Marital & Family Law
Family Lawyers in West Seneca, NY
Matrimonial and Family Law
The matrimonial and family law section of the Lorigo Law Office is headed by Robert R. Vario, Esq. Mr. Vario has devoted his practice exclusively to the area of matrimonial and family law for the past 36 years with a proven track record of success. He has extensive experience in dealing with difficult issues which often times include custody battles, property distribution, business evaluations and distribution, support and maintenance, and establishment of separate property which is exempt from distribution in divorce cases. Mr. Vario has handled numerous cases involving all of these issues, many of which have resulted in successful trial verdicts and others which have resulted in successful negotiated settlements.
Preparing for the Worst
While it is always preferable to reach an amicable settlement, an experienced matrimonial lawyer will handle all cases as if they may result in a trial. This is because the gathering of information and documentation to substantiate your claims which is going to be admissible as evidence at trial, is crucial to achieving effective results. Therefore, if for example a spouse is going to claim that the down—payment on their home was a gift from their parents, then a tracing of those funds is necessary in order to prove that claim at trial. This would for example involve acquiring copies of your parent’s bank statements showing the withdrawal from their account, a copy of the cancelled check that was issued (payable to you alone hopefully) as well as a showing that the check was not deposited into an account containing marital funds and therefore co—mingled which would cause the gift to lose its identity as separate property. Finally, proof that the funds were then withdrawn from an account in your name alone and utilized at the time of closing are all essential elements of establishing appropriate tracing.
Similarly, in a contested custody case, maintaining a calendar log book in order to be able to accurately testify at trial as to which days the children were with you, as opposed to your spouse, is often times a crucial element in a Victorious custody dispute. The same holds true for obtaining doctor’s office records showing which party habitually takes the children to the doctor’s office, records to establish who signs the children up for school, records to establish which parent Signs the children up for extracurricular activities and any other relevant documents that would substantiate your claim that you have been the primary custodial parent and care taker of the children.
The Process and the Settling of a Divorce
The divorce process begins by filing a Summons for divorce setting forth your grounds which today would traditionally be limited to a claim that the marriage has been irretrievably broken for a period of six months or more. The Summons is then served upon your spouse by a process server and advises them that they have 20 days within which to respond to the Summons. Once your spouse retains their own attorney, then each party prepares a Financial Disclosure Affidavit and those are exchanged along With appropriate exhibits/documents to substantiate values.
The crucial component of a fair divorce settlement is being able to assign appropriate values to assets and liabilities and then divide those in an equitable manner. Sometimes, “discovery” which is a legal method to acquire information and documentation has to be employed in order to properly value assets and liabilities. Once you have a firm grasp of the assets and liabilities, it is always my practice to promptly send a settlement proposal to your spouse’s attorney in order to determine whether the case can be settled amicably. This also serves to narrow the issues as you know what areas are agreed to and what areas require further negotiation. This is extremely helpful in that it helps minimize the amount of time spent negotiating in court because you have narrowed the issues before your court appearance which allows you to concentrate on only the items being contested.
I would estimate that approximately 98% of the divorce cases that I handle result in a settlement as I truly believe that it is in both parties’ best interests to do so. This not only cuts down on the cost of the divorce, but also allows the parties control over how they are going to resolve their differences. In other words, it allows for creativity in drafting a divorce settlement as opposed to the running of a trial which will generally result in a cookie—cutter decision from the court. For example, trading off the house against your spouse’s pension may be what both parties desire whereas if you have to run a trial before a judge, the cookie—cutter decision will be that the house is sold and the proceeds split and each party gets their share of your spouse’s pension. At the Lorigo law team, we utilize our best efforts to understand that every family’s dynamic is unique and when there appears to be a deadlock between opposing parties, often times these differences can be amicably resolved by “thinking outside of the box” and using your imaginations to craft a settlement that is in both parties’ overall best interest. We will work hard to find the solution that is suitable for your family.
Service You Can Expect
Everyone today is familiar with how to use the internet and I believe that client reviews offer you valuable insight as to what you can expect when you retain me as your attorney. Examples of those reviews would be as follows:
Robert Vario — Best divorce lawyer in Buffalo.
