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Elliot S. Schlissel is a father’s rights attorney with more than 45 years experience representing fathers in all aspects of divorce and custody litigation. He and his associates can be reached for consultation at 516-561-6645, 718-350-2802 or by sending an email to schlissel.law@att.net.
An appeal was brought by a husband from a Supreme Court judgment ordering equitable distribution of the parties’ marital assets. The Appeal’s Court found the lower court correctly ordered equitable distribution of two joint bank accounts and the parties’ stock portfolio. These they found were indeed marital property.
The Appeal’s Court agreed with the position taken by the husband that the Supreme Court failed to properly consider what part of his pension was marital property and what part was separate property. The Appeal’s Court found that the husband had proved the starting and ending dates of his employment with the United States Postal Service. In addition, he had proved the date of the parties’ marriage. This allowed the Court to determine the portion of the pension which was earned during the course of the marriage and would be considered marital property. The portion of the pension that was earned prior to the date of the marriage should be considered separate property.
Marital Home Husband’s Separate Property
In addition, the Appeal’s Court found the judge in the Supreme Court had also made a mistake in finding that the parties’ residence was marital property, and because of this awarding 50% of its appraised value to the wife. The Appeal’s Court found the home was separate property and it could not be transformed into marital property related to contributions of the wife to its maintenance and upkeep. Since the house was purchased by the husband prior to the marriage it was his separate property and not subject to equitable distribution.
Elliot S. Schlissel is a father’s rights attorney representing husbands and fathers regarding issues concerning custody, spousal maintenance, division of assets and all other matrimonial and Family Court issues throughout the Metropolitan New York area.
When there are allegations of child abuse the level of evidence submitted by CPS workers and investigators can be minimal. The CPS system in New York is arbitrary, abusive, presumes child abuse or neglect in every case, and moves forward backed by the authority of New York State on incorrect interpretations of facts, and outright falsehoods. Guardians, parents and grandparents are sometimes overwhelmed when they find they have so little power and ability to contradict and counteract the actions of CPS personnel.
Individuals accused of child abuse find when they go into the Family Court and expect to be able to tell their story to a judge they are confronted by judges that don’t have the time and often don’t have the patience to listen to them. CPS spends four or five minutes making their presentation and the parent then gets about two or three minutes to rebut the presentation.
Guilty Until Proven Innocent
Orders of Protection are given to the children based on inaccurate statements by CPS workers. The parents, guardians and grandparents find they are guilty until proven innocent even if the allegations of child abuse or neglect are spurious, mistaken, inaccurate and untrue. Many months go by with Orders of Protection pending, and Child Protective Services workers regularly coming to the door, and the innocent family members often feel overwhelmed and shocked at how they are treated by the legal system. Many family members who are accused of child abuse come into my office and tell me they didn’t even get a chance to speak in court. The events took place without them even having the ability to say even one word. Unfortunately, this happens much too often.
CPS The Do-Gooders
There are dedicated people who work for CPS who rescue innocent children from abusive situations. These CPS workers deserve the public’s gratitude. Unfortunately, I see too many situations where CPS creates nightmares for families who are loving, good natured and provide wonderful homes and care for their children. Innocent family members are threatened that if they don’t cooperate with CPS their children will be removed from the home. I see situations on a regular basis where a child will get bruised while playing with his or her friends, go to the school nurse and not remember how the bruise came to be. The school nurse calls CPS and then CPS shows up in the middle of the night at the family’s home, insists on coming in, investigating the children, harassing the parents, and scaring them to death with an implied threat that they will lose their children.
I recommend to everyone who calls me on a CPS complaint to take it seriously and to make no statements to CPS workers without having an attorney present and not let them in their home. I make arrangements to meet with CPS workers either at my office or at their office for the purpose of reviewing the allegations against family members. I discuss with them in an intelligent manner, without intimidation, that they are going to remove children from the custody of their parents.
Conclusion
Should you hear from CPS about a potential complaint, don’t let yourself become a victim. They have no right to come into your home no matter what they say. Advise the CPS worker that you are happy to cooperate with them, but you wish to retain counsel and your attorney will call them to deal with the issue. If they tell you that you are not entitled to an attorney, they are lying to you! You have a right to an attorney at every stage of the legal system in New York and the rest of the United States. Do not be intimidated, do not let them in your home. If you want to speak to them, speak to them at the front door. They have no right to search your home or investigate your home.
