Monday, September 20, 2010

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. @

Monday, September 13, 2010

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. @

Monday, August 30, 2010


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. @

Thursday, August 26, 2010

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

Tuesday, August 24, 2010


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, 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

Thursday, August 19, 2010

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. @

Tuesday, August 17, 2010


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. @

Thursday, August 12, 2010


When going through a divorce, and when visitation with your children is at issue, can technology substitute personal contact? According to a New York Supreme Court Justice it can. A Long Island father just lost his two children, a 9 year old son and 6 year old daughter, to Florida as long as they communicate on Skype.

In the state of New York one parent may relocate with their children to another state if a Judge determines it is in the best interest of the children to move. It is always considered contrary to a child’s best interest to be far away from one parent, but when the custodial parent is struggling it might be best to allow that parent to move.

In the case referred to above, the mother of the children, an unemployed book keeper, had asked the court for permission to move their children to her parent’s home in Florida. The mother and father were married for eight years and their house is in foreclosure. The father objected to his former wife’s request, but the Judge decided to grant her permission as long as the new home has a web cam and Skype. The father will become the nation’s first court-sanctioned Skype dad. The Judge ordered that the father be able to chat with the children three times a week for at least one hour at a time.

Now, if the mother could not afford to live in Long Island, the father a construction worker could not support her and the children, and she had family in Florida who could help her, it is understandable why a Judge would decide the mother should be allowed to move with the children. However, is skype the best avenue to take when deciding the best means of fostering a relationship with their father?

On the one hand, the children have to sit and stare at a computer screen for three hours a week. Also, it is not known if the Skype contact is in addition to or in lieu of real personal visits and how many the father will have during the year. Also, will it be harder emotionally and psychologically on the children having their dad merely on a computer screen for a few hours a week? There are so many unknowns due to the fact that this order is the first of its kind.

On the other hand, most fathers whose children move out of state get holidays, school breaks and summers with their children. They also get phone contact. In this standard scenario it’s easy for the parent who moved the children to obstruct the other parent’s relationship with the children, by not allowing phone calls, failing to send the child for their visit claiming money woes, etc. In the case referred to above the Judge made it mandatory that the children chat with the father three times a week for an hour each time so the mother and her family, if they so wished, could not stop the father from speaking with and seeing his children at least through Skype. This may be huge for the father as he will actually be seeing his children and speaking to them more than most fathers, it’s just that he’ll be doing it over a computer screen.

So, we won’t know the effects of such a ruling for quite some time, but at least the father will be able to do his best at building a relationship with his children, even if it is over a Skype.

Would love to hear your thoughts and opinions on the Court ruling, so please comment and join in the conversation.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Thursday, August 5, 2010


I read an interesting article in the New York Times recently about couples who stay separated indefinitely instead of getting divorced. The authors calls such couples the Un-Divorced.

As a Divorce attorney in the State of New York, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., practicing solely family, matrimonial and divorce law, I typically do not hear about such couples, as most individuals retain my services so that they can get divorced as soon as possible. However, when couples who have been through a lengthy separation seek my services to finally get a divorce, they are, in my experience, typically worse off than if they would have been divorced upon separation. The article makes great sense as to why some couples may choose to forego getting a divorce and decide to just remain separated, but also mentions the dangers of doing so. After recapping the article, I will explain how a couple can protect themselves in case a lengthy separation does turn into a divorce.

The author of the article lists the following reasons that individuals are staying separated instead of getting divorced, the reasons being practical and financial, not familial:

a) Some couples believe that they are better off not bringing in lawyers and causing anger, they wish to maintain the status quo without causing any problems for each other or gossip depending on their social status.
b) Health Care: insurance costs are keeping some couples married as one spouse may not be able to afford health care and have illnesses requiring they stay covered by their spouse’s health insurance to obtain treatment.
c) Financial benefits: according to federal law a spouse qualifies for the other’s social security benefits if the couple has been married for a decade.
d) The Recession: real estate market is bad and at an all time low so couples chose not to sell their home and keep living together in the same house because they cannot afford for one to move out while carrying the cost of the marital residence.
e) Best Interest of Children: some couples state that they believe that staying separated and attempting to co-parent is in the best interest of their children. They still attend family functions together and send out cards together and attend their children’s school events together, but they just can’t live together.

The article also suggests that there are possible problems with staying separated rather than getting a divorce:

a) Marital Debt: even if separated a married couple is still bound to each other financially. So, if one spouse decides to go on a gambling trip and goes into serious debt, the other spouse may still be responsible for half of that debt.
b) Asset depletion: If you wait to long to get divorced the other spouse may have depleted all of their assets. It may have been much more profitable for both spouses to get a divorce once they separated than staying separated for many years.
c) More confusing for children: even though some couples state that they stayed separated for the sake of their children, not getting a divorce may cause more confusion for the children. Some couples still try to co-parent and remain married while living in different homes and having different relationships. For children of a young age it is difficult to understand why their mommy and daddy unlike other parents are living separate lives while still maintaining that they are married. For some children it may be a burden to keep quiet about a separation if their parents are trying to preserve their appearance of still being married for social status reasons.

I was at a networking event last night, where a woman I spoke to told me that she and her husband had been separated for seven years and that she was just beginning to think about getting a divorce. She explained that she has remained on her husband’s health insurance, they have filed joint taxes, and their child were young at the time, so they just decided getting divorced was not their first priority. Then, I met yet another women who explained to me that no matter what couples decide to do she believes that both spouses should go see a divorce attorney every six months or so to reevaluate their rights at that point, if they are going to remain separated.

I agree with every thing the author states, the reasons for staying married and the problems that may ensue from a lengthy separation; however, there is no mention in the article of the possibility of a separation agreement.

I draft separation agreements for couples all of the time, not because they wish to have a lengthy separation but as a grounds for their divorce in the state of New York (if you remain separated pursuant to a legal separation agreement filed with the court for a year that is ground for divorce). For couples wishing to remain separated for a long time a separation agreement legally filed with the court might protect the couple from some of the dangers of a lengthy separation. As just one example of the protection such a separation agreement might provide, it might states that as of a certain date each party’s debt is their own.

It is understandable that some couples may not want to involve lawyers or the court and may believe that staying separated works for them, but as a divorce attorney who witnesses the breakdown of the most cordial and loving relationships, a couple should protect themselves even if they are deciding to stay in a lengthy separation and not get divorced.

If you would like to read the article go to:

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Tuesday, August 3, 2010


When starting a business the last thing most individuals think of is protecting that business in case of divorce. Also, when falling in love and deciding to get married, most people actually over look discussing the possible consequences a divorce may have on the business one spouse owns. However, a business may be the most valuable asset within a marriage, worth more than homes, cars, or stock portfolios.

The moral of this blog post is so important and so pertinent to any business owner that I was invited to give a lecture to business students at Montclair University about how to protect a business in case of divorce, and was more than honored and happy to do so.

