It is not unheard of for spouses to attempt to minimize assets by depositing funds in another person’s account, overpaying credit card statements, delaying the distribution of trust income and deferring income. An accountant may be engaged to review such items as owner loans, dividends, retained earnings, distributions of income by partnerships and subchapter S corporations, bonuses, expense accounts, retirement plans, depreciation of property and perquisites of employment.
Loosely defined, marital property is any property acquired during the marriage by either or both spouses, regardless of the form in which it is held, who earned it or who holds title to it. Pensions, professional licenses and separate bank accounts can all be marital property. There are, however, some important exceptions to the general rule. An inheritance, a gift to you from someone other than your spouse, – or an award or settlement resulting from a personal injury is considered separate property even though received during the marriage. Also, if separate property is sold, the cash proceeds of the sale are separate property. However, a spouse may claim that the value of the appreciation of separate property constitutes marital property.
An annulment is granted when a marriage is voidable or void from the beginning, that is to say, there was a defect at the time the parties entered into the marriage, enabling the court to render it invalid. Grounds for annulment are as follows:
Fraud: It may be annulled where the consent was obtained by fraud, provided the fraud was such that it would have deceived an ordinarily prudent person and was material to obtaining the other party’s consent. The fraud must be such as to go to the essence of the marriage contract. Only the injured spouse, his or her parent or relative with an interest to avoid the marriage can obtain the annulment on this ground. Fraud claims include, but are not limited to: misrepresenting one’s religious denomination or the intensity with which one practices; concealing one’s inability to procreate, secretly carrying a disease or genetic disorder that would increase the risk of procreation; coercing one’s husband into entering a marriage based on a false declaration of paternity; misrepresenting sexual proclivities; and physically being incapable of consummating the marriage.
The laws relating to custody emphasize the best interest of the children. Both natural and adoptive parents may not ordinarily be denied custody unless there is gross parental unfitness.
There are numerous factors considered by the court in making custody and visitation determinations. Such factors include age, physical, mental and emotional health of the child or parent, and the quality of the home environment, including continuity, stability and security in the child’s home. Other factors that are considered include the primary caretaker status of a parent (which may not necessarily override other factors), whether a parent has made unfounded allegations of abuse, and the recognition (or lack thereof) of the importance that a child have a relationship with the non-custodial parent (alienation). Custody is not awarded after a child has attained the age of eighteen. (Note, however, that the statutory “cut-off” for child support, absent other agreement of the parents, is twenty-one years of age). When custody is contested, the court may appoint an “attorney for the child” (formerly called a “law guardian”) to represent the child(ren). This person is a lawyer who will interview the children (if age appropriate) and represent the child(ren)’s wishes to the court. If the child is of a young age this person is required to make a recommendation to the court concerning the custody arrangement.
The most common forms of custody are sole custody, which gives one parent authority to make all decisions, and joint custody, which often refers to parental sharing of major decisions concerning child rearing. Legal custody refers to the authority of one or both parents to make decisions as to the child’s health, education, welfare and other interests. Physical custody describes the physical residence of the child. For example, one parent may have sole physical custody while the parents have joint legal custody. Regardless of the custody label, parents have great latitude to determine a custody arrangement by entering into a written custody
Mediation is a voluntary and confidential process in which an impartial party helps spouses to reach a mutually acceptable settlement. The general idea behind mediation is that the traditional adversarial approach to marital dissolution can be costly, counterproductive and emotionally punishing. Mediation may provide a way to resolve the various issues surrounding the dissolution of a marriage in a relatively amicable way. However, be aware that the mediation setting may also become just another forum for a wife and husband to vent their anger, frustration and other emotions in a counterproductive manner.
Your spouse cannot force you to participate in mediation, nor can you force your spouse to cooperate. To be successful, mediation requires that both parties to the divorce be committed to the mediation process and be prepared to openly discuss financial and other issues. Mediation is not recommended if there is domestic abuse, the threat of abuse or if one spouse is likely to “overpower” the other spouse in the mediation process. To commence the mediation process, a mediator mutually acceptable to both spouses is selected. Some mediators have professional backgrounds in the field of social work. A mediator may or may not be a lawyer but should not provide legal advice in his or her capacity as mediator. Unlike an arbitrator, a mediator cannot impose settlement terms on the parties.
Holdover Summary Proceeding – generally used to refer to any summary proceeding brought to evict on some basis other than for non-payment.
Expiration or Termination of Lease – RPAPL §711(1) provides the fundamental authority for a holdover proceeding, and authorizes the maintenance of a summary eviction proceeding against a tenant who “continues in possession … after the expiration of his term without the permission of the landlord”. This applies to the tenant whose lease has expired by operation of law or because the lease has been terminated by operation of a conditional limitation in the lease. The terms of the lease control. The lease cannot be terminated for reasons other than those allowed under the lease (ie. No termination for “objectionable conduct” unless there is a provision in the lease authorizing such termination. See Perrotta, 98 AD2d 1, 469 NYS2d 504; Levesque, 106 Misc2d 432, 430 NYS2d 482).
Rent / Use and Occupancy – Petitioner may seek rent for a period prior to the end of the tenancy and U&O for the period respondent “holds over”. The amount of U&O is set by the Court, but is generally set at the amount of the rent.
Three Day Notice – RPAPL 711(2) requires petitioner to make a demand for rent prior to commencement of the eviction proceeding. The demand can be oral or written. If written, it must provide respondent with 3 days to pay the rent. The 3 day Notice must be served on the respondent and filed with the Court. The 3-day notice must state the amount of rent due and the period of time covered by that amount, together with a demand that the total amount be paid within 3 business days after service of the notice or tenant must give up possession. The date of service is excluded, as are Saturdays, Sundays and holidays.
Petition must seek rent and not other charges – While petitioner can seek attorney’s fees (if agreed to in the lease) and Court costs, generally, respondent cannot be evicted for the failure to pay these costs, especially in a rent-regulated situation.
While your divorce case is going on, if your spouse earns more than you, you may also ask the Judge to award you temporary financial support, which your spouse will pay to you until the divorce becomes finalized. This type of support is called “temporary” or “pendente lite” maintenance.
Even if your spouse earns more than you, the Judge will not order your spouse to pay temporary maintenance if they would not be able to support themselves while making payments.
If you are seeking temporary maintenance and child support, the amount you receive in temporary maintenance gets subtracted from your spouse’s income and added to your income before child support is calculated.
Whenever a party brings an allegation in any type of case, that party must prove those allegations. The standard or burden of proof varies depending on the type of case involved. In civil cases, for example, the burden of proof is usually preponderance of the evidence. This standard requires the plaintiff to prove that the allegations in the complaint are more likely true than not. Many commentators have described it as the plaintiff ’s burden to tip the scales of proof in the plaintiff ’s direction. Others have attempted to quantify it by saying that if the plaintiff can establish the facts to 51%, then the plaintiff has satisfied preponderance of the evidence. There are different burdens of proof in different types of actions. For instance, in criminal cases, the burden of proof is beyond a reasonable doubt. If preponderance of the evidence is considered to be a slight tipping of the scale in the plaintiff’s favor, proof beyond a reasonable doubt would require the government to swing the scale entirely to its side. Although preponderance of the evidence is the most com- monly seen burden of proof, there are situations in which a civil litigant might have to prove his or her case by clear and convincing evidence. The standard of “clear and convincing evidence” is higher than preponderance of the evidence and less than proof beyond a reasonable doubt. It falls somewhere between these two burdens. Clear and convincing evidence requires the fact finder to determine with substantial certainty that the party’s allegations are true.