Archive for December, 2017

Under What Circumstances Will The Courts Modify A Child Custody Order?

Wednesday, December 27th, 2017

There is a common misbelief that no changes can be made to a child custody order once the court has made their decision. In actuality, either party can go to the court to ask for a modification to the order, post-judgment, and depending on the situation, the court may approve and enforce the modification. In fact, child custody and spousal/child support can all be revised, but many confuse division of marital property and assets, which are not modifiable, with these.

Generally speaking, there are two sets of circumstances that are substantial enough to be just cause for modification, and these are when A) a parent violates a court order, and B) when either, or both, of the spouses claim that recent conditions call for a modification.

When a parent violates a court order, the spouse bringing the claim to court is “burdened” with the responsibility to present evidence that the violation occurred. In addition, violating a court order is enough to have one held in contempt of court, and the moving party can seek that the other parent is indeed held in contempt, although a parent who violates a visitation order will usually be found in contempt of court anyway. But this finding of contempt alone will not lead to a modification to the order, and sometimes require that the violation of the visitation agreement has brought about new circumstances, which moving forward will require a change to the order.

Changed circumstances sounds a bit broad, so for clarity, keep in mind that these changed circumstances must also “adversely affect the child”. The threshold for “adverse affect” is not child endangerment, but to preserve the best interests of the child. Also, if a change in circumstance has a positive benefit on the child, like a dangerous parent leaving a child’s life, a modification might be made to ensure this new circumstance is permanent. On the flip side, if a parent gets their personal life together and establishes a healthy, beneficial relationship with the child, a change in child custody and visitation might be made to bring them back into the child’s life. However, bringing a parent back into a child’s life after they have been ordered to keep their distance is a delicate process, and once again, it is up to the court to decide whether reintroducing the parent is in the best interest of the child.

What Are The First Steps That Should Be Taken When Divorce Is Inevitable?

Monday, December 18th, 2017

Recognizing that you need to get out of your current marriage is truly the first, and sometimes the hardest, step to take. Along with this realization comes the knowledge that your life is about to change drastically, and you are about to begin a process that, for some, is emotionally and financially draining, and will have a permanent impact on not only your life, but the life of your current spouse, and your children (if you have any). Many unhappy spouses wrestle with the idea of divorce for months, weighing the pros and cons of starting over versus staying in their current predicament.

When you have come to terms with the fact that your marriage is heading for divorce, it’s important to be proactive in taking these first steps. Even if you and your spouse are on relatively good terms, and you think you can amicably end the marriage through mediation, speak to a divorce attorney. They can give you an idea of what the divorce process is going to be like, and depending on how much information you have gathered prior to the initial consultation, such as information on assets, estates, marital expenses and so on. They can also give you a rough idea of how everything might be divided. Keep in mind, however, that many attorneys may not divulge the latter, as they don’t have all the facts in front of them, and there are too many mitigating factors to accurately predict the result.

Because finances are of huge importance to both parties in the divorce, it is strongly advised that you begin collecting important financial documents, and storing them in a safe location, especially if it will support you in the upcoming divorce. Make copies to give to your attorney. Another step in preserving your finances is to establish your own, personal financial account, if you do not have one already. And lastly, keep in mind that divorces can be very expensive, and after the divorce, you wont have that second income to maintain the lifestyle you have grown accustomed to. Your financial plan is going to change a bit, so it’s a good idea to start tracking and recording your monthly expenses, in an attempt to create a new, efficient spending budget.

The final “first step” is to be the spouse that files for divorce. Even if you and your current spouse are both in favor of ending the marriage, taking the proactive step of filling first has major advantages, such as getting to speak first at hearings, having the last closing argument, and moreover, by filing first, you can file to have restraining orders put in place, and assets and bank accounts frozen, all seen as protective measures, instead of reactive (the court recognizes the difference). Like with any break-up, emotions run high, and it is important not to act on these emotions. Keep as level a head as you can, and focus on the task at hand, which is leaving the marriage in the best possible shape and condition that you can.

