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Family Law

NYT: The Rise of the Millennial Prenup

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Divorce Court is Actually Supreme Court

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Categories: Family Law Tags: , , ,

The Supreme Court of the State of New York is the only court that handles divorce cases, and a Supreme Court judge is the only person who can legally grant a divorce. You cannot get a divorce in Family Court.

Although Family Court cannot give you a divorce, you can go to your local Family Court for help with child support, child custody, child visitation, spousal support (also known as spousal maintenance), and paternity matters. Family Court in New York is where unmarried persons with issues pertaining to child support, custody, paternity, and child visitation can go to seek relief. Family Court can also in some cases have the ability to modify/enforce Orders and Judgments from the Divorce.

A few more facts about attaining a Divorce in New York State from the New York State Unified Court System

New York State does not recognize common law marriage except in certain situations.

If you think you have a common law marriage, get more information from a lawyer or the court before filing for a divorce.

Divorces can be uncontested or contested.

An uncontested divorce is one where the spouse (the husband or wife) doesn’t argue with any aspect of the divorce. In some cases, the two spouses have a settlement agreement with the details of what was worked out.

If the spouse does not agree to the divorce, the divorce is a contested divorce. The spouse could disagree with how the property will be divided, child custody, or even the divorce itself. These kind of divorce cases can be very complicated so get more information from a lawyer or the court before filing for a divorce.

Before a Judge will sign the Judgment, all financial and parenting issues must be worked out.

If you have financial or parenting issues to work out with your spouse, Alternative Dispute Resolution (ADR) may be a way to do it. ADR refers to a variety of processes where the two side work together to find a solution.

ADR takes place out of court and can help you save time and money and is less stressful that traditional court proceedings. There are different kinds of ADR processes. Divorce mediationand collaborative family law are two kinds of ADR processes.

ADR may not be an option for you if there is a history or fear of domestic violence or abuse.

You must meet the residency requirement and have a legally acceptable reason to get divorced in New York State.

In New York, there are residency requirements that shows that you or your spouse have lived in New York State for a certain amount of time.

You must also prove that you have grounds, a legally acceptable reason, to get divorced.

You must know where your spouse is.

New York State requires that the court papers for the divorce are personally delivered to the Defendant, your husband or wife. If you don’t know where your spouse is, ask the Supreme Court Clerk’s Office for more information about alternative service.

For more information or to speak with an attorney specializing in Family and Divorce Law and Child Custody, contact Vanessa Gabriele at vgabriele@bouvierlaw.com  or call 716.856.1344.

Series: Family Court Part 4

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Our final installment in the Family Court series continues the discussion of why legal support should be considered when appearing in Family Court.

Often the reality is that many family court cases settle. If you tell the judge or support magistrate that you agree to something, then you are bound to that agreement and generally can’t back out of it later on.  Unfortunately, many people don’t understand what they are actually agreeing to in family court and what rights they may have inadvertently waived.  It is thus critical to have an attorney guide you though what terms mean in a settlement so that you understand it.

If you are at the point in which this is a possibility, a non-lawyer may have no idea when to settle case and when to try a case.  You may overestimate the value of your evidence and your witnesses.  You also may overestimate  what the other side has “against you”.  You lack the impartiality and experience to really make that assessment.

Finally, family court renders decisions on your children, your finances and your liberties that can have long standing impacts. At Bouvier Law we are always working hard for cases to be decided in our clients’ favor.  In the sensitive cases that are often see in Family Court, we are dedicated to to being by your side providing experienced guidance thoughout the process. If, by chance things don’t end in our favor, we will be a support to you in what the next step may be.

Source: Westlaw – Callagan’s Family Court and Law Practice New York  

For more information or to speak with an attorney specializing in Family and Divorce Law and Child Custody, contact Vanessa Gabriele at vgabriele@bouvierlaw.com  or call 716.856.1344.

Series: Family Court Part 3

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As we continue our series on Family Court, we understand that issues of this kind can be difficult, for our clients, and everyone else involved.  The information that we are providing is hopefully helpful if you are going through a any type of family break up that may involve appearing in Family Court. For many reasons, and at many times, it may a big help for you to have the assistance of an attorney.

