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Law Offices of Lisa Beth Older
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Your New York Divorce and Child Custody Lawyer!
Your New York Divorce and Child Custody Lawyer!

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Child custody cases are very special because in New York a Court may determine how your family will be structured until your children attain the age of sixteen or older.
In a child custody case your child may be entitled to independent counsel. The older the children the more likely their preference as to who they want to live in will come into play. There are may other facts that must be proven in a custody trial in order to prevail, such as inability to foster a good relationship between the child and the other parent.

Lisa Beth Older, YOUR #NYCdivorcelawyer
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New York Domestic Relations Law allows for a New York Court to order that the parents pay for the reason able and necessary living expenses of a child and the starting point for this resorting to figuring out the basic child support figure promulgated by the Child Support Standard’s Act. There are calculators for that on line. After that, the Court must also award a pro rata share of day care and medical expenses of the child.

College and private school are discretionary. N.Y. Dom. Rel. Law § 240(1-b)(c)(7) provides that court may award educational expenses for college to age 21. Extracurricular activities are also sometimes ordered if required for the children’s best interests and they are already underway, or for whatever compelling reason the court deems just.

in New York.
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http://www.nycdivorcelawyer.net
@manhattandivorcelawyer

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We are still a grounds state in New York divorce.

There are many grounds, that can be alleged in a New York divorce case. However, in a divorce action since October of 2010 New York State we are now the very last to become a No-Fault divorce state. It is likely that all future divorces cases will be founded on the ground of the fact that the relationship between husband and wife has broken down irretrievably for a period of at least six months, this as long as just one party has so stated under oath. In fact, the matrimonial judges encourage it so the parties save money. The grounds are:

(1) Cruel & inhuman treatment;
(2) the abandonment of the Plaintiff by the Defendant for a period of one or more years;
(3) the confinement of the Defendant in prison for a period of three or more consecutive years after the marriage;
(4) the commission of adultery voluntarily performed by the Defendant with a person other than the Plaintiff after the marriage;
(5) living apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment;
(6) living separate and apart pursuant to a written agreement of separation signed by the parties for a period of one or more years after the signing of the agreement;
(7) the relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath.
Still, there is more than just grounds for divorce. Before a divorce judgment can be had, all of the ancillary issues must be decided, such as custody, support and property settlements. Seek legal advice before filing for a divorce.
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It was reported in the New York Post on May 19th that Huma Abedin filed for divorce and custody in New York City from Anthony Weiner. Seeing as Anthony Weiner plead guilty to sexting a teenager in Federal Court this will come into play in his request for visitation of the minor children. Criminal cases against one spouse can have an impact on your divorce or custody case, depending on the circumstances.

If you are a New Yorker considering divorce, call the +Law Offices of Lisa Beth Older

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RULES OF EVIDENCE AND YOUR DIVORCE IN NEW YORK

Often times a custody or divorce case in New York will go to a trial, a fact-finding or a hearing.
This means that your case will be heard by the Judge on the facts, that testimony will be taken from the parties and documents and videos and electronic data may be admitted into evidence for consideration by the court.
As for fault, grounds for divorce are rarely at issue in a New York Divorce since the advent of the new change in the law allowing for parties to proceed on a no-fault ground of irretrievable breakdown of a marriage. That said, the traditional grounds for divorce may still be raised and if so you are allowed to hear your case, as to fault, by a jury.
In the interests of judicial economy however your divorce Judge will emphasize the importance of settling grounds for divorce early on because it will cost a fortune to try fault and nothing is gained except to fuel the flames of an already inflammatory situation. So, unless the fault of one spouse is flagrant and egregious misconduct, it is best to plead grounds under the no fault statute.
When I say that nothing can be gained, I mean that unless the fault is unconscionable it rarely affects the result of your case. That is, the court will not first require either party to plead a fault divorce in order that it might fairly distribute property under equitable distribution, or order support, or order a custodial schedule.
There are times when fault becomes relevant in a divorce trial, however. For instance, in a custody case the court must under the law consider domestic violence allegations in its determination of custody and it is also allowable to argue domestic violence as it pertains to spousal support.
Most cases are settled before they go to an evidentiary hearing. But your attorney should always be trial ready because you never know when a court might require you to take the stand and give testimony. But more often than not you will be given adequate time to prepare
A hearing usually pertains to temporary orders, such as modification petitions and contempt petitions or Pendente Lite motions for custody. But a trial usually refers to the taking of testimony so the Court can have a full hearing on all of the issues of the marriage or the custody case so that it can make an informed final decision.

