No Fault Divorce?

A recent Nassau County divorce action, filed by a women against her husband of 30 years, was dismissed for lack of Grounds. The women claimed that the ground for divorce was constructive abandonment of her by her husband, the refusal to have sex with her for a year despite her efforts and requests to do so. This ground is commonly known as the default ground, meaning it is the ground couples often just agree to in order to get a divorce. However, in this case the husband challenged the grounds and the women was forced to take the stand in an open courtroom and answer personal and potentially embarrassing questions about her sex life.

In this case, when the women was asked when the last time was that she had sex with her husband, she replied that they had not had sex since their honeymoon in 1979. Her attorney had to remind her that they had two children together since then. She quickly changed her story and testified that she had not had sex with her husband for three years. When asked if she had tried to initiate sex or requested that he have sex with her, she replied “no”. At this point, the Judge asked her to leave the witness stand and dismissed the case three days later.

The Judge decided that the wife did not offer any credible evidence that the defendant’s refusal to have sex was unjustified, willful and continued despite repeated requests to resume sexual relations.

The above is an illustration of the problems fault grounds could cause when attempting to gain a divorce. Although the state’s no-fault rules take affect in less than a month and the wife will be able to re-file her divorce petition due to irreconcilable differences, the dismissal has caused her great hardship. The wife is unemployed and faces foreclosure on the house where she lives with her children. The decision also dismissed her pendente lite (interim) order requiring her husband to pay her $8,000 in maintenance and child support.

The new statute does not grandfather in ongoing action – any case filed before October 12, 2010 must still plead one of the six forms of fault described in Domestic Relations Law Section 170.1-170.6. However, supposedly as of October 12, 2010 it will be much easier for the wife to get a divorce from husband in the above case.

On the flip side of all of this, some say that the new law does not end the fault requirement per se, but rather merely adds a seventh group for divorce, that the relationship has broken down irretrievably for a period of at least six months. Some believe that fault will still be argued for a whole variety of reason from who has what financial rights to just plain making the other spouse crazy.

We’ll have to wait and see what happens.

Until next time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

Standard of Living Post Divorce

A recent study, done by the Institute for Social and Economic Research in Great Britain, showed that men improve their standard of living after a divorce while women sacrifice theirs. According to the study, this difference is particularly striking when the couple has children, because the children are more likely to live with their mother. Even to this day, according to statistics most mothers earn less than their husbands and end up paying more child care expenses after a divorce.

The study may have correct results but I’m not sure it took any other factors into account other than money. Personally, I have seen how hard it is for men to get a fair chance in divorce court and after all is said and done, even though they may be saving money, the study does not take into account the emotional scar left on many fathers after a divorce is complete. It is true that in most cases the children are more likely to live with their mother, and thereby no amount of money will replace a father’s lack of contact with his children. Often times fathers go from seeing their child every day to seeing them every other weekend.

Also, I believe that the study may have been alluding to the fact that the non-custodial parent has a higher standard of living post-divorce, regardless of whether that parent is the mother or the father. However, I’ve seen cases where the non-custodial parent has to leave the marital residence where the custodial parent and the children will be residing and have to go live on their friend’s couch or on the street for a while because they can’t afford to pay for two residences.

In conclusion, the study may in deed be right, but in my opinion missed the many complex factors that determine an individual’s standard of living other than money. I really believe that whether you are the custodial parent or non-custodial parent your standard of living post divorce has a lot to do with the person that you are and the representation you had during your divorce. If you are a strong and resilient individual with strong counsel, your rights will be protected, your relationship with your children will not be diminished, your financial assets will be guarded, and the problems in your marriage that lead to the divorce will disappear, leading to a higher standard of living post-divorce.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.dukhanlaw.com

PLAN FOR RELOCATION

What should an individual do if they lack a custody order from a Court of law, but wish to relocate with their child, absent consent of the other parent?

Some parents just move and hope for the best, but this is a very bad idea if there is no official custody order on that parent’s behalf. Of course, there are cases in which a parent relocates without a custody order, and they are allowed to stay in the state to which they relocated despite the other parent’s effort to have the child returned. In fact I just represented a woman who relocated with her children to Oklahoma and despite the father’s efforts to have the children returned, my client was granted an order of custody and allowed to stay in the state to which she relocated. The Judge determined it was in the child’s best interest to stay in the state where they had relocated to and for the mother to have sole custody. Of course, the Father is entitled to visitation with the children and the expense of such travel will be split among the parties. So, with some creative litigation strategies, it is possible to relocate successfully without an initial court order, but it is not recommended.

In a recent Nassau County case, when the wife relocated with her children, the court decided that the father shall have custody of the children and the children were ordered to return to New York. The Wife filed for custody of the children, but the court determined that she was not able to prove that it was in the best interest of the children to move, even though the children had stated they wish to live with their mother in the other state. The Court believed that that father tried harder to foster a relationship between the children and their mother and that he could provide more financial stability for the children.