In family court a trial often does not occur for several weeks after the petition is filed.  There are exceptions for abuse and neglect cases where children have been removed from their homes and in certain custody cases.  Until the trial is concluded, temporary orders are often in place until the court reaches its decision. Temporary orders are made whether or not you have an attorney and can often have serious immediate consequences both financially and in terms of access to your home and your children.   Having an attorney helps you have input into the terms of that temporary order that are in your best interests.

If the case cannot be resolved, it will be put down for a trial in the future.  There are rules of evidence and procedure which govern how and what the court can consider as evidence.   You may have seen examples of this on television shows or in movies involving court room scenes.  However, no matter what you have seen on television or in a movie, these are poor replacements for the advice of an attorney on an evidence issue.  Likewise, good intentioned friends, coworkers and family members may provide you with advice and support.  Support is wonderful; advice however can be dangerous.  Unless your friend, coworker or family member is an experienced family court lawyer, you should not be taking legal advice from them.

Source: Westlaw – Callagan’s Family Court and Law Practice New York  

For more information or to speak with an attorney specializing in Family and Divorce Law and Child Custody, contact Vanessa Gabriele at vgabriele@bouvierlaw.com  or call 716.856.1344.

Series: Family Court Part 2

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Part 2 of our series about Family Court.

In this post, we’ll continue to provide thoughts as to why you might consider taking an attorney with you if you should be requested, or are requesting an appearance in family court.

There are two ways that you may find yourself in a family court:  either you petition the family court yourself or someone else petitions you. If you are not the person starting the family court proceeding, then you are called “the Respondent.”  If you are starting the proceeding, then you are called “the petitioner”.  The petitioner may also be the Department of Social Services or another agency who is concerned about the well being of a child.  Petitioners and respondent are often referred to as “the parties”.   You do not need to have an attorney to file the petition and at present, there is no cost to file a petition.  All family courts keep sample forms available to the public that can be filed out.

Under certain circumstances in custody, child abuse or neglect proceedings, and in family offense proceedings, the petitioner can also obtain a temporary order from the judge on the day he/she goes to file the petition.  That temporary order may contain directives about custody or may consist of an order of protection with directives about  conduct and behavior.  The temporary  order is not intended to be the final result, but rather is intended to provide for a child or petitioner’s immediate safety and well being until further proceedings take place.  These are called “ex parte” orders because they are granted with only one person having appeared in court.   However to obtain them, the court will often require testimony from a party.  You may be frightened, nervous and not sure what to say and thus may not get the information to the judge because you are unprepared and not aware of what facts are important.   At attorney can not only guide you but also prepare you for this.

In addition, if you are the party against whom an ex parte order has been granted, you will have a right to see the petition and the temporary order and you have a right to be heard on the matter.  Most courts will attempt to place a matter on the calendar quickly if a temporary order is granted with only one party present, however sometimes that can be weeks later.  An attorney can assist you with trying to expedite or move up the court date if the temporary relief is extremely burdensome.  In addition, many individuals don’t understand how serious a temporary order of protection is.  An attorney can explain the consequences of the order and field questions about what you can and can’t do.

Finally, the family court judge or support magistrate you appear first in front of is most likely the individual who will handle your case throughout.  When you first appear in front of the court, you will be asked about the petition, if you are the Respondent, and whether you agree or disagree with it.  You have the right to disagree.    However many people not only disagree, but then continue to say and/or do things in court they should not. This can make a poor impression for you and can impact the outcome of your case. I have seen more than one litigant, who did not have an attorney, go into a tirade, screaming about  the other party in front of the judge, arguing that an order of protection was not warranted.   If you were the judge and you were deciding on whether or not to continue a temporary order of protection to protect someone’s safety, how convincing do you think those individuals are? If you have an attorney speak for you, the court receives the appropriate information it needs to make its decision and you have an advocate speak for you.

Source: Westlaw – Callagan’s Family Court and Law Practice New York  

For more information or to speak with an attorney specializing in Family and Divorce Law and Child Custody, contact Vanessa Gabriele at vgabriele@bouvierlaw.com  or call 716.856.1344.