Divorce Law New York (attorney’s Fees)

July 16th, 2009 at 09:01pm Under Divorce Law

It is clear that the trial court has general power to award attorney fees pursuant to subsection (a) of this section and also pursuant to the plenary equitable powers of the trial court; however, regardless of the source, the power must be exercised while the trial court retains general jurisdiction over the cause. Where the court had evidence before it of the financial resources of both parties when ruling on the issue of attorney fees and where no hearing had been requested, the trial court’s failure to conduct a hearing on the propriety of the award of attorney fees was not error. The award of attorney fees is based on a showing of the inability of one spouse to pay and the ability of the other spouse to do so. The court may order either spouse to pay a reasonable amount for the costs and attorney fees necessarily incurred by the other spouse. The granting of attorney fees is improper where no evidence is heard as to the items of service which were performed, the basis of the amount requested, or the reasonableness of such fees.

Where petition for fees was submitted prior to entry of a judgment dispositive of the merits of the action, and where the clear import of the language of subsection (a) of this section was that the court may order attorney fees to be paid by either party to either attorney, the provision was given its clear meaning and the trial court properly entered judgment in favor of a firm against its own client. The general rule concerning awards of attorney fees in a divorce suit is that the party seeking such relief must show financial inability to pay and the ability of the other spouse to do so. The fees allowed in dissolution proceeding should be fair to all the parties involved: the attorney to be compensated, the client, and the person required to make the payment.

The amount awarded should be fair compensation for those services which were reasonable and necessary to the action. The propriety of an award of attorney fees depends on the particular facts of each case; in determining whether a party is unable to pay attorney fees the assets of that party must be weighed in light of the parties’ standard of living. To justify the allowance of attorney fees, the party seeking relief must show financial inability to pay and the ability of the other spouse to do so. The party seeking to recover attorney fees must show financial inability to pay and the ability of the other spouse to do so; the decision in regard to fees then rests within the sound discretion of the trial court. Attorney fees in a dissolution of marriage proceeding are the primary obligation of the party for whom the services are rendered. The allowance of attorney fees to an opposing party is justified where the party seeking relief demonstrates financial inability to pay and the ability of the other spouse to do so. Although the trial court is permitted wide discretion in awarding attorney fees, that discretion is not unbounded. The allowance of attorney fees for appeal rests within the sound discretion of the trial court, which allowance will not be disturbed on review in the absence of a clear showing of abuse; fees may be allowed only upon findings of inability to pay by the petitioning spouse, and that the other spouse is able to pay.

The well-established principle that the amount of attorney fees rests in the sound discretion of the trial judge, and will not be interfered with unless abused, applies to support awards. The allowance of attorney fees in a divorce proceeding is not automatic, but depends on a showing that one spouse is financially unable to pay the fees, while the other is able to do so. The decisions whether to grant periodic alimony, attorney fees, and suit money rest in the sound discretion of the circuit court. The matter of fixing attorney fees is one of the few areas in which a trial judge may rely on the pleadings, affidavits on file and on his own experience. Former section 15 of the Divorce Act authorized the trial court to order the payment of such attorney fees as may seem equitable, regardless of the disposition of the case. The awarding of attorney fees rests in the sound discretion of the trial court and will not be interfered with unless such discretion is clearly abused.

Ability to Pay

In General The trial court did not err in requiring ex-wife to pay a majority of her attorney fees. For purposes of determining an award of attorney fees, financial inability exists where the forced payment of available funds would strip a person of his or her means of support and undermine his or her economic stability. The party seeking attorney fees must show an inability to pay, and the ability of the other spouse to pay fees. Before one spouse may recover attorney fees from the other, the spouse seeking fees must demonstrate that he or she is financially unable to pay and that the other spouse has the ability to pay; a mere showing that the other spouse has a greater ability to pay attorney fees is not sufficient to justify an award of fees under this section.

Former Law

Under former Rev.Stat., ch. 40, para. 16 in order to justify allowance of attorney’s fees in a divorce case, the party seeking the relief needed to show financial inability to pay and the ability of the other spouse to do so; however, financial inability was not synonymous with destitution for the income and assets of both parties were considered, and if use of the available funds of the party seeking the attorney’s fees would strip the person of the means of his support and undermine his economic stability, financial inability to pay such fees was shown.