Please click on the link below to watch today’s video blog:
Elliot S. Schlissel is a father’s rights attorney with more than 45 years of experience representing fathers in custody litigation. He and his associates handle all aspects of family law and divorce litigation. He can be reached for consultation at 516-561-6645, 718-350-2802 or by email to schlissel.law@att.net.
To watch today’s video blog, please click on the link below:
Elliot S. Schlissel is a father’s rights lawyer with more than 45 years of experience representing fathers in all aspects of family law and divorce. He and his associates are available to discuss the details of your particular situation. Please call him at 516-561-6645, 718-350-2802 or send an email to schlissel.law@att.net to set up a consultation.
This is a story about two young parents who had a daughter in 2003. Shortly after the daughter was born, the child’s mother agreed to have the maternal grandmother raise the child in Franklin County, New York. This gave the mother the opportunity to go away to college. While the mother was attending college, she visited her daughter sometimes on weekends, holidays, and on school vacations.
The child’s father had enlisted in the military before his daughter was born. He was twice deployed in Iraq. Due to his deployment overseas he rarely saw his daughter. When he was discharged from the military in 2007, the father worked out an arrangement with the maternal grandmother whereby he would have a regular visitation schedule with his daughter. During this period of time he was able to reestablish his relationship with her.
Family Court Custody Proceeding
When the mother returned to New York in 2011, the grandmother moved out of state. A proceeding was brought in the Family Court concerning the custody of the parties’ daughter. The Family Court awarded the parties’ joint legal custody, however the father was named as the residential custodial parent of his daughter. The mother was unhappy with the decision of the Family Court and she appealed to the Appellate Division of the Third Department, an appeals court. The Appellate Division affirmed the prior order of the Family Court. The court took into consideration the mother waited more than 2 years before she sought custody of her daughter. They found this action of the mother was “the most discerning factor” concerning whether or not she should be given residential custody. The appeals court also found the mother did not reestablish herself back into her daughter’s life in Franklin County for the purpose of avoiding the relocation of the child.
Conclusion
Fathers who love their children and are willing to make sacrifices to reestablish relationships with their children can prevail and obtain residential custody.
In a case before Supreme Court Justice Eugene Faughnan from Madison County, New York, a father sought to change the last name of his son. The father claimed he had had custody of his son since the boy was three months old. The mother only had eight hours of supervised visitation each week. Justice Faughnan found the father’s requested name change would promote the child’s best interests. In addition, Justice Faughnan found the mother had failed to come forward with any sustainable objection to the father’s request to change his son’s last name to his.
Justice Faughnan held the sharing of a surname by a child and his father he lived with was a legitimate issue. He found that it minimized “embarrassment, harassment and confusion in school and social context.” The judge in his decision found the father obtained custody of the child shortly after birth. The mother only had supervised visitation because of her prior misconduct. In addition, Judge Faughnan found the mother had never provided the child with any financial support. The court therefore was satisfied the father had met his burden of proof for the proposed name change and that this name change would be in the child’s best interest.
Elliot S. Schlissel is a father’s rights lawyer. He represents fathers on custody, paternity, visitation (parenting time) cases in both the Supreme Court during divorce proceedings, and in the Family Courts. He practices law throughout the Metropolitan New York area.
A father, J.M., sought custody of his special needs child who had autism. He claimed the child should remain with him because he had been a primary caretaker since January 2012. The wife cross-moved for custody. She claimed the husband was unfit and sought custody of G.M. She denied various family offense charges which had been brought against her and that she used illegal drugs.
Justice Catherine DiDomenico sitting in the Supreme Court in Richmond County was assigned to handle this divorce case. After reading the facts and circumstances of the case she found joint custody was not an appropriate option. She held the relationship between the father and mother was both acrimonious and volatile. In her decision, she found the child’s teacher had stated G.M. had thrived while she was temporarily in the father’s custody. In addition, a forensic evaluator who investigated the circumstances and events of the relationship between the mother, the father and G.M. recommended the father should have physical custody and the mother should be granted parenting time.