Ways to protect a business in case of divorce:

1) Prenuptial Agreements
2) Postnuptial Agreements
3) Language in a business/partnership agreement

Prenuptial and Postnuptial Agreements:

These sorts of agreements have a bad reputation and stigma that are attached to them. After all, traditionally it was held that when two individuals get married their ideology is what is mine is yours and what is yours is mine. However, any business owner knows that starting and operating a business is extremely hard and time consuming and that a tremendous amount of effort, energy and sweat goes into the undertaking. So, why shouldn’t you protect your time, energy and effort?? No one goes into a marriage believing that it will end, but over half of them do, so the possibility cannot be ignored and should be planned for, especially for business owners. Moreover, the non-owner spouse is also protected by such an agreement, since naturally the non-owner spouse helps the business in their own way, by making sure there is a meal on the table, taking care of the kids while the other partner runs their business, or any other effort they put into a family so that the business owner spouse can devote their time to the business

The law relies on words and the language of a prenuptial agreement must be drafted by an attorney specializing in matrimonial law, so that the correct language is used and that the business is properly protected.

If an individual began a business after marriage, then a postnuptial agreement should be considered. There is no difference between a prenuptial and postnuptial agreement, except that a prenuptial agreement is one drafted prior to marriage and a postnuptial is one drafted after marriage. In fact, in the past certain retirement assets could only be waived by a spouse, so if one had a prenuptial waiving the right to those assets, they also had to have a postnuptial waiving the same assets.

Bottom line is that both a pre or post nuptial agreement are contracts between two individuals, premised on the consideration of their marriage. They must be done voluntarily without any duress, fraud, or concealment. Each individual must have full knowledge of all assets, their worth and what they are gaining or giving up prior to executing either agreement for the agreement to be considered fair and recognized by the Court of Law. The best part of having such an agreement is that any terms of the agreement override local law, in New York being equitable distribution. Without having said agreement the business would be split up by the Court any way they see fit and fair.

Language In Business/Partnership Agreement:

Divorce can become emotionally and financially devastating, not just for the divorcing couple and their family, but also for the business's employees and co-owners. In the past there have been cases of the non-owner spouse taking over enough interest of a business to control certain decisions of that business and obtain an active ownership interest themselves. So, business agreements and contracts, as well any articles of incorporation, should be reviewed and the right language inserted by a legal professional to make sure they also protect every one who has an interest in case of one partner or co-owner’s divorce.

If a business is a multi-generational family business that business may consider a Family Limited Partnership arrangement. These versatile estate transfer tools can specify that business interests are not subject to division in divorce.

Also, a spouse's interest in a partnership or corporation can be preserved by including restrictions on transferability.
This means, for example, that a shareholder cannot transfer half of his/her stock to a divorcing spouse even if that spouse is treated as having a right to that interest. The non-owner spouse can receive some assets, but not the business interest itself.
So, protect your business, don’t let a divorce wreck the biggest project and undertaking of your life.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. at

Monday, July 19, 2010

New York Divorce and Family Law:

I recently was astonished after reading a blog post, on, about how there are divorce attorneys for both men & women, making it seem that an attorney cannot be one and the same. The blogger wrote about how choosing a divorce attorney for man is different than a divorce attorney for women. It became clear as I read the blog that the writer either just needed something to post about that week, or really has no idea about choosing divorce attorneys as the blogger him or herself made no indication of how a divorce attorney for a man is any different than any divorce attorney for women, except by starting the blog post by stating: “Divorce lawyers for men are specialized in arguing divorce cases from the male point of view. The choice of a divorce lawyer for men is crucial and needs to be made carefully.”

In fact the blogger writes about how to choose a divorce lawyer specifically for a man by stating:

“you must hire a capable lawyer specializing in divorce settlement. There are divorce lawyers for men out there who have extensive courtroom experience and know what needs to be said and done, to get a divorce settled your way.

There are many ways of looking for divorce lawyers for men. You could start with yellow pages and look out for practicing divorce attorneys in your area. Another way to go about it is through recommendations. Talk to your acquaintances who have gone through with a divorce and ask for recommendations. The better and more experienced a lawyer is, the higher will be his fee. Good counsel comes at a high price. Shortlist a few names and meet the lawyers personally, before you decide.”

How are any of the above criteria different than a divorce lawyer for a women??? I believe this blog is incredibly sexist and does a disservice to those who truly take it for face value, believing that they should shop around for an attorney only because he/she represents all men, or claims to focus on the legal issues of men.

First and Foremost, it is my belief that there is no such thing as a male or female point of view when it comes to divorce. Yes, there is a male party and female party, the judge applying the law is male and female and from time to time you must convince a judge why a male is a better parent than a female; however, I do not believe any of these factors means that divorce attorney must argue a male or female point of view. I believe the only point of view acceptable in divorce court is the “client” point of view. I took an oath to zealously represent each and every client I represent, so the only point of view I argue in the court room is my client’s point of view, not some generic male or female point of view.

I cannot tell you how many times an opposing attorney has made the argument to a judge that the court may not and should not take a child away from the mother, solely because the parent is the mother. I also cannot tell you how many times I have argued my client’s point of view as the father, and have listed all of the characteristics that make my client, the father, the better custodial parent in the best interest of the child, and had the court agree with me. I did not argue these characteristics from a generic male view, but from what my client explained to me and told me, I fought for my client from my client’s point of view. If my client is the mother, I would fight from her point of view and list the characteristics making her the preferred custodian, as that is what attorneys do for both men and women.

It is admitted that the New York Family Court and Supreme Court treat men and women differently in Family Law and Divorce cases, and that some attorneys do focus only on women or men, by choice and because of their belief systems. However, after having representing plenty of men and women in divorce cases, and having fought hard and won custody for many men and women, I am 100% sure that the professional relationship between the client and the attorney is all that matters when choosing an attorney. What I mean is that, if the client has faith in the attorney, and If the attorney believes in the client’s case enough to accept representation of the client, and the attorney has the requisite experience, in court and in dealing with other attorneys, coupled with the knowledge of the law due to their specialization in divorce and family law, then that is all that matters when choosing a divorce attorney for a man or a women.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Monday, July 12, 2010


In certain custody cases the Judge wishes to speak to the subject child, the child the parents are fighting for custody of, in private in their chambers. This sort of private meeting between the Judge and the child, and in New York the appointed attorney for the child, is legally referred to as a Lincoln hearing. Historically, testimony taken from a child during a child custody case is afforded protections of confidentiality under Article 6 of the Family Court Act.

The meeting between the Judge and the child is referred to as a Lincoln hearing because the confidentiality of such a hearing was established in the matter of, Lincoln v Lincoln (24 NY2d 270 [1969]), where the Court of Appeals held that a court deciding the issue of custody has the right to conduct a confidential interview with the child, outside the presence of the parents and their attorneys, because its first responsibility is and must be the welfare and interests of the child (id. at 272). In so concluding, the Court emphasized the importance of protecting the child from having to choose openly between parents or publicly relate his or her difficulties with them (id.). Indeed, as this Court noted in upholding a Family Court's refusal — in a custody proceeding — to disclose the contents of a Lincoln hearing, "[c]hildren must be protected from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships[, and t]his protection is achieved by sealing the transcript of the in camera Lincoln hearing (Sellen v Wright, 229 AD2d 680, 681-682 [1996] [emphasis added, internal citation omitted]).

