Long Island, NY divorce lawyer Robert E. Hornberger, Esq. is pleased to offer you a free copy of his brand new eBook written to help you navigate the often murky waters of divorce in New York State.
The eBook, “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” takes the mystery and fear out of the often the difficult process of divorce so you can make the best decisions for yourself and your family.
Why the ‘Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York’?
Speaking to your spouse about a divorce is not likely a conversation you imagined yourself having when you got married. But as we all find out sooner or later, we never know what life has in store for us. As a Long Island divorce attorney with 15 years of experience, I have seen husbands and wives enter my office with numerous emotions; complete disbelief, extreme anger, and at times, even joy.
However one thing that stays the same with the majority of the clients we encounter is that each one is anxious. Most people will go their entire lives without dealing with the court system, but a divorce puts you in the position to stand in front of the judge and discuss personal matters.
We know how complicated and scary this unknown process of divorce can be. Therefore, my job as a Long Island divorce attorney is not only to fight for the rights of my clients in court, but to also fight for them outside of court, and attempt to make a stressful process just a little less stressful.
Our intent behind publishing this book is exactly that. We hope to provide you with some general information on the divorce process and the laws it rests upon in the State of New York, so you are better able to meet with divorce attorneys confidently, and begin your divorce prepared for the road that lies ahead.
We understand that if you’re considering a divorce on Long Island, you are likely distraught at the prospect of going through a divorce. Even if you are initiating the divorce, it’s still an emotional experience and there’s so much confusion and misinformation out there. We wrote this book to help people who may be considering divorce in New York understand what they’re getting into. We hope that by being able to read this book on your own time from the comfort and convenience of your own home, you’ll be better prepared for what’s to come when you take the step to meet with a Long Island divorce lawyer.
The eBook covers the most important issues anyone on Long Island considering divorce in New York will have to tackle. We’ve provided a glimpse of the Table of Contents of the eBook below to demonstrate the comprehensive nature of this guide. Far from a “sales pitch” for our firm, we want you to consider carefully what you’re getting into and be sure that you’ve tried everything to save your marriage before you initiate divorce proceedings. We also want to be sure that, should you decide to divorce, that you are prepared to move on with your life after your divorce in a healthy and happy way.
We know that it’s difficult for anybody to absorb all the information they need to know sitting in a divorce lawyer’s office, particularly when you’re in emotional turmoil. Our hope is that, after reading the book, when you visit a Long Island divorce lawyer, you’ll know what to expect and be more relaxed and able to make the best decisions for you and your family.
Download Long Island Divorce Lawyer, Robert E. Hornberger, Esq.’s New eBook Now
The new eBook, “Guide to New York Divorce: What You Need to Know Before Hiring a Divorce Lawyer in New York” is available now as a free download from the company’s website, http://divorce-longisland.com
During your Long Island divorce, a main area of concern for you and your spouse is likely the question of who gets to remain in the marital residence. The two of you may have purchased this home at the beginning of your marriage and resided there for years, or it may be a relatively new home you moved into after you had your children.
Whatever the case may be, you both feel a connection to the residence and neither is willing to voluntarily say it is no longer their home. Many clients who find themselves in situations such as this ask me if they may change the locks on the residence when their spouse is at work or otherwise out. In short, the answer is no, absent a few rare situations which are discussed below.
Why Can’t I Change the Locks?
The fact that I am telling you to refrain from changing your locks may seem odd to you as a homeowner. However, you are free to change the locks on the residence just as you always were. The catching point is that during a divorce most people’s intent behind doing so is to keep his or her spouse out, and that is what is not permitted. If you do decide to change the locks, you must give your spouse the new keys, therefore giving him or her access to the residence just as before.
When Am I Permitted to Change the Locks to Keep My Spouse Out?
While your divorce is pending, there are a limited number of circumstances in which one spouse is granted use of the marital residence to the exclusion of the other spouse.