Mother Failed To Abide By Court Orders
In addition, the court found the mother refused to follow court orders. She further found the mother disrespected authority and had issues over a long period of time concerning prescription drugs and illegal drug usage. The judge found based on these circumstances and the fact that there was domestic violence between the father and the mother, the father was the more suitable custodial parent for G.M. Her decision stated in this case there were “two imperfect parents.” She found both of them used marijuana on a regular basis. She found the father had tested negatively for marijuana use for a longer period of time than the wife. She also found the father was better suited to create a relationship between the mother and the child if he was given custody. She therefore entered a decision awarding the father sole legal and physical custody.
Elliot S. Schlissel is a father’s rights attorney. He has been helping fathers obtain custody of their children for more than 45 years.
In a recent case before Justice Jeffrey Goodstein pending in a Supreme Court Divorce Part in Nassau County, New York, a husband sought a temporary spousal maintenance (alimony) award from his wife. He asserted that he had had discussions with the wife. As a result of these discussions he retired and closed his armored car company. He claimed he had not earned any income since 2010.
Justice Jeffrey Goodstein in his decision regarding the husband’s motion stated there were no claims concerning the husband being disabled or any explanation as to why he was no longer able to find employment. Justice Goodstein suggested the husband should have looked for a job prior to bringing the application for spousal maintenance.
The wife argued in this case the husband was supporting himself, his girlfriend and in addition, his parents. She therefore claimed the husband’s application for spousal maintenance from her should be denied.
Judge Goodstein found the pre-separation standard of living of the parties to the marriage was funded by the husband. He had been earning more than one million dollars a year. The husband had stated in his moving papers he wanted the wife to work because he felt it was important she develop a work ethic. Justice Goodstein’s decision stated the husband’s retirement was a lifestyle choice and the husband had no real need for receiving funds from the wife. Justice Goodstein found if he granted the husband’s application for maintenance it would serve as a disincentive for non-monied spouses to make any effort to earn independent income after a marriage failed. Justice Goodstein therefore imputed $300,000 to the husband based on his prior earning capacity. Based on this imputed income, Justice Goodstein found the husband was not entitled to a temporary maintenance award. He found the husband was the more monied spouse and not entitled to any spousal maintenance whatsoever.
Conclusion
If you are thinking about getting divorced, don’t retire!
When considering bringing a divorce lawsuit and there is a marital home involved, a question arises as to what will happen to the house in the divorce case. Assets acquired during the marriage are considered marital property. If the home was acquired during the marriage, it is a marital asset. (If the home was acquired by one of the parties to the marriage prior to the marriage, it is separate property and may not be distributed in the divorce. However this is a different topic than what this article is about, and I will not be going into details concerning what happens to the home as separate property in divorces at this time.)
It will be necessary to appraise the home to establish its market value. Thereafter one would have to take into consideration the amount of the mortgage on the house. By subtracting the mortgage from the value of the house, you arrive at the home’s equity. Let’s assume for argument sake there is going to be a 50/50 split of marital assets. In this example, let’s say the home is worth $400,000 and there is a $100,000 mortgage remaining on the property. The homeowners would thereafter have equity in the amount of $300,000 and each of the parties would have an equity interest of $150,000.
If there is plenty of cash available, the party who wants to keep the home can exchange a marital asset worth approximately $150,000 for the other party’s ownership interest in the house. If there aren’t any liquid assets a trade can be made with regard to pension benefits or 401(k) assets. However it should be noted pension and 401(k) assets are pretaxed assets and therefore they would have to be tax impacted on before an exchange for a real estate interest could be made.
Is the Home Affordable?
One of the issues which must be faced by the party seeking to purchase the home is whether after purchasing the home, he or she will be financially able to maintain the mortgage, taxes, utilities, upkeep and maintenance on the home. Homes can be expensive to maintain and the issue of affordability should be closely looked into before making any financial arrangements.
Residential Custody of the Children in the Home
Many courts will give the parent who obtains residential custody of the parties’ children exclusive occupancy and possession of the home until such time as the youngest child is either 18 or 21 years of age.
Conclusion
The issue of one of the parents keeping the home may be more complicated than it looks to be at first glance. The best way to deal with this matter is to meet with an experienced divorce lawyer and go through all of the details with him or her.
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