I chose Robert Vario to represent me in my divorce case because of his 30 plus years’ experience. It was clear that Robert had the respect of the court and his peers and had a command of the facts of my case and the law. Robert was able to get me sole custody of my two daughters plus appropriate child support from my EX—wife who had abandoned me and our two children. I have recommended Robert to several of my friends who have also had very positive experiences using Robert as their attorney.
Excellent Lawyer
Mr. Vario did a great job and got superlative results. It wasn’t until we went to court that I saw the respect that he got from others at the courthouse. Always returned phone calls promptly. I would highly recommend him. If you find yourself in the unfortunate position of facing a divorce or family law proceeding, please contact me and I will do my absolute best to obtain you similar results.
Frequently Asked Questions
Divorce
Custody
Child Support
Visitation
Alimony
Division of assets
Q: Does my spouse have to move out of the house as soon as I serve them with papers?
A:
No. The mere fact of initiating a matrimonial action by service of a Summons upon your spouse does not require your spouse to vacate the home. If that were the case, all divorces would involve a race to the courthouse steps to see who could file first. The law in New York is that your spouse can only be excluded from the marital home where it can be demonstrated to the Court that there has been extreme physical violence, in which case for the safety of the victim spouse, the Court will exclude the aggressor spouse from the home.
Q: Do you first have to be separated for a year before you can become divorced?
A: No. This is a common misconception. What leads to this confusion is that parties can be separated by either a Judgment of Legal Separation or a written Separation Agreement. In either instance, after one year of being separated, either party can commence an action for divorce against the other party with your grounds for divorce being the fact that you have been separated for one year. In most cases, clients get divorced immediately and there is no requirement that you must first be separated for one year.
Q: Does it matter whose fault it is that you are getting divorced?
A: No. In New York, we have what is called the Equitable Distribution Law. Under our divorce laws, marital assets are divided on an equitable basis, without regard to which party's conduct caused the divorce. This often times causes the innocent spouse to feel cheated and upset but this is the state of the law in New York.
In rare instances, however, fault can be considered if it is in the form of economic fault where one party has wastefully dissipated the marital estate. In those instances, the Court can award additional funds to the other spouse to compensate them for the fact that funds have been dissipated by the other spouse.
Q: Can child support ever be modified?
A: Yes. Child support is always subject to modification, either upwardly or downwardly, based upon an appropriate change in circumstances following the granting of a child support order. Oftentimes, increases are granted when the payor spouse has enjoyed a substantial increase in income and the current amount of child support being paid is now insufficient to meet the reasonable needs of the children. Conversely, if the payor spouse is laid off or loses his or her employment, through no fault of their own, they will be entitled to a reduction in child support based upon their earnings at that time, which often times consists of unemployment insurance benefits. In all cases, the non-custodial parent must at least pay the minimum amount of support which is $25.00 per month.
Q: How is property divided?
A: Under New York State's Equitable Distribution Law, the court is required to review the various statutory factors listed in Section 236 B(5) of the Equitable Distribution Law. While the law does not mandate an equal distribution of the assets, practically speaking, that is oftentimes the result, unless there are exceptional circumstances which would justify the court in deviating and awarding more than half of the assets to one of the spouses. This normally only occurs in short-term, childless marriages.
Q: If my parents gave us $25,000 for a down payment on our house, does my spouse get half of that money at the time of a divorce?
A: Probably not. While the court is empowered to distribute the marital assets, there are certain assets that are precluded from the marital estate which are referred to as "separate property." These assets typically include a gift or inheritance directly to one spouse from their family, a personal injury settlement, or assets that a party owned prior to the marriage. In this case, as long as the funds were given to one spouse only and as long as that spouse can trace that the gifted funds went towards the down payment on the home, then the spouse who received the gift should be awarded those funds as part of the settlement or as extra proceeds from the sale of the home.
Q: What is the difference between sole custody and joint custody?