Every hearing or trial usually will start with an opening statement by the attorneys for the spouses. This opening statement is not evidence but is rather a road map to explain to the Judge what the attorney proposes to prove through evidence.
Once the trial start, inn New York we have rules of evidence that require lawyers to follow certain procedures before asking a Judge to consider your documents or other pieces of evidence.
This might lead one to ask what types of documents or items can be introduced into evidence.
In general, all evidence is capable of being offered for consideration so long as it is relevant to prove your case and so long as opposition counsel does not pose an objection. Of course, there is also the issue of reliability of the evidence and as to that issue the law provides guidelines and rules of evidence that lawyers must follow before a document can be admitted into evidence. For instance, hearsay is inadmissible such that a person cannot take the stand and testify to what he or she heard another person said they saw because that testimony is not based upon firsthand knowledge. So, since that third person is not in the court room to be cross examined, that person’s testimony cannot come into evidence as it is inherently unreliable.
There are exceptions to the hearsay rule however and that would include out of court statements made in a document by the party litigant. This type of evidence is admitted because you can call that party to the stand and ask them about that paper and the contents of the statement contained therein. Also, a dying declaration or a spontaneous utterance or a declaration against penal interests are deemed reliable enough to be admitted into evidence even if it is hearsay.
Business records are another exception to the hearsay rule but there are certain requirements of reliability that must be shown before they can be admitted, and they must be certified by the record keeper who says, among other things, that the record was kept in the ordinary course of business, it was true when recorded, recorded simultaneously to the incident and it was the business of that company to keep said records.
People often needlessly draw a distinction between documentary evidence and testimony. In reality both testimony and documentary evidence, if believed, can form a basis for a court decision, and in reality, there is no real difference as the court must consider both forms of evidence in the rendering of its divorce judgment or custody determination.
So, what happens if you take the stand and forget how you are to answer a question because you are nervous? Them the attorney may ask you to refresh your recollection and is allowed to let you take a look at a document that might help you to remember. Of course, there are complex evidentiary rules that must be followed to perfect his method of testimony.
Each party is allowed to present their case through direct examination and each party is allowed to conduct cross examination of an opposing party’s testimony. And each party’s attorney may object to the form of a question or object on other legal grounds.
It is important for a trial attorney to know how to try a case because if they fail to object to evidence as it is presented in a court of law and the court rules inaccurately based upon said evidence that should have been objected to, then you cannot appeal this as error to a higher court.
At the end of the trial when all the parties rest the attorneys are allowed to make their closing arguments. However, closing arguments are not evidence and should rather be persuasive in nature and designed to be based upon the evidence.
For the above reasons, if you are headed for a trial, it makes sense to hire an attorney that has trial experience. In interviewing a lawyer for your divorce or custody case be sure to ask the attorney how much trial experience they have. It can make a world of difference.

By: #LisaBethOlder
Your #NYCDivorceLawyer

@manhattandivorcelawyer

see us at my web site at www.nycdivorcelawyer.net

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Is Mediation an option in New York?

The end of a marriage can be, and often times is, very stressful. If you can avoid litigation and if you can avoid the adversarial nature of a divorce proceedings you should try to do so.
If there is no domestic violence and the parties are able to sit down and talk with a third person about their marital issues with a mediator this is a good faith, less expensive way to proceed.
You hire a neutral mediator that helps you arrive at a just and fair agreement that both parties can live with. You can also retainer your own independent counselor and York divorce lawyer to review the agreement arrived at with a mediator to make sure your rights and interests are reflected and protected in the Agreement before you sign it. In fact, the Courts in New York favor arbitration and mediation and are starting to refer cases out to those parties interested in said programs.


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DRL 232 Requirements for service of process of a Divorce in New York:

"a. In an action to annul a marriage or for divorce or for separation, if the complaint is not personally served with the summons, the summons shall have legibly written or printed upon the face thereof: "Action to annul a marriage", "Action to declare the nullity of a void marriage", "Action for a divorce", or "Action for a separation", as the case may be, and shall specify the nature of any ancillary relief demanded. A judgment shall not be rendered in favor of the plaintiff upon the defendant's default in appearing or pleading, unless either (1) the summons and a copy of the complaint were personally delivered to the defendant; or (2) the copy of the summons (a) personally delivered to the defendant, or (b) served on the defendant pursuant to an order directing the method of service of the summons in accordance with the provisions of section three hundred eight or three hundred fifteen of the civil practice law and rules, shall contain such notice. " [NOTE: Be sure the index number is written into the right hand corner to make it an original]

b. An affidavit or certificate proving service shall state affirmatively in the body thereof that the required notice was written or printed on the face of the copy of the summons delivered to the defendant and what knowledge the affiant or officer who executed the certificate had that he was the defendant named and how he acquired such knowledge. The court may require the affiant or officer who executed the affidavit or certificate to appear in court and be examined in respect thereto."

Also be aware that New York may also allow you to serve by publication.


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Do Grandparent's have rights in a custody case?

Grandparents sometimes have rights to visitation and custody under certain circumstances. However, they have to file their own petition in Family Court. If a case is already pending then ask that it be joined with the primary petition.

A grandparent may request visitation in Family Court where at least one of the child's parents is deceased or where one of the parents is not allowing the grandparents to visit or under other circumstances. The Courts use the test of best interests of the child as their guiding light

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New York Domestic Relations Law allows for a New York Court to order that the parents pay for the reason able and necessary living expenses of a child and the starting point for this resorting to figuring out the basic child support figure promulgated by the Child Support Standard’s Act. There are calculators for that on line. After that, the Court must also award a pro rata share of day care and medical expenses of the child.

College and private school are discretionary. N.Y. Dom. Rel. Law § 240(1-b)(c)(7) provides that court may award educational expenses for college to age 21. Extracurricular activities are also sometimes ordered if required for the children’s best interests and they are already underway, or for whatever compelling reason the court deems just.

in New York.
+Law Offices of Lisa Beth Older

http://www.nycdivorcelawyer.net
@manhattandivorcelawyer

#nycdivorcelawyer
in New York.
+Law Offices of Lisa Beth Older

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New York Domestic Relations Law allows for a New York Court to order that the parents pay for the reason able and necessary living expenses of a child and the starting point for this resorting to figuring out the basic child support figure promulgated by the Child Support Standard’s Act. There are calculators for that on line. After that, the Court must also award a pro rata share of day care and medical expenses of the child.

College and private school are discretionary. N.Y. Dom. Rel. Law § 240(1-b)(c)(7) provides that court may award educational expenses for college to age 21. Extracurricular activities are also sometimes ordered if required for the children’s best interests and they are already underway, or for whatever compelling reason the court deems just.

in New York.
+Law Offices of Lisa Beth Older

http://www.nycdivorcelawyer.net
@manhattandivorcelawyer

#nycdivorcelawyer
in New York.
+Law Offices of Lisa Beth Older

#nydivorcelawyer

#nycdivorcelawyer
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