Archive for June, 2016

I Do Not Have a Child Custody Agreement Yet. Can My Ex-Spouse Relocate to A Different State with My Kids?

Thursday, June 30th, 2016

In most typical relocations involving children, the moving party must abide by the child custody agreement as well as the limitations that it places. Some order prevents the custodial parent from moving certain miles away. Travel restrictions themselves are usually worked out during the divorce proceedings.

However, all of this becomes infinitely more complex when there isn’t a custody order/agreement in place. When no court order has been made, the relocating parent can actually face legal consequences by doing so. Prior to moving, or “relocating” within the state of New York, yourself and the children should have resided there for at least six months so that the courts will consider New York as what is known as “the home state” of the children.

If you choose to leave without consent of the court, your spouse can then petition the court to request that your child or children be brought back. On top of that, by trying to relocate with the children without first speaking with your spouse and getting their consent, you risk the court not finding in your favor for much of the divorce.

With or without a court order being in place, it is advised that you still file a child custody action, in which you state that you intend to move. By filing this new action, you now can additionally request for an accelerated trial that will determine whether or not you may move to begin with.

Using the notion that you are in fact relocating with the interests of the child in mind, this will put yourself in a better position by asking the court prior to relocating. However, if you take it upon yourself to make this decision without consulting the court or your spouse, you are then in a situation wherein the court will most likely order you to return for a hearing on this matter.

How Will a Judge Decide Child Custody If I Need to Relocate to A Different State

Wednesday, June 22nd, 2016

When one parent decides that they are going to move or relocate with a significant distance away from the marital home, or where the child is being raised, during post-divorce, the opposing party (the other parent) can make a case for why the moving parent should not be allowed to take the child with them. This case is usually settled through a trial.

The non-relocating parent has the right to be notified at least 60-90 days before relocation. This gives them the chance to object. A formal objection should be filed and basically states that either the parent seeking relocation does not have the right to relocate the child because of the divorce decree that was already passed, and/or that this relocation will not be in the best interest of the child.

The parent who files the relocation notice should be aware of the necessary “tests” that they need to pass in order to persuade a judge to allow relocation to a different state.

The first part of this test revolves around proving that there is a legitimate reason to move. Two common claims made are that the relocating parent found a better job with more income that could not or was not available in the current location, or that the relocating parent has a new life setup, with a new spouse, and that they need to move in order to start a “new life”.

The second part, which is much more complicated is centered on the best interests of the child in question. Ultimately, the judge has three factors to consider: each of the parent’s motives for asking or refusing permission for the relocation, how the move can affect the child’s life, and finally how the move and the subsequent new visitation schedule will impact the relationship between the child and the “left-behind” parent.

Take note that the quality of life test is much more complicated and complex than determining motives. You should speak to a child custody attorney to draw up a way to show that you either pass both these tests or that your ex-spouse should not be granted this right.

How Will Breaking Court Orders Affect One of the Parties in the Divorce

Sunday, June 12th, 2016

When a court issues an order during the divorce proceedings or after the divorce is finalized, it is legally binding. What this means is that whomever the order is focused on, they must abide by all conditions that are included in said order. If this person intentionally disobeys the order, they can be penalized and punished by the court, otherwise known as being “held in contempt”.

Contempt, in the simplest terms, is the result of a violation of a court order, and depending on the order and the violation, the violator may face either/both civil and criminal penalties. The purpose of a court issuing a penalty such as contempt is to persuade the violating party to comply with the issued order, not as a punishment.

Although the legal definition for being held in contempt is the result of actions committed within the courtroom, such as being disrespectful to the judge or causing a disturbance during the trial. However, this is not always the case, and you can be held in contempt for actions committed outside of the courtroom, such as not paying child support or alimony that the court ordered you to pay, or not abiding by a court-approved visitation agreement (when kids are involved), or not following a court-ordered asset distribution (settlements).

In order for a court to find someone in contempt, three tests must be passed in order to prove intent of disobeying a court order. The accuser is burdened with proving that the violating party was aware that the order existed, had the ability to follow the said order but decided not to follow the conditions of the order, and finally that the accused party does not have a valid cause or excuse for violating the order.

If you are found in contempt, you may face both civil and criminal penalties. These include but are not limited to fines, paying for the opposing party’s attorney fees, compensatory custody time, or even a jail sentence.

The consequences range in severity based on the order that was violated, and the extent that it was disregarded or not followed. The court will often give the offending party a chance to make up for their actions before issuing a punishment.

Should I Update My Estate Plan If I Am Getting Divorced

Thursday, June 2nd, 2016

It is very important to update and edit your estate plans if you are preparing to get divorced, because without proper revisions, your former spouse may end up inheriting your assets. Moreover, if your ex-spouse gets married again, then their new partner, and any kids they might have can end up inheriting what should have, and could have, been yours.

After the divorce is over, the most recommended way to revise your will is to execute a new one, and cancel or revoke the old one. You can physically destroy the will, or, when you are drafting your new will, all prior wills will be voided. If the will was created prior to the divorce, then any gifts made to your spouse are revoked by the divorce.

You should also create a new living trust once the divorce has been finalized. If kids are involved in the marriage, then you can arrange to make them as your main beneficiaries, in this way your ex-spouse cannot interfere or control the assets.