Your Spouse Abandoned the Marital Residence: The first such instance is if your spouse has voluntarily abandoned the marital residence and established a new residence. If your spouse took his or her belongings, furniture, and other personal effects and moved into an apartment 20 miles away seven months ago, you may have grounds for changing the locks and establishing the residence as your own, separate and apart from your spouse.
A “Stay Away” Order of Protection: While situations which require Orders of Protection tend to be volatile and at times even dangerous, an Order of Protection can serve to keep your spouse out of the marital residence and away from you. In order to be granted Order of Protection your spouse must commit one of the qualifying family offenses, and you then must file the petition with the court. There are two types of orders of protection: a “refrain from” and a “stay away”. If you are granted a “refrain from” order of protection, your spouse must “refrain from” engaging in the behaviors listed in the order, however unless otherwise noted, he or she is still permitted to be in your immediate presence. On the other hand, a “stay away” order of protection provides that your spouse not come within a certain distance of you, and at times your children. If you are granted this type of order, it naturally follows that your spouse must vacate the marital residence and has no right to re-enter during the duration of the order. In such an instance, you may change the locks to prevent your spouse from entering. However, if the order of protection is only valid until a certain date, once that date comes, your spouse must be permitted to access the residence again.
Temporary Exclusive Use and Occupancy of the Marital Residence: During the pendency of your litigated divorce, your Long Island Divorce Attorney may file what is called a pendente lite order to show cause. In other words, your attorney may file a motion asking for relief that will begin on the date the order is signed and continue until the final judgment of the case. When preparing these motions most Long Island Divorce Attorneys request that their client be granted exclusive use and occupancy of the marital residence. Although the divorce laws in New York provide for this type of relief, it is rarely granted by the courts. In order to grant one spouse exclusive use and occupancy of the marital residence, the court must find that continuing to allow both parties to reside in the marital residence would threaten the safety of persons or property. This is a hard standard to meet. Your divorce attorney will likely ask you about the specific facts and living conditions at home, and look to see what if anything may be useful to support your request.
The bottom line: do not resort to self-help. While locking your spouse out may seem like an attractive option, it will only work against you in court, as it may be seen as abandonment by lock-out, which then may provide your spouse with a counter-claim or additional grounds for divorce. Until a court rules otherwise or your spouse abandons you, both parties are entitled the same access to the marital residence as before. As always, be sure to speak to your divorce attorney about the specifics of your case.
Compassionate & Experienced Long Island Divorce Lawyers Can Help
All too often in divorces on Long Island, one spouse attempts to influence the child or children of the marriage against the other spouse/parent. Often, this is a result of anger and resentment at the former spouse, who then tries to use the children against the other out of revenge. While divorce is often an emotionally charged event, there is no excuse for using your innocent children as weapons or pawns in your own childish vendetta against a person you once loved.
These situations, which as a practicing Long Island divorce attorney, we see too often, are referred to in legal circles as “Parental Alienation”, and can include things such as:
• Speaking badly about you directly to the children
• Speaking badly about you to relatives who in turn relay these messages to your child
• Making allegations of physical or emotional abuse against you
• Prohibiting the child from speaking about you or anything concerning you in a positive way
It is not uncommon for those involved in a romantic relationship to act out of emotion, and at times those negative emotions toward the former spouse can be purposely or inadvertently directed at the children.
Even if you have no direct knowledge of the actions of your former spouse, you may notice that your child is unable to maintain as close of a loving relationship with you as you had prior to your divorce. This could be a sign of Parental Alienation.
Long Island, NY Laws Affecting Parental Alienation?
If you feel that your situation may potentially be an instance of parental alienation, you should immediately contact your divorce lawyer for advice. This is a complex area of law but there is a possibility that your case may rest upon Section 241 of New York’s Domestic Relations Law. This statute references only the non-custodial parent in instances where the custodial parent interferes with the relationship, but does not discuss what the result may be if you feel the non-custodial parent is interfering with your relationship with your child.