In conclusion, it is a gamble just picking up and relocating with children absent permission of the Court and an order of custody from the Court. If you are ordered to come back to your original state you may not have a home to come back to, and you may lose the physical custody you had as the court may order the children to move back and that may mean having to relinquish the children to the other parent until you are again able to find a suitable place to reside. Moreover, if the children have already moved and have already been enrolled in school, having to leave a school and having go back to the original state and start another school might have a huge emotional impact on the child.

Therefore, be smart about your decision to relocate. My suggestion is speak to the other parent first. If you cannot work out some agreement with the other parent, then either file for Custody or Modification of Custody with the court, and ask the court for permission to relocate before taking any big steps towards relocation. In court, you will most likely have to go through a relocation trial if there is no settlement, so an attorney will be necessary to create the best litigation strategy with you to make relocation a likely possibility.

If you have any thoughts, questions or comments about this post than I would love to hear from you.


Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.DukhanLaw.com

Donald Bren Sued for Child Support

Billionaire real estate mogul Donald Bren is being sued in the California Courts by his grown children for child support. 22 year old Christie Bren and 18 year old David Bren have sued him for $400,000 per month in retroactive child support, dating back to the date they were born. His adult children are now asking for $100 Million dollars.

The strangest part of the case is that Donald Bren and his ex-lover had drafted and executed four different contracts over the years for the support of the children by Mr. Bren. The last agreement provided for $18,000 per month for both children.

So, it will be interesting to see what the Court will decide. California has different law then New York, but I would be surprised if the children receive anything other than money not paid and owed as a result of the past private agreements executed on the children’s behalf.

In New York, the Court would note that the Mother could have come to Court and had a court order child support. Whatever her motives were for not doing so, she chose not to in this case. In fact, the parents did exactly what the New York Courts prefer they do, they exercised their right to make a written formal contract between themselves agreeing to a certain amount suitable for the children. The Court in New York would also note that the oldest child, Christie Bren, is already 22 years old and thereby barred from seeking any further child support. In New York child support is owed up to the age of 21 regardless of whether the children are in college or not, unless agreed upon differently by the parents.

With regard to the youngest child, the Court in New York would either decide that the father has to abide by the support agreement until the child is 21, or decide a different amount based on actual income of Mr. Bren and make a child support order until he turns 21. However, in California I believe parents only must pay child support until 18, so I really don’t understand why these children would receive any more child support.

Should the laws be different for parents who are extremely rich or protect children of extremely rich parents more than other children? Should these children get a penny more than the money not paid under the parent’s private agreement up to the age of 18, or age specified in the agreement – Not in my opinion.

What do you think? I would love to hear from you.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ Www.Dukhanlaw.Com

NEW YORK DIVORCE LAW: DIVORCE IN HARD ECONOMIC TIMES

So, it seems to me that the hard economic times are causing more and more couples to get divorced. Even though articles and TV specials are claiming that individuals are staying together because they cannot afford to get a divorce, it seems as though the Recession is having the exact opposite effect.

In fact, based on studies Nobel prize winner Becker conducted back in 1977 and published in the Journal of Political Economy, couples that experience any sudden significant and unexpected change in income — positive or negative — are at risk of divorce.

The fact though remains that divorce is never easy and during an economic downturn it can be ever more difficult. Now when couples are seriously considering divorce, it is more important than ever for them to carefully consider their options and think about their financial situation in its entirety. In the past a couple’s home was their largest asset, but now with the fall of the housing market, the loss of jobs and the steadily growing rate of foreclosures, couples are loosing their once most relied upon investment. Recently I witnessed a couple whose worth at the beginning of the marriage was estimated at 15 Million dollars, split the 1 Million left after all their debts were paid off and losses added up at the conclusion of their divorce.

Alarmingly, even though divorces are on the rise and maneuvering through the process is becoming increasingly harder due to the economic crisis, there are more and more articles and stories coming out about individuals representing themselves during a divorce. I cannot even tell you how many individuals come to me because they represented themselves in a divorce, and now seek assistance unraveling the mess that was made out of their assets and life. Moreover, individuals come to me who attempted to draft uncontested divorce documents and find it impossible to get them signed by the Judge, because they are complicated and one must know the applicable laws to complete them properly. Others come to me because they had a service draft their uncontested divorce documents, those that charge $200 and promise to do a quick job, which messed up and now the client has lots certain assets, or even worse, rights to their children.

