On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Few things will destroy a marital relationship more quickly or more thoroughly than adultery. When one spouse becomes physically intimate with someone from outside the marriage, the foundation of trust and fidelity that has held up the relationship may start to crumble.

Those suspecting infidelity often wait to take action until they are certain that their spouse has cheated. What are some of the more common ways that people uncover their spouse’s infidelity? Will an uncovered affair have an impact on New York divorce proceedings?

The proverbial lipstick on the collar

One of the more common ways that people get caught cheating is by returning to the marital home with some kind of physical evidence of their recent encounter on their bodies. Perhaps there is a smear of makeup on their clothing or remaining traces of lipstick on a man’s lips. Even unfamiliar cologne or perfume may confirm someone’s worst suspicions.

An unexplained second phone or a new lock on an existing one

When someone locks down their mobile phone when they previously didn’t care if you quickly accessed it to use their camera, they will usually have a reason for making that change. Shutting you out of a device or locking you out of accounts that you used to have access to could be an attempt to hide bad conduct. A secret second phone is often used solely for that purpose.

Missing funds or unexplained charges

Conducting an affair isn’t cheap, and spouses often notice the financial evidence. Unexplained or questionable charges on your credit card or frequent cash withdrawals from your bank account could be warning signs.

What will adultery mean if you divorce?

Most couples divorcing in New York will seek no-fault divorces. However, adultery is one of the fault-based grounds for the dissolution of your marriage. Those with evidence of adultery could pursue a fault-based divorce or trigger an infidelity clause in a marital agreement.

Generally, infidelity doesn’t have much of an impact on property division, support or custody decisions in New York divorces. However, a judge can consider infidelity and other spousal misconduct when dividing your property. If your spouse has spent marital assets on their affair, that could impact how the courts divide your property or the resulting debts.

Learning more about your rights if you do get divorced could help you if you have serious suspicions about your spouse’s adherence to their marital vows.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Divorce is always a difficult time in life, no matter how long your marriage lasted.

In New York, the same laws apply to all marriages of couples who meet the residency requirements. The state recognizes fault and no-fault grounds for divorce.

No-fault grounds divorce in New York

You are eligible to seek a no-fault divorce in New York if you and your spouse separated at least a year ago. Alternatively, if you cite an irretrievable breakdown of the marriage going back at least six months, you can file for a no-fault divorce in the state. Lastly, couples living apart for a minimum of one year can seek a divorce after filing a separation agreement.

Fault-based divorce in New York

When one spouse believes the other is to blame for the deterioration of the union, he or she can seek a divorce based on fault. These divorces require proof that the other party caused the marital breakdown. Fault-based divorces typically take longer and cost more due to the need to prove fault at trial. The spouse not deemed at fault can benefit from this additional time during custody and property decision-making. New York allows at-fault divorces based on the following grounds:

• adultery
• abandonment for over one year
• imprisonment for three or more years
• mental or physical abuse

No one goes into a marriage with the expectation of divorce, but the reality is that it happens frequently in today’s society. Understanding your state’s laws can help you make smart choices as you embark upon this challenging journey.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C.

Even though most parents prioritize the emotional well-being of their kids, everyone makes mistakes. You may even lie awake at night thinking of things you could have or should have done differently. Still, as long as you provide for the best interests of your kids, you may have a good shot at receiving the custody arrangement you want.

Sometimes, though, divorced or divorcing parents use the kids as pawns. That is, one parent either intentionally or inadvertently tries to turn the children against their other parent. Known as parental alienation, this type of behavior may be catastrophic for a child custody case.

Common examples of parental alienation

Parental alienation is not usually a single comment or off-handed action, as alienating behaviors are typically part of a disturbing pattern. Still, if you or your children’s other parent do any of the following regularly, parental alienation may be an issue:

• Preventing the other parent from seeing the kids
• Excluding the other parent from ordinary parent-child activities and functions
• Telling the kids they cannot trust the other parent
• Making up false information about the other parent
• Asking the children to choose sides or spy on the other parent

Your child custody case

If you and your children’s other parents cannot come up with an acceptable custody agreement, a judge may have to intervene. In New York, judges must make custody determinations that align with the best interests of the involved children. Because it often constitutes psychological child abuse, parental alienation is not in any child’s best interests.

It can be difficult to change behaviors, but you do not want to engage in parental alienation. Ultimately, though, if your children’s co-parent continues to misbehave, evidence of his or her parental alienation may persuade a judge to award custody to you.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Couples who have marital agreements know exactly what will happen when they divorce. They already set their property division rules in writing in their prenuptial or postnuptial agreement. The majority of couples divorcing in New York will not have an agreement dictating what they do with their assets, meaning they will have to arrange a settlement or have a judge handle the process for them.