It must be shown that the party seeking this relief is financially unable to pay and that the party seeking this relief is financially unable to pay and that the other party is able to do so; however, when a party does not request a hearing on his ability to pay or his opponent’s inability to pay, the right to such a hearing is waived and the court may base its decision on the financial conditions of the parties as shown by the record.

Installment Order

Few can afford the expenses of divorce without incurring debt, which must be paid by someone; a party who does not have the present ability to pay his own attorney fees can nevertheless be ordered to pay his own attorney, although enforcement might have to be accomplished by an installment order.

Not Shown

Even though respondent had greater earning capacity he could not pay the bulk of petitioner’s attorney’s fees and continue to pay his own monthly expenses and attorney fees.

Rosen Law Firm Launches New Blog:Kramer Vs.

July 16th, 2009 at 03:01pm Under Divorce Law

WHAT: The largest divorce firm in North Carolina, Rosen Law
Firm, launched a new blog. Kramer Vs. covers news stories on
divorce, alimony, adultery, domestic violence, and child
custody.

WHERE: http://kramervs.rosen.com

WHEN: Up and running with weekday postings.

CONTACT: Alison Kramer, Director of Public Relations, Rosen Law
Firm, Phone: 919-256-1542, Cell: 919-523-7104,
akramer@rosen.com, http://www.rosen.com

***

Rosen Law Firm 4101 Lake Boone Trail, Suite 500 Raleigh, NC
27607 www.rosen.com “Divorce is Different Here”

Divorce Law Summaries New York

July 16th, 2009 at 09:02am Under Divorce Law

The following items have been handed down by the marital and family law judges. The details of the cases have been summarized for easier statements of the rulings:

Res Judicata

The original decree awarding child support payments are res judicata so long as there is no change in the circumstances underlying the decree.

Retroactivity

A circuit court is not statutorily barred from imposing a retroactive child support obligation upon a respondent in an ongoing child support proceeding who, contrary to the court’s directive, has failed to inform the court of his having resumed employment. In this case no award of support was made in the original judgment, therefore, any subsequent award of support would constitute a modification of the previous judgment, thereby bringing the case within the purview of subsection (a) which prohibits the award of retroactive support, hence, the trial court properly denied plaintiff’s request for retroactive child support. It was proper under former section 18 of the Divorce Act, for the trial court to direct the father of a child to reimburse the mother for moneys expended after their divorce for their child’s support during his infancy even though in the original proceeding there was no order made relative to the obligation to provide child support. Where notification of alimony and support payments was proper, the trial court did not err in refusing to make the modification order retroactive to the date o which the petition to modify was filed rather than to the date on which the defendant’s monthly income was decreased.

Same Day Modifications

The trial court had discretionary power to insert an amendment in a child support agreement incorporated in the divorce decree, on the same day as the decree was issued, that deemed the support order temporary for a six-month term, even though the court inserted the amendment without prior notice to the parties and contrary to their express wishes.

Security

Where respondent had provided for the needs of his children since the separation, and there was no indication that he would not continue to do so in the future, respondent’s estate would be liable for future support “to the extent just and appropriate under the circumstances” should he otherwise fail to provide for them, there was no reason to believe that respondent, or his estate, would not be able to provide the support mandated, and respondent had ample assets apart from the pension and profit-sharing plan which provided all the necessary support, the trial court did not abuse its discretion in failing to require that respondent furnish security for his support obligations.

Social Security Benefits

Because social security dependent disability benefits are earned by the non-custodial parent, made on behalf of such parent, and, in fact, paid at least in part with contributions from the non-custodial parent’s own earnings, payment of social security dependent disability benefits satisfies a non-custodial parent’s child support obligation.

Divorce Law UK

July 15th, 2009 at 09:01pm Under Divorce Law

Divorce or dissolution of marriage is the final termination of a marriage, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between two persons. In most countries, divorce requires the sanction of a judge or other authority in a legal process to complete a divorce. A divorce does not declare a marriage null and void, as in an annulment, but divorce cancels the marital status of the parties, allowing them to marry another.

