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Kahn and Richardson News and Updates

What Legal Documents Should Be Updated After a Divorce?

Kahn and Richardson - Tuesday, March 07, 2017

Once you are divorced, it is important to make changes to certain legal documents.

Below is a list of common legal documents that should be updated when your divorce is final:

  • Last Will and Testament
  • Trust Documents
  • Beneficiary Designations, including life insurance policies and retirement accounts
  • Powers of Attorney
  • Medical Directives, such as Health Care Proxies and Living Wills
  • W-4, the form used by your employer to withhold the proper amount of federal income tax from your paycheck

To prevent any unintended consequences, update all such legal documents to reflect your new status and your new directions.

A PARTNER WITHOUT AN ADOPTIVE OR BIOLOGICAL RELATION TO A CHILD CAN NOW SEEK CUSTODY OR VISITATION IN NEW YORK STATE

Kahn and Richardson - Wednesday, February 01, 2017

In August 2016, the New York State Court of Appeals overturned prior law that had precluded a partner of a biological parent from seeking custody or visitation rights with a child under New York State Law. The Court of Appeals held that, with respect to an unmarried couple, if a partner establishes by clear and convincing evidence that the parties agreed to conceive a child and raise it together, the non-biological, non-adoptive partner has standing in the Courts to seek custody and visitation.

While the Court of Appeals is ordinarily required to follow its own precedents, it found that extraordinary circumstances exist that undermine the reasoning and practical viability of prior law. In particular, the Court found that "the foundational premise of hetero-sexual parenting and non-recognition of same sex couples is unsustainable." The Court held that this was particularly so in light of New York's passage of the Marriage Equality Act in 2011 and the 2015 United States Supreme Court decision legalizing same-sex marriage. The United States Supreme Court noted that the right to marry provides benefits not only for same sex couples, but also for the children being raised by those couples.

The New York State Court of Appeals noted that its decision this summer was limited to the issue of standing and that the ultimate determination of custody and visitation rights must be decided by the Trial Court, which will determine the best interests of the child.

What is the Uniform Child Custody Jurisdiction and Enforcement Act?

Kahn and Richardson - Tuesday, January 03, 2017

The Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) was enacted in 1997, replacing the former Uniform Child Custody Jurisdiction Act. UCCJEA recognizes custodial issues arise because of our mobile society. Child custody disputes between parents can arise and involve more than one State. One parent may live in a different State from the one in which the parent and the child or children live. More than one state may seek to exercise the power (jurisdiction) to decide a custodial dispute. UCCJEA provides the method by which jurisdiction for such child custody disputes is determined. The “home state” of the child is given priority and the first opportunity to take jurisdiction over the issue. Another state may assume temporary emergency jurisdiction, but only long enough to secure the safety of the threatened person and transfer the proceeding to the home state or to a state with another ground for jurisdiction. UCCJEA also provides methods for enforcement and modification of child custody orders.

The UCCJEA appears in New York State statues in the Domestic Relations Law, beginning at Section 75 and continuing through Section 78-a, which may be found by clicking this link.

PARENT-CHILD ABDUCTION

Kahn and Richardson - Tuesday, December 06, 2016

Parents who believe there is a risk of abduction of a child by the other parent may wish to take steps to prevent the child from leaving the country. Federal law requires the signatures of both parents for a child under 16 years of age to obtain a U.S. passport. If a child already has a passport, the United States Department of State may not revoke that passport.

The Hague Convention is a treaty that provides a method for return to the United States of a child who has been abducted by a parent. The Hague Convention applies only to participating countries. A list of countries that are parties to the Hague Convention on the Civil Aspect of International Child Abduction can be found at:  www.travel.state.gov/content/childabduction/en/country/hague-party-countries.html

If the country is not a party to this Hague Convention, issues can arise in cases of parental child abduction. A custody agreement issued in the United States is not binding abroad, although it could be considered as evidence by foreign courts. An action must generally be commenced in the foreign Country’s Courts, where that country’s laws would apply. In these cases, the parent must seek advice from an attorney admitted to the practice of law in that foreign country.

