New York Family Law Blog

Published on: October 24, 2024

On appeal, court determined wife should have been awarded alimony. Diaz v. Gonzalez, 984 N.Y.S.2d 65 (N.Y. App. Div. 2014)

by Stephen Bilkis

Not surprisingly, issues related to property distribution, spousal maintenance, and child support are among the most contested issues during a divorce. Diaz v. Gonzalez, 984 N.Y.S.2d 65 (N.Y. App. Div. 2014) involved a defendant appealing a judgment from the Supreme Court in Queens County regarding maintenance and child support.

Background Facts

The parties in Diaz v. Gonzalez, married on December 28, 1998. The plaintiff moved out of their shared home in September 2005. In March 2010, the plaintiff commenced divorce proceedings. The defendant responded to the action, asserting counterclaims that sought child support and spousal maintenance.

Published on: October 21, 2024

In the absence of extraordinary circumstances, grandmother was denied custody. Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023)

by Stephen Bilkis

In Linda UU. v. Dana VV. 212 A.D.3d 906 (N.Y. App. Div. 2023), the Family Court of Schenectady County dealt with a custody dispute involving a grandmother’s right to custody against the child’s mother. In New York, courts generally uphold the principle that a parent’s right to custody of their children is paramount. However, under certain exceptional circumstances, the court may consider granting custody to a grandparent. These “extraordinary circumstances” include situations where there has been a prolonged disruption of custody, the parent has abandoned the child, shown persistent neglect, unfitness, or other factors that significantly impact the child’s well-being.

For instance, if a parent voluntarily relinquishes care and control of the child to a grandparent for an extended period, typically 24 continuous months, this can constitute an extended disruption of custody that might justify granting the grandparent custody. Additionally, if a parent persistently neglects the child by failing to maintain substantial, repeated, and continuous contact or fails to plan for the child’s future, these behaviors can also be viewed as extraordinary circumstances.

Background Facts

Published on: October 20, 2024

Equitable distribution requires full financial disclosure by both parities. C.M.S. v. W.T.S., 37 Misc. 3d 1228 (N.Y. Sup. Ct. 2012)

by Stephen Bilkis

In a matrimonial trial that spanned several years, a couple’s divorce action finally came to court after years of separation and failed settlement attempts. C.M.S. v. W.T.S., 37 Misc. 3d 1228 (N.Y. Sup. Ct. 2012) involved significant issues, including determining how to distribute marital property.

Background Facts

The couple in this case had been separated since 2007, and their divorce action began in 2008. Throughout the divorce proceedings, both parties exhibited a lack of urgency in settling their financial matters, leading to numerous pretrial conferences without significant progress.

Published on: October 20, 2024

Court finds that wasteful dissipation of assets by wife would impact equitable distribution. Singh v. Singh, 36 Misc. 3d 1218 (N.Y. Sup. Ct. 2012)

by Stephen Bilkis

Singh v. Singh, 36 Misc. 3d 1218 (N.Y. Sup. Ct. 2012) involved a divorce action in Queens, New York. The Plaintiff, the wife, initiated the case in 2009, seeking an absolute divorce and additional relief related to financial support, property division, and child custody. One issue that was raised was asset dissipation. Asset dissipation occurs when one spouse improperly uses or transfers marital assets in a way that depletes their value, often in anticipation of divorce or without the consent of the other spouse. This can include excessive spending, selling assets below market value, or mismanaging joint finances. In divorce cases, courts may consider evidence of dissipation when determining the equitable distribution of marital property.

Background Facts

The Plaintiff and Defendant married in 1997 and had two children. During their marriage, they lived together in a house jointly purchased by the Defendant and his father. The Defendant used both his separate savings and marital assets to contribute toward the mortgage on the marital home. Over time, the couple’s financial situation became more complicated as the Defendant and his extended family engaged in additional real estate and business investments. Both parties contributed to the household and its upkeep until they separated in 2006.

Published on: October 20, 2024

Presumption that husband is the father of a child of marriage is difficult to rebut. L.A.S. v. P.M.M.S., 2023 N.Y. Slip Op. 50845 (N.Y. Sup. Ct. 2023)

by Stephen Bilkis

In matters of family law, the presumption that a child born during a marriage is the biological child of the married couple has long been a central issue in paternity disputes. This presumption can be rebutted, but it requires clear and convincing evidence. In a recent case before the Queens County Supreme Court, the court examined the plaintiff’s attempt to challenge the presumption of legitimacy and request a DNA test to determine paternity.

Background Facts

The case involved a married couple, the plaintiff and the defendant, who had a child together in 2019. In 2022, three years after the child was born, the plaintiff filed a verified complaint seeking custody of the child. The complaint did not initially raise any issue regarding the child’s paternity, nor did it contain any request for a paternity test. Instead, the plaintiff acknowledged the child as being born of the marriage.