Recently though, this right of confidentiality during a Lincoln Hearing was challenged. However, it was not challenged during a custody matter, but during an Article 10 proceeding, which deals with abuse and neglect of a child. In The Matter Of Justin CC, 2010 NY Slip Op 05817, the attorney for the daughter requested that a "modified Lincoln hearing" be held with the daughter in the presence of all counsel, but outside the presence of respondents (parents). During the Lincoln Hearing, the daughter provided sworn testimony; respondents were excluded but their attorneys were permitted to be present and afforded a full opportunity to cross-examine her. At the conclusion of the fact-finding hearing, Family Court found that the father abused the daughter and derivatively abused the sons, and that both the mother and the father neglected all four children. The transcript of the daughter's testimony was marked confidential by Family Court and was forwarded under seal to this Court for purposes of this appeal.

On Appeal, the father’s appellate attorney made a motion for the transcript to be unsealed so he could properly refer to it and so it is part of the record. The Appellate Court agreed with the father’s attorney and decided that although there are sound reasons for maintaining confidentiality of a child's testimony in a custody proceeding, there is no basis for providing such a protection at the fact-finding stage of a neglect/abuse proceeding. While the issue at the fact-finding stage of a custody proceeding is what custodial arrangement is in the best interest of the child, the issue at the fact-finding stage of a Family Court Act article 10 proceeding (abuse/neglect case) is whether the agency has proved by a preponderance of the evidence that the child is neglected and/or abused and that the parent is responsible for the neglect and/or abuse. Most significantly, unlike a custody proceeding, the position of the allegedly neglected or abused child in an article 10 proceeding may be adverse to the parent and the parent should therefore be afforded a full opportunity to refer to that testimony by specific reference and make legal arguments based upon it, raising the fundamental due process concerns of right to cross examination for the purposes of an appeal.

Therefore, a child and an attorney for the child must be mindful that even though the parents are not present during said modified Lincoln Hearing, the testimony of a child during a neglect and abuse case will be open to review by the parents and their attorneys. The Court, in my opinion, correctly decided that the worst that can happen in a child custody case is one parent loses custody because of the child’s position regarding which parent they choose to live with is adverse to that parent. However, in an abuse and neglect case the parents may lose parental rights over the child, or be prosecuted by criminal court, or any number of extreme consequences and should be able to properly defend them selves based on all testimony given, even that of the child.

Any opinions, questions or comments are always welcome and appreciated. I look forward to hearing from you if you found this interesting!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Monday, July 5, 2010

New York Divorce and Family Law: Watch What You Post

Social networks are causing problems in divorce cases, leading to an abundance of evidence in matrimonial matters. The American Academy of Matrimonial Lawyers says 81 percent of its members have used or faced evidence from Facebook, Myspace, Twitter and other social networking sites, including Linkedin and Youtube, over the last five years.

I myself had a case recently where the mother was not paying child support claiming that she is on public assistance, but my client, the father, brought in dozens of pictures of her in her expensive home, on expensive trips, and the best pictures of her were the one of her in front of her new business, announcing its grand opening.

In a recent article I read on, it stated that 66 percent of the lawyers surveyed cited facebook indiscretions as the source of online evidence, and Myspace followed by 15% , followed by twitter at 5%. Social networks are now providing evidence that you normally would never get in the every day divorce process. Judges don’t really have a problem letting Facebook pages in, believing that you can’t really fake a Facebook page.

The evidence obtained from social networking sites becomes most damaging when the party uses their face book page to wage a smear campaign against their significant other or forces their child to de-friend the other parent, in effect providing evidence of alienation which is a very serious offense in Family Court which could lead to a loss of custody and/or visitation with your child.

So, the Moral of this Post is the following: What you say can and will be held against you in the Court of Law!!

I advise my clients at the outset to show me their Facebook pages and any other social networking sites they may be on and I tell them to stop posting and being active on those sites while they are going through their divorce or Family Court process. This might be the ultimate challenge for some, but going through a divorce or Family Court proceeding may be the most emotional time of an individuals life and it is extremely easy to lose yourself and give in to your anger and emotions, then as a result write something on one of the social networking sites trash talking your ex. The words you write out of anger on any of these sites may have a lasting impact on your life or the life of your children and other family members.

Also, think twice before posting pictures!! Like the case I described above, the mother did not have to say a word, the pictures spoke for themselves providing us with a clear portrait of the mother’s lavish lifestyle and successful business.

If you must be active on your social networking sites during your divorce or Family Court matter then you should check your privacy settings, de-friend your ex, any of your ex’s friends, or other people who might be frenemies. Also, have anyone who might post any information about you or pictures of you adjust their privacy settings as well.

With regard to social networking sites remember – YOU CANNOT BE TOO CAREFUL!!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Tuesday, June 29, 2010

Family and Divorce Law in New York: Family Court Not Just For Families Anymore

The Appeals Court in Albany, New York decided a Madison County Family Court Judge erred when he denied Jessica D.’s request for an order of protection for “reasons of public policy”. Even though the nature of the relationship met the standard of intimacy required by Family Court Act, section 812, as established by the legislature, Judge Dennis K. McDermott denied the request because Jessica D. was married and Petitioned for the order of protection against an on-again, off-again, boyfriend. In fact, Jessica D. was still living with her husband and daughter when she went on a ten-day liaison with her boyfriend, and thereafter filed a petition in Family Court for an order of protection alleging that he hit her in the leg and threatened to shoot both her and her husband.

The third department decided the main purpose of Family Court Act Article 8, section 812, is “providing reasonable means and methods of protection and enforcement for victims of domestic violence…” Walker v. Walker, 86 NY2d 624 (1995). In essence, the Court decided it was legislative intent to extend Family Court jurisdiction to cover relationships such as the one had between the parties herein. While those in "intimate" relationships were intended mainly to be non-married boyfriends and girlfriends, the statute explicitly says that no sexual relationship need exist for an alleged abuse victim to seek an order of protection against his or her abuser.

The Judge who made the underlying Family Court decision questioned Jessica D.’s commitment to her marriage. However, that is not the point of the Family Court Act, especially not of Article 8, section 812. Regardless of Jessica D.’s commitment to her family and marriage, she required protection against someone she was in an “intimate” relationship with, as established by the Family Court Act and interpreted by case law. Justice Mercure wrote, "Courts have no right to add to or take away from [the statute's plain] meaning. He went on to explain that the Court’s sole objective "is to discern and apply the will of the Legislature, not the court's own perception of what might be equitable."