You Could Lose Your Child Support & Maintenance
Under Section 241, a non-custodial parent is permitted to suspend child support or maintenance payments if a judge finds that the custodial parent receiving these payments wrongfully interfered with or withheld the court ordered visitation of the non-custodial parent. Additionally, if the judge determines such is warranted, he may order a complete cancellation of the child support or maintenance payments. Parental alienation however cannot be used as a defense by the non-custodial parent for failure to pay child support.
The non-custodial parent may only suspend payments if it is so ordered by a judge in court. If you feel you are the victim of parental alienation, be sure to discuss your legal options with your divorce attorney, who will inevitably be able to give you the best guidance.
How to Prevent Yourself from Committing Parental Alienation?
Assuming that you love your children and do not want to do them any emotional harm, the worst part about parental alienation is that you may not even recognize the fact that you are doing it. If you fear you may be doing this unconsciously, it may be beneficial to you to focus on supporting your child’s relationship with the non-custodial parent. We’re not saying you have to sing your former spouse’s praises every minute, but you could encourage the children to spend more time with your former spouse doing activities they both enjoy.
You May Note Even Realize You’re Doing It
It is important that you be aware of what you say about your ex and be careful not to make stray remarks about your former spouse that have the potential to be interpreted negatively by a child. A common example of such a statement might be instructing your child to ask your former spouse to pay for something for the child because he or she has more money. While to you that is a seemingly harmless statement of fact, a child will see such a sentence as requiring him or her to make a choice between his two parents.
If You’re Doing It On Purpose; Stop
On the opposite end of the spectrum are the parents who actively and consciously try to destroy the relationship their former spouse has with his or her children. This type of alienation stems from extreme anger on behalf of the parent directed toward the other. The parent may seek revenge for an affair or other betrayal of trust (whether real or imagined), and use the child’s love as the bargaining chip. Most important to preventing this type of alienation is to recognize it before the child comes to favor one parent over the other. Afterward, it will be necessary to work on the relationship between the child and the former spouse in order to rebuild the trust and emotion.
Are You the Victim of Parental Alienation? We Can Help
If you feel you are a victim of Parental Alienation, you should take action to protect your children and their relationship with you. Give the experienced and compassionate Divorce Attorneys at Hornberger Verbitsky, P.C. a call today at 631-923-1910 to schedule a free consultation to discuss your case and what you can do about it. We’re here to help.
While it is likely that all divorces occurring on Long Island cause some emotional distress, some are extremely turbulent and cause more emotional harm on one or both spouses and their children than you might anticipate. If you find yourself in such a situation and fear for the physical or emotional health and safety of either you or your children, you may consider obtaining a temporary Restraining Order or an Order of Protection against your partner through the Nassau County or Suffolk County Court System.
What is an Order of Protection?
When people think of an Order of Protection most minds tend to jump to domestic violence cases. While these certainly occur, you do not have to have a pending domestic violence suit to obtain an Order of Protection in Nassau or Suffolk County, NY. An Order of Protection protects you and your family, and most importantly your children, from the harassing or threatening behavior of your partner. The individual against whom you have obtained the order can be prohibited from entering your home, workplace, and even the school your children attend. Orders of Protection can be particularly helpful in divorce cases, an Order of Protection can order your spouse to pay child support or even move out of the family home if you are both still residing together.
Are There Different Types of Orders of Protection?
Orders of protection do not come in cookie cutter form; they are individually tailored to meet the specific needs of your situation. Important to one seeking an Order of Protection are the outside circumstances that led one to do so. If there are instances of domestic violence in your relationship, you will need to file for the Order of Protection in the Nassau or Suffolk County Family Court. Keep in mind that in order to obtain an Order of Protection in family court, the individual against whom you are seeking the order must be either your spouse (current or former) or the other parent of your child.
Hopefully, you are not in a situation that involves domestic violence, and if that is the case, you will then need to obtain your Order of Protection through the Nassau or Suffolk County Supreme Court. In this case, your divorce attorney should attempt to obtain the Order of Protection while the divorce proceeding is ongoing by either making a motion to the court or orally requesting the order during a court proceeding.