Published on: October 20, 2024

Order of protection deemed reasonably necessary based on appellant’s family offenses. Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014)

by Stephen Bilkis

In family law, an order of protection can serve as a legal tool to prevent harm and ensure the safety of individuals involved in domestic disputes. These disputes often arise out of family offenses, which are specific criminal acts that occur between people who share a family or household relationship. A family offense includes actions such as assault, harassment, stalking, menacing, and other harmful behaviors that place a victim at risk of physical or emotional harm. In the case of Monos v. Monos, 123 A.D.3d 931 (N.Y. App. Div. 2014), the Appellate Division considered an appeal from an order of protection issued by the Family Court in Queens County.

Background Facts

The case involved a petitioner who sought an order of protection against the appellant in Family Court. The petitioner alleged that the appellant committed several family offenses, including criminal mischief, reckless endangerment, and attempted assault. Specifically, the petitioner claimed that the appellant had threatened her with a fork during an altercation. Based on this conduct, the petitioner requested the court to issue an order of protection, directing the appellant to stay away from her for a specified period.

Published on: October 17, 2024

New York court modified maintenance and equitable distribution from a foreign divorce judgment. Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020)

by Stephen Bilkis

When a divorce occurs in another country, New York courts can address unresolved issues such as property division, child support, and spousal maintenance. Foreign divorce judgments are generally recognized under New York law if they comply with due process and do not violate public policy. However, New York courts can independently adjudicate ancillary matters not addressed in the foreign judgment. Parties may file actions in New York to resolve these issues, following domestic legal standards such as equitable distribution and child support guidelines.

Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020) involved a matrimonial action concerning the equitable distribution of marital property, child support, and maintenance following a divorce granted in Bangladesh. The judgment, rendered by the Supreme Court, Queens County, addressed these issues after a nonjury trial. The defendant appealed the judgment, challenging its provisions.

Background Facts

Published on: October 15, 2024

Court adjusted asset distribution by rejecting a $550,000 dissipation claim for a car wash purchase. Kirshner v. Kirshner, 2024 N.Y. Slip Op. 3475 (N.Y. App. Div. 2024)

by Stephen Bilkis

Dissipation of marital assets refers to the wasteful, reckless, or intentional use of marital funds for purposes unrelated to the marriage, often occurring during or shortly before divorce proceedings. Examples include excessive spending, gambling, or transferring assets to conceal them. In New York, the spouse alleging dissipation must prove it by showing that the other spouse’s actions diminished marital property unjustifiably. Courts evaluate the intent and circumstances, distinguishing between poor financial outcomes and reckless behavior. Dissipation claims can significantly affect equitable distribution, as courts may compensate the wronged spouse by adjusting the division of remaining marital assets.

Background Facts

The couple, married in 2001, had three children and signed a prenuptial agreement before marriage. During the marriage, the defendant used marital funds to purchase a car wash. The plaintiff later argued that this investment was a wasteful dissipation of marital assets, claiming it was a poor financial decision and made without proper justification. The defendant contended the car wash was intended to generate income for the family and provide a workplace for the plaintiff after his release from prison.

Published on: October 10, 2024

Court finds that cohabitation is enough to terminate spousal maintenance payments. Sanseri v. Sanseri, 2015 N.Y. Slip Op. 25128 (N.Y. Sup. Ct. 2015)

by Stephen Bilkis

In Sanseri v. Sanseri, 2015 N.Y. Slip Op. 25128 (N.Y. Sup. Ct. 2015), the Supreme Court, Monroe County, addressed the termination of spousal maintenance payments, specifically revisiting the standards for terminating maintenance in the absence of remarriage. The issue arose under Section 248 of the Domestic Relations Law (DRL), a provision that outlines when maintenance payments can be modified or terminated. The court had to determine whether a former spouse cohabitating with another person, but not remarried, could be grounds for terminating maintenance.

Background Facts

In this case, the husband and wife were in the process of a divorce, with maintenance payments ordered at the outset due to a significant disparity in their incomes. While the divorce proceedings continued, the husband filed a motion to terminate the maintenance payments. He argued that his wife, though not remarried, had entered into a relationship with another man and had engaged in behaviors that were akin to a marriage.

Published on: October 7, 2024

Family Court, Kings County considered whether it had jurisdiction over a visitation case. R.L.BXXXXX v. C.D.GXXX (In re Custody of R.L.BXXXXX), 2019 N.Y. Slip Op. 29090 (N.Y. Fam. Ct. 2019)

by Stephen Bilkis

A Final Order of Visitation (FOV) in New York is a legal document issued by the court that establishes the specific rights of a non-custodial parent or other party to have visitation with a child. This order outlines the schedule, duration, and conditions under which visitation will occur, aiming to ensure that the child maintains a meaningful relationship with the non-custodial parent while considering the child’s best interests.

The FOV may include details such as the days, times, and locations for visitation, as well as provisions for holidays, vacations, and special occasions. It may also address transportation arrangements and communication between the parties during visitation periods.

Once issued, the FOV is legally binding, and both parties are expected to comply with its terms. Failure to adhere to the FOV can result in legal consequences, including enforcement actions or modifications of the visitation arrangements by the court.