In my personal opinion there is a shift in the Court away from traditionalism and judgment to modernity and understanding. What I mean is that, in the past adultery was a shameful and punishable act in Family and Matrimonial Courts. In New York, it is a ground for divorce that used to hold major weight in decision of equitable distribution, custody and other Family Court and Matrimonial Decisions. Lately, though, I observe a shift away from the ideal of preserving the sanctity of marriage, to a larger understanding and acceptance of the changing nature of relationships. One major indicator of such a shift, is the Senate passing No Fault Divorce in New York. Is this a positive or negative change, I’m not sure yet, but I believe the next few years will prove very interesting in the field of Family and Matrimonial Law, not just in New York, but all over the country.

If you have an opinion or any comments to add they are always appreciated and welcome.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Wednesday, June 23, 2010


So, when I started this blog I had envisioned not only writing about Family issues, Family and Matrimonial Law and issues surrounding Divorce in New York, but also about being a business owner. I have now been a solo practitioner, and the founder of the Law Offices of Helen M. Dukhan, Esq., LL.M., for over a year. Of course, I am no where near being an expert on business practices, but I would like to share what I have learned along the way.

For those who are thinking about starting their own business, I want to share with you that it has been the most challenging time in my life, but also the most rewarding and happy period of my life. My family does not remember the last time I complained about work. To the contrary, the challenges are all personal adventures and conquests.

I recently read an article that listed the top 6 reasons most individuals are scarred to start their own business, most of them being reasons I was scarred to take the leap out on my own, such as:
a) Uncertainty
b) Indecision
c) Economy
d) Debt
e) Family Obligations
f) No Benefits

However, reflecting on those fears and how personally and professionally fulfilled I currently am; these are my responses to each:

a) Uncertainty: I must confess that not having a steady income is a daunting thought when deciding whether to start one’s own business. The security of a steady and reliable pay check is a great feeling, especially when debt and other responsibilities are looming over you. However, looking back, I realize that it’s a false sense of security that I felt, because if your employer decides to let you go or close the business, then it’s the same as being self-employed, maybe even worse – unemployed. I was at the mercy of someone else, my boss, for my pay check, so I decided I would rather rely on myself (or at least try to). There is no denying that the beginning is challenging and a lot of financial sacrifices have to be made, but once the income starts coming in it is all yours, and at the end of the day you are at no one’s mercy but your own. I joke about how my current boss is a slave driver, but the income is growing and I’m enjoying it!

b) Indecision: I cannot imagine going into a business that I did not have any experience in. All of my experience and gained knowledge was in the field of Family and Divorce Law in New York. I even earned an advanced legal degree (an LL.M.) in the field. Therefore, it was not a hard decision to start a business in Family and Divorce Law in New York. I had worked hard to build up at least a small client base and possible referral sources before jumping into my practice. Lastly, even though I had the education and a sufficient amount of experience in the field, I still read every source I could get my hands on about running one’s own business and material specific to my business. So, since I had no indecision about what business to start, I cannot really advise those who do, except prepare, prepare, prepare.

c) Economy: I left my firm and began my own business at the peak of the recession. Every one, from colleagues to friends to family, told me I was crazy to start my business when the economy was so bad and so many people were losing their jobs. At the same time my husband was laid off from a large financial institution, so I knew how precious having a job was and that I should have been happy to be employed. But, I had decided to start my own practice and maintained my plan, and quickly learned that when the economy may be hurting some, others may be thriving. It will never seem like the perfect time to take such a leap of faith, so after careful planning and with some determination I don’t believe a so-called bad economy should stop any one from following their dreams.

d) Debt: This concern I know best. Living in New York and having earned my legal degree, my license to practice law, and an advanced degree in Family and Matrimonial Law, all in New York, I have a tremendous amount of debt looming over me. I lost sleep over what to do about my debt. Then, after some careful planning and negotiation with banks, I learned that certain loans could be put on hold for a year, so that I was paying a lesser amount for that period of time. I learned how to manage my debt so that it was not managing me or my decisions. Managing my loans gave me a chance to save up enough money and generate enough income to sustain my business and now easily pay my debts down. So, if and only if, you can manage your debt in order to buy yourself a bit of time to get your business of the ground without ruining your credit or going into bankruptcy, then the debt should not be a deterrent to starting your own business.

e) Family Obligations: The first year of running your own business can be very trying. It has required most of my time, devotion and energy. My husband has had to be patient and make himself lots of dinners and spend some weekends on his own. I imagine I can liken starting your own business to having an infant. So, one must be ready and plan to be able to have the support and help necessary to balance your devotion and time between growing the business and maintaining it and your family obligations.

f) No Benefits: For some it might be scary to have to give up the 401K or retirement accounts, or go for a period without health or dental insurance. I know this was a big concern of mine. However, luckily my husband covers us both under his health insurance. If he had not been able to cover me, I am sure I could have either pooled together with other professionals to maintain a group health plan, or I would have lived without it for a while and purchased health insurance when I became financially able to do so. With regard to retirement plans and the 401K account, these are simple to open and with the help of a good accountant or business savvy friend very manageable and easy to maintain for a solo practice or small business venture.

So, to anyone pondering the possibility of starting your own business, it is not easy but at least for me the journey thus far has been extremely rewarding! I have been able to help so many individuals during times of family crisis, and have been able to personally reap all of the rewards!

As always, any comments are always welcome and appreciated!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Monday, June 21, 2010

New York Divorce and Family Law: Picking Favorites


I recently read in an article, that a study was done suggesting that in every family with more than one child, there is a favorite. The study goes on to suggest that while most parents deny having a favorite child and the issue is commonly laughed off, having a favorite can have serious future consequences, for both the favored kid and other children in the family.

Playing favorites can cause major resentment between children, especially toward the favorite child. Also, the favorite child may feel extreme guilt for how hard the other children had to work for their parent’s affection unlike themselves. The favorite child may have extra stress from having to always prove themselves to their parent, while the non-favorite may grow up well adjusted due to the lack of such stress.

During a Divorce or Custody dispute it is easy to favor the child who wishes to reside with you, or the child who sticks up for you, takes your side in the dispute. One must remember that each child during such a dispute or divorce loves their parents and should not be forced to take sides, and no matter what their wishes are during the proceeding the parents must show all of their children equal love and devotion.

If a child expresses negative feelings about your behavior toward them as opposed to your other child or children, then commend them for expressing their feelings as most of the time children will not properly communicate with their parents about such issues. Listen to your children and do a person evaluation of your self, your feelings and your behavior to determine if there is a basis for your child feeling that way. Most importantly and what turns out to be the most difficult task is to be honest with yourself. There’s some degree of favoritism in every family, so this should not be something a parent is ashamed of or denial about. Children are all different and favoritism is natural, it just must not go too far.

Tips for parents when one child feels they are picking favorites:

a)Communicate your thoughts and feelings to your children and make them understand all of them are loved in their own way and for their differences.
b)Listen to your children and don’t ridicule them for their feelings with regard to this issue, rather commend them for speaking up.
c)Do a personal self-evaluation and do your best to correct the behavior that is to blame for your children’s feelings.
d) Most importantly, give your children the benefit of the doubt, as they are the ones that are being shaped into adults and are the ones that will suffer as a result of any negative behavior toward them, whether conscious or subconscious on your part.

