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Matrimonial and Family Law

Matrimonial and Family Law

Since 1994, attorney J. Douglas Barics has been providing cost effective solutions to anyone facing a divorce. More often than not, people in a divorce are also dealing with an attorney and the courts for the first time. Having an understanding of what to expect goes a long way in navigating this process. Below is an outline of the most common issues you will face. There are plenty of websites and resources that focus on the emotional aspect. You'll find very little of that here. Instead, the focus of this site is to give people the information they need to understand the entire process.

Each link below provides information about one phase or issue of the divorce. I recommend reading these first, in order. After that, then move onto my articles section for a more in depth look.  Both cases and statutes are provided as well.

Divorce & Annulment

Facing a divorce or annulment will be one of the most stressful times in your life. Not only are you losing your spouse, but this is often the first time many people will have to hire a lawyer or navigate the court system. Having a better understanding of what to expect will help keep your life manageable.

A good way to conceptualize a divorce is to view it as three divorces. The legal divorce, the financial divorce, and the emotional divorce.

To those facing a dissolution of marriage for the first time, wrongdoing of a spouse is rarely the focus. Instead, the focus of the courts is sorting out finances and children. However, understanding what is required to get a divorce or an annulment is the first step.

 

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Custody & Parenting Time

When children are involved, special problems are presented as having meaningful access to your children's lives is no longer in your control.

While there is much talk about spending quality time with your children, this approach ignores the reality of simply living with them; they are around when you are simply functioning day to day.

However, children are remarkably resilient, and when a divorce is the only option, children and adults will adjust to the new reality. How well children adjust does largely depend on how well the adults adjust.

If any part of a divorce cries out for settling, it is custody, as it lets both parents reach a mutual agreement they can both live with instead of letting an outsider dictate their involvement with their children.

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Child Support

Child support is a percentage of income based on the number of children involved. For one child, it is 17%, for two, 25%, for three, 29%, for four 31% and for five or more no less than 35%.

There are few deductions to income in determining child support. Social Security, FICA, Medicaid, and local taxes are the bulk of allowable deductions.

Child support consists of both the basic support, plus add ons consisting of day care and unreimbursed medical expenses.

Child support is payable up to the child reaching the age of 21.

 

 

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Spousal Maintenance

Since 1980, the term Maintenance has replaced the term Alimony. Maintenance is the payment of money by one spouse or former spouse to another, over time, pursuant to a court order or matrimonial agreement.

Since 2016, post divorce maintenance uses a formula to determine the amount. Prior to 2016, it was within the Court's discretion to determine how much.

The maintenance formula calculates maintenance in two ways, and the lower amount is considered the correct figure. There is also a non binding guideline on the duration of maintenance.

Most maintenance today is designed to allow a spouse who became financially dependent on the other spouse enough time to regain financial independence. When that is not possible due to age or health, lifetime maintenance can be awarded.

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Equitable Distribution

Equitable distribution is the legal model under which marital property is divided in New York. Two elements define equitable distribution. First, is that he property rights only vest upon the dissolution of the marriage. Second, is the court has broad discretionary powers under equity to distribute marital property in a way that is deemed fair and appropriate under the circumstances, provided the Court follows the statutory factors.

Equitable distribution classifies property as either separate or marital. Separate property remains as is. Only marital property is subject to division.

 

 

 

 

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Exclusive Occupancy

Exclusive occupancy is the authorization to allow one party exclusive use and possession of a home, usually the marital property, for a set period of time before it is sold.

It is most commonly used when there are insufficient assets to allow one spouse to buy out the other spouses interest in the home, and there is a sufficient reason not to sell the home immediately.  The vast majority of time the reason is due to the children's interest to continue to reside in their home.

The length of time of exclusive occupancy based on the children's age is also a factor.  Exclusive occupancy is more likely to be granted to allow a teenager to complete school without being disrupted, and less likely when a two year old child is involved.

Exclusive occupancy is best viewed as one of many options available to the parties and the court to dispose of property in a way that tries to be fair to everyone.