Is an Order of Protection Right for Me?
Whether or not you need to obtain an Order of Protection against your spouse is a purely personal decision made based upon the facts of your unique situation. If there is domestic violence involved, obtaining an Order of Protection may be the first step to ensuring the physical safety of both you and your children. If you are not involved in a domestic violence situation, and you desire the Order of Protection to force your ex-spouse to comply with the divorce judgment, the decision may not be such an obvious one. You should consider why your ex-spouse is not complying with the divorce judgment; maybe he or she lost a job or has been having recent health problems.
How Will the Order of Protection Affect Your Children?
Also consider the effect that obtaining an Order of Protection against your ex-spouse will have on your children. If your ex-spouse already is not complying with the terms of the divorce judgment and failing to follow a child custody or child support arrangement, it is likely that your child is already aware of this and feels poorly. It would be important to consider how an Order of Protection would make your child feel; either good that his or her parent is now spending time with them or poorly because they know it is forced. Every child and every situation is different; there is no correct answer.
What if the Order of Protection is Violated?
If the individual disobeys the order and you call the police, there is the potential that he or she will end up in jail. While some classify an Order of Protection as “only a piece of paper” the threat of jail time for violating the Order often deters many individuals from doing so. However, jail is not always the solution a court finds appropriate to violations of an Order of Protection. Depending upon the circumstances and how often the Order of Protection has been violated, a court may determine that jail is not appropriate, but rather, will alter the existing Order of Protection to make it more effective.
Need Help Obtaining An Order of Protection?
Have Questions About Orders of Protection in Nassau or Suffolk County?
If you have questions or need assistance with obtaining an Order of Protection against your spouse in Nassau County or Suffolk County, we can help. Give us a call at 631-923-1910 or fill out the short form on this page for a free, confidential, consultation in the safety and security of our offices.
As a Long Island Family Law Attorney, Divorce Lawyer and Divorce Mediator, I am regularly asked by prospective clients, “How do I go about obtaining an Order of Protection?”. Nassau and Suffolk County Family Law Courts have very specific, yet comprehensive requirements for obtaining an Order of Protection.
To obtain an order of protection in a Long Island Family Court, a respondent must commit one of the following family offenses:
Disorderly Conduct – Penal Law §240.20
Harassment in the First Degree – Penal Law §240.25
Harassment in the Second Degree – Penal Law §240.26
Aggravated Harassment in the Second Degree – Penal Law § 240.30
Sexual Misconduct – Penal Law § 130.20
Forcible Touching – Penal Law § 130.52
Sexual Abuse in the Third Degree – Penal Law § 130.55
Sexual Abuse in the Second Degree – Penal Law § 130.60(1)
Stalking in the First Degree – Penal Law § 120.60
Stalking in the Second Degree – Penal Law § 120.55
Stalking in the Third Degree – Penal Law § 120.50
Stalking in the Fourth Degree – Penal Law § 120.45
Criminal Mischief – Penal Law §145.00
Menacing in the Second Degree – Penal Law § 120.14
Menacing in the Third Degree – Penal Law §120.15
Reckless Endangerment – Penal Law §120.20, §120.25
Assault in the Second Degree – Penal Law §120.05
Assault in the third Degree – Penal Law§ 120.00 or an Attempted Assault
Strangulation in the Second Degree – Penal Law § 121.12
Strangulation in the First Degree – Penal Law § 121.13
Criminal Obstruction of Breathing or Blood Circulation – Penal Law §121.11
Criminal Obstruction of Breathing or Blood Circulation or Strangulation between:
Former Spouses or
Between Parent and Child or
between members of the Same Family or
Household (except that if the respondent would not be criminally responsible by reason of age pursuant to § 30.00 of the Penal Law, then the family court shall have exclusive jurisdiction over such proceeding.
How to Originate the Order of Protection Proceeding
An Order of Protection proceeding is originated by the filing of a petition containing allegations that respondent committed one of the above family offenses and setting forth the relationship of the alleged offender to the petitioner and the name of each child in the family or household and the relationship of the child, if any, to the petitioner and to the respondent.