If you wish to comment on this issue, or if you ever felt that you were favored or that your siblings were favored, I would love to hear from you!!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Wednesday, June 16, 2010

New York Divorce Law: NO-FAULT DIVORCE

New York is the last state in the United States to not have No-Fault divorce. Yesterday’s blog post discussed the grounds one must prove to obtain a divorce in NewYork. However; the New York State Senate pushed New York closer to modernity on Tuesday by approving legislation that would permit couples to separate by mutual consent, a major shift with sweeping implications for families and lawyers.

In a recent New York Times Article, it states, “The new legislation still has to pass the State Assembly, which is considering two bills that would include some version of no-fault divorce. But advocates said Tuesday that they believed that victory in the Senate…gave the measure momentum and a high likelihood of gaining approval in the Assembly…” (Issue: June 15, 2010, by Nicholas Confessore).

So as a Divorce attorney in New York, I sit and ponder what implications the passage of such legislation will have on my clients and on my practice. So, here are some thoughts on the subject:

Affects the passage of No-Fault laws in New York would possibly have:


a) Less emotional and mental harm to children, because they would not be pitted in the middle of the parents, would not have to choose sides, and best of all would not have to testify as much in court regarding the fault of one parent. Conflict between the parties would probably decline.
b) Other states have reported that moving towards No-fault divorce lessens the case-load of the Court and shortens the time it takes to obtain a divorce.
c) Would reduce the need for lies, perjury, and deceit to be a part of the divorce system in New York because financial settlements would be based on standard of living, contributions to family finances, need and ability to pay.
d) Certain clients, especially ones in marriages with domestic violence, will feel empowered to file for divorce and be able to get out of the marriage easier. It is very scary for some individuals to have to stand up in court, plead and prove cruel and inhuman treatment. Also, it is very embarrassing for most clients to state that they were either abandoned or that their spouse refused to have sex with them, constructive abandonment.
e) For attorneys the divorce would be more manageable, predictable and settlements would be easier to come by.


a) No-fault divorce gives more power to judges in deciding issues such as splitting up marital assets, custody, and spousal support – because there is no fault, the judge may use his full discretion without considering any fault.
b) Makes divorce much simpler, because no-fault eliminates one-parties control to object to the divorce. The party has no chance to fight the grounds and thereby lose a chance to save the marriage.
c) In custody decisions it will be harder to determine which parent is the fit parent if fault is not an issue. The court may not get a chance to hear of abuse or unfitness due to “fault” not being an issue.

In conclusion, I believe that even though some attribute the high rate of divorce on No-Fault Laws making it too easy to get a divorce, I attribute lots of individuals remaining if unhappy and unhealthy marriages due to stringent fault laws in New York. I believe No-Fault laws will free a lot of individuals and provide them with more of a choice over their own lives. I believe, the court in New York will not abandon the “Best Interest of the Child” standard for deciding custody and will still decide whether a parent is fit or not, having nothing to do with “fault” necessarily. Every divorce attorney in New York realizes that because of the amount of couples agreeing to a ground just to get a divorce, even if that ground is not absolutely true, that even though New York has fault laws, the fault of one party typically does not have that much impact on the separation of property or spousal support decisions.

I believe that the parties to a divorce should decide their own fate, rather than having a stranger, the judge, decide it for them and should try their best to come to a settlement. Realizing that no-fault laws may make this more possible makes me believe that No-Fault in New York is the way to go.

Please share your comments and opinions with the above; I would love to hear them!

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Tuesday, June 15, 2010

New York Divorce and Family Law: Think Before You Post

Just came across a web site that states that New York State has no - No Fault Divorce. Meaning you must have a ground for a divorce. Which is current, but the web site then goes on to state that most people just put down "Constructive Abandonment or Abandonment" To get around the grounds requirement. To advertise this on a website, considering you must put the terms of the ground and attest to them under oath and on the record before a Judge seems incredibly un-ethical, even if it is some what true. Any opinions?

Constructive Abandonment is when one partner refuses to have sex with the other for one year, without any justification (such as a medical reason for not being able to perform) for refusing such and after being asked to have sexual relations.

Abandonment is when one partner leaves the home and is away for at least one year.

Other grounds for divorce are as follows:

(1) The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant,

(2) The confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.

(3) The commission of an act of adultery, provided that adultery for the purposes of articles ten, eleven, and eleven-A of this chapter, is hereby defined as the commission of an act of sexual intercourse, oral sexual conduct or anal sexual conduct, voluntarily performed by the defendant, with a person other than the plaintiff after the marriage of plaintiff and defendant. Oral sexual conduct and anal sexual conduct include, but are not limited to, sexual conduct as defined in subdivision two of section 130.00 and subdivision three of section 130.20 of the penal law.

(4) The husband and wife have lived 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, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

(5) The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Monday, June 14, 2010

New York Divorce and Family Law: Child Adbuction

In Haimdas v. Haimdas: 2 children were found to have been unlawfully retained by their father in the United States and the father was ordered to return both sons to their mother in England.

A bit of history: The Petitioner, the one bringing the suit for return of her sons, was in the United States under a tourist visa and met Respondent Father. The couple conceived a child and were married shortly afterwards. When her first son was 4 years old and the second 17 months old the Couple decided to separate and both agreed that the Petitioner Mother would go back to England with the boys, who were dual citizens. The respondent purchased them a one-way ticket.

Seven months after Mother’s departure with the boys she came back to America with her brother and the boys to visit their father. They all came by a round trip ticket again purchased by Respondent Father. At the airport the Mother was not allowed to proceed into America as she had overstayed her prior tourist visa by four months. So, mother had to return to England, while her sons and her brother went to visit with the father. At the end of the two weeks, the father refused to return the sons. For three years the sons lived in America, periodically visiting the mother for 4 or 5 weeks at time.

Then at age 8 and 5, the boys expressed to their mother that they wish to stay in England with her as the father punishes them and hits them. They were with her for three years. Petitioner Mother received a Prohibited Steps Order. This is an order in England prohibiting the father from removing the children from England or retaining the children outside of England.

In July of 2008, the mother allowed the children to fly and visit their father in New York for two weeks. After the two weeks, the father told the mother he was keeping the boys and visitation was going to be on his terms. Mother brought suit under the Hague Convention.

The Hague Convention: "was adopted in 1980 in response to the problem of international child abductions during domestic disputes." Abbott v. Abbott, -- S. Ct. --, No. 08-645, 2010 WL 1946730, at *5 (May 17, 2010). The Convention's express objectives are "to secure the prompt return of children wrongfully removed to or retained in any Contracting State," and "to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States." Hague Convention, art. 1. Since its inception, the treaty has been ratified by over 80 nations, including, most pertinently, the Unites States and the United Kingdom.

