15 Mile Radius Clause Found Valid and Enforceable

December 16, 2016 by

A child holding it's parents hand

In a case before Justice Richard Dollinger in Monroe County New York a father sought relief from the 15 mile radius clause that was in a separation agreement. The agreement stated the father needed to live within 15 miles of the mother’s residence as part of a parenting plan. The father brought an action requesting relief from the 15 mile provision. He did not argue that the agreement was unfair or inequitable. His argument was that he had a new girlfriend and she resided more than 15 miles from the mother’s residence. Judge Dollinger ruled this could not be considered an unanticipated situation. Dollinger went on to hold that the father’s new residence was his own choice. There was no evidence presented of extreme financial hardship related to this 15 mile radius clause.

No penalty Clause in the Agreement

The father argued that there was no penalty provision in this settlement agreement. He also argued there was no deadline for him to change his residence back to within the 15 mile radius. However Judge Dollinger ruled in the absence of a contractual deadline the court would impose a “reasonable time” deadline with regard to the father’s compliance with the terms of this agreement. He therefore gave the father three (3) months from the date their child would start kindergarten to comply with the 15 mile radius requirement. Judge Dollinger felt a three (3) month compliance period was a reasonable period of time for the father to become in compliance with the terms of this agreement. In the end Judge Dollinger refused to relieve father of his obligation to live within 15 miles of the mother’s residence.

Conclusion

Attorney Elliot Schlissel

Many settlement agreements and/or separation agreements have radius clauses. These clauses generally prevent the custodial parent from moving more than 15 to 25 miles from the former marital residence. Once these clauses are in an agreement it is difficult to get around them.

Filed Under: Custody, Seperation Agreements

SUCCESSFUL BLACK MEN DON’T MARRY

October 28, 2016 by

Succesful black men don't marry

Today many successful African American men refuse to get married. The general reason they refuse to get married is the fear of a divorce and the huge financial negative implications of getting divorced. Many professional athletes, actors and successful businessmen are avoiding marriage. Jamie Fox and Sean Combes are two successful black entrepreneurs who excelled in a variety of different enterprises and have chosen not to marry. When a successful man who is not married has a child he is obligated to pay child support. However, in community property States such as California should he divorce he would lose half of his assets. In States like New York that have equitable distribution laws he would be responsible for distributing a portion of the assets that accumulated during the course of his marriage as well as potentially paying spousal maintenance in addition to child support. It seems a greater percentage of successful black men avoid marriage than men from other racial groups. That is not to say all successful black men do not marry.

CONCLUSION

Attorney Elliot Schlissel

Successful black men seem to preserve their wealth and avoid being shook down in divorces for money their successes bought them by avoiding marriage, having children out of wedlock and moving on when the situation is played out.

Filed Under: Divorce, Marriage

Dividing Assets in the Divorce

August 29, 2016 by

Man sitting with child

All assets the married parties have are not subject to equitable distribution in divorce cases in New York. All assets accumulated prior to the marriage and maintained separately such as 401k plans and pension plans are not subject to equitable distribution in divorce proceedings. Assets accumulated prior to marriage are called “separate property”. In cases where there are 401k assets or pension assets that accumulated prior to the divorce marriage it may be necessary to hire an actuarial firm to determine which portion of the assets are “separate property” and which are “marital property”.

Qualified Domestic Relations Order (QDROs)

Qualified domestic relations orders (QDROS) are submitted to the Supreme Court judge in divorce proceedings. These orders separate the marital assets from the non marital assets.  The non marital assets can be separate property of either of the spouses.  Specialized actuarial companies are usually retained by the attorneys to draft these complicated orders.

Social Security Benefits and Divorces

The issue of Social Security benefits are not specifically mentioned in divorce proceedings. However, survivor Social Security benefits can be a significant source of income for individuals in divorce cases. If the parties were married for a minimum of ten years each individual is entitled to a benefit 50% of the ex-spouses anticipated Social Security payments.

Spouse’s Social Security Benefits

New York father's rights lawyer Elliot Schlissel

Many people feel that they will be receiving the benefits from their own earnings and therefore they are not entitled to a portion of their spouses Social Security benefits.  However, should 50% of your ex-spouses Social Security benefits be greater than your anticipated Social Security Benefits, you’re entitled to the higher of the two.  An example of this is, suppose your Social Security benefits are $500.00 a month and your former spouse’s benefits are $2000.00 per month. Half of those benefits would be $1000.00 per month. You therefore would be entitled to an additional $500.00 a month from your spouse’s Social Security benefits. If you have a situation similar to this, you should not leave this money unclaimed. The government will survive even if you receive your full Social Security benefits!

