Blog

RECENT APPELLATE DECISION FINDS THAT SEPARATE PROPERTY BONDS BECAME MARITAL PROPERTY WHEN PURCHASED IN BOTH PARTIES NAMES

Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 37 years of experience notes that a recent Appellate Court decision confirmed the long-standing principle that separate property will be converted to marital property if title to subsequently acquired assets are titled in the names of both parties.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that where the husband purchased bonds with funds from the proceeds of his separate property disability pension, the bonds were deemed marital property and subject to equitable distribution by the trial Court because the bonds were titled in the names of both parties. Had the husband purchased the bonds in his name alone, the bonds would likely have been treated as separate property and would not be subject to equitable distribution.

The case illustrates the need for the owner of separate property assets or funds to always retain sole and exclusive title to his or her separate property. Mixing the separate property with marital property or changing the character of the separate property to jointly owned property may result in the Court converting the separate property to marital property.

Based on my extensive experience, I try to obtain results for all of my clients. Recent results can be found on the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 37 years.

Feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your New York matrimonial, divorce or family law matter by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

RECENT APPELLATE DECISION PREVENTS THE ATTORNEY FOR THE CHILD FROM BLOCKING A SETTLEMENT REACHED BY THE PARTIES

Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 37 years of experience notes that if the parties reach a custodial settlement which is acceptable to the Court, it cannot be vetoed by the child’s attorney.

In a recent case determined by the Appellate Division of the Supreme Court, First Judicial Department, the Court held that where the parties settled their custody case by a stipulation, the attorney for the child could not veto the settlement. The Appellate Division stated that the child does not have full party status and cannot veto a settlement and force a trial. However, the Court made it clear that the attorney for the child had to be afforded a full and fair opportunity to be heard beforehand. The Court also noted that the attorney for the child retained the right to appeal (presumably as said attorney was not a party to the settlement reached in the Court).

In my opinion, this decision was timely and placed family law practitioners on notice that the attorney for the child retains an advisory role in the context of a settlement of a custody case and cannot obstruct a settlement because the child is dissatisfied with the result.

I always use my best efforts to settle all Family Court custody and Supreme Court divorce cases.  Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 37 years.

Feel free to contact me, H. Michael Stern, Esq., a Long Island divorce and family law attorney, if you are interested in discussing your New York matrimonial, divorce or family law matter by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by H. Michael Stern, Esq.

IF A POST NUPTIAL AGREEMENT IS WRITTEN IN PLAIN LANGUAGE AND IS NOT UNCONSCIONABLE, THEN THE LACK OF COUNSEL WILL NOT JUSTIFY INVALIDATING THE AGREEMENT

Prenup Agreements
Postnuptial Agreements
Divorce Lawyer Nassau County NY

H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 35 years’ experience suggests that if a Postnuptial Agreement is fair on its face and is not unconscionable, the decision of a party to be self-represented, waiving counsel will not, standing alone, be a sufficient reason for the Court to invalidate the Prenuptial Agreement.

In the Postnuptial Agreement, the Husband had waived counsel and elected to be self-represented. The Court examined the Prenuptial Agreement and determined that it was written in plain language. It determined that there was no overreaching, fraud, duress or misconduct by the Wife. It held that the Husband’s decision to waive counsel will not automatically invalidate the Postnup Agreement even though the agreement may be slightly skewed in the Wife’s favor.

It is my opinion that all agreements must be drafted with fairness to both sides in mind.
As an unconscionable agreement (e.g., one which shocks the conscience of the Court) will always be set aside. However, a fairly drafted agreement, even if it is not entirely balanced in its result, will routinely survive judicial scrutiny.

A considerable part of my practice is devoted to the drafting of prenuptial and postnuptial agreements. To my knowledge, all of the agreements that I have drafted remain fully enforceable and effective.

Focusing on the needs of the client and the results sought have been a hallmark of my Long Island practice over the past 35 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your prenuptial agreement or post-nuptial agreement needs, divorce, support, custody or family law matter by phone at
516-747-2290.