Who can Originate a Family Offense Proceeding in Family Court?
(A) Any person in the relation to the respondent of spouse, or former spouse, parent, child or member of the same family or household
(B) A duly authorized agency, association, society or institution
(C) A peace office, acting pursuant to his special duties or a police officer
(D) A person on the court’s own motion
For purposes of a Family Offense Proceeding, “members of the same family or household” shall mean the following:
(a) Persons related by consanguinity (blood relation) or affinity
(b) Persons legally married to one another
(c) Persons formerly married to one another regardless of whether they still reside in the same household
(d) Persons who have a child in common regardless of whether such persons have been married or have lived together at any time
(e) Persons who are not related by consanguinity or affinity and who are or have been in an intimate relationship regardless of whether such persons have lived together at any time
First, Obtain a Temporary Order of Protection
Upon the filing of a petition, a Long Island Family Court, for good cause shown, may issue a Temporary Order of Protection. The court may direct that the respondent refrain from certain actions, or stay away from the petitioner and/or the petitioner’s child(ren). The court may direct no communication between the parties. The court may also direct that the respondent turn over their firearms to the police until the proceeding is resolved. The court may also make other directions to the respondent, as it feels are necessary.
Fact-Finding Hearing Determines Validity of Petition
The petitioner must establish the allegations of the petition by a fair preponderance of the evidence. The potential outcomes of the hearing are:
1. Dismissing the petition.
2. Suspending judgment for not more than 10 months
3. Placing respondent on probation for not more than a year (FCA § 841 )
4. Making an Order of Protection
5. Direction restitution in an amount not to exceed $10,000.00
If Granted, an Order of Protection May Include:
A. Reasonable conditions of behavior for not more than two years
B. Stay away from individuals and places
C. Refrain from behaviors
D. Pay counsel fees and disbursements
E. Require counseling
F. Provide for medical expenses incurred as a result of the incidents established
G. Surrender of Firearms and Licenses.
Order of Protection Violations
If the court finds by competent proof that respondent willfully failed to obey an Order of Protection, the court may modify an existing order to add conditions, make a new Order of Protection, may order respondent to pay petitioner’s counsel fees and may commit respondent to jail for a term not to exceed six months.
More Questions About Orders of Protection on Long Island?
We’re Here to Help
The Law Offices of Robert E. Hornberger, Esq. regularly helps Long Islanders obtain Orders of Protection in Nassau County and Suffolk County Family Law Courts. For a free consultation, call us at 631-923-1910 or fill out the short form at the top of this page.
Claims of domestic violence and other issues of marital misconduct are not uncommon in divorce cases in Nassau and Suffolk counties on Long Island, NY. The question debated among many divorce lawyers and other groups in the legal field is whether claims of marital misconduct should be handled within a divorce action or whether the aggrieved should file a separate tort action to recover damages for injuries.
Inter-Spousal Immunity No Longer Recognized in New York
Until the mid 1900s, many states recognized a legal standard of Inter-Spousal Immunity, which provided that spouses could not sue one another for alleged misconduct during the course of a marriage. Today, the doctrine of Inter-Spousal Immunity is no longer recognized as a valid legal theory.
No-Fault Divorce Replaces Fault Divorce in New York
In addition to the eradication of inter-spousal immunity, most states, including New York, have introduced the use of No-Fault Divorce, replacing the traditional practice of granting divorces upon a court finding of fault. These two shifts in legal standards have posed considerable problems for parties seeking redress for marital misconduct.
No-Fault Divorce Proponents Argue Abuse Should Be Taken Out of Divorce
Proponents of No-Fault Divorce reject the notion that tortious conduct, such as claims of abuse, should be addressed during divorce proceedings, since they would undoubtedly assign fault to one of the parties involved in the litigation. Under a Fault-based divorce regime, however, the finding of tortious conduct committed by one party during litigation remained a nonissue, as it served as a component to a divorce proceeding in the past. Consequently, many in the field of Family Law believe that alleged acts of marital misconduct should be filed in separate tort law claims to preserve the integrity of no-fault divorce.
