Recent Blog Posts

Divorce Easier with New York's No-Fault Divorce Law

Attorney Vivien Stark — Tue, 13 Mar 2012 15:40:00 GMT

Has your spouse refused to agree to your request for a divorce? Under New York State law, effective October 13, 2010, you no longer need to establish fault to be granted a divorce. New York was the last state in the country to adopt no-fault divorce in 2010. No-fault divorce means that a couple need not prove any instances of wrongdoing or abuse in order to file for divorce in a court of law. However, New York courts have struggled with how to apply the new law.

In light of recent court decisions in New York and Nassau County, now may be the best time to file if you live in downstate New York. A.C. vs. D.R., 31 Misc.3d 517 (Sup. Ct. Nassau Co. 2011); Palermo vs. Palermo, 2010/15824. The key controversy is whether one spouse can block a no-fault divorce. Courts in upstate New York have said a spouse can contest the other spouse's contention that the marriage is irretrievably broken for a period of more than six month. Strack vs. Strack, 2011 NY Slip Op 2103.

Courts in southern counties, such as New York and Nassau County, have ruled that all that is necessary to grant a divorce is one spouse's sworn statement that a marriage is "irretrievably" broken. A divorce will be granted even if the other spouse objects. No trial is necessary. So far, these decisions have only been at the trial level and it will likely take an appeals case to resolve the split.

If you were considering filing for divorce but worried your spouse would refuse, now might be an ideal time to take advantage of the favorable rulings in downstate New York. In this unsettled area of the law, it is important to consult an experienced New York matrimonial attorney. Even if both you and your spouse agree to a divorce, you may still need to resolve financial and child custody issues.

The Law Office of Vivien I. Stark can provide you with an experienced attorney to navigate the courts in this still unsettled area of the law.

New Maintenance Rules Increase Temporary Support

Attorney Vivien Stark — Fri, 02 Dec 2011 21:06:00 GMT

In 2010, New York adopted a new system for calculating interim maintenance awards during divorce cases. Although adopted to facilitate the adoption of no-fault divorce, many matrimonial lawyers find the system confusing and potentially inequitable. Under the old system, judges used a "balancing act" to determine temporary maintenance by balancing a couple's income and expense records. The goal was to maintain the status quo and pay for necessities like housing and health insurance while the post-divorce maintenance settlement details were worked out. Under the new legislation, courts are to consider 19 financial factors and to use a formula. Judges retain the discretion to discard the formula results, but they must rebut the presumptive amount provided in the statute. Although these additional factors may sound helpful, they actually create problems when the statute leaves gaps, requiring judges to answer questions on their own. One problem with the new statute is the statute does not mention who is responsible for the "add-on" expenses needed to keep a household running, i.e. the mortgage and taxes. Another criticism is that the new law says the value of income to be distributed equitably is to be factored into the equation as income for interim maintenance purposes. This is different from how assets that are distributed equitably have always been calculated at the end of a divorce, not at the beginning of the allocation of temporary maintenance.

Financial Support for Children's College Expenses and the SUNY Cap

Attorney Vivien Stark — Mon, 21 Nov 2011 21:27:00 GMT

Today's blog will discuss the recent case of Pamela v. Marc from the Supreme Court of New York County. This case discussed whether the court can impose a father to pay more for his child's college education when the child opts to attend a private school instead of a state-funded public school in the SUNY system. The father was trying to impose the "SUNY cap." The SUNY cap imposes a cap on each parent's pro rata contribution when the child chooses to attend a non-SUNY system school. In Pamela v. Marc, the child had struggled with a learning disability and chose to attend Syracuse University, a non-state funded private school. The child had also been accepted at SUNY Binghamton and SUNY Buffalo. The mother wanted the father to pay one-half of all college related tuition, fees, housing, and meal costs. The father was willing to contribute, but wanted the courts to apply the SUNY cap to limit his responsibility to a percentage of the costs of a state university education. The court weighed the following factors in reaching its decision: educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child. Both parents were employed attorneys who had both attended private colleges and each earned over $100,000. The father had the ability to pay, evidenced by his willingness to contribute some amount. As for the child's academic ability and endeavors and the type of college that would be most suitable for the child, the child chose Syracuse because it was the only college that accepted him with strong programs in his desired fields of study. Based on these factors, the court decided not to impose the SUNY cap because the father had the financial ability to contribute. The court decided the father would be responsible for 40% and the mother would be responsible for 60%. This proportion was based on the difference between the parents' net income. Therefore, the court explicitly relied on the respective finances of the parties, the same basis used with all other child support obligations, instead of imposing the SUNY cap.