The Effect of Retirement Upon Post-Divorce Maintenance

Kahn and Richardson - Tuesday, November 01, 2016

In determining post-divorce maintenance pursuant to the formulas set forth in the Domestic Relations Law, the Court is obligated to take into consideration “anticipated retirement assets, benefits, and retirement eligibility age of both parties, if ascertainable at the time of decision”. The statute further provides that, if these facts are not ascertainable at the time of the Court’s decision, the actual full or partial retirement of the payor spouse, with substantial diminution of income, shall be a basis for a modification of the post-divorce maintenance award.

Duration of Post-Divorce Maintenance

Kahn and Richardson - Tuesday, October 04, 2016

New York State Law provides that, except where spouses have entered into an Agreement providing for or waiving maintenance payments, the Court shall, in any matrimonial action upon proper request of a party, make an award for post-divorce maintenance. The Court "may" determine the duration of post-divorce maintenance in accordance with the following "advisory" schedule:

Length of marriage Percent of the length of the marriage for which maintenance will be payable
0 up to and including 15 years 15% - 30%
More than 15 years up to and including 20 years 30% - 40%
More than 20 years 35% - 50%

Note that the schedule is advisory only and use of the word "may" with regard to the Court's actions indicates that the Court's authority regarding the duration of post-divorce maintenance is discretionary and not mandatory.

New Official Statement of Net Worth Form

Kahn and Richardson - Tuesday, September 06, 2016

Effective August 1, 2016, there is a new official form for the Statement of Net Worth. This form must be completed by all litigants in matrimonial actions in which alimony, maintenance or child support is an issue. A copy of the new form is available by clicking this link.

The Importance of Emotional Support During A Divorce

Kahn and Richardson - Tuesday, August 02, 2016

Going through a divorce is a very stressful event in a person's life. Along with stress, it is common to experience grief and sadness due to ending a marriage. Finding ways to manage these feelings can be essential to making the best of this emotional, life-changing event.

One way to manage these emotions is to seek assistance from others. It is important that you surround yourself with people who can provide a positive source of support throughout the divorce process. Talking with sympathetic family and friends can help ease the emotional impact of a divorce. An alternative to discussing your feelings with family and friends is to seek help through a trained professional. A trained professional, such as a therapist, can also provide considerable guidance and advice during this difficult time. Additionally, joining a support group can be beneficial, as it can provide support from others going through a similar situation.

Children of the marriage may also have a difficult time adjusting to life during and after a divorce. It is equally important to provide children with emotional support during this time, by either talking with and listening to them or through the use of therapy sessions.

Child Support – What Is Covered?

Kahn and Richardson - Tuesday, July 05, 2016

A parent’s basic child support obligation pursuant to the Child Support Standards Act covers basic living expenses such as food, clothing, housing, and transportation. Expenses for childcare, health insurance premiums, uncovered medical expenses and education are “add-ons”, that is, are in addition to the basic child support obligation.

The child support formula of the Child Support Standards Act is used to calculate a parent’s basic child support obligation. The child support is based upon income and the number of unemancipated children under the age of 21. Once the appropriate child support percentage is applied to the combined parental income, the court must consider the add-ons.

When the custodial parent is working or receiving elementary, secondary, or higher education or vocational training which will lead to employment, and incurs child care expenses as a result, the court shall determine reasonable child care expenses and pro-rate them between the parents. When the custodial parent is seeking work, rather than being employed or completing education, it is within the discretion of the court to determine the appropriation of child care expenses.

The Child Support Standards Act also requires that the court determine each parent’s obligation for health insurance premiums and uncovered medical expenses for the children.

Because private school and college educational expenses are not considered necessary, the court makes a determination as to the amount of educational expenses the parents shall pay, based upon the circumstances of the case and the respective parties and the best interests of the children.

Temporary and Post-Divorce Maintenance Calculators Available Online

Kahn and Richardson - Tuesday, June 07, 2016

The New York State Unified Court System has enhanced the divorce resources on its website to include both the temporary maintenance calculator and the post-divorce maintenance/child support calculator. 


These tools are available to attorneys and litigants to calculate the presumptively-correct amounts of maintenance and child support under various circumstances. The calculators may be found at nycourts.gov. Click on "Divorce," then "Maintenance & Child Support Tools."


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Practice Areas
  • Divorce
  • Separation Agreements
  • Custody & Visitation
  • Property Division
  • Spousal Maintenance
  • Child Support
  • Prenuptial Agreements

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