A: While ten people will probably give you ten different answers, my feeling is that it does not really matter what terminology is used. What is important to me is how much time you get to spend with your children. Many people operate under the misconception that joint custody means that you have the children 50% of the time. It does not. What joint custody is, in my opinion, is a tool which allows attorneys to settle custody disputes with a term that both parties can walk away happy with and feeling that they did not abandon custody of their children.
In joint custody situations, both parents typically have equal access to school, medical, and other records of the children, they have the right to be in attendance at all of the children's extracurricular activities, school functions, parent/ teacher conferences and the like. There is a presumption that as joint custodians, the parents will discuss matters of importance involving the children in an attempt to reach a mutual decision.
Conversely, when one spouse is awarded sole custody, that parent has the final decision-making authority and there is no requirement that they discuss or obtain the consent of the other parent with regard to making decisions affecting the children
Finally, it is important to note that in New York, COurts cannot award joint custody. It can only be done by agreement between the parties.
Q: At what age can children decide which parent they wish to live with?
A: There is no set age at which children can decide. The wishes of the children are but one factor for the court to consider in making a custody award. However, from a practical matter, once children reach the age of approximately 14 years, most courts consider the children old enough, mature enough, and intelligent enough to decide where they wish to reside.
Moreover, in litigated custody cases, the children will be represented by a court appointed law guardian, who is an attorney appointed to represent the child and to advocate the wishes of the child. In situations where the child expresses a desire to reside with one parent, the child's law guardian is oftentimes very instrumental in making the child's wishes known to the court, as well as to the litigants, which oftentimes accelerated a settlement of the case.
Q: Who pays for my attorney?
A: Each spouse retains their own attorney under terms agreed upon between the attorney and the client. However, in situations where there is a gross disparity in the income of the parties, then the non monied spouse has the right to submit an application to the court requesting an award of counsel fees from the monied spouse.
However, in situations where the parties' incomes are relatively even or in situations where both parties are receiving a significant amount of liquid funds as part of the divorce settlement, then in those cases, each party will normally pay their own counsel fees.
Q: What is the New York State Child Support Guidelines?
A: The presumptive amount or up to (currently) the combined parental income cap of $143,000:
New York uses the Guidelines for the determination of child support. Child support may be ordered for the care, maintenance, and education of any unemancipated child under the age of twenty-one years. "Child support percentage" shall mean:
- Seventeen percent of the combined parental income for one child.
- Twenty-five percent of the combined parental income for two children.
- Twenty-nine percent of the combined parental income for three children.
- Thirty-one percent of the combined parental income for four children.
- No less than thirty-five percent of the combined parental income for five or more children.
If the court finds the Guidelines to be unjust or inappropriate, then the court shall calculate the basic child support obligation based upon consideration of the following factors:
- The financial resources of the custodial and non-custodial parent, and those of the child.
- The physical and emotional health of the child and his/her special needs and aptitudes.
- The standard of living the child would have enjoyed had the marriage or household not been dissolved.
- The tax consequences to the parties.
- The non-monetary contributions that the parents will make toward the care and well-being of the child.
- The educational needs of either parent.
- A determination that the gross income of one parent is substantially less than the other parent's gross income.
- The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income.
- Any other factors the court determines are relevant in each case.
Q: Is a premarital agreement enforceable?
A: An agreement made before or during the marriage shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded. Such an agreement may include:
- A contract to make a testamentary provision of any kind or a waiver of any right to elect against the provisions of a will.
- Provision for the ownership, division, or distribution of separate and marital property.
- Provision for the amount and duration of maintenance or other terms and conditions of the marriage relationship, (subject to the provisions general obligations law), and provided that such terms were fair and reasonable at the time of the making of the agreement and are not unconscionable at the time of entry of final judgment.
- Provision for the custody, care, education, and maintenance of any child of the parties, subject to the provisions of section two hundred forty of this article.
Q: Is there such a thing a "no-fault" divorce in New York State?