The Convention is especially designed to deter "those close to [a child], such as parents, guardians, or family members," from unilaterally taking or keeping the child out of the country of habitual residence with an intent "to establish artificial jurisdictional links" to a more sympathetic forum for a custody dispute. Gitter v. Gitter, 396 F.3d 124, 129-30 (2d Cir. 2005) (internal quotation marks omitted). Accordingly, "[t]he Convention's central operating feature is the return remedy. When a child under the age of 16 has been wrongfully removed or retained, the country to which the child has been brought must 'order the return of the child forthwith,' unless certain exceptions apply." Abbott, 2010 WL 1946730, at *5 (quoting Hague Convention, art. 12). "[A] 'wrongful removal' under the Convention is one 'in breach of rights of custody…under the law of the State in which the child was habitually resident.'" Blondin v. DuBois, 238 F.3d 153, 157 (2d Cir. 2001) ("Blondin II") (quoting Hague Convention, art. 3) (ellipsis in Blondin II). The Convention defines "rights of custody" to "include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence." Hague Convention, art 5.

Pursuant to the Hague Convention: it’s a three step process to determine if the children shall be returned:
a) Determine where child habitually resides: Protection versus child abduction when taken or kept out of state in which children habitually reside immediately before removal.
b) If removal is a breach of the right of Custody?
c) If Custody rights were being exercised at time of removal/retention.

So, in this case the Court determined: that the habitual residence of the children was in fact England, since both parents agreed that the child would live there before their initial move there. The father had paid for a one-way plane ticket and the children had started school there. The Court further determined that children’s lives were not so deeply entrenched in the United States to warrant keeping them in the United States.

Second, the Court determined that even though under the Hague Convention it states that both parents have parental responsibility over a child born to married parents. This means that both parents have custodial rights. However, in this case the Court in England had clearly ordered that the father was prohibited from removing the children from the United Kingdom or retaining them any where else, and was clearly noticed that if he did so it is a criminal offense.

Moreover, the mother by solely taking care of the children before they came to the United States to visit their father was more than exercising custody of the children prior to their wrongful retention.

Lastly, there is an exception to the Hague Convention, if the child of an age and maturity where his or her view should be taken into account. The Court found that the boys were not of such an age or maturity, and even if they were, their reasons for wanting to stay in America were not good enough.

So, even though we typically hear of long and drawn out court battles between countries and such, there is light at the end of the tunnel for some parents. The Hague Convention is a very complicated legal product so I hope this post shed a little light on its provisions. I found it interesting and hope you did too. For the full article go to:

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Friday, June 11, 2010

New York Divorce and Family Law: Violance Against Women Act

The Justice Department has decided that the criminal provisions in the Violence Against Women act should be enforced in cases involving gay and lesbian relationships.

The Violence Against Women Act was first passed by Congress in 1994. Its provisions made it a federal crime to cross state lines with the intent of committing domestic violence, stalking, or violating a protection order. The government’s application of laws to gay and lesbian relationships has been a matter of great contention. The Defense of Marriage Act, a 1996 law, required the federal government to define terms like “marriage” and “spouse” as legal categories that can only be understood as a union between one man and one woman.

Since the Violence Against Women Act includes terms not covered by the Defense of Marriage Act, like “dating partner” and “intimate partner”, and since the provisions of the Act make clear it applies to conduct against male, as well as female, victims, it has been determined that the text of the Act is gender-neutral.

The expansion of the Violence Against Women Act, like the amendment to Article 8 of the Family Court Act in New York which extended the ability of an individual to obtain an Order of Protection against any individual they have been in an intimate relationship with regardless of whether such persons have lived together at any time, is a step towards equality and recognizing that same-sex couples are subject to the same issues facing other committed couples, such as domestic violence.

If you are seeking more information about Family Offense Proceedings or any other Family Court preceding in New York you may go to:

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Monday, June 7, 2010

New York Divorce/Family Law: Parental Alienation

Supreme Court Justice Robert A. Ross in Nassau County, New York, has sentenced a woman, in an on-going divorce matter to six weekends in jail for willfully violating a court order by repeatedly undermining her ex-husband's relationship with their two elementary school-age daughters. "The extensive record is replete with instances of...manipulation of defendant's parenting access, utter and unfettered vilification of the defendant to the children, false reporting of sexual misconduct...and her imposition upon the children to fear her tirades and punishment if they embrace the relationship they want to have with their father," the judge wrote.

Parental alienation syndrome occurs when one parent attempts to purposefully or unconsciously brainwash a child, in effect pitting the child against the other parent. In severe cases, the child will not want to see or talk to the alienated parent. Once the alienation reaches such a point, it is almost impossible to reverse, and permanent damage is done to the child, mentally and emotionally, and to the relationship between the child and the alienated parent.

Some Warning Signs of Parental Alienation: Here are some warning symptoms psychologists have observed in children suffering from parental alienation syndrome:

1) Speaking with the child in detail about the marital relationship or reasons for the divorce.
2) One parent bad-mouthing the other to the child by blaming the other parent for financial problems, the break up of the family, or having a girlfriend or boyfriend.
3) Refusing to allow the child to transport possessions between residences.
4) Refusing to allow the other parent to visit with the child, or refusing to be flexible with the visitation schedule, or scheduling the child in so many activities that the other parent is never given the chance to visit, even going so far as to violate Court orders of visitation.
5) Resisting or refusing to allow the other parent access to school or medical records and schedules of extracurricular activities.
6) Lying to the child about extra-marital affairs of the other parent, or about the other parent not wishing to see the child, when in actuality they will not let the other parent see or call the child.
7) Asking the child to choose one parent over the other, either directly or by making the child feel guilty about seeing the other parent by reacting with hurt or sadness to a child having a good time with the other parent.
8) A parent or stepparent suggesting that the child call their new partner “Mom” or “Dad”.
9) The alienating parent encouraging any natural anger the child has toward the other parent.
10) When the child cannot give reasons for being angry towards a parent or gives reasons that are vague and without any details.
11) Using a child to spy or covertly gather information for the parent's own use, or as a messenger between the parents.
12) Listening in on the child's phone conversation with the other parent.

Parental alienation is not just damaging to the parent-child relationship, in many cases it can be very damaging to the child’s mental and emotional well-being. Parental alienationis being taken very seriously in Family Court, when deciding issues of custody and visitation.

If parental alienation is pleaded and proved I believe it should be considered as a form of child abuse, even as a crime, as it has long term detrimental affects to the child; however, circumstantial evidence of such abuse should not be allowed. Many individuals, even parents who are the actual abusers use the claim of parental alienation in Family Court to obtain custody and visitation when in fact the supposed alienator is in reality trying to protect their child from an abusive individual. Therefore, I believe that forensic evaluators, judges and attorneys for children should use the utmost care when it comes to such claims to determine if they are in fact true.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Friday, June 4, 2010

Divorce in New York: The Gary Coleman Lesson

I just read an article in the post about Gary Coleman and the mysterious circumstances surrounding his death. It won’t surprise most who know me that the fact I found most interesting is that Shannon Price, his ex-wife, made all of the medical decisions on his behalf. HIS EX-WIFE! Although it was revealed Wednesday that Coleman, and Price, had been divorced at the time of his death, the actor had given Price written permission to make medical decisions on his behalf.

