matrimonial & Family Law
Matrimonial and family cases can range from simple, uncontested divorces to complex cases involving custody, parental access, relocation outside the state or the U.S., business evaluation and asset distribution.
No two cases are alike and at the Law Offices of Lisa L. Johnston we have the knowledge and experience to address your particular needs and concerns.
The information on this page is meant to provide a brief introduction to our services. We encourage you to contact us to schedule an appointment.
DIVORCE SETTLEMENTS & LITIGATION
Matrimonial law in New York is complicated and it is important to know your rights and obligations when pursuing or defending a divorce action. While most divorces are resolved by agreement or settlement, more complex cases may require litigation. Our attorneys are committed to pursuing a settlement, but we will provide thorough, well-prepared representation on your behalf, should litigation be necessary. We are highly experienced in this field and provide individualized attention to every case we handle.
FAULT vs NO FAULT DIVORCE
New York State grants divorces based on the breakdown of the marriage relationship, either due to one party's behavior (fault) based on the following causes of action: adultery, abandonment, incarceration or cruel and inhuman treatment. Most divorces, however, are now granted on the grounds of irretrievable breakdown of the marriage relationship for a period of at least six months (no-fault), but judgment can be entered only after financial issues have been resolved.
CONTESTED vs UNCONTESTED DIVORCES
An uncontested divorce is one in which the parties are able to reach a settlement agreement, usually with the assistance of attorneys, on all material issues, including child custody, child support, maintenance (alimony) and asset distribution, and present a signed divorce settlement agreement to the court for approval. By contrast, a contested divorce suggests the inability of both parties to arrive at such a resolution. In the event that the parties cannot reach a settlement a trial may be required to resolve some or all of the terms of the divorce.
Since New York passed the Marriage Equality act in 2011 same-sex marriage has been legal in the state. Accordingly, same-sex couples have equal access to divorce under New York State law. From a legal perspective, gay and lesbian divorces are exactly the same as traditional divorces, however these cases may present with different emotional issues. Our attorneys have the experience, insight and sensitivity to guide the gay or lesbian client through the divorce process. We provide reliable, affordable counsel and legal assistance to LGBT clients with an acute understanding of the needs of LGBT families.
The distribution of marital assets and debt is one of the most complicated aspects of a New York divorce and courts follow the law of equitable distribution. Equitable distribution is not always equal distribution, rather it is the fair distribution of a couple’s marital property. At the Law Offices of Lisa L. Johnston & Associates, we gather evidence and seek expert opinions when needed to build the best case to negotiate your settlement or litigate your case ensuring you get the best award possible.
New York law stipulates that temporary spousal maintenance, formerly known as alimony, be paid during the pendency of the litigation process after application by counsel in the form of a motion. It is not necessarily automatic. Courts use a mathematical formula to determine the amount paid by one spouse (“the monied spouse”) to the other for both temporary and post-divorce maintenance for actions filed after January 25, 2016. This area of the law is one of the most complex areas of matrimonial law however. While the mathematical calculations provide attorneys and the courts with a degree of certainty in arriving at an appropriate range for the amount and duration of spousal maintenance based upon income and the length of marriage, notwithstanding the formula, arguments by either counsel can still be made that the award of maintenance is "unjust and inappropriate," requiring the Court to fashion an award that does not comport with the mathematical formula. Our experienced attorneys will help you maneuver your way through this complicated area seeking an award appropriate and just for you.
CHILD CUSTODY & CHILD SUPPORT
Child custody battles are emotionally and financially draining on families and are almost never in the best interests of children. Negotiated custody arrangements almost always better serve children and their parents. We encourage our clients to work, through counsel, to arrive at a parenting and custodial solution that works for your family. An agreement between the parties is nearly always preferable to one determined by the Court. Nevertheless, when a negotiated settlement is not possible, we will work to ensure that your parental rights are protected and seek a determination that is in the best interest of your children. As a result of our many years dealing with dual-national and international clients we have experience in fashioning workable arrangements for parents seeking relocation with children outside the U.S..
Child support is mandated under New York State law until a child turns 21 years old or is otherwise emancipated. The law makes both parents responsible for the financial support of their children and that support is determined through a combination of formulaic and discretionary factors.
Basic child support in New York is governed by the Child Support Standards Act (CSSA). The CSSA requires non-custodial parents to pay their proportionate share of the following percentages of combined parental income:
- One child: 17%
- Two children: 25%
- Three children: 29%
- Four children: 31%
- Five or more children: No less than 35%
In addition, health insurance, unreimbursed health care expenses and child care expenses are “add-ons” to the basic child support payment and are, in most cases, shared pro-rata by the parties. Depending upon the circumstances of the case, the court may also include educational expenses as an additional “add-on.” If a parent feels that the child support calculation is unfair or unjust, counsel may argue to increase or decrease the CSSA amount based upon certain statutorily enumerated factors, including:
- the physical and emotional health of the child, or special needs of the child
- the financial resources of parents and the child
- the tax consequences
- the standard of living the child would have maintained if the parents had not divorced
- the educational needs of either parent
- the nonmonetary contributions of a parent to the care and well-being of the child
- a substantial difference in the gross incomes of the parents
- extraordinary visitation expenses if the expenses of the custodial parent are substantially reduced
- the needs of other children of the noncustodial parent
- any other factors the court thinks are relevant
Our attorneys seek to ensure that child support awards are fair when made, complied with when ordered and changed when circumstances dictate and permit it. We routinely handle child support cases both in the context of divorce and in family court.