I am conducting telephone consultations and in person consultations, by appointment. My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce & Family Lawyer Long Island NY

IN A MARRIAGE OF LONG DURATION WHERE BOTH PARTIES HAVE MADE SIGNIFICANT CONTRIBUTIONS, MARITAL PROPERTY SHOULD BE DISTRIBUTED AS EQUALLY AS POSSIBLE

DIVORCE LAWYER Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with 35 years of experience suggests that where there is a long-term marriage and there are significant contributions made by each of the parties, the Courts should try to distribute marital property equally.

In a recent case decided by the Appellate Division, Second Judicial Department, the
Court affirmed the division of assets where the parties had been married abroad in the late 1980s.The parties had several children, one of whom was not emancipated. Apparently, the lower Court’s findings were sufficient for the Appellate Court to determine that the Wife had made significant contributions to the marriage. The Appellate Division reiterated the rule that in such circumstances marital property should be divided as equally as possible between the parties.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Garden City, Long Island matrimonial practice over the past 32 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce, child custody, child support or family law matter by phone at 516-747-2290.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

I prefer to conduct consultations in my office. However, due to the pandemic, I am currently conducting Free consultations in the office, by phone or video conference.

Written by, H. Michael Stern, Divorce Lawyer Nassau County NY

WHEN SEEKING AN ORDER OF PROTECTION IN NEW YORK HEARSAY STATEMENTS ARE INADMISSIBLE PROOF AND WILL NOT BE CONSIDERED BY THE COURT

DIVORCE LAWYER Nassau County NY
H. Michael Stern, Esq., a New York divorce and family law attorney with over 34 years of experience suggests that any witness to a family offense must be prepared and available to testify in Court or that witness’ statement will not be admissible in the proceeding.

In a recent case decided by the Appellate Division, Second Judicial Department, the Court dismissed a case seeking an Order of Protection where a child’s hearsay testimony was offered as proof. Hearsay is an out-of-Court statement made by a witness who is not available to testify in person and that out-of-Court statement is offered for the truth of the matter asserted. While a child’s hearsay statements can be used in abuse, neglect and custody proceedings in New York, the Court held that the statute precluded the use of hearsay as admissible proof. This is especially troublesome as the child would be forced to testify in Court and be exposed to cross-examination by the accused party’s attorney. A child witness who is forced to testify about a violent event can have deleterious consequences to the child. In my experience, jurists have discouraged bringing a child in to testify against a parent or relative.

Accordingly, unless there is an apparent and easily provable exception to the hearsay rule or, there is no hesitancy in using a child as a witness (as in the case of an adult child), a New York Family Offense case should avoid hearsay evidence of any kind as it is inadmissible.

I have been litigating family offense cases for more than three decades. Recent results for my clients can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a divorce lawyer in Nassau County, if you are interested in a Free Consultation to discuss your matrimonial, divorce, order of protection, support, custody, visitation or family law matter at hmsternesq@gmail.com or by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

I am currently conducting consultations in office, by phone or video conference.

Written by: H. Michael Stern, Divorce Lawyer in Nassau County

SUBSTANTIAL ATTORNEY FEE AWARD TO WIFE DESPITE FINDING OF PROLONGING LITIGATION AND ENGAGING IN MERITLESS MOTION PRACTICE

DIVORCE LAWYER Long Island NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that it would be unwise to presume that a Court would decline to award counsel fees in a divorce case where a party engages in dilatory conduct and engages in meritless motion practice which escalates the parties attorney’s fees.

In a recent case decided by the Appellate Division First Judicial Department, the Court was presented with a situation where the Wife had hired multiple attorneys which resulted in prolonging the litigation. It also found that the wife through her attorneys engaged in meritless motion practice that caused a precipitous rise in the party’s attorney’s fees. Nevertheless, the Wife was awarded $300,000.00 in counsel fees by the Appellate Court.