Even if you hope to resolve your property division dispute outside of court, understanding how New York approaches property division will give you more leverage during that conversation. After all, if you cannot reach an agreement, then you will have to go to court and apply the state rules to your assets. How does property division work in a New York divorce?

The courts apply state law to your assets and debts

A family law judge tasked with dividing your assets will use the state’s equitable distribution standard as a guide for the process. The goal is for the judge to review your disclosed assets and debts to fairly divided your marital property between you.

Only marital assets are subject to division. The wages earned by either spouse during the marriage are typically marital property, and the same is true of everything you purchased during the marriage. Even your credit cards or student loans taken out during the marriage with the intent of supporting the family could be marital debt that the judge will have to split.

Assets you owned before you got married and anything that you inherited will usually be separate property that the courts will not divide. However, if there has been commingling of those separate assets with marital assets, then those separate assets could also be vulnerable during the property division process.

How can you determine who gets what?

Unfortunately, there is no reliable way to exactly predict the distribution of your assets in a contested New York divorce. Much is left to the judge’s discretion, and everything from the length of your marriage to your custody arrangements can influence what a judge believes is fair and appropriate.

The only way to retain control over the division of your property is to reach a settlement with your spouse outside of court, possibly through mediation if necessary. Thinking about your hopes for the future can help you establish practical goals for property division in pending New York divorce.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

If you and your soon-to-be ex-spouse are not able to come up with a custody arrangement during your divorce negotiations, you may have to ask a judge to decide for you. In New York, judges have a legal obligation to determine what is in the best interests of the children. Parental alienation certainly is not.

According to many child psychologists, parental alienation is a form of emotional child abuse. When a parent engages in alienating behaviors, he or she actively tries to turn the kids against the other parent. If you have evidence of parental alienation, a judge may intervene to protect your kids.

How does parental alienation look?

It is impossible to identify a single behavior as parental alienation, as this type of parental misconduct requires a pattern or practice of bad acts. Still, if your ex-spouse does one or more of the following regularly, you may be the victim of parental alienation:

• Telling your kids you are a bad, untrustworthy or dangerous person
• Asking your children to spy on you and disclose details
• Preventing you from attending normal parental functions and activities
• Prohibiting your kids from talking to you
• Keeping you from seeing your children

How does parental alienation affect child custody?

When determining what is in the best interests of the children, judges look at a number of factors. Nevertheless, a parent who sabotages the other parent’s relationship with the kids is probably not acting in their best interests.

Ultimately, proof of alienating behaviors may give you legal grounds to seek sole custody, supervised visitation or other arrangements that do not harm the kids.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

If you are in the process of divorcing your spouse, your odds of receiving the outcome you want may depend on both New York law and your unique set of facts. If you have kids, though, the state has an interest in ensuring custody aligns with their best interests.

Having no valid immigration status can make life difficult. Even if you have legal permanent residency or some non-immigrant status, you may feel disadvantaged. Fortunately, your immigration status or lack thereof probably should not affect the outcome of your custody dispute.

Separate jurisdictions

With few exceptions, family-related matters fall within the legal jurisdiction of the court of New York. Immigration law, by contrast, is a federal matter. Therefore, you should not expect the judge in your case to wade into the technicalities of your immigration status. In most cases, you also do not have to worry about a New York judge reporting you to immigration officials.

The best interests of the child standard

When making custody determinations, judges in New York have a legal obligation to determine what is in the best interests of the children. To do so, they closely examine a number of factors. While this list is not complete, the following factors are likely to be relevant:

• Your relationship with your kids
• Your ability to provide a stable and healthy environment for your children
• Your history of substance abuse or criminal activity
• Your childrens’ educational and other needs

While New York law does not include immigration status in the factors judges must consider, some immigration-related matters, such as a deportation order, may run counter to the best interests of your kids. Ultimately, to increase your chances of receiving an acceptable custody arrangement, you may want to pursue legal counsel from both an immigration attorney and a family lawyer.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Pets are precious members of the family and as such, they become a hot-button issue in cases of separation and divorce.

However, no matter how strongly pet parents feel about their beloved companions, courts cannot equate pet custody to child custody in contested divorce cases.

Pet custody criteria in New York

Judges determine child custody arrangements by considering the best interests of the child, but when charged with deciding where the family dog, cat or bearded dragon should reside, New York courts use the following criteria:

• Who legally owns the pet?
• How did the pet join the family (purchased, adopted or gifted)?
• Which of the parties took on most of the pet care during the marriage?
• Who is in the best position to meet the daily needs of the pet?
• What pet custody arrangements have the parties agreed to post-split?

