Family Law
When individuals and families seek the help of lawyer it is usually for a momentous occasion such as an adoption, a divorce or the passing of a loved one. Having a competent and compassionate attorney to help you through the process can make a world of difference. With all the emotion and stress already tied to these events, the thought of lawyers and courtrooms can seem like too much; but having the right team by your side will help you and your loved ones make it through with as little grief as possible.
Divorce
We at Xue & Associates are compassionate to the anguish and stress that accompanies divorces, and we are dedicated to counseling and guiding our clients in every way possible. We advise and consult clients in a wide range of divorce related issues, including contested divorce, uncontested divorce, property distribution, child custody, visitation, and child support.
We are also prepared to offer our clients knowledgeable representation in other related areas, such as, fraudulent transfers, asset evaluation and investigation and grandparental rights.
The experienced attorneys at Xue & Associates also represent and advise clients regarding issues that occur before the marriage or after the judgment of divorce is granted. Whether you are in need of a prenuptial agreement, enforcement of a court order, or modification of support obligations, we have proven to be true advocates for the rights of our clients.
Spousal Support
In the State of New York, the courts can award maintenance to one spouse. Maintenance, often referred to as "alimony" and "spousal support", is presented in the form of a monetary payment from one spouse to another. Either spouse can be ordered to pay maintenance to their spouse by the court. The monetary payment can be awarded over time or in one large sum.
In determining spousal support payments and duration, the court has broad discretion to award any amount of money that is necessary for the support of the recipient spouse as long as the court's decision is based on the facts and the circumstances existing at the time the award is granted. The facts are integral and carefully reviewed. Your attorney will play a big part in showing the necessary information and facts to help you reach the goals you are hoping for in regards to maintenance payments. The judge will examine the following before awarding spousal support:
- The length of the marriage
- The conduct of the parties during the marriage
- Age and health of the parties
- Occupations of the parties and their incomes
- Vocational skills and employability of the spouses
- Assets and debts of the paries
- Any special needs of the parties
- The opportunity of the parties to acquire future income and assets
In New York, there are three types of spousal support: permanent, rehabilitative, and restitutional:
Permanent Alimony is a payment for things such as food, housing, clothing, and other provisions of a spouse. If a spouse is requesting permanent alimony, they must prove their need of support. Permanent alimony, once awarded, remains in effect indefinitely or until there is a change in circumstances, which may lead to a review of the arrangement.
Rehabilitative Alimony is a payment designed to provide the necessary support to enable a spouse to refresh or develop job skills that will allow them to secure a vocation. This is a common form of alimony and it is temporary.
Restitutional Alimony is a repayment of support given to a spouse while they were pursuing their education or enhancing vocational skills. Restitutional alimony is temporary.
Spousal support is often one of the most difficult situations to deal with in the divorce process because it affects the current and future lifestyles of both spouses. No one wants to be hindered financially by the payment or lack of alimony. If you are encountering problems with spousal support, contact an experienced attorney at Xue & Associates. We will aggressively fight for your interests.
Child Custody
Child custody refers to the legal guardianship involved in a divorce case. In New York, there are two forms of custody: legal and physical. Legal custody refers to the child's lifestyle. Religious, medical, and educational decisions are made by the legal custodian(s). Legal custody can be granted to one or both parents. Physical custody refers to where the child lives.
One parent may have sole physical custody, and the other may have visitation rights. Or, both parents may have physical custody, which means the child lives with each parent alternatively. If a parent has visitation rights, the visits between parent and child occur on a schedule provided by the court or agreed upon by the parties. Usually this schedule is mutually convenient for both parents.
The Best Interest of the Child: Child Custody Court Decisions in New York
When a child custody case is brought to the court, the court will make its decisions according to the best interest of the child and choose the environment that offers the most stability. Some factors courts will take into consideration in a child custody case are:
- The child's age, sex, and mental and physical health
- The parent's mental and physical health
- The parent's lifestyle
- Any history of child abuse
- The emotional bond between the parent and child
- The parent's ability to provide the child with food, shelter, clothing, and medical care
- The child's regular routine
- The quality of the child's education
- The child's preference, if the child is above a certain age (this is usually around age 12)
- The ability and willingness of the parent to encourage communication and contact between the child and the other parent
The court may also conduct a Child Custody Evaluation. An evaluation usually consists of interviews, psychological exams, and analysis of the children, and perhaps the parents. The court has the ability to deny a parent's request for an evaluation. Parents may be liable for the cost of the evaluation.
Our experienced team of attorneys knows how contentious child custody cases can be. We also know that the best solution is usually a decision that is agreed upon by both parents and the child. By providing you with up to date legal knowledge and the competent advice, your lawyer at our firm can make the custody decisions much easier for you and your family to make.
Equitable Distribution
Equitable distribution is a process for dispersing property acquired by or owned by either spouse upon the termination of marriage. Distribution replaces "common law" principles of property ownership.
In the State of New York, all property acquired and income earned during a marriage is subject to equitable distribution. When a marriage is dissolved, the courts must make decisions regarding the distribution of property. There are a number of factors that the court must consider before the property is divided:
- Marital Property
- Property acquired during the marriage
- Property acquired before the execution of a separation agreement
- Property acquired before the beginning of matrimonial action
- Businesses, Degrees or Licenses and Debts
Marital debt must also be divided when you prepare your separation agreement. If the debt occurred during marriage, it is generally marital debt. It does not matter if that debt is in your name or your spouse's name.
Regardless of the specific property you and your partner have which may be subject to equitable distribution, a lawyer will be valuable in helping you keep that property which is yours and obtain a part of the property which should be shared.
In the past several years the appellate courts of New York has been narrowing this doctrine, requiring that spouses who are seeking Enhanced Earnings contributed to their spouse attaining their degree or license.
In New York, when distributing property, the courts will sort out what is to be considered separate property and what is to be considered marital property. Separate property usually remains separate and marital property is distributed equitably between both spouses. The courts will also take into consideration the circumstances surrounding the case and both parties. Having an experienced lawyer on your side can help you reach the outcome which will be most beneficial to your future, in regards to property distribution. Your lawyer will understand what may be subject to be considered marital property and what information is needed by the court to determine this. The court generally finds the following property to be separate property:
- Property acquired before marriage
- Property acquired as inheritance, or gifts from a person other than the spouse
- Personal injury compensation
- Property acquired in exchange for or the increase in value of separate property
- Property considered separate according to a written agreement between the spouses
Businesses, degrees and licenses are all property subject to equitable distribution. If a spouse's business was formed during the marriage, then it is considered marital property. If the business was created prior to marriage and continued on during marriage, then the marriage has an interest in the increase in value of the business. If a spouse obtained any kind of degree during the marriage, the increased earnings as a result of the license are subject to equitable distribution. Any law, medical, accounting or financial planning licenses and MBAs acquired during the marriage are also subject to distribution laws.
A spouse must show proof that the property is indeed separate, and an attorney can help with this. When you work with an attorney at our firm, we will utilize accounting experts and others in this field in order to help the court determine what should be classified as separate property. This procedure must be done with all real property as well as bank accounts, investment accounts or any other asset that has value.
Contact us today to speak to an attorney about separation, divorce or any other family law matter that might be concerning you.
The material contained in this website is for informational purposes only and is not to be considered legal advice. A lawyer-client relationship is not created by visiting this website. Prior results do not guarantee a similar outcome.