Of course no one will ever know if in fact Coleman wished that his EX-WIFE would pull the plug and let him die, as she did, because he never revoked the document he executed giving her such power over his life.

In New York, pursuant to section 2981 of the New York State Public Health Law, the appointment of principle spouse as health care agent is automatically revoked upon the divorce. Now, Gary Coleman lived and died in Utah, so their laws may be different; however, regardless of the New York State Public Health Law, even in New York after you divorce, it is important to update your beneficiary designations on health care Proxies, Power of Attorney Forms, and any other financial instruments such as life insurance policies, stocks, bonds and other assets, since state law does not always offer 100% protection.

For example, the U.S. Supreme Court recently upheld a case involving an award to an ex-wife of the benefits of her ex-husband’s life insurance and pension plans because he never replaced her as the beneficiary. A federal law known as ERISA pre-empted a state law that automatically revoked beneficiary designations of ex-spouses after divorce. As you can see, if a situation like this is left unattended, an unintended outcome could result.

New York precludes an ex-spouse from inheriting under a Will created during marriage, and all provisions for spouse as executor or administrator are revoked automatically as well. However, the laws vary tremendously and resolution of the matter can be further complicated where a divorce occurs in one state, but the estate plan or beneficiary designation is governed by the laws of another state or the federal government.

Bottom line, is that you should have all estate planning documents reviewed. In particular, you’ll have to review your fiduciary designations with the following questions in mind.
Who is designated as the Trustee of a Trust?
Who is the Executor/Personal Representative of a Will?
Who is the Agent under a Property Power of Attorney, Health Care Power of Attorney, or Health Care Proxy?
Who are the beneficiaries of my Life Insurance Policy, Pension and any other stocks, bonds and other assets?

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Wednesday, June 2, 2010


A Couple of Interesting Topics:

First, suing someone because they gave you permission to cheat?

Upper West Side couples counselor Jeffrey Mechanic is being sued by two of his former clients who claim he almost ruined their marriage. He told one of the spouses to have an affair because that spouse was not satisfied at home. The most amazing thing is that the spouse actually had an affair. Now some individuals may agree with the counselor and his belief that if you are unsatisfied at home you should have an affair rather than Divorce your spouse. The counselor’s advice may have even saved certain marriages. One of his former clients states, “he encourages people to have affairs. He makes people feel it’s O.K. He gives them permission to do it.” I mean really?!? Individuals who have serious medical illnesses typically get more than one doctor’s opinion before proceeding with a treatment. Why would any one going to a couple’s counselor who tells them to have an affair not do the same thing before choosing what is right for them to save their marriage.

The real issue here, though, is not whether the counselor gave bad advice, but it is whether a couple should be able to sue a counselor for his prescription if at the end of the day you chose to listen to that counselor. After all, have we forgotten that people have free will and are expected to know the difference between right and wrong?

Second, waiver of interests in retirement assets enforceable within a prenuptial agreement:

In the past, a provision in a prenuptial agreement waiving one’s interest in certain retirement rights was unenforceable. In Richards v. Richards (232 AD2d 303, 303 [1996]), the court had found that under the Employee Retirement Income Security Act 'only a spouse can waive spousal rights to employee plan benefits, that a fiancĂ©(e) is not a spouse, and that such rights, therefore, cannot be effectively waived in a prenuptial agreement.' Therefore, because such rights could only be waived by a “spouse”, if one fiancĂ©(e) wished for the other to waive their interest in such retirement rights they would have to have had a prenuptial agreement and a post-nuptial agreement waiving said rights.

Now, the first department in New York (Manhattan), found, in an opinion by Justice
Andrias, that the parties' prenuptial agreement contained an enforceable waiver of defendant wife's interest in the marital portion of plaintiff husband's retirement assets. Strong v Dubin,--- N.Y.S.2d ----, 2010 WL 1905004 (N.Y.A.D. 1 Dept.).

Judge Andrias pointed out that Prenuptial agreements addressing the ownership, division or distribution of property must be read in conjunction with Domestic Relations Law 236(B), which provides that, unless the parties agree otherwise in a validly executed prenuptial agreement pursuant to section 236(B)(3), upon dissolution of the marriage, marital property must be distributed equitably between the parties, while separate property shall remain separate (see Domestic Relations Law 236[B] [5][a]-[c]). Therefore, the court is distinguishing now between pension benefits as marital property and survivorship rights, which Richards v. Richards above failed to do. So, now a couple can waive pension benefits in a prenuptial agreement; however, survivorship benefits must still be left for a post-nuptial.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Friday, May 28, 2010

Overwhelmed Mothers: The dangers of asking for Help

Lately, I have been encountering Family Court cases where children are being removed from their homes, their parents, families and friends because their single mothers are overwhelmed, either by juggling her children, work, and daily life or because she just felt like she could not do it on her own. These single mothers sought help from agencies offering home making services or counseling services.

So, I started to think about the message being sent to single mothers struggling to take care of their children. Why would any single mother ask for help if she will only receive such help at the expense of her kids being taken away? The single mothers, who voluntarily seek out help from agencies that are supposed to provide resources for the best interest of the child, end up having their children removed from the house because they sought out assistance. So, in essence we are punishing these mothers for doing the right thing. However, when the mother does not receive help and something bad happens to her child because of it, we are incredibly quick to condemn the same mother and think the worst of her.

In New York, pursuant to section 1024 of the Family Court Act, A designated employee of a city or county department of social services shall take all necessary measures to protect a child's life or health including, when appropriate, taking or keeping a child in protective custody, without a Court Order and without the consent of the parent or other person legally responsible for the child's care, regardless of whether the parent or other person legally responsible for the child's care is absent, if (i) such person has reasonable cause to believe that the child is in such circumstance or condition that his or her continuing in said place of residence or in the care and custody of the parent or person legally responsible for the child's care presents an imminent danger to the child's life or health; and (ii) there is not time enough to apply for an order.

According to the law, it does not seem like a mother stating she is overwhelmed and requires assistance taking care of her children would warrant a removal without Court order, but it is happening all of the time now. It is true that some of these mothers state they are overwhelmed and due to their inability to cope they have thoughts of hurting their children. Well, then I agree with the agency and the removal of the children in order to give the mother a break and provide her with certain services to alleviate the unhealthy thoughts. However, this is not always the case.

It’s a shame that resources are limited to single mothers, and on top of that they cannot even ask for help from the agencies that are supposed to provide the limited amount of resources available because their children may be taken away and placed into foster homes as a result. The system is becoming too sensitive or overburdened, and it’s a shame as the real victims are the children getting taken out their homes where they feel safe and loved.

So, I have recently been asked to teach a Parent Education class and a class for children on how to cope with their parents’ conflicts or struggles, provided by the Brooklyn Family Court, and gladly accepted in the hope that maybe I can make some parents feel less overwhelmed with the Court process and every day life and teach children certain coping mechanisms they can use in their every day lives.

