost always preferable for the parties to seek an amicable resolution to all questions concerning residential custody, legal custody (the ability to have final decision-making on major issues) and access of the non-custodial or the joint custodial parent. The guiding principal in resolving these issues is the best interests of the child or children. If parties are unable to arrive at an agreement on these issues, they turn to the Court to render a determination on the primary residence of the children, how major decisions are made regarding the children’s lives and the access each parent will have with the children. Whether these issues are determined in a non-litigation or litigation setting, there is a substantial body of caselaw which has provided parties and Courts with standards and factors to be considered in determining the best interests of the child or
children. These standards are divided into two (2) major categories, Parental Fitness and The Needs of the Child/Children.

(A) Parental Fitness

The following factors should be considered in determining a parent’s fitness
to be the residential and/or legal custodial parent of a child under the age of 18 years:

Abandonment: If a parent has been absent from a child’s life for a substantial period of time, the nature of the abandonment, whether voluntary or involuntary and the length of separation will be considered in determining that parent’s fitness.
Mental Illness: If a parent has a history of psychiatric problems such as depression, paranoia or suffering from delusions, these may render a parent unfit to have custody of the child or children.
Abuse or Neglect: If, during the history of the child’s life, there
is evidence that a parent has been physically or emotionally abusive
or neglectful to a child, this will and should be a consideration in
determining that parent’s fitness.
Abuse of Drugs or Alcohol: While not necessarily determinative, a history of drugs, alcohol or other substance abuse would be considered regarding a parent’s fitness on the issue of custody.
Domestic Violence: If there is evidence that one parent has engaged in acts of domestic violence, it may be inferred that parent might be ill-suited to display …

Divorce In New York State

Grounds for Divorce in New York State

In contemplation of a divorce or in the event that your spouse commences

an action against you, it is important to determine whether there are sufficient grounds. If a divorce is denied, the Court has no authority to equitably distribute the assets of the marital estate. As a result, litigants at times may use grounds as leverage in settlement negotiations. In a contested matrimonial proceeding with a substantial estate, a party may seek to protect his/her assets by contesting the divorce in an attempt to obtain a more favorable settlement.

Frequently, a Court will seek to have the parties resolve the issue of grounds

for the divorce itself, or schedule an expedited grounds trial. If the divorce is denied, it will be unnecessary to expend time and money disclosing financial documentation concerning the valuation of assets of the parties for purposes of equitable distribution. The Court can, however, still make a determination of child support, maintenance, and custody.

Based upon the foregoing, whether you are seeking to commence an action for

divorce or are defending an action for divorce, it is important that you understand the grounds that are recognized in the State of New York. The following is a brief overview of the grounds for divorce in New York State.

(A) Cruel and Inhuman Treatment: The treatment of the Plaintiff by the Defendant

must rise to the level that the physical or mental well-being of the Plaintiff is endangered, making it unsafe or improper to continue to live with the Defendant. The acts demonstrating such treatment must have occurred within five (5) years of the date the summons for divorce is filed with the County Clerk. The allegations of cruel and inhuman treatment should be specific in terms of dates, times, locations. The allegations could be based upon acts of physical abuse or mental cruelty. In a long term marriage, a higher level of proof is required to obtain a divorce. A divorce will not be automatically granted simply because there is a “dead” marriage (i.e, the parties are no longer compatible or if there is a showing of strife or a lack of harmony).

(B) Abandonment: To obtain a divorce on the grounds of abandonment, the

Defendant must abandon the Plaintiff for a period of one (1) year or longer prior to the commencement of the action. There are two (2)