Anthony J. Cervi, Attorney at Law

When is a change to sole custody best for your children?

2021-01-28T14:46:29Z

Courts and child psychologists typically agree that children’s best interests are the most significant factor in divorce. Although disputes about property division and spousal support may continue between you and your soon-to-be ex, your kids need stability and affirmations that they’re loved – regardless of the changes at hand. As such, child custody arrangements can allow children to maintain positive relationships with each parent. Over time, however, your ex’s choices might lead to decisions that put your kids at risk. So, how could you convince a judge to reverse your custody order?

Parent, and parenting style, evaluation

Sometimes it’s difficult to define specifics of what’s best for a family. However, consideration is given to a variety of factors such as each parent’s:

Finances
Reported domestic violence
Mental health and emotional stability
Unhealthy or dangerous living arrangements
Substance abuse issues

While there’s a general understanding that kids should spend time with each of their parents, some circumstances might indicate otherwise.

Situations that may convince a court to reverse a custody decision

It probably goes without saying that arguments about household chores or curfews would not give reason to deem your ex an unfit parent. More serious situations, though, could factor into a custody reversal. For example, disagreeable choices leading to the termination of your ex’s parental rights might include:

Abandonment
Child neglect or abuse
Criminal charges requiring incarceration
Continual dismissal of the current parenting time schedule
Moving too far away to provide consistency with pre-existing orders, education and transfers between homes

Arrest or court records can support your concerns. It’s also important to note that if your ex passes away, you need to complete the legal process of assuming full custody of your kids.

Protect your children’s rights

As difficult as it can be to make choices that will inevitably affect your kids, you must do everything within your power to do what’s best for them. Young children might not know how to express their anxiety or fear about going to their other parent’s home. While older kids might discuss their thoughts and feelings with you, behavioral changes could indicate a problem worth exploring. Hopefully, things won’t escalate to the point where you must petition to have your ex removed from your children’s lives. Meanwhile, remain open to the possibility that a change could become necessary, and be ready to take action.

When a person should seek post-divorce modifications

2021-03-11T15:12:21Z

Just a few years after your divorce agreement, you know that your life and the life of your former spouse have changed. While you have struggled financially due to your work hours being cut because of the COVID-19 pandemic, you know that your former spouse’s fortunes have dramatically changed with a new job and significant boost in salary. Those financial struggles have greatly affected you, juggling your parental duties that now include helping educate your children, who, like many of their peers, learn from home through distance learning. You worry. Your current situation calls for a prompt legal revisit to your divorce agreement. A post-divorce modification is likely in order. Personal changes call for revisiting divorce agreements Plenty of reasons exist for a divorce agreement to get a second, more thorough look. A situation such as yours is among them. Here are prime examples of when post-divorce modifications are necessary after a divorce agreement.

When one of the former spouses receives a considerable pay raise after accepting a new job with a new company or receiving a work-related promotion. This scenario likely means that the other spouse deserves a bump in child support as well as alimony payments.
The role of a large inheritance received by either former spouse. Some of that money, again, could go to additional child support and spousal support/alimony payments.
When one former spouse experiences a significant loss in income. During COVID-19, many people have lost their jobs, and ones who find reemployment often take positions with less pay.
The remarriage of one of the former spouses. Such a scenario likely affects alimony payments, but not necessarily child support payments. Child custody matters also could change as a result.
When a child’s needs change. This may surface due to costs associated with health care and education matters. Perhaps your adolescent needs braces for his or her teeth or requires a brace for treating scoliosis. If they participate in school sports and sports clubs, you likely must pay more for equipment and the privilege to play. And education costs can rise with children attending private school as well as college.
The relocation to another city or even state of the custodial parent. Child custody and visitation matters are affected in these situations. Is such a move in the best interest of the child? In some of these situations, the non-relocating parent may gain custody.

Whether these modifications are temporary or permanent, they represent significant changes, nonetheless. When the lives of people affected by divorce change, their divorce agreements likely will change, too.

Could hidden assets affect the outcome of your divorce?

2021-04-07T13:58:45Z

During your marriage, your spouse might have managed your household’s finances. As you two prepare to divorce, you will likely hope they will be transparent about these during proceedings. Yet, they may have acquired significant assets while you were together – whether with or without your knowledge – which they may try to hide. In New York, any assets acquired during your union qualify as marital property. If you suspect your spouse is hiding assets from you, you must know your options for uncovering them.

Understanding the discovery process

Before divorce proceedings begin, you and your spouse will go through the discovery process. During this process, you have the opportunity – with the help of your attorney – to obtain crucial information from your spouse, including financial records. These records may include bank statements, tax returns and loan applications. Once your spouse turns their financial records over, you will want to review them for any signs of hidden assets. Tax returns, in particular, can provide evidence of these, since they may reveal business income, investment income, real estate income or foreign accounts that you were in the dark about. If you and your attorney uncover these assets, you may want to work with a forensic accountant to track down further information about them.