A: New York does not have no-fault divorce as such. Instead, New York's version of a no-fault divorce requires that the spouses live apart from one another for at least a year before a divorce can be filed. The parties must execute a Separation Agreement, which must be filed with the local County Clerk before the one-year period begins to run. The spouse suing for divorce must prove that he or she has substantially performed the terms of the Separation Agreement to obtain a divorce. If you obtain a divorce based on a written Separation Agreement, you don't have to sign any papers or give any testimony about reasons for the divorce. In other words, no personal allegations against either spouse are necessary. There are new grounds for divorce in New York called "Irretrievably Broken" which is now deemed to be a no-fault ground.
Q: What are the residency requirements to file for divorce in New York State?
A: To file for a divorce in New York, you must satisfy one of the following residency requirements:
- The marriage ceremony was performed in New York State and either spouse was a resident of the state at the time of the commencement of the action and resided continuously in this state for one year immediately before the action began;
OR - The couple lived as husband and wife in this state and either one is a resident thereof and resided in this state for a continuous period of one year immediately prior to the commencement of the action;
OR - The grounds for divorce occurred in this state and either party is a resident thereof and lived in this state for a continuous period of one year prior to commencement of the action;
OR - The grounds for divorce occurred in this state and both parties are New York residents at the time the action is commenced;
OR - If you and your spouse were married outside of New York and you never lived together as husband and wife in this state and the grounds for divorce did not occur in this state—either you or your spouse must presently be a resident of New York State and have resided continuously in the state for at least two years prior to bringing this case.
Q: Will anybody have access to the papers filed in court?
A: No. The privacy accorded matrimonial matters is a recognition of the inherently personal nature of these proceedings. The law prohibits the clerk of the court and the court reporter from allowing anyone, other than a party, or the attorney or counsel of a party, except by order of the court, to examine or copy of any of the pleadings, affidavits, findings of fact, conclusions of law, judgment of dissolution, written agreement of separation or memorandum, or testimony.
Q: What are some legal terms that I may need to know when filing for divorce?
A:
Filing Party Title:
Plaintiff
The spouse who will initiate the Divorce by filing the required paperwork with the court.
Non-Filing Party Title:
Defendant
The spouse who does not initiate the Divorce with the court.
Court Name:
Supreme Court of the State of New York, _____________ County
The proper name of the court in which a Divorce is filed in the state of New York. Each jurisdictional court typically has a domestic relations or a family law department or division.
Child Support Enforcement Website:
http://newyorkchildsupport.com/
The state run office devoted to enforcing existing child support orders and collecting any past due child support.
Initial Divorce Document:
Verified Complaint for Divorce, Summons and requisite Notices
The title and name of the legal document that will initiate the New York Divorce process. The filing spouse is also required to personally serve the non-filing spouse a copy of these documents.
Final Divorce Document:
Judgment of Divorce
The title and name of the legal document that will finalize the New York Divorce process. This document will be signed by the judge of the court to declare your marriage officially terminated.
Clerk's Office Name: Office of the Clerk of the County Court
The office of the clerk that will facilitate the Divorce process. This is the title you would address letters to or ask for when contacting the courthouse.
Legal Separation:
The grounds for legal separation (separation from bed and board) in New York are (1) adultery; (2) abandonment; (3) imprisonment for 3 or more consecutive years; (4) neglect of and failure to provide support for a wife; and (5) cruel and inhuman treatment. If only 1 spouse resides in New York at the time of filing the legal separation, the residency requirement is 2 years. However, the requirement is reduced to 1 year if: (1) the spouses were married in New York and either spouse is still a resident; (2) they once resided in New York and either spouse is still a resident; or (3) the grounds for legal separation arose in New York. In addition, there is no residency time limit requirement if both of the spouses were residents of New York at the time of filing the legal separation and the grounds for legal separation arose in New York. [Consolidated Laws of New York Annotated; Domestic Relations Law, Article 11, Sections 200, 230, and 231].
Property Distribution:
Equitable Distribution
The applicable New York law that will dictate how property and debt is to be divided upon Divorce.
Q: What is spousal support?
A: Spousal support is the term used for payments or transfers of money or assets from one spouse to another after a divorce. You may be more familiar with the word "alimony," or the term "maintenance", which are the same as "spousal support."