Divorce laws vary considerably around the world. Divorce is not permitted in some countries

What happens in a divorce?  In order to get divorced, either the husband or wife must make an application to the Court for a Divorce. For a Divorce to be granted, the Court must be satisfied that the marriage has broken down in one of five ways, which are:-

Where both parties agreed to divorce, this is called an undefended divorce. A straightforward undefended divorce should proceed as follows: –

If the divorce is defended, there is an entirely different procedure applies within defended proceedings. This procedure is much more lengthy and costly and in the event of proceedings becoming defended, you should obtain very careful advice about this.

Greenfields are leading UK Immigration Solicitors also provide consultancy for family legal advice, Conveyancing matters and legal agreements for landlord and tenants.

Hindu Divorce Law and Divorce by Mutual Consent

July 15th, 2009 at 03:01pm Under Divorce Law

Divorce by Mutual Consent

Subject to the provisions of this Act, a petition for dissolution of marriage by a decree of divorce may be presented to the District Court by both spouses if…

they have been living separately for a period of one year or more

they have not been able to live together

they have mutually agreed that the marriage should be dissolved.

On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than 18 months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, pass a decree of divorce declaring the marriage to be dissolved.

Hindu Divorce …http://www.sitagita.com/view.asp?id=402

Divorce Laws in Hawaii

July 15th, 2009 at 09:02am Under Divorce Law

Residency

In order to file a divorce case in Hawaii, strong residency requirements should be met for the court to consider the case. The residency requirements Hawaii are: The partner filing a divorce must be living in Hawaii for at least three (3) months. Final divorce approval will be given only when one partner has been Hawaii resident for at least six (6) months. Parties should file a divorce in: (a) the judicial district where the applicant resides; or (b) the judicial district where the both partners last lived.

Documents required for filing divorce

Complaint for Divorce and Final Decree of Divorce – these are the vital documents required to initiate and finalize a divorce case.

Distribution of Property

Hawaii is considered as equitable distribution state, so according to laws, martial properly is divided equally among the parties. If the parties are unable to reach and conclusion about how to distribute property, then court will use three step process for appropriate distribution. First of all court will decide what property is marital. Second, according current real state value, court will determine a value of the marital property. In last, court will divide the marital property in an appropriate way, not necessarily equal, instead what is considered to be fair.

Change of Name or Restoration of name

After filing for a divorce case and if requested either party can restore it name to former name.

Mediation Counseling

The court can delay the case proceedings up to sixty (60) days and can ask the spouses to get appropriate counseling, if one of the spouses does not accept that there has been a severe or significant breakdown of the marriage.

Alimony

Hawaii courts can order permanent or temporary alimony during case proceeding if it feels it is appropriate. The court has the authority to award both spouse maintenance, for both (or anyone), for an unspecified period or a limited period.

Child Custody

Child custody (Joint or Shared) is getting more popular with the Hawaii courts. If parties request to have shared or joint custody, it will most likely be granted, in almost all cases. Joint or Sole custody can be awarded to both parents based on child’s best interests.

Child Support

To settle the problem of child support, both parents can get help from Hawaii court. The court will announce its own decision based on merit, financial situation, burden and other aspects of case.

Divorce Laws in Washington Dc

July 15th, 2009 at 03:01am Under Divorce Law

Residency For filing a divorce case in Washington D.C., complete residency requirements should be met for the court to accept the case. If the court finds that it does not have jurisdictional powers or rights to hear the divorce case, it will not be accepted for hearing and in some cases it will eventually be dismissed. The residency requirements in Washington DC are as follows: Either partner must be a Washington D.C resident for at least 6 months in order to file a divorce case.

Documents required for filing divorce Complaint for Divorce and Final Decree of Divorce – these are the important documents required to initiate and finalize a divorce case. Some other documents that are normally filed during the process are: Affidavit of Corroborating Witness, Financial Affidavit, Marital Settlement Agreement and Affidavit Regarding the Children.

Distribution of PropertyWashington D.C. is considered as “equitable distribution” state, so as per laws, martial properly is distributed equally among the partners. If partners are unable to reach and conclusion about how to distribute property, then court will use three step process for appropriate distribution.

First of all court will decide what property is marital. Second, according current real state value, court will determine a value of the marital property. In last, court will divide the marital property in an appropriate way, not necessarily equal, instead what is considered to be fair.

Change of Name or Restoration of nameAfter filing for a divorce case, either partner can restore their name to their former name

Mediation CounselingCourt may order that one party or both parties attend a brief parenting education class before divorce being finalized but only if the case involves minor children.