Matrimonial and family law is an ever-changing landscape that even lawyers need to brush up on every year. In fact, continuing legal education is mandatory in order for lawyers to maintain their licenses to practice law. The lure for most to represent themselves is a financial one, obviously they don’t have to spend money on an attorney, however, such a choice may prove to be much more expensive in the long run.
There are ways to cut costs in a divorce. One of the biggest cost cutters is removing emotions from the divorce arena. If you and your soon to be ex-spouse agree on as many elements of property division and support as possible then your divorce will be that much smoother. Accept the idea that compromise will likely shorten the process and consider mediation or collaborative law, instead of litigation, as dispute resolution options. However, don’t make the mistake of compromising without knowing your legal rights and having an attorney advise you before you begin mediation or any other non-litigious dispute resolution option, and then review any agreement made afterwards.

You do not want to be one of those sad individuals who end up losing custody of their kids because they were ignorant of the law.

Find a lawyer who is easy to communicate with, who is honest, who won’t just cater to your wants but will be upfront about the realities of the situation and who is willing to work with you to come up with a fee schedule that works for you. That is the best way to ensure you get the most bang for your buck and the best deal with your ex-spouse.

IF you have any questions, comments, etc...as always your thoughts are much appreciated!! I would LOVE to hear from you!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ WWW. DukhanLaw.COM

Domestic Abuse Victims Granted Asylum in US

Recently the Obama administration granted asylum to a women from Mexico who was severely battered and sexually abused by her husband. In deciding whether or not to grant the women asylum, the standard governing whether or not a domestic abuse victim should be granted asylum was clarified.

A legal standard is what an individual has to prove to the Court in order to be granted the relief sought. So, in order for the Mexican women to be granted asylum she had to prove that she could not expect the Mexican authorities to protect her from the violence and murder threats of her attacker, and that she could not safely relocate any where in the country to escape him.

During decades of marriage, the husband raped the women and once tried to set her on fire. Routinely, cases such as this one were dismissed by immigration judges. However, after the above referenced case, the Department of Homeland Security recognized that asylum should be available to women whose governments won’t protect them from domestic abuse.

The Mexican women had to prove that she had turned to the Courts in Mexico for protection for herself and her two children, but that no help was offered. In fact, one Judge had offered to help her if she would have sex with him. Moreover, her lawyers proved that she could not safely move any where else in Mexico as her husband would always be able to track her down via the internet. In Mexico a school teacher, which was the women’s occupation, has to post their position in a public registry.

Even though this case marks a shift in immigration policy in the United States, clarifying 15 years of arcane and tangled litigation on such issues, it does not mean that it will lead to any new surge of refugees in the United States. The case shows what one has to prove to make a case for asylum, but does not mean every case will be successful.

Finally, it would be interesting to note that asylum was also granted to her two sons, now 22 and 20 years old.

I’m not an immigration attorney, so I do not deal with asylum applications, but I do represent plenty of domestic violence victims in Family Court and am very passionate about and committed to assisting victims of domestic abuse and their children obtain protection from their attacker. So, if you need assistance or know of any one who does I would be more than happy to help. Also, if it is an asylum case, then even if I can’t help you get asylum I know of an amazing immigration attorney in New York who can.

As always, if you find this post interesting or if you have any thoughts or opinions about the above post then please share them with me and the other readers.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com

NEW YORK DIVORCE AND FAMILY LAW: NO-FAULT DIVORCE PASSED

New York is officially the last state in the United States of America to adopt No-Fault Divorce Law. As of Sunday, when the governor passed a No-Fault Divorce option, spouses are allowed to terminate their marriages within six months of stating under oath that their unions are “irretrievably” broken.

The new law will take effect on October 12, 2010, bringing New York’s divorce law into the 21st century, as Governor Patterson put it.

Due to the opposition of certain organizations, churches and politicians arguing that certain wives, especially those in long-standing marriages in which they did not work or have other significant outside sources of income, would be at a disadvantage during divorce proceedings when facing spouses with more resources to procure better legal help. Even though it is not clear how the situation of one spouse being able to procure better legal help was any different when there was no “No-Fault” divorce in New York, some backers said that they could not endorse the concept without the concurrent passage of a bill setting standards for temporary maintenance for non-monied spouses.

As a result of these arguments, a bill was also signed into law, which stipulates that judges are to consider a host of factors when setting maintenance levels, from the years a couple was together to the life style to which they had become accustomed and the spouses' prospects of employment. Judges also will be allowed to consider factors they regard as relevant that are not mentioned in the new law.

The Governor also signed a third bill that would require judges to grant interim counsel fees to non-monied spouses, in order to get more resources into the hands of spouses who need them at earlier stages of divorce proceedings.

So, it shall remain to be seen if the two bills will be passed, but for now it is certain that as of October 12, 2010, New York will officially become a No-Fault Divorce state.
If you have any questions or comments please feel free to join the discussion!
Until Next Time,

Helen M. Dukhan, Esq., LL.M. @ www.Dukhanlaw.com