Throughout these questions and answers, the words "spousal support," "alimony," and "maintenance" are used interchangeably.
Q: Why is there spousal support?
A: Spousal support laws throughout the United States seek to prevent a divorced spouse from suffering from a decrease in his or her standard of living. Oftentimes after divorce, one spouse is untrained or has been out of the workforce for such a significant amount of time that it would be difficult, if not impossible, for them to quickly attain a job or professional position that would allow them to maintain the standard of living that they may have had while they were married.
Q: What is temporary alimony or "alimony pendente lite"?
A: The judge can award temporary alimony when a couple has separated, but has not yet divorced, or if the divorce is not yet finalized through the court system. Temporary alimony allows the receiving spouse to maintain a certain standard of living while adjusting to the reality of a marital breakdown. For example: the husband decides that he is going to move out of the marital home, therefore taking the initial step to dissolve the marriage. At this point, the wife will need funds available to pay the mortgage, utilities, etc. "Temporary Alimony" would allow her carry on in lieu of the immediate situation.
Q: What is "rehabilitative alimony"?
A: Rehabilitative alimony is financial support that is provided for a short period of time; to allow the receiving spouse time to get adjusted, establish him or herself, financially. This type of alimony will allow the divorced spouse time to "rehabilitate" him or herself and become completely self-supporting. For example: once the divorce is finalized, the decree or judgment will order "rehabilitative alimony" based upon certain termination criteria, like but not limited to, remarriage and/or gaining employment. The wife may need a certain amount of time to gain employment in a career-oriented position. This may be possible, but only if she first goes to school, this may take two years. Some reform activists have objected to the use of the word "rehabilitative," believing that it has a pejorative context. These people believe that the use of "rehabilitative" implies that the recipient was incapable of making a living, or that some type of personal fault must be "corrected." On the other hand, no other term has replaced it, so we will continue to use this common term.
Q: Does "Permanent Alimony" still exist?
A: Yes, permanent alimony can still be awarded. There is nothing stopping a couple from negotiating and agreeing to an award of permanent alimony. Outside of this situation, permanent alimony is rarely awarded. The same factors controlling an award of long-term, rehabilitative maintenance applies to permanent alimony: the recipient ex-spouse must have no realistic chance of employment and the marriage must have been over a long period of time.
Q: What are the New York Divorce Laws that are different for those in the military?
A: A New York military divorce creates several unique issues as compared to a typical civilian divorce, which is why specific state and federal laws and rules will apply.
Military Protection from New York Divorce Proceedings
There are laws set up to protect active duty military members against being held in "default" from failing to respond to a divorce action. These laws were enacted to protect active military from being divorced without knowing it.
Under the Soldiers and Sailors Civil Relief Act, 50 UCS section 521 and in the discretion of the local New York court, the divorce proceeding may be postponed for the entire time the active service member is on duty and for up to 60 days thereafter (This is typically the case when the active member is serving in a war). Also, this right to have the divorce proceedings postponed can be waived by any active duty member should he or she wish to get the divorce.
Serving an Active Military Spouse
The active duty spouse must be personally served with a summons and a copy of the divorce action in order for a New York court to have jurisdiction over the active military member. In an uncontested case, the active duty spouse may not have to be served as long as he or she signs and files a waiver affidavit acknowledging the divorce action.
Residency and Filing Requirements
The typical military divorce filing requirements are as follows:
- You or your spouse must reside in New York
- You or your spouse must be stationed in New York
Grounds for New York Military Divorce
The grounds for a military divorce in New York are the same as a civilian divorce.
Dividing the Property
Along with the normal New York property division laws, the federal government has enacted the Uniformed Services Former Spouses' Protection Act (USFSPA) that governs how military retirement benefits are calculated and divided upon divorce. The USFSPA is the governing body that authorizes a direct payment of a portion of a military retirees pay to the former spouse.
The federal laws will not divide and distribute any of the military member's retirement to the spouse unless they have been married 10 years or longer while the member has been active duty military.