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Wednesday, May 26, 2010

Parental Estrangement

While there are no official statistics on the subject, it seems as though more and more parents are becoming estranged from their adult children. As a Family Law and Divorce attorney, I have represented both grandparents seeking visitation with their grandchildren, against their children’s wishes, and children who are for personal reasons trying to stop their parents from having a relationship with their grandchildren.

In a recent article in The New York Times, it states that parental estrangement appears to be becoming more and more common, even in families who have not experienced any cruelty or traumas such as abuse and addiction. To the contrary, parents are more often reporting the break down of a once close relationship.

Now one might assume that if there is estrangement than the parent is the one that did something wrong, but in many cases of parental estrangement that is not the case. In fact, in most of the instances of parental estrangement, as I have personally observed and as the article points out, the parents being estranged are those that were good parents, who like most other parents made mistakes within normal limits.

Many of the estranged parents are either seeking grief counseling, seeking solace in friends and other relationships, but some are contemplating or committing suicide. Since many of these estranged parents are ashamed to speak about their estrangement with others, including, friends and other family members, there are no real statistics on the amount of estranged parents, and limited resources to these parents. There are books written on the subject, such as, “When Parents Hurt” (William Morrow, 2007), but this issue is becoming known as a silent epidemic.

From what I have observed in the many cases I have handled due to parental estrangement, the break down of the parent-child relationship most often stems from the differing perspectives of parents and children. For example, when a parent believes they are doing something out of love, but the child believes it is the parent attempting to control them, control their choices and decisions, or worse criticize the adult child for such choices.

I am by no means an expert in parental estrangement but I am a believer that in cases of parental estrangement persistence, communication and time can mend the relationship. Most Family Court cases take a very long time to complete, with many court appearances and lots of back and forth communication between the parties through their attorneys and in court through the Judge. If a parent is persistent then in most cases as the court proceeding inches toward trial the relationship begins to slowly mend itself, and most of the cases are withdrawn or settled on the eve of trial because the parent and the child have come to understand the other’s point of view.

So, as the article states, “Parents have to be on a campaign to let the child know that they’re in it for the long haul.” (Dr. Joshua Coleman, a San Francisco psychologist who is an expert on parental estrangement.)

Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Wednesday, May 19, 2010

25 Tips to a Happy Marriage


Now, I know the last person you expect marriage advice from is a divorce attorney, I mean, it does not exactly drum up business, but deep down inside I do value and respect the institution of marriage and hope that every one succeeds in their marriage. Also, most of the blog posts are about serious legal issues, so I thought a more light hearted post would be a nice change.

Directly from an article in the New York Post: Experts provide their 25 WAY TO A HAPPY MARRIAGE:
1. Don’t roll your eyes at your Mate: It shows Contempt.
2. Prepare for Temptation: Train yourself not to cheat.
3. You don’t have to like every quality your partner has, just decide whether you can live with it.
4. Don’t agree to anything if you don’t mean it: Don’t just say “yes” to avoid conflict.
5. Decide as a couple how you are going to compromise: Don’t always try to find a middle ground, but if something means more to one partner do it their way.
6. Make sure you really want to be married.
7. Stick to the Present and don’t bring up past conflicts.
8. Follow the 5-1 Rule – 5 Compliments to every one criticism.
9. How you fight is more important than what you fight over: Don’t start with name calling or criticisms. Speak in low quiet voices, look each other in the eye, sit or stand at the same level and use open questions.
10. Don’t interrupt: When discussing anything don’t interrupt each other, wait and listen until that person finishes.
11. Have Sex: Make time for it even if you don’t feel like it or are tired.
12. Avoid the words “never” and “always”: it doesn’t let a partner breath when they are told they are always doing something, or never do something.
13. Watch out for these types of marriages: a) one partner is eager to discuss problems, while the other withdraws from conflict; b) individuals who have tied the not-but live almost as if they were single; c) emotionally volatile marriages frequently marked by great sex but really awful fights.
14. Be prepared to split household chores: or take one completely if that works for your marriage.
15. Only one person gets to have a tantrum at a time: whoever starts the tantrum has dibs. Even a sane adult needs to act like a 2 year old sometimes.
16. Be prepared to talk about finances without judgment.
17. Be flexible with gender roles: like if a mother works and the father stays at home to take care of the children.
18. Create a world that the two of you share: do things together as much as possible.
19. Respect your partner’s territory: don’t speak for your partner, etc.
20. Hold Hands – lessens stress
21. Have high standards for each other - refuse to accept negative or hurtful behavior from the start.
22. Stick it out for 10 years – if you make it this far chances of lasting increase. (personal note – if you are completely unhappy after year five and nothing has worked, or if the marriage is volatile or abusive then don’t stick it out for 10 years just to make the marriage last).
23. Stop trying to make your partner be who you want them to be or thinking that the person is not the person you married, if you can accept them the way they are.
24. Make lots of Couple time – whether you have kids or not.
25. Be an optimist: Think positively about your marriage.

Good Luck and Until Next Time,

Helen M. Dukhan, Esq., LL.M. @

Tuesday, May 18, 2010

Juvenile Delinquents: Possibility of Reform?

The Supreme Court has recently ruled that juveniles who commit crimes in which no one is killed may not be sentenced to life without the possibility of parole. This does not mean the state must guarantee the offender a release, but must merely leave it a possibility.

When I read about the court case and the reasons behind the majority decision, it occurred to me that there was hardly any mention of the notion of “Rehabilitation”. One of the major goals of the United States Prison System is “Rehabilitation”. In fact, in many instances experts and community planners debate over whether prison is for Rehabilitation or more so for Retribution, punishment for what that criminal has done. In making such a decision though, that “Youth” offenders whose crimes have not resulted in anyone’s death must have the chance of parole, the Court must believe that there is at least some possibility of rehabilitating youthful offenders so that they may be released from prison some day. Moreover, the Court in making such a decision, separated juvenile’s as a class, meaning that the court must believe that juveniles have a greater chance of rehabilitation than adult criminals.

After representing juveniles who have committed a slew of crimes, I would still love to believe that in fact most crimes committed by children are committed out of youthful ignorance or due to immaturity, just stupid childhood mistakes that the youth will look back on later in life and laugh at, but I have come to realize this is not the case. You realize this is not true when representing a 12 year old on his third weapons charge, or a 10 year old on his second or third assault. These repeat offenders in and out of juvenile placement facilities for most of their youth, because the community is trying so hard to rehabilitate them.

The recidivism rate, the rate of reoccurring criminal behavior, for youthful offenders is extremely high, maybe because of the youth’s circumstances such as poverty, low level education, drugs and alcohol abuse in the home, lack of supervision, etc. However, these are the same circumstances of adults so what makes the court believe a child is more capable of Rehabilitation?

I represent juvenile delinquents because I believe that youth should have a “chance” for rehabilitation and that such change is possible. So, in essence I agree with the Court’s ruling, believing that if you take the child out of their circumstances there is a still a chance to mold them into a different person, with different morals and ideals. However, I hope that more resources are put in place for these youth and that the system provides more supervision over those that are paroled so that the community is safe from repeat offenders, realizing that hopes and reality are sometimes very different.