Alimony District of Columbia courts may order permanent or temporary alimony during case proceeding if it feels it is appropriate. In making this decision the court will consider a various financial factors except marital fault.

Child CustodyChild custody (whether Joint or Shared) is becoming day by day more and more popular with the District of Columbia courts. If parties request to have “legal” shared or joint custody, it will most likely be granted, in almost all cases. As for shared or joint “physical” custody, the District of Columbia court will determine this more strictly in order to find out if it is a correct choice.

Child SupportIn order to decide a monthly support amount, parties can refer to the District of Columbia child support worksheet for best solutions. This worksheet uses the child support procedures that are defined by state law. The court will use this same child support worksheet as a building block for deciding the support obligation – i.e if parties are unable to come to a solution on this issue.

Understanding Divorce Law and Family Law

July 14th, 2009 at 09:02pm Under Divorce Law

What You Should Know About Divorce Law

July 14th, 2009 at 03:01pm Under Divorce Law

With the divorce rate at an all time high, it is important to have a full understanding of divorce laws. Nearly 50% of all marriages will end in a divorce. Therefore, it is vital that you know the ins and outs of the laws. Divorce laws do vary from state to state so it is important that you check with the laws for your particular state. However, there are some general laws that apply across the board.
If you are looking for an alternative to the more traditional litigation, divorce mediation might be an option. A mediator’s main priority is to try and help the two parties come to a mutual agreement. The neutral third party is there to ensure that both parties are getting a fair deal. A mediator can work with the spouses to work through problems such as child support, custody, visitation, property division, alimony and much more.
Another alternative to the more traditional litigation is collaborative law. For those divorcing couples who wish to avoid litigation but require strong legal representation, they should consider collaborative law. Collaborative law gives you the ability to retain a team of divorce professionals.
Some people believe that one party will receive a majority of the property division. However, it is more likely that the marital assets will be divided fairly evenly for both parties. Therefore, it is vital that both parties create some clear priorities and decide what is really important to them.
Health insurance and taxation are two other important issues when considering a divorce. If your insurance coverage is through your soon to be ex-spouses employer, then it will be important that you continue to have coverage for yourself and any children involved. This can all be worked out through legal litigation. With regards to taxes it is important to determine what dependency exemptions both parties are eligible for.
There are a variety of divorce laws that are set in place for divorcing couples. Divorce is not an easy situation for anyone. However, by knowing and understanding the divorce laws in your particular state, you can ease some of the headache associated with divorce.

Child Support Vs. Spousal Support: New California Divorce Law

July 14th, 2009 at 09:01am Under Divorce Law

A new California divorce law allows a spouse receiving income from child support to seek an increase in his or her spousal support upon the maturity of the minor child. This law, (Family Code §4326), which is set to terminate on January 1, 2011, considers the loss of child support income incurred by a parent when the child becomes no longer eligible for support, (e.g. reaches the age of 18 or graduates high school) to be a “change in circumstances” substantial enough to justify a request to modify their spousal support.

This new law presents a departure from prior court rulings. In a 1999 case, In re Marriage of Lautsbaugh (1999) 72 Cal.App.4th 1131, 85 Cal.Rptr.2d 688, a California Appeals Court reversed a decision granting a wife a $350 increase in her monthly support payments. The wife claimed such an increase was justified because her daughter had graduated from high school, and was no longer eligible for child support.

In reversing the trial court, the Court of Appeals reasoned that the loss of child support payments upon the daughter’s reaching maturity was contemplated by both parties during the initial divorce proceedings and was therefore an expected change. The court went to state that a change previously accounted for, cannot justify an increase in spousal support. In the end, the court held that when the daughter graduated, her father’s child support obligations terminated.

While the rationale of the Court of Appeals makes sense, the new law effectively nullifies Lautsbaugh and seemingly broadens the definition of a “material change” to include previously contemplated events. In addition, the provision interrelates the two types of support, which have been historically separate and should remain that way.

Although this current state of the law does not go so far as to require California family courts to now consider modifying a spouse’s support anytime a change in financial status occurs, it definitely eases the burden of proof. Whether the parent will be required to show that their expenses, and not those of the child, justify a change in support, remains to be seen. Whatever the eventual outcome, Family Code §4326 will likely be a source of much debate in the coming years, especially if it remains in effect after January 2011.