Child Support and Spousal Support
In New York, both child support and spousal support/alimony awards may not exceed 60% of a military member’s pay and allowances. The normal New York child support guidelines, worksheets, and schedules are used to determine the proper amount of child support to be paid.
Q: What are the statutory ground to modify child support?
A: Under recently enacted legislation, all agreements for child support must include, in bold print, the following language:
Each party has the right to seek a modification of the child support order upon a showing of: (1) a substantial change in circumstances; or, (2) that three years have passed since the order was entered, last modified or adjusted; or (3) there has been a change in either party’s gross income by 15% or more since the order was entered, last modified or adjusted.
Of course, the easy cases are when more than three years has elapsed since the time of the last support order, or your former spouse’s income has increased by more than 15%. Likewise, however, if the child support payor spouse has had a reduction in their income by greater than 15%, they may also petition the court to lower their child support obligation.
Q: Can a non-parent ever get custody of my children?
A: Yes. While there is a legal presumption that only parents should have custody of their own children, the law does provide that when there are “exceptional circumstances”, that custody can be awarded to a non-parent. The law provides that when the child has been abandoned, neglected, abused or other extraordinary circumstances exist, that a third party can step in and apply for custody of a child. Common examples would include that the parents have simply moved away and left the child behind with the grandparent, or one or both of the parents is incarcerated, or one or both of the parents is constantly in and out of drug rehabilitation centers, or one or both parents is in a mental health facility, or one or both parents have been charged with neglect or abuse of their child. These situations may include Child Protective Services becoming involved and removing the child from the parents.
In any of these instances, a non-parent, such as a grandparent, an aunt or someone who the child has a close and long standing relationship with can petition.
Q: Will it hurt my case for custody if I am involved in an extramarital affair?
A: While the mere fact of an extramarital affair would not necessarily impact upon your chances of being successful in a disputed custody matter, it would have an impact if, as a result of the affair, you were spending time away from the home and leaving the children in the care of the other parent. By way of example, if the mother were involved in an extramarital affair and was spending two to three night per week out with her boyfriend and was not returning home until 2:00 to 3:00 AM in an intoxicated condition and the husband was left behind to car for the children while the mother was out putting her needs above the needs of the children, then in that situation, the father’s chances for custody would be increased and the mother’s chances for custody would be negatively impacted.
Q: What is the difference between visitation and access?
A: Typically, in cases where one party is awarded sole custody of the children, then the other party is awarded visitation. Conversely, when the parties share joint custody of the children, the time that is spent with the children is typically referred to as “custodial access”. Access has become the more politically correct term to use, but it really means the same thing as visitation.
Q: Can access time with the children ever be modified?
A: Yes. Whenever there is an appropriate change of circumstances, either party can petition the court to seek to have their access schedule modified. For example, should one spouse suddenly engage in a course of conduct where the may receive multiple DWI arrests, or are arrested for possession of narcotics, or have been “indicated” in a CPS investigation, all of these instances could lead to a modification of the offending parent access time with the children. The modification could be a reduction in time, or it could result in access with the children being supervised by a family member or by an agency.
Likewise, there may be instances where, at the time of a divorce, the child is an infant and the non-custodial parent has small increments of access time with the child because of the child’s age. In these situations, as the child gets older, this could represent a significant change in circumstances which would allow the non-custodial parent to seek to have their access time with the child increased.
Additionally, there are many times when teenage children want to begin spending more time with the other parent and while the wishes of the child are only one factor to be considered, these cases often result in the other parent being successful in their request for increased access time with the child.
Q: Does the amount of access have an impact upon the amount of child support to be paid?
A: When determining the appropriate amount of child support to be paid pursuant to the Child Support Standards Act, the Court always has the options to deviate from the Child Support Guidelines should the court determine that the amount of child support to be paid by one parent is unjust or inappropriate. Therefore, in cases where parents have equal access time with the children, the Courts will often make such a finding and the amount of child support to be paid will oftentimes be reduced or even eliminated if the parents have equal time and relatively equal incomes. Therefore, the amount of access time can definitely have an impact on the amount of child support to be paid.