Strategy for your divorce or Family Court case

Attorney Vivien Stark — Fri, 15 Apr 2011 20:45:00 GMT

Review of your case and strategy. Clients many times walk into my office seeking relief from the court, that is just not possible given the facts of their case and the current law. Some attorneys will just tell a client what she or he wants to hear and take on any case. I do not believe that it is moral or ethical to take a client's money for a case that has no chance of winning. I will carefully explain to every client what the law is in relation to the facts of their case. Sometimes, the timing is not right for litigation and the client should wait prior to filing a lawsuit. There are times for example where a client is seeking a downward modification of child support due to the emancipation of one of his or her children. Many times, once the figures are calculated, the payment for one child is greater than two since the non-custodial party is now earning substantially more money than he or she was at the time of the original order. This is but one example of what a lawyer should examine at the initial consultation prior to taking your case. In order to properly advise a client on the merits of his or her case, a lawyer must have the knowledge and experience in the specific area of law to give an intelligent opinion.

That strategy should be cost efficient and practical. At the Law Office of Vivien I. Stark, P.C., all efforts are made to resolve your case. However, if your case cannot be settled, we have the experience and knowledge to try it to its conclusion.

Child Support

Attorney Vivien Stark — Fri, 01 Apr 2011 20:45:00 GMT

Today's blog will discuss child support. Many litigants appear at their child support cases in Family Court without legal representation. The litigants often are unaware of the law and required documents needed to successfully handle their case until it's too late and the case is over. Reversing or modifying a court order is a much more difficult and expensive process than having an attorney handle the case properly from the beginning.

The Court requires that a parent bring his or her most recently filed tax return and pay stubs, however what happens if your prior year's return no longer accurately reflects your income? What happens if you find yourself suddenly laid off from your job through no fault of your own? These questions need to be answered by a qualified experienced family law attorney. Documents need to be obtained from your prior employer. The law needs to be explained to you and questions need to be asked to make sure that when you appear the next time in court with counsel, you will be prepared to go forward with your child support case.

Failure to submit required documents to the court often results in one person "losing" their case due to such insufficiency. In addition to tax returns and pay stubs, the Court almost always requires that the litigants complete and submit a sworn financial affidavit. If you are seeking a reduction due to unemployment, a job search diary is necessary.

There are times that a parent may want to file a new petition to modify a prior order by asking for more money based upon an increase of income of the non-custodial parent. Recent legislation was enacted making it easier to seek an upward modification on orders that were rendered after a prior trial or hearing.

For all of the above reasons, any person appearing before the Family Court should be sure to at a minimum obtain a consultation from an experiencedchild support attorney. If possible, everyone should appear with an attorney at their side to guide them through this difficult process. The Law Office of Vivien I. Stark, P.C. will provide you with an experienced attorney to navigate the court system to achieve the best outcome for you.

Welcome

Attorney Vivien Stark — Wed, 30 Mar 2011 20:38:00 GMT

Welcome to the Office of Vivien I. Stark, P.C. We launched our new website this month. Please feel free to call us at (212) 349-1600 to schedule an appointment to discuss your family or divorce law matter. We look forward to hearing from you!