Other ways to find hidden assets

While the discovery process can be helpful in uncovering hidden assets, you will also want to know where you can look on your own. Your spouse may be hiding assets in plain sight, and all it takes to find them is knowledge of where they may be. Some signs they may be doing so include:

Purchasing expensive items – like cars, boats or artwork – with the plan of converting them to cash after your divorce
Giving away assets to family and friends
Delaying earnings, a bonus or a promotion until divorce proceedings end
Writing false paychecks – if they own a business – to employees and voiding them once divorce proceedings end

No one deserves to lose out on their share of marital property during divorce proceedings. By knowing how to discover hidden assets, you can make sure they are accounted for in your settlement.

How long does a marriage need to last to be awarded alimony?

2020-11-25T10:49:33Z

If you've been married a decade and now are facing divorce, you may wonder how you will financially move forward. Perhaps, you've been a stay-at-home mom for the last seven years, spending your time raising your children. You know you won't be able to support yourself after your divorce and hope you will qualify for spousal support.

Yet, is there a specific amount of time your marriage needs to last for you to receive alimony?

Factors in determining spousal support

The first thing you should know is that the court evaluates many factors before awarding spousal support. These include the following:

You and your spouse's age and overall physical and mental health
If you or your spouse earn significantly less than the other spouse
Your standard of living during the marriage
What you or your spouse's unpaid contributions to the marriage were (such as being a homemaker)
The ability for you or your spouse to support yourself
You and your spouse's future potential earnings
If you or your spouse need additional education or training to become self-sufficient
If you or your spouse will have health insurance after the divorce

However, the longer you are married, the greater likelihood you will receive spousal support.

How long will spousal support last?

Also, if you do receive spousal support, you will receive it longer if you have been married longer. For example, if you've been married less than 15 years, your spousal support likely will last 15-30% of the duration of the marriage. If you've been married 15-20 years, that percentage jumps to 30-40%. If you've been married more than 20 years, your spousal support can last 35-50% of the marriage's duration.

As with any divorce matter, you should consult your attorney to determine if you may be eligible for spousal support.

How long do prenuptial agreements remain in effect?

2020-11-25T10:49:39Z

Signing a prenuptial agreement may not feel like the most romantic activity to do before your marriage, but it can be the right choice for many couples. It can help future spouses get on the same page about their present and future. If the marriage ultimately ends in divorce, a premarital agreement can even protect the spouses from making unreasonable decisions out of anger. However, prenuptial agreements aren't always fair. If you feel like your marriage is struggling, you may be thinking about your prenup and wondering if it is even enforceable. How long are prenups enforceable? A prenuptial agreement is a contract that future spouses enter before marriage. It can be used to determine the rights and responsibilities each person will have during the marriage and how property will be divided if the marriage ultimately doesn't work out. A valid prenuptial agreement can remain in effect indefinitely, which is why courts generally presume prenups to be enforceable. However, there are a few circumstances when it may be reasonable for you or your spouse to challenge the validity of your agreement. When can you challenge a prenup? The most common reasons for challenging a prenuptial agreement usually boil down to the agreement being unfair. This might be the case if you and your spouse were not represented by separate attorneys when entering into your agreement. You need your own attorney to advise you, make sure you understand the agreement and ensure the agreement is fair to you. If you or your spouse didn't have the proper legal representation before signing the prenup, a court may not consider the contract valid. Another way a prenuptial agreement may be unfair is if it is fraudulent. This may be the case if one or both spouses did not honestly disclose all their assets before the contract was signed. Dishonestly like this may result in the contract being invalidated. Prenups that are signed due to coercion or under duress may also be invalidated. This means that it may not be enforceable if your spouse pressured you into signing it or did not give you an adequate amount of time to consider if you want to sign it or not. Sometimes, extremely unbalanced provisions to the agreement are even enough for a court to consider it invalid. For example, an agreement that would leave one spouse destitute while allowing the other spouse to prosper. Prenuptial agreements can be very unique, just as every marriage is unique. While most prenuptial agreements are valid and enforceable, there can be a variety of situations when it is reasonable for a spouse to question the validity of their contract.

How to become a dependable former spouse

2020-11-25T10:49:43Z

Incompatibility with your spouse led to the downfall of your marriage. Now, the next chapter has arrived in your relationship with your ex. It is finally time to be realistic and honest because a post-marriage relationship does not have to about bitterness, cruel behavior and animosity. Ongoing acrimony is not good for you, your former spouse or your children. Now you want to be a dependable and considerate former spouse. It is up to you and doing so is possible. Some couples have better relationships after they divorce, while others continue to berate each other. You do not want to be in the latter scenario. Maintain civility, regularly communicate about children Here is some advice that can help you become a dependable former spouse:

Maintain civility with your former spouse, especially in front of the children. Ending all interaction just is not possible when you have children. Civility goes a long way, and it is crucial to avoid saying negative things about your ex in front of the children. Kids know, and kids understand.
Regularly communicate with your former spouse about child-related matters. Try to work together with your former spouse.
Maintain timely spousal support and child support payments. Pick up your children at the agreed-upon time. Do not be late. However, if you are running late, contact your former spouse and let her know via a phone call or text message.
Take the high road. If your former spouse belittles, taunts and attempts to shame you, do not take the bait. Try to maintain your composure.
Do your best to let go of any anger. In some situations, it can be difficult. Negative energy disrupts many aspects of a person's life. In these situations, talking with a therapist may help.
Love your children with all your heart. Listen to them, provide them with experiences that will enlighten their lives.