Why You Have To Think Twice About Doing A Do-It-Yourself Divorce

Monday, December 11th, 2017

Just because you can do something, doesn’t necessarily mean you should. The legal system cannot force you to retain a divorce lawyer to represent you, but consider this; even attorneys don’t represent themselves when they are in court. They will ask a colleague to represent them, because they know how disastrous it can be to be your own lawyer. And these are the people that are familiar with the law, and have made it their vocation to represent others, yet they know better than to represent themselves. So if they aren’t representing themselves in court, it can only stand to reason that you, with most likely no legal experience, should not either, regardless if it is for a criminal case, or a divorce.

The main influencing factor that causes some spouses to represent themselves in a divorce is the notion that they will save money by not having to pay those hefty lawyer fees. Not only is this wrong, but the opposite is true. You will very likely make a mistake with lasting impacts on things like division of property and sometimes, spousal and child support. If you and your spouse agree on the division of assets, and a final settlement agreement is signed, it cannot be changed or retracted.

A divorce attorney is not only far more familiar with negotiating division of property, but will not agree to something that is not in your best interest, whereas you may unknowingly agree to something that you perceived to be very favorable, and then you are permanently left with the short end of the stick. Moreover, if your spouse retains an attorney, you will be at a serious disadvantage, as the likelihood that you are going to do a better job of doing their job than them is very slim.

On top of all this, the divorce process is one that causes severe stress, anxiety, and unsteady emotions, and this is not a good state of mind for someone who is representing himself or herself in court. An attorney has the ability to do this job without their emotions being involved, and their mind not clouded by stress and anger.

If you need an experienced divorce attorney in New York City, do not hesitate to contact Paul E. Rudder, Esq. Mr. Rudder has been practicing family and matrimonial law for more than 30 years. Call 212-826-9900 to schedule an appointment.

New York Divorce: Why Do I Need A Divorce Lawyer?

Friday, December 1st, 2017

This is a question that is asked quite frequently for a number of reasons. Many people who considered a “do-it-yourself” divorce often times regret for not retaining a legal counsel after realizing that it can be complex and time consuming process. The lack of expertise coupled with the amount of stress can make the divorce process in New York much more difficult.

Hiring a divorce lawyer who is familiar with the divorce process and can fight your best interests in court is extremely important. And although you do have to meet with them and pay their fees, having an attorney to fight for you in court allows you to focus on what matters most – your family. It will also give you time to resolve other important issues outside of the courthouse.

The legal system is very complicated, and there is a reason why lawyers have to go through such a long process just to be able to practice law. The ins and outs of our legal system are complex, and not knowing how to navigate the divorce process can lead to mistakes.

Mistakes made during the divorce process can come back to bite you when it is all said and done which may include financial ruin or further legal proceedings in order to fix the mistakes. The stress that comes with representing yourself along with the ramifications of a costly mistake made during the divorce can be removed just by retaining an experienced divorce attorney. Let an attorney handle the complexities of divorce – it’s his job.

Along with the stress and lack of familiarity is what I believe to be the most important reason as to why you should retain an attorney, and that is the emotional aspect to divorce. No matter who you are, getting a divorce is an extremely emotional experience, and things people tend to not do very well when they are highly emotional include making sound decisions based on logic and representing themselves in the same manner as they would under normal circumstances.

A divorce lawyer has the ability to not let emotions get involved, because they are able to keep their emotions out of the courtroom. To put it in perspective, most divorce attorneys that have gotten divorced themselves do not represent themselves, but will also retain a lawyer, because they know their ability to represent themselves in court will be compromised by their feelings and history their share with their soon-to-be former spouse. As much as you think you can “keep your cool”, you can still end up losing it as it can be tough to deal with the whole process. On top of that it can be stressful dealing with your soon-to-be-ex-spouse, collecting all the relevant documents from your spouse’s attorney, analyzing them, drafting orders and motions, and facing your spouse and their well-trained lawyer in the courtroom. It is no surprise that most people don’t want to represent themselves.

Retaining an experienced and trusted divorce lawyer in NYC is still the best option. Allow yourself to have some peace knowing someone else, who is well versed in the divorce process, is fighting the best fight for you.