For many divorcing persons one of their most important assets, oftentimes the most significant one, is their house. Significant not only financially, but frequently emotionally as well.

When I first meet with a client about a divorce, one of the questions I am almost always asked is what is going to happen with my house? As with many questions in divorce, the answer is complicated and depends on many factors.

One possibility is that a party may be granted what is known as exclusive use and occupancy for a specified period of time. This usually occurs when the parties have children under the age of 18. Courts now express a preference for allowing a custodial parent to remain in the marital residence until the youngest child becomes 18 unless such parent can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale. In actual practice this occurs more frequently where the children are in their teens than when they are younger. At the conclusion of the specified period the house is usually sold.

The person having such exclusive occupancy is generally also entirely responsible for paying all of the carrying costs of the house, such as mortgage, taxes, and utilities, and for keeping it maintained. So while exclusive use may seem the way to go, you need to ask yourself if you will be able to afford it given your own income and what amount of child and spousal support you may receive.

If exclusive use and occupancy is not indicated or economically practical, frequently one spouse will want to buy out the other spouse’s interest in the house, either in exchange for other assets or for cash. This requires an agreement as to the value of the house or obtaining an appraisal. Affordability is again frequently a problem. Your spouse will justifiably want you to refinance the existing mortgage into your own name, which is not as easily done today as it was just a few years ago. And usually you have to refinance for more than the existing mortgage to raise the funds to pay your spouse his or her share of the home’s equity, so now you’ve taken on the existing expenses of the house and even more debt than there was before! Or if you’ve traded other assets to pay same, you may have left yourself financially vulnerable in other regards.

Last, the house can be sold and the proceeds divided. This is what a court will usually order if exclusive use is not awarded to one of the parties and they cannot otherwise agree on what should be done with the house. Even where parties agree without a court order to sell, any number of matters have to be discussed and agreed upon such as choice of realtor, sale price, payment of expenses pending sale, and how the proceeds are to be used, such as paying debt, and then divided.

I’ve touched on only a few of the issues and considerations involved in making a decision about what happens to a house in a divorce. The experienced family law attorneys at HoganWillig can provide you with informed guidance as to both the applicable law and in assessing your financial outlook going forward in order to help you make the smartest and most beneficial decision.

Tags: divorce

In New York State, the Family Court and Supreme Court may appoint an Attorney for the Child (“AFC”), to represent the interests of the child/ren in contested custody and/or access proceedings, as well as in neglect and abuse proceedings, juvenile delinquency proceedings and persons in need of supervision (PINS) proceedings. Formerly referred to as Law Guardians, the role of the AFC has evolved over time to the point where the attorney is no longer an adjunct of the Court whose function is to articulate what is best for the child but a zealous advocate, fighting for the child’s position.

Depending on which Court appoints the AFC and depending on the amount of the combined incomes of the parties, the legal services charged by the AFC in his/her representation of the child may be subsidized by the state or allocated between the parties. The Court will determine in advance how the costs of the AFC will be paid, after reviewing the individual circumstances of each case.

An integral part of the duties of the AFC is to consult with his/her client and advise the client in accordance with his/her capacities and with consideration for the child’s circumstances. Most importantly, if a child is capable of knowing, voluntary and considered judgment, the AFC should be directed by the wishes of the child, even if the AFC believes that what the child wants is not in the child’s best interests. The attorney should fully explain the options available to the child, and may recommend to the child a course of action that in the attorney’s view would best promote the child’s interests.

When the AFC is convinced either that the child lacks capacity for knowing, voluntary and considered judgment, or that following the child’s wishes is likely to result in a substantial risk of imminent, serious harm to the child, the AFC would be justified in advocating a position that is contrary to the child’s wishes.

Most litigants in a contested custody or access proceeding mistakenly believe that the AFC is impartial, but nothing could be farther from the truth. The AFC is subject to the same ethical requirements applicable to all lawyers, including but not limited to constraints on ex parte communication, disclosure of client confidences and attorney work product; conflicts of interest and becoming a witness in the litigation.

Ultimately, as set forth above, the AFC is to advance the child’s position and no other, although it may and usually does correlate with one of the party’s position. A zealous advocate can do that without betraying the child’s confidences, unless given permission by him or her. If you are a litigant in a contested proceeding, it is important to remember that the communication between the child and his/her AFC is confidential. A litigant/party in a proceeding should never inquire of the child what he or she has told his/her attorney. Nor should the litigant/party expect to be informed of what led the child to his decision.

In figuring out the child’s position, the AFC must minimally consult with the child. Even an infant incapable of speech, let alone, knowing and intelligent communication regarding his/her position is a source of information that the AFC cannot overlook. Quite simply, the AFC has the ability to observe first-hand the cognitive abilities of the child, the level of caretaking of the parent or other litigant accompanying the child to the meeting with the AFC, the physical health of the child and, equally as importantly, the bond or lack thereof between the child and litigant.

