New York Criminal Lawyer Blawg

No Fault Divorce Law Passed in New York State

On August 13, 2010 Governor Patterson signed into law New York's new No Fault divorce law to be effective on October 12, 2010.

The new law allows a judgment of divorce to be granted to either party in a divorce action without assigning fault to the other party once all the major ancillary issues have been resloved.

A divorce under the new No Fault law allows for a divorce when a marriage is irretrievably broken for a periord of at least six months provided that one party has stated so under oath.Before the Courts will allow a No Fault divorce all ancillary issues regarding the marriage must be resloved. Ancillary issues include the following; equitable distribution of marital property, the payment or waiver of spousal suport, the payment of child support, the payment of counsel and expert fees, custody and visitation of the children of the marriage.

New York State has always been a "grounds" state where a party seeking a divorce has to alledge a ground such as; cruel and inhuman treatment, adultery, abandonment or confimement of the defendant in prison, living seperate and apart pursuant to a seperation agreement for at least one year. However, many parties want a divorce for a vaild reason but do not fit into the above grounds. This forced parties to invent false justifications to legally dissolve the marriage. This would prolong the divorce process and adds additional stress to an already difficult situation.

It is also the intent of the legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York Law and in New York Courts.

This is clearly a major change to the divorce law in New York State. If you have any questions about No Fault divorce and/or divorce in general call Riebling, Proto & Sachs to speak with one of our attorneys.

A topic of usual concern for clients involved in both Family Law Cases and Criminal Defense Cases is the issuance of an order of protection by the court. The attorneys at Riebling, Proto & Sachs, LLP regularly appear in the Family Courts and Criminal Courts of Westchester, Orange, Rockland, Dutchess, Putnam, the Bronx, Brooklyn, Queens, and New York to defend clients against the issues that arise when an order of protection is issued.

An order of protection may be granted in a number of different cases pursuant to various criminal and civil statutes, including Criminal Procedural Law sections 530.12(1) and 530.13(1); Articles 3, 4, 5, 6, 7, 8 and 10 of the Family Court Act; and Section 240(3) of the Domestic Relations Law. Generally, orders of protection fall under two categories, temporary and permanent. A temporary order of protection is typically made during the pendency of the action. A permanent order of protection is usually issued at the conclusion or disposition of the case. Frequently, temporary orders of protection precede permanent orders of protection.

New York Law prohibits the extension of an order of protection to a person(s) unrelated to the underlying criminal action. See People v. Konieczny, 2004 WL 1263762 (N.Y. 2004). The order of protection may cover the complainant and family or household, but not beyond. People v. Petrusch, 306 A.D.2d 889.

Orders of protection may also be issued in instances where the person being “protected” by the order opposes the terms of the order of protection and does not want the defendant being barred from contacting him or her. People v. Monacelli, 299 A.D.2d 916. This particular event often occurs in cases involving spouses and families.

In criminal cases, an order of protection may be part of the court’s order allowing for the defendant release from custody. CPL Sections 530.12 (family offenses) and CPL 530.13 (non-family offenses). At times, a court may issue an order of protection on its own, based upon “good cause shown”, when an accusatory instrument (complaint) is filed by the prosecution. In such an instance, the defendant has a right to contest the issuance of the order of protection in those circumstances where a constitutionally protected right, such as being excluded from the defendant’s residence or being prohibited from contacting the defendant’s family, is restricted.

Also, a court can suspend or revoke a pistol permit and possession of firearms. A defendant has a right to hearing on the issue of firearms. It should be noted that a violation of an order of protection due to firearm possession is also a violation of federal criminal law.

By understanding these important aspect of the law as they pertain to orders of protection, the criminal, matrimonial and family law (child custody, child support, family offense) trial attorneys of Riebling, Proto & Sachs, LLP continue to successfully assist their many clients.

If you or someone you know needs the assistant of a criminal, family or matrimonial attorney, please contact Riebling, Proto & Sachs, LLP for a free consultation. The firms trial attorneys regularly appear in the courts of Westchester, Bronx, Rockland, Putnam, Dutchess and Orange Counties in New York State.

If you are currently paying child support in New York, your liability to pay child support for your children is enforceable until the children reach the age of 21 years.

In the absence of an express contract, parents have no duty to support an adult child. For custody, visitation and other purposes, the age of majority in New York is 18 years, but child support remains until 21. However, this duty is not absolute.

The child support obligation may be suspended or terminated before the child is 21 if the child becomes emancipated by becoming economically independent of his or her parents through employment, marriage or entry into military service.

Under unusual circumstances, a child may be deemed emancipated is he or she is guilty of outrageous misbehavior, such as it makes it inequitable to enforce the New York child support obligation, or if without cause, the child withdraws from parental control and supervision. In other words, if a child refuses to abide by a parents reasonable rules and decides to leave that parents control, the other parent who is still obligated to pay child support can seek a court order to have the child support obligation suspended or terminated. It is important to chose an attorney who can assist you in navigating the difficult aspects of child support.

Please contact Riebling, Proto & Sachs, LLP to discuss your child support rights.

In New York under the Child Support Guidelines the child support obligation is determined by which parent is deemed to be the non-custodial parent. The non-custodial parent is determined by which parent provides care for the children a substantial majority of the time. If one parent provides a substanial majority of the care, then the other parent will be deemed to be non-custodial and required to pay child support. But if neither parent provides care a substantial majority of the care, then neither parent potentially owes child support or owes a reduced amount of support depending on the circumstances. The courts tend to determine on a case by case basis, which parent provides a substantial majority of the child care for purposes of determining whether child support is owed. It is important that if you are going through a divorce or custody dispute to keep in mind the amount of time that you will actually be spending with your children as this may affect you financially down the line. It is important to select an attorney who understands these issues and can guide you accordingly. At Riebling, Proto & Sachs, LLP we have the experience to assist you through these difficult issues.

Beginning a Divorce to Avoid Child Support Enforcement

Under New York State law, when a party enters into a stipulation in a divorce or matrimonial action regarding child support and that party wishes to modify the child support order, the party must demonstrate an unreasonable or unanticipated change in circumstance. Moreover, New York state child support enforcement law requires that a party for a downward modification for child support show that his or her change in circumstances is substantial.

So in other words, in order to avoid potential New York State child support enforcement against a party, that party under New York State child support law, must draft a divorce or matrimonial agreement very carefully.

At Riebling, Proto & Sachs, LLP, we have experience drafting such agreements to avoid litigation regarding unanticipated or unforseen circumstances. We can handle issues to lower child support and avoid New York State child support enforcement for clients. Under New York law, child support is handled using a child support calculator and it usually involves a percentage of the income of the parent who does not have child custody. We also handles such cases on behalf of clients to increase child support under New York law.