This case appears to be the standard bearer for the proposition that a counsel fee application by a party should always be rigorously defended, despite apparent misconduct in the case by the applicant. That is not to say that the Husband’s attorneys in the above case did not do their best to defend the claim at trial. It appears that they defended the application with vigor. However, even with proof that the case was prolonged by the Wife’s repeated turnover of her counsel (with the consequence being that each new lawyer has to become familiar with a complicated file), the Court awarded her $300,000 in attorney’s fees. Even more astonishing is that the Court found that the Wife engaged in meritless motion practice which drove up the party’s litigation costs and nevertheless still awarded her that substantial sum.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce lawyer, if you are interested in discussing your matrimonial, divorce, custody, support, visitation, paternity or family law matter by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

I prefer to conduct consultations in my offices. However, I am currently conducting consultations by phone and by video conference (by appointment).

Written by: H. Michael Stern, Long Island Divorce Lawyer

APPELLATE COURT REITERATES THAT “FIT” WORKING PARENT WILL NOT BE PENALIZED IN A CUSTODY CASE IF A RELATIVE IS USED TO PROVIDE CHILD CARE WHEN THAT PARENT IS WORKING

DIVORCE & CHILD CUSTODY LAWYER Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator
with over 34 years’ experience points out that if a Court finds a parent to be fit, delegating childcare responsibilities to a relative while the parent works will not result in a deprivation of custody. In other words, the need for a relative to provide childcare for a fit working parent will not disqualify that parent in a custodial determination by the Court.

In a recent case decided by the Appellate Division, Fourth Judicial Department, the Court was presented with a situation where the mother, among other things, had asserted that she was the better choice for custodial parent due to the father’s work schedule. The Court reiterated that designating a relative to provide child care while a fit parent is working will not deprive that parent of custody. Thus, if a parent, who is for all intents and purposes fit, will not be penalized if a relative is used to furnish child care.

The Court found the mother had interfered with the father’s relationship with the children and awarded the father custody in that case. The Court recognized that the use of a relative to act as a child care provider for a fit working parent will not tip the scales in favor of the other parent.

I have been litigating divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce, child custody, visitation, or family law matter by phone at 516-747-2290.

I am conducting telephone and in person consultations during the pandemic, by appointment. If you want to have a telephone consultation or an in-person consultation in my office, please call the number above.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by: H. Michael Stern, Divorce Lawyer

CHILD SUPPORT & INVOLUNTARY TERMINATION OF EMPLOYMENT

Did the Appellate Court impose a new element of proof in a downward modification of child support proceeding?
CHILD SUPPORT LAWYER NASSAU COUNTY NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney with over 34
years’ experience is wondering whether the Appellate Division First Judicial Department has just imposed a new element of proof in presenting a downward modification of child support case where there was an involuntary termination of employment.

In a case recently decided by the Appellate Division First Judicial Department, the Court

was presented with a situation where the applicant was terminated from employment. The applicant was forced to take a job with a reduced salary as he could not find a job with similar pay. The trial Court used the applicant’s reduced self-reported income at the time of trial to fix his child support obligation. The Appellate Court reversed the Supreme Court and imputed income based upon the applicant’s salary history. When a Court imputes income, it disregards the income reported by the party and sets income based upon, among other things, the party’s earning potential. The Appellate Division noted that there was nothing in the trial record which reasonably addressed the applicant’s inability to secure a similar position.

This appears to be a new element of proof and adds to the overall burden of proof for the applicant. Most applicants lack the financial resources to hire a vocational expert witness. Indeed, proving that there are no similar jobs available is a daunting task. One must question if there were similar jobs available and the applicant applied for such jobs and didn’t get any of them, would the application fail due to the higher standard. I am curious if the other Judicial Departments will follow and impose this heavier burden of proof in downward modification cases.

I have been litigating Supreme Court divorce and family law cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter please call 516-747-2290.

I am conducting in person, telephone, and virtual video consultations during the pandemic, by appointment.

My office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by: H. MICHAEL STERN, Divorce Lawyer Nassau County NY

APPELLATE COURT FINDS THAT MATERNAL GRANDPARENTS WERE NOT THE BEST OPTION TO ACT AS SUPERVISORS OF VISITATION

DIVORCE LAWYER Nassau County NY
H. Michael Stern, Esq., a New York matrimonial and family law attorney, and mediator with over 34 years of experience suggests where supervised visitation with children is appropriate, that the qualifications and availability of the supervisors must be scrutinized.