Due to caseload issues, not all courts will agree to hold pet hearings, and these judges may issue an order for animals that follows the child visitation schedule or leave the pet custody decisions entirely to the parties.

Special considerations for service animals

Registered service animals aid persons afflicted with disabilities such as visual, hearing or mobility impairments. As such, the party in need will likely retain ownership of the service animal after the divorce.

Because the law regarding live beings is everchanging, judges’ decisions often occur in a gray area of the law between custody and personal property. Therefore, it is important to understand how courts in your district typically approach the subject of pet guardianship in divorce cases.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Going through a divorce is not easy and figuring out a fair child custody arrangement adds another layer to the process.

Each case is unique, and the courts can tailor the custody arrangements to accommodate your specific situation. Among others, the following factors play a large role in determining the custody arrangement.

1. Best interest of the child

Your child can experience upheaval due to the divorce, even if you take steps like nesting to minimize disruptions. The court will examine the home environment and consider any allegations of abuse when making a determination. This process can help ensure that your child lives in a stable and supportive environment.

2. Age and capabilities of the child

Your child’s age and capabilities are a crucial component of the custody arrangement. If your child can state their wishes, then the court will take that into account. A teenager who can drive may prefer a more flexible arrangement, as he or she can travel between the two households more readily than a child in elementary school.

3. Parent’s willingness to work together

If you and your former partner are willing to work together to come to an agreement, this can facilitate the process. Although you may not agree on every aspect, demonstrating a willingness to work together reflects well on both parties. This cooperation can help your child adjust to the divorce more readily.

While you and your former partner may no longer want to be together, it is important to work together to find a solution that keeps your child’s best interests in mind.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

As a parent, you want to be there for your children and to see them as much as you can. With a two-parent household, it was easier for you to see them even when you had to work, because you could be there are much or as little of the time as possible and still know someone was there to protect them.

Now, you’re in a difficult position. If you take custody of your children, there are days when you will be on call. You’ll have to go into work if you’re called, and there may not be another person available to care for them. As a surgeon, EMT, firefighter, police officer or other person who has a job with on-call hours, this can be a devastating blow to your custody case.

When you work on-call hours, you have to consider alternatives

When you can’t pin down your schedule, you will need to consider alternatives that allow you to spend time with your children while still fulfilling your work-related obligations. For example, would it be possible to hire an in-house nanny who lives with you and is available during your on-call shifts? Then, if your children are staying with you, the nanny would already be there if you had to leave suddenly. If you end up not being called in, that’s even better, since you’ll get more time with your kids.

Another option may be to have a neighbor or family member nearby who is willing to watch your children. You could also look into daycares or play areas offered by your employer so that your child can be safely monitored at your place of work while you’re doing your job.

It can be hard to navigate custody issues when you have an irregular schedule, but that doesn’t mean that you shouldn’t get to see your children. You do an important job, and needing to be there in emergencies doesn’t mean that you don’t care about your child’s wellbeing. It’s worth looking into alternative options for daycare or babysitting, so that you can set up a regular custody schedule with confidence.

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On Behalf of The Law Offices of Joseph H. Nivin, P.C. 

Divorce has the potential to affect children negatively. After learning about the end of your marriage, your children may experience anger, sadness, depression or even ambivalence. To help children cope with divorce, some parents choose nesting. 

Sometimes called bird nesting, nesting is a post-divorce arrangement that keeps the family home intact. With nesting, the kids always live in the same place. Each co-parent rotates into the family home while living in a separate location during non-parenting time. 

Nesting requires cooperation

At the beginnings and ends of your scheduled parenting time, you and your former husband or wife must be willing to relocate to and from the family home. Consequently, for an effective nesting arrangement, you and your ex-spouse must be on good terms. 

Nesting provides stability

Shuffling children between two households may discombobulate them. With nesting, your children always have the same place to call home, giving them access to a stable and predictable environment. 

Nesting smooths custody transitions

Preparing the kids for the custody transition is often easier with nesting, as children do not have to pack or ready themselves emotionally to move temporarily to their other parent’s home. With nesting, there is also less chance of losing essential items, like homework or medication, or treasured ones, such as a security blanket or stuffed animal, during custody swaps. 

Nesting does not have to last forever

A long-term nesting arrangement may be impractical. Fortunately, you, your ex-spouse and your kids do not have to nest forever. Nesting for a few months or until your children acclimate to their post-divorce world may help to minimize the negative toll your divorce may take on them. 

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