Filed Under: Dividing Assets in the Divorce

FATHER’S CHILD SUPPORT PAYMENTS DECREASED

July 7, 2016 by

Man walking on beach while holding his son

An appeals court in Manhattan has recently reduced a child support award against the father. The appeals court, in its decision stated that the lawyer/father was not required to pay for private school “up to the cost of Trinity School in New York City,” as had been previously ordered by a trial court.

THE APPEALS COURT

The Appellate Division in it’s decision stated that the trial court “did not follow the precise requirements of the New York Child Support Standards Act by ordering Michael Devereaux to pay for the cost of private school education as well as “extracurricular activities, summer school, and weekend activities.” The Appellate Court found there was insufficient support in the record for payment.”

The appellate Court found although Mr. Devereaux stated his intention to give his child “the best of everything” when living with his wife, this was not a basis for an award above the basic child support amount. The appellate court went on to state: “there is no record that the child has any special needs or gifts” which would be the basis of Devereaux paying above the standard child support amount. The Court also stated that tuition at a private school such as Trinity could cost as much as $45,000 a year.

New York father's rights lawyer Elliot Schlissel

Elliot S. Schlissel is a father’s rights attorney representing fathers with regard to custody, support and visitation matters throughout the metropolitan New York area.

Filed Under: Child Support, Fathers Rights

WIFE SEEKS SPOUSAL MAINTENANCE

May 24, 2016 by

Child holding fathers hand

In a case before Justice Jeffrey Goodstein pending in the Supreme Court in Nassau County a wife brought a proceeding for temporary spousal maintenance and for payment of her attorney’s fees. In this case the husband earned $107,000.00 Wife claimed that she only eared $25,000.00. Justice Goodstein found that he had problems concerning the wife’s credibility with regard to her actual earnings. He noted in his decision the wife failed to provide a tax return with her net worth statement in her application for temporary spousal maintenance. He also took note that although the wife provided information to the court that she worked in a medical facility, the husband contended that she also worked in a restaurant owned by her parents for over a period of ten years.

FORMULA FOR SPOUSAL MAINTENANCE SHOULD NOT CONTROL

There is a formula for spousal maintenance in New York. However, Justice Goodstein found that the formula for presumptive temporary maintenance would not be appropriate in this case. He ruled that the husband should provide the wife with temporary spousal maintenance solely from January 2016 to June 2016. He also ruled that he was unsure as to whether the husband was the moneyed spouse and therefore the wife’s request for attorney’s fees was denied.

Elliot S. Schlissel, Esq. And his associates represent clients throughout the metropolitan New York are in divorce and family law cases.

father's rights lawyer in New York

Filed Under: Spousal Maintenance

VIDEO: Parental Alienation Syndrome

May 4, 2016 by

Filed Under: Custody, Divorce, Fathers Rights

Video: Who Gets the House When There Are Young Children?

April 13, 2016 by

In this video Elliot addresses the topic of who gets the house after a divorce when there are young children involved.

Filed Under: Divorce, Fathers Rights

Joint Custody in New York, Maybe?

March 23, 2016 by

Father holding son

New York State is one of the seven states in the United States which does not generally award joint custody to both parents of minor children. Joint custody arrangements can be made in New York, however, they have to be made pursuant to an agreement between the parties. The agreement can take place in a Stipulation of Settlement in a divorce, a Settlement Agreement in a custody proceeding in family court or pursuant to a Separation Agreement.

If the parties have not worked out a joint custody arrangement out of court, judges in New York will usually determine the issue of which parent receives custody of the children based on the best interests of the children. In these situations the court will award one parent residential custody of the children and the other parent parenting time (this is the politically correct term for visitation).

Fathers Seeking Custody

Fathers who seek to obtain custody of their children have to be aware that although the law has been gender neutral concerning who receives custody in New York for many years, mothers win the majority of custody legal battles. It is important, therefore, for a father who seeks to have custody of his children to retain an experienced, dedicated attorney who has experience advocating for fathers to obtain custody.