Your marriage did not work out, and you want to keep those bumpy experiences in your past. Now, it is time to develop a new type of relationship with your former spouse. There will be challenges along the way, but you can succeed in becoming a dependable and forgiving former spouse.

Will I get the house in the divorce?

2020-11-25T10:49:47Z

When you and your spouse decide to divorce, your life becomes a little topsy-turvy for a while. You likely aren’t sure what exactly will happen when you divorce, what assets you’ll receive and if you’ll be able to keep your home. What if your spouse wants to keep the house too? Who will it go to? Equitable division of assets New York is an equitable asset division state. That means money you earned during your marriage will be yours, including that from retirement accounts and other investments. If you owned your home before you were married, and your spouse isn’t on the home’s title, you may be in a better position to keep it. However, as part of equitable division of property, the court will evaluate a property division that is fair, not only whose name might be on the title of your home or vehicles. Factors the court will evaluate as part of equitable division of property include the following:

The income and property of each spouse at the date of the marriage and the date of the divorce filing
The age and health of each spouse
Whether either spouse will receive alimony
What domestic requirements the custodial parent will need
The future financial needs of each spouse

Working through property division You and your spouse will have to work through some of your property division. If you really want to keep the house, and you’ll be the custodial parent for your children, you may need to give up other assets. Perhaps, you’ll let your spouse keep more of their retirement funds, or give them some of yours, to buy out their share in the home’s assets. You’ll need to consult an experienced family law attorney to give you a better idea of what assets you’ll receive in your divorce and how you can keep the family home if that asset is really important to you.

The options for divorcing couples who co-own a business

2020-11-25T10:49:52Z

Divorce can be complicated. Who gets primary custody of the children? How much will you receive in child support and alimony? And how will you divide the assets? A divorce can be even more complicated if one of those assets is a business co-owned by separating couples. Business and marital break-ups happen. But when they occur simultaneously, you better ensure that a solid plan is in place to protect yourself and your business. You wonder: "Who gets the business after I divorce my spouse?" The answer can be straightforward, but it might take a great amount of work and negotiation. During a divorce, you must not only thoroughly understand your personal assets, but every detail of your business assets as well. Understand the business and protect yourself When business break-ups include separated spouses, a few options should be considered:

First and foremost, you need to protect your business. You may think you understand your business, but a thorough evaluation is necessary. This will help you determine its value, whether it can withstand market downturns, and an acquisition price if you choose to buy out your former spouse.
Staying together as business partners. This is a simple solution for couples who can be civil toward each other. However, this route is not recommended for couples in the thick of emotional and legal battles. When choosing this path, make sure to complete a shareholder agreement that allows either spouse the right to buy out the other at an agreed amount.
Purchasing the business outright from your former spouse. You can determine whether this is a practical option and whether you are willing to take on the added responsibility as a sole owner. You may have to give up some retirement assets, obtain a business loan, seek out investors or add another partner to make this achievable.
Selling the business is a solid option in which the former spouses can split the profits and move on with their lives. Maybe you have additional business ideas you are prepared to pursue alone.

Marriage and start-up businesses have another thing in common: roughly half of each of them fail, businesses often doing so within the first four years. A marital split does not always mean a business split if you co-own a company with your spouse, but you must closely consider every option.

How New York courts handle child custody

2020-11-25T10:50:02Z

One element that fuels frustration and trepidation during divorce is child custody. Trying to come to terms with not having your children every day may seem too much to bear. In New York, if the court must determine child custody, it does so with the children's best interests in mind. Ideally, the couple will agree on what kind of legal and physical custody arrangements will work for their family. When it is impossible to reach an amicable resolution, it helps to understand how the courts may rule. Common custody determinations In the past, the courts would err on the side of granting custody to mothers. However, in recent years, this practice is not as common. The most common type of custody awarded now is joint legal custody. This arrangement affords both parents an equal say in what goes on in the lives of their children. Both parents would have the right to access their children equally and obtain medical and educational information. In joint custody situations, parents often create a schedule that determines where the children will reside on a rotating basis. The parents may divide physical custody to facilitate healthy relationships between parents and children, which the court often agrees is in the children's best interests. Factors to consider The court may forgo a joint arrangement and instead grant custody to only one parent. In this situation, a judge determines one parent is better able to provide for the children's needs. In some sole custody determinations, one parent has a history of abuse or violence. The court considers many factors when deciding what kind of custody situation is best, including: • The bond between the parents and the children • The parent who is better suited to facilitate a strong relationship with their co-parent • The home each parent may provide • The wishes of older children • The special needs of the children When it comes to deciding child custody, agreeing before the assigned court date is a more favorable route. Understanding options may help parents choose to proceed with their children in mind.