In any contested custody/access proceeding or a neglect/abuse proceeding, the AFC will inquire of a litigant or his attorney, whether the AFC may speak to him/her outside of the presence of his/her counsel. No negative inference is made when the litigant requests the presence of his/her attorney. The purpose of the discussion is merely to ascertain the litigant’s position – why he or she seeks or opposes the relief being requested of the Court, and ascertain what information offered by the litigant is useful to the child’s position.

Most importantly, while the AFC is appointed by the Court, (parties cannot hire an AFC), he or she has no more power or influence with the Court than any of the attorneys for the parents/litigants. They, too, must prove their case on behalf of their client at trial. They are expected to call witnesses supportive of their client’s position and cross-examine witnesses called to testify by the parents/litigants. They must be no less knowledgeable of the case law and statutes supportive of or in opposition to their client’s position, than their adversaries.

Courts favor the AFC being reappointed in subsequent proceedings involving the child, if the AFC is available and willing to accept the appointment and continue his/her representation. Quite simply, the Courts recognize the value of continuity of representation as well as the fact that the child may have established a trust and confidence in the ability of his/her attorney in the prior proceeding that enables easier disclosure between the child and his attorney in subsequent matters.

The foregoing premise goes hand in hand with another tenet held by the Court – that is, absent outright neglect of the case or improper/unethical conduct by an AFC, he or she cannot be removed from his/her role to represent the interests of the child. The fact that the AFC disagrees with the position of a litigant and appears to side with a party whose agenda is similar, if not the same, as the child’s is not a sufficient reason to remove the AFC from his/her role.

Ultimately, it is important for any litigant in a contested custody/access/neglect/abuse proceeding to make the child available to his/her AFC upon request and to not interfere with the AFC’s representation of the child.

Tags: afc, attorney for child, law guardian

Many parents are under the misunderstanding that if they are the custodial parent of a child they can relocate at will and merely have to file documentation alerting the court and other parent of their decision. This is entirely incorrect. A custodial parent cannot relocate with a minor child without written consent from the other parent or a court order. Even in situations where the custodial parent has sole legal custody of the child, he or she must petition a court of competent jurisdiction prior to relocating with the child. The custodial parent should file a petition as soon as possible, as it may take months to schedule a trial date and the Court will be very reluctant to allow the parent to move on a temporary basis in the meantime. In the event a custodial parent relocates without written consent or court order, the other parent may file a motion for the immediate return of the child (with or without the custodial parent). (more…)

Tags: child custody, child visitation, custody, relocation

Getting a knock on the door from a CPS caseworker or receiving a “notification letter” in the mail that you’ve been named as a subject in a report of suspected child abuse or maltreatment is a scary experience. Clients who find themselves in that situation usually have many questions: What is a CPS report? Can CPS take my children? What happens when a neglect petition is filed in Family Court? What are my rights?

This post covers some of the basics, to help explain what a CPS report is and isn’t, how and under what circumstances a CPS report may lead to a Family Court filing, and what you should know in the event you find yourself on the receiving end of a CPS report or neglect petition. (more…)

Tags: child abuse, child protective services, cps, family court, statewide central register

In October, 2010, the provisions of Section 236 (B)(7)(d) of the Domestic Relations Law, were enacted, granting parties the right to seek a modification of the child support provisions contained in an Agreement as incorporated into an Order or Judgment upon a showing of :

• A substantial change in circumstances; or
• That three (3) years have passed since the Order or Judgment was entered, last modified or adjusted or
• There has been a chance in either party’s gross income by fifteen percent (15%) or more since the Order of Judgment was entered, last modified, or adjusted

The new law effectively introduced two (2) additional means of changing a child support order (more…)

Tags: child support provisions, domestic relations law

A frequently asked question in cases of divorce is; what has to be divided with my spouse? The general rule is that property acquired after the ceremony and before the filing of a summons is marital property. The general exceptions are property from an inheritance, a gift from someone other than your spouse, or the result of a personal injury recovery.

A common follow-up question concerns income or property that comes into a spouse’s possession after the filing of a divorce action, but before the matter is finalized. Examples of such (more…)

Tags: divorce, marital property

Countless divorce clients approach me with the same concern: If I move out of the house, will it be considered abandonment? The answer is no! “Abandonment” is one of the most misunderstood concepts in divorce lingo. In New York State, you must have a reason to get a divorce, called a “ground” for divorce. Abandonment is one of seven grounds on which you can commence a divorce action. In order to file for a divorce on the ground of Abandonment, you must show that your spouse abandoned you for a period of one year or more. Moving out of the marital residence after a divorce action is commenced is not considered abandonment. Even if you did abandon your spouse for a year, it merely provides your spouse with a reason to commence a divorce action. It does not in and of itself affect the outcome of the divorce action.

However, before you decide to move out there are other considerations you should discuss with your attorney. (more…)

Tags: abandonment, divorce, divorce action, divorce grounds, moving out