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Counsel Fee Awards

If you're concerned that you cannot obtain a lawyer because your spouse has control of the finances or has access to significantly more money than you do, rest a little easier.

The Courts have the authority to award counsel fees to the spouse with less financial resources. Counsel fees can be awarded very early on in the case, midway through the case, and at its conclusion.

One of the key concepts in awarding counsel fees is to create a level playing field between spouses.

 

 

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Expert Fee Awards

Sometimes an expert is needed in a divorce. One of the most common experts is a forensic accountant who can evaluate the true worth of a small business and its actual income.

Experts are critical, as their opinion is what is used to establish value. Without value, the court cannot distribute marital assets to the non titled spouse.

Expert fees are awarded when they are necessary to obtain the information needed and there's a large disparity in financial resources between the spouses.

An award of expert fees when necessary is critical.

 

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Pendente Lite Motions

Pendente lite motions used when a spouse in a matrimonial action needs needs immediate court assistance on something that cannot wait until trial or a final settlement.

Temporary child support and temporary spousal maintenance are two common requests made in pendente lite motions. Parenting time, counsel fees, expert fees and temporary exclusive occupancy of the marital home also warrant early court intervention.

Knowing what preliminary options are available and how to obtain them are a key part in any divorce. Even if you don't need a pendente lite motion, simply knowing its there can help prevent people from making agreements out of desperation.

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High Net Worth Divorce

High net worth divorces include by definition, additional factors that must be taken into consideration. Very often, high net worth individuals own one or more businesses which can be impacted by a divorce. This is especially true when these businesses are owned by someone other than either spouse. Wealthy individuals often leverage their assets as a resource multiplier, and a large debt in a high net worth case can mean something very different than a large debt in a middle class divorce.

High net worth divorces mean more than simply more assets to distribute. Very often, they have different characteristics that cannot be ignored.

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Marital Agreements

Marital agreements are simple contractual agreements within a matrimonial framework. The most common trap people fall into is how they approach reaching an agreement, viewing it as simply stating each person's obligations. While this is necessary, it is not sufficient.

Every agreement needs a second aspect; the consequences of not following the obligations set forth in the agreement. These consequences can either be express  terms or legal remedies, but they must be there at some level.

 

 

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Matrimonial Appeals

Matrimonial appeals present unique challenges to appellate litigation.  Many appeals involve misapplication of the law, which is the strongest argument to make in an appeal. But when questions of law are not an issue and the appeal centers around questions of discretion, they become far more challenging as Appellate Courts defer greatly to the trial court's discretion. When discretion is involved, one key aspect is finding relevant case law to show the trial court figures are outside the range of the doctrine of "sound discretion." While important, this is not the only theory to challenge a trial court's disposition on an appeal.

 

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Modification of Child Support

Orders of child support may be modified based on a decrease of income, an increase of income, a change of circumstances, if the existing order is not sufficient to meet the needs of the children, or if three years have passed since the last modification. In addition, COLA adjustments to child support orders can also be requested.

Obtaining a new order, or defending against a requested increase, will depend on whether the original order was an agreement or decided after a hearing, the date of the agreement, and whether or not the various legal standards required to modify a support order have been met.

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Modification of Maintenance

An order of spousal support is never permanent, a final order is always subject to a later modification. The Courts retain the authority to modify maintenance awards, meaning that they can be modified even if one side does not agree. The issue here is what standard is needed to request a modification or even termination of maintenance, and what proof is needed for the Court to grant this request.

Modifications of spousal support are not easy and never guaranteed, and understanding what steps are required is the first step in deciding whether to pursue a modification.

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Complex Challenges

Complex issues are not limited to high net worth cases. Many times people are faced with complex legal problems that do not have straightforward answers. More often than not, many complex issues arise out of procedural rules that spill over into how the court addresses the merits.

Often, there are solutions that involve combining procedural rules to fix the prior mistakes. If you're faced with a situation that appears like you are not able to present your case due to technical reasons, you need an attorney who is well versed in the procedural solutions to address these complex challenges.

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Reach out if you have any questions