In a recent case decided by the Appellate Division Second Judicial Department, the Court was presented with a situation where the mother required supervised child visitation and the lower Court directed expanded alternating weekend supervised child visitation with the maternal grandparents acting as the supervisors. Essentially, supervised child visitation is appropriate where unsupervised child visits can be detrimental to the subject child. The central issue in the case was whether the maternal grandparents would responsibly provide the requisite supervision to ensure the children’s safety during the visit. In reversing the lower Court, the Appellate Division found that the lower Court did not determine the willingness or ability of the maternal grandparents to adequately supervise the children for the entire weekend visit. The Appellate Court referred the case back to the lower Court to redetermine the mother’s supervised parenting time with the children.

This is not an unfamiliar situation. There are times where the proposed supervisor of child visitation is not in Court or is too closely aligned with the party under supervision. In the first example, the Court does not have the opportunity to extensively question the proposed supervisor to determine whether the person is capable of providing the necessary oversight. In the second example, a close relative may have his or her loyalties tested by the parent who will seek a measure of liberty with the child, free of supervision by the relative. Oftentimes, the relative will have the supervised child visit in a residential setting and may not remain in the same room as the parent under supervision (with the child). These scenarios are particularly troublesome for the Courts. Accordingly, proper, and extensive vetting of the proposed supervisor becomes a paramount concern for the Court. In a case that I settled last year; the problem was addressed in part by the supervised child visit taking place in a restaurant. However, as the pandemic has reduced the available options for supervised child visitation in public, there may be more cases along the lines of the one referred to in this blog.

I have been litigating child custody and divorce cases for more than three decades. Recent results can be found within the TESTIMONIALS page on this website.

Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island matrimonial practice over the past 34 years. Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at 516-747-2290.

My Nassau County office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.
Written by, H. MICHAEL STERN, Divorce & Child Custody Lawyer

RECENT APPELLATE DECISION PREVENTS ONE PARTY FROM SEEKING A RESTRUCTURING OF TERMS CONCERNING REAL ESTATE WHICH DIFFER FROM THE PARTIES SETTLEMENT AGREEMENT

DIVORCE LAWYER NASSAU COUNTY
H. Michael Stern, Esq., a New York matrimonial and family law attorney and mediator with over 34 years of experience suggests that if there is uncertainty concerning the disposition of property subject to distribution in a divorce, that the parties should avoid waiving their rights to have a Court determine the disposition if a subsequent dispute arises between them.

In a recent case determined by the Appellate Division of the Supreme Court, Second Judicial Department, the Court held that where the parties Stipulation of Settlement clearly provided for the method of distribution of their real estate, that the Court was not permitted to change or rewrite the disputed terms of the parties agreement. Furthermore, the Appellate Court held that since the parties Stipulation of Settlement had contained a waiver of equitable distribution, the terms of the agreement prevented the Court from addressing the distribution of property, deeming the issue fully resolved.

In my opinion, where there is uncertainty concerning the disposition of property in a divorce, the best practice is to avoid any waiver and include a clause reserving jurisdiction for the Court to address all aspects of the distribution of the asset following the settlement. In both Stipulations of Settlement and Separation Agreements, I have routinely provided for a reservation of rights by the Court to address all aspects of the process of liquidating real property, as it has been my experience that unforeseen problems can arise that require judicial involvement. If a problem arises, it is best to have the Court available to help facilitate and implement the party’s intentions.

I use my best efforts to settle all divorce cases. Recent results can be found within the TESTIMONIALS page on this website. Focusing on the needs of the client and the results sought have always been a hallmark of my Long Island practice over the past 34 years.

Feel free to contact me, H. Michael Stern, Esq. a Long Island divorce and family law attorney, if you are interested in discussing your matrimonial, divorce or family law matter by phone at
516-747-2290.

My Long Island office is conveniently located adjacent to the Roosevelt Field Mall Ring Road at 666 Old Country Road, Suite 555, in Garden City, New York.

Written by, H. Michael Stern, Divorce Lawyer Nassau County, NY