ORDERS OF PROTECTION
If a spouse or family member intimidates or threatens your safety or the safety of your children a court-issued Order of Protection may be necessary. It is not acceptable for you to feel threatened or intimidated by your spouse, former spouse or partner. It is wholly unacceptable to put the well-being and safety of children at risk. Orders of protection are used to limit interactions between the parties, and where necessary children, either on a temporary or long-term basis. Commonly, one party is directed not to contact, or to stay away from, the other spouse, partner, or their children. Where necessary the court can order the restrained party to stay away from the person, home and workplace of the other. Orders of protection can be issued in the context of a divorce or may be stand-alone applications. If you feel threatened in any way from your spouse, former spouse or partner, please seek immediate assistance by calling our offices for help.
PRENUPTIAL & POST-NUPTIAL AGREEMENTS
Prenuptial (also known as ante-nuptial) and post-nuptial agreements are binding contracts that spouses may enter into before and during their marriage. These agreements help parties to a marriage protect their personal interests, declare their rights and obligations and help to prevent future disputes in the event of a divorce or separation. Whether you have significant assets you want to protect or you simply wish to identify and establish your financial interests, a prenuptial or post-nuptial agreement goes a long way to minimizing conflict and expense in the event of a divorce. While these agreements cannot make any final determinations with regard to child custody and support, creating one can alleviate stress and uncertainty should you divorce. Our attorneys can help you determine if a contractual agreement is right for you and craft one that safeguards your interests.
If you are considering a prenuptial agreement, feel free to contact us for a consultation.
Step-parent adoption is the process in which a step-parent seeks to adopt their spouse's child and by law becomes a co-equal legal parent. In most instances, you will need the consent of the both of the birth parents to adopt your step-child. However, where a biological parent has “abandoned” or neglected the child or has had her/his rights legally terminated, consent may not be necessary. If you are considering adopting your stepchild, please call our offices to learn the about the process, the documentary requirements and procedures necessary to complete a successful adoption. We are here to help.
SECOND PARENT ADOPTION
While New York now recognizes same-sex marriage, New York has not yet extended the same legal rights biological parents enjoy to non-biological parents of children born to same-sex couples. The second-parent adoption process is the method by which a same-sex parent adopts their spouses (or partner’s) biological child. It is highly advisable for same-sex couples to petition for second-parent adoptions to establish the legal relationship between the non-biological parent and the child. Failing to establish this legal relationship can impact rights of access should the parties separate or divorce, the payment of child support and the inheritance rights of the child. Our attorneys will assist you in preparing and presenting the second-parent adoption case to the Court to ensure you and your children are protected.
Establishing paternity determines rights and obligations both to fathers and the children. If paternity is established fathers are entitled to custody and/or access and are obligated to pay child support pursuant to New York law. When the issue of fatherhood arises, is important to know your rights and the processes and procedures involved. The Law Offices of Lisa L. Johnston & Associates are here to help you get the answers you need and help you assert your rights and protect your interests.
MODIFICATION & ENFORCEMENT
Our attorneys are very familiar with the needs of clients who seek to enforce custodial, child support or spousal maintenance obligations. Once a court sets an order it is enforceable unless it is modified by another court of appropriate jurisdiction. There are a variety of administrative processes to enforce orders including income executions, driver’s license and professional license suspension, lien filings and property execution. Our attorneys are familiar with how to enforce these awards and how to defend them.
Modifying an existing child support or custody order is almost always by way of motion or petition to the Family or Supreme Court. If you are seeking a modification of child support there are a variety of factors to consider, including but not limited to when the last order was entered, whether a written agreement exists, why you are seeking the modification and whether a material change in circumstance exists. If you are seeking a downward modification in child support because you have lost your job or have become disabled, it is imperative that you not ignore the existing order. Get advice as soon as you find you are unable to pay. Don’t wait until you are in arrears! Alleging an inability to pay may be a grounds for a modification under certain circumstances but modification only runs from the time a court enters a new order.
Modification of an existing child custody or parental access schedule is governed by the “best interests of the child” principal. If you are experiencing difficulty with the parent of your child in relation to custody and visitation speak to one of our attorneys as soon as possible to discuss ways to resolve or remedy these issues. We strongly believe negotiated arrangements are in the best interests of your children and your family but when difficult circumstances arise, whether it be alcohol/substance abuse or mental illness, we have the experience and expertise to seek judicial modification of custodial orders. Call us for an appointment to discuss your concerns.