Father as the Primary Caretaker

In cases where the father has been the primary caretaker of the children, is the better provider, who puts the children’s best interests in the forefront of his thoughts, he should have the opportunity, if he desires, to become the sole residential custodial parent if a joint custody arrangement cannot be worked out. In the event the father does not seek to litigate the issue of custody, he should then seek to have parenting time equal to the time that the children spend with their mother. Fathers can actually end up being the non-custodial parent of their children and having all of the time to spend with their children that they desire.

Although many fathers assume that children’s natural caretaker would be their mother, this is not the status of the law in New York today and it has not been the status of the law in New York for many years. Fathers who seek to obtain custody of their children and are prepared to do battle in court have been more successful in obtaining their children’s custody in recent years. The first step a father should take if he seeks custody of his children is to retain a law firm which is committed to protecting the rights of fathers when dealing with family law situations.

Elliot S. Schlissel is a father’s rights lawyer representing fathers for more than 45 years throughout the Metropolitan New York Area.

Filed Under: Custody

Wife Found to be in Contempt for Violating Court Order

March 14, 2016 by

Father on beach with child

In a case in Westchester County, a husband brought an Order to Show Cause seeking him temporary custody of his child and directing his wife to return from India with the child. The wife had moved to India with the parties’ child and had failed to appear in court in New York. There were two separate court dates where the wife was told to appear in court and produce the parties’ child. In each of these occasions, she had failed to appear even though she was fully aware of the court dates and her responsibilities in New York.

Father Awarded Sole Custody

A hearing was held and Justice Linda Christopher awarded the father sole custody of the parties’ child. In addition, the judge signed an order directing the wife to immediately return the child to her father in New York.

Wife Held in Contempt

The wife took the position she had initiated an action in India prior to the court proceeding being started in Westchester County, New York. Justice Christopher found the wife’s allegations were untrue. She found the wife brought the action in India after the husband filed his Order to Show Cause in New York. Justice Christopher also found the wife had failed to provide any valid reason for failing to comply with the unequivocal court orders to bring the child back to New York. She found the wife’s actions prejudiced the husband and therefore she found the wife to be in civil contempt. She ordered the wife to return to New York for the purpose of purging her contempt and to immediately return the parties’ daughter to the custody of the husband in New York.

Conclusion

Skipping the country with the child with the hope of getting a better decision in a far off land will not necessarily work. There is a Geneva Convention on child custody. Many countries in the world are parties to this convention. In this case, the wife’s attempt to virtually kidnap her daughter and deprive the father of the custody he was awarded twas unsuccessful.

Filed Under: Custody, Fathers Rights

Mother Relocates to Texas and Seeks to Take Son With Her: Her Application is Denied

March 11, 2016 by

Two Parents Fighting Over Child

In a case before Justice James Pagones sitting in a Supreme Court Matrimonial Part in Dutchess County, New York, a mother brought an application to modify a stipulation of settlement which gave the child’s father temporary custody of their son. She sought to relocate the child to Texas. The mother had been a nurse in New York and she had moved to Texas to become a state trooper. Unfortunately, she was turned down for the state trooper’s job in Texas.

Court Refuses to Split up Children

Justice Pagones took the position that by moving to Texas the mother terminated her ability to spend time with the parties’ children. In addition she was no longer capable of attending counseling which had been set forth in the parties’ stipulation of settlement which had been so ordered by the court. In addition, the court found when she left her job as a nurse in New York, moved to Texas and didn’t receive a position as a state trooper she fell behind in her child support payments. She was now almost $50,000 behind in her child support payments. The court also found the mother sought to separate the parties’ children by moving one of them to Texas with her. Her application to the court proposed her daughter stay with the father in New York while the son moved to Texas with her. The court found this was not acceptable. Judge Pagones concluded the mother’s petition did not have supporting evidence that separating the two children would be in their best interest. He also found she was unable to offer a plausible submission of evidence that her daughter’s best interests would be enhanced by the court child support payments, taking her from her father, and moving her to Texas.

The father’s motion to dismiss the mother’s application was denied.

Conclusion

More and more judges are recognizing the valuable, loving relationship fathers have with their children. More and more fathers are having success in enforcing the laws in New York which makes custody decisions gender neutral.

Filed Under: Custody, Fathers Rights, Relocation
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