Marital Misconduct Can Affect Equitable Distribution in Divorce …
While New York remains a No-Fault Divorce state, courts will entertain claims of marital misconduct in consideration of equitable distribution in divorce. In the case, Havell v. Islam, the court entertained the allegations of domestic violence in the equitable distribution of marital property. In that case the plaintiff alleged that the defendant, her husband, engaged in abusive behavior throughout their twenty-one year marriage. When the plaintiff informed her husband of her intention to file for divorce, the defendant beat her mercilessly, resulting in severe injuries, which required extensive surgeries and multiple medical procedures. In the consideration of the equitable distribution of marital assets, the court awarded the plaintiff 95.5% of the property in compensation for her injuries. The court’s holding is an example of one way an injured party may seek damages for marital misconduct, but it is not the only way.
… But Not Always
In Hakikkla v. Hakikkla, a New Mexico case, the parties had already divorced when the plaintiff filed a tort action against her former husband for the intentional infliction of emotional distress. The defendant had committed various acts of abuse throughout the marriage, both verbal and physical, however, the court dismissed the claim, finding that the conduct did not rise to the level of outrageous behavior. Due to New Mexico’s no-fault divorce laws, the court declined to associate the tort claim with the facts alleged during the divorce action. Although the plaintiff did not prevail under this particular set of facts, the case demonstrates that tort actions for marital misconduct serve as an alternative to seeking redress in a divorce proceeding.
How to Redress Marital Misconduct? In Divorce or Out?
So, which way of seeking redress for marital misconduct is the appropriate method? The American Law Institute (ALI) recommends that claims of adultery, cruelty and abandonment are non-legitimate issues to be entertained during the course of a divorce proceeding. Essentially, a divorce action should merely serve to consider the distribution of marital assets and nothing else. The ALI further rationalizes that victims of marital misconduct have other outlets available to them to adequately address their claims, including the criminal justice system and tort law.
Issues with Tort and Criminal Law as Remedy
While Tort Law and Criminal Law may seem like they offer the appropriate remedies for those seeking damages, there are potential problems associated with the inability of victims to bring tortious claims in a divorce action. One problem is that civil claims are subject to a statute of limitations. Many victims of abuse who are in the process of getting divorced are reluctant to bring a tort action against their abusers before their divorce has been granted. Some states however, have changed their tort laws regarding statutes of limitations to accommodate for instances of domestic violence. Another problem associated with commencing multiple lawsuits is that it is both more expensive and less efficient than courts hearing multiple claims at once. There is also the fear that certain claims previously litigated in one suit will be barred from relitigation in another suit.
No Easy Answers for Long Island NY Divorce
All of these factors make it extremely difficult to determine whether claims of marital misconduct should be entertained in divorce proceedings. While it is important to preserve the integrity of no-fault divorce, victims of tortious acts should have the ability to fairly and efficiently litigate their claims.
Contact Us for More Information in Nassau, Suffolk, Long Island, NY
Do you have questions about Divorce Law on Long Island? Contact us today by calling 631-923-1910 or filling out the short form on this page for a free, complimentary consultation where we can discuss the issues involved in your individual case.
I have known Robert for more than 8 eight years. Robert has represented many of my family and friends. Each and every one has raved about Robert’s professionalism and expertise. He is knowledgable, friendly and truly cares about his clients. I would not hesitate to continue to refer Robert and his firm in the future!
I’ve known Robert for most of my life, and feel very fortunate that I have been able to turn to a good friend for various kinds of legal advice. He is very intelligent, straight forward, and professional. Most importantly though, Robert always finds the fastest resolution, and will not waste your time or money. He is NOT in the habit of dragging things through litigation if there is no need for the added expense. I have referred a few of my friends to Robert, and they have all been more than satisfied in their experience with him. Highly recommend!!
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