Archive for July, 2019

Are Assets Always Split 50/50?

Monday, July 15th, 2019

Since New York is not a “Community Property” state, most of a couple’s assets are considered to be marital property. Although they are divisible, there is hardly ever an even distribution of the assets in divorce cases. A judge will decide how all property should be distributed, based on what they believe to be fair. For instance, the judge will try to keep separate any assets that were acquired by the parties as individuals, both before and during the marriage. However, in the interest of being fair to both parties, the judge may award what ordinarily would be separate property of one spouse, to the other, in the final settlement. 

The divisibility of an asset is not defined merely in terms of physical ownership, as a division of an asset can come in the form of percentages, specifically awarding a share of the property’s total value to the spouse. However, the judge is not the only one who has a say in this process. The judge only has to make the decision if the spouses cannot come to one on their own. 

When spouses try to make a claim for the other party’s separate property is when attorneys and judges are needed in the deliberation process.  Depending on the circumstances presented, separate property can be seen as a marital property, which would, therefore, make it eligible for division in the divorce. 

A common example is a vacation home owned by one of the spouses prior to the marriage. If the other spouse contributes any amount of money, for renovations, home improvements, etc, it would substantially increase their interest in the vacation home, which may still be solely in one spouse’s name. It is circumstances, such as these, that intertwine the originally non-interested spouse and the separate property, ultimately making it marital property, and the percentage, although not 50/50, will reflect a fair amount that serves as reciprocation for the loss of the investment.

How Do You Prove A Parent Is Unfit?

Wednesday, July 3rd, 2019

The term “unfit parent” is thrown around a lot, and is interpreted to mean different things depending on the context of its use, and the arena in which it is said. In the realm of family court, many misunderstand this to imply that the parent is abusive, and while that is one common aspect seen in parents who are unsuited to be raising kids, it is not the only way a parent can be considered unfit. 

A parent could go their entire life without physically striking or emotionally harming their child, but if they begin to start abusing alcohol, then it becomes clear why the term “unfit parent” was coined. Being a parent comes with a plethora of responsibilities, and not being able to fulfill them due to troubles in one’s own personal life has historically been an impactful factor in custody arrangements, such as a change in visitation or the primary custody. Sometimes, the parent’s struggles and issues can reach such a level that the court does not feel it is safe to have the child be in contact with that parent at all, and all parental rights are removed.

         The court, when determining custody, has a hierarchy of considerations, and at the top of that list is the consideration of “what is in the best interest of the child?”, and sometimes it requires them to step in and intervene on the relationship between parent and child. If the parent is a danger to themselves due to careless behavior, abuse of drugs or alcohol, or expose the child to people or activities that endanger their well-being, it may truly be in the best interest of that child if they are separated from this person. Revoking visitation rights is not an easy choice for the court to make, as the best case would be for the child to develop and foster a healthy relationship with both parents. 

If you truly believe that your child’s other parent is unfit, your best chance is to start collecting evidence to present to the court. This could be video’s of the parent engaging with the child in an inappropriate way, presenting a criminal file of the other parent, written correspondences, the point is to paint the picture for the court of what this parent is like outside the courtroom, and prove that the way they engage with the child and how they choose to live makes them unfit to serve as a parental guardian for your shared child.