Is New York a Community Property State for Divorce?

When couples decide to divorce, one of the most important considerations is the division of assets and debts. In some states, such as California, the law requires that marital property be divided equally between spouses. However, New York operates under a different set of laws when it comes to property division in a divorce.

In New York, marital property is divided based on the principle of equitable distribution. This means that property acquired during the marriage will be divided in a way that is fair and equitable, but not necessarily equal. The court will consider a variety of factors when making its decision, including the length of the marriage, the income and earning potential of each spouse, and the contributions made by each spouse to the marriage.

Navigating the complexities of property division in a divorce can be challenging. Ensure your rights are protected and you receive a fair distribution of assets with the help of an experienced New York divorce lawyer. At the Law Office of Richard Roman Shum, our team of skilled New York divorce attorneys may be able to guide you through the divorce process in New York and advocate for your best interests. Call us today at (646) 259-3416 to schedule a consultation.

Domestic Relations Law and Equitable Distribution

The New York Domestic Relations Law sets out the rules for the division of marital property in divorce cases. Section 236(B)(5)(d) of the Domestic Relations Law provides that marital property is to be divided based on the principle of equitable distribution. The law defines marital property as any property acquired by either spouse during the marriage, regardless of how the property is titled or held.

The Domestic Relations Law also allows for separate property to be protected from division in a divorce. Separate property is property that is acquired by one spouse before the marriage, or property that is acquired by gift, inheritance, or personal injury award during the marriage. However, if separate property is commingled with marital property, it may lose its status as separate property and become subject to division in a divorce.

The Domestic Relations Law sets forth the factors that courts consider when dividing marital property in a divorce. These factors include:

• The income and property of each spouse at the time of marriage and at the time of the divorce
• The length of the marriage and the age and health of the spouses
• The need of the custodial parent to occupy or own the marital residence and to use or own its household effects
• The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution
• Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having a title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner, and homemaker, and to the career or career potential of the other party.

	Details
Marital Property	Property acquired during marriage by either spouse
Separate Property	Property acquired before marriage or by gift, inheritance, or personal injury award
Commingling of Separate and Marital Property	Separate property mixed with marital property may become subject to division
Factors Considered	Income and property at the time of marriage and divorce, length of marriage, age and health, need of custodial parent for residence and household effects, loss of inheritance and pension rights, contributions to acquisition of marital property

Case Law and Equitable Distribution

The New York courts have issued numerous decisions that provide guidance on how to apply the principle of equitable distribution in divorce cases. In the case of Grunfeld v. Grunfeld, the court emphasized that equitable distribution does not mean equal distribution and that the goal is to arrive at a result that is fair and reasonable under the circumstances of the case. Grunfeld v Grunfeld, 255 AD2d 12, 21 [1st Dept 1999]

In another case, Majauskas v. Majauskas, the court established the principle that pension benefits earned during the marriage are marital property subject to division in a divorce. This decision has had significant implications for the division of retirement benefits in divorce cases. Majauskas v Majauskas, 61 NY2d 481, 486 [1984]

While New York is not a community property state, the division of marital property in divorce cases is still an important and complex issue. If you are facing a divorce and are concerned about the division of your assets, it is important to work with an experienced family law attorney who can help you understand your legal rights and options.

By understanding the principles of equitable distribution and the rules governing the division of marital property in New York, you can be better prepared to navigate the divorce process and protect your financial interests. At the Law Office of Richard Roman Shum, we offer experienced, quality legal assistance and services aimed at helping New Yorkers navigate the complexities of divorce and family law. Contact us today at (646) 259-3416 to schedule a consultation.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/is-new-york-a-community-property-state-for-divorce/

Understanding the Evidence Required to Obtain an Order of Protection in New York

Obtaining an order of protection can be a crucial step in ensuring your safety and well-being. An order of protection is a legal order issued by a court that prohibits an individual from engaging in harmful behavior towards another person, and it can provide vital protections for victims of domestic violence, harassment, stalking, or other forms of abuse.

First, it is important to understand the legal basis for obtaining an order of protection in New York. The Family Court Act provides for two types of orders of protection: an order of protection in the family court and a criminal court order of protection. Family court orders of protection are typically obtained in cases where there is no pending criminal case, or where the alleged conduct does not constitute a criminal offense.

In New York Family Court, the victim of abuse must file a Family Offense Petition, which alleges at least one of the available Family Offenses elaborated in the Family Court Act. If you are experiencing domestic violence or abuse in New York and need assistance obtaining an order of protection, please do not hesitate to reach out to our team of Manhattan family law attorneys at the Law Office of Richard Roman Shum. We are committed to advocating for victims of domestic violence and helping them obtain the legal protections they need to stay safe. Call us today at (646) 259-3416 to schedule a consultation.

What is a Family Offense?

Family offenses are defined in the Family Court Act as offenses committed between certain family or household members, including spouses, former spouses, persons related by blood or marriage, persons who have a child in common, and persons who are or have been in an intimate relationship. Family offenses include, but are not limited to:

• Disorderly conduct: This includes any behavior that is likely to cause a public disturbance or that is intended to provoke a fight or argument. Disorderly conduct can include physical violence, threatening behavior, or verbal abuse.
• Harassment: This offense involves any behavior that is intended to annoy, alarm, or harass another person. Harassment can include repeated phone calls, emails, or text messages, as well as following or stalking a person.
• Menacing: This offense involves threatening to cause physical harm to another person. Menacing can include brandishing a weapon or making verbal threats of violence.
• Assault: This offense involves causing physical harm to another person. Assault can include hitting, slapping, punching, or any other physical act that causes injury.
• Sexual assault: This offense involves any sexual act that is performed without the victim’s consent. Sexual assault can include rape, sexual abuse, or any other unwanted sexual act.

Types of Orders of Protection

When we have filed your Family Offense Petition describing how you have suffered one or more of the above Family Offenses, the Court may decide to hear from us Ex Parte, which means before having notified and without the participation of the alleged abuser. In cases of serious abuse, where the victim reasonably believes they are in danger of imminent harm, the Court may issue a Temporary Order of Protection to protect you. In those cases, the Court orders the Temporary Order of Protection and your Family Offense Petition be served upon the alleged abuser and sets a date for both parties to come to Court, in-person or virtually. Those papers may be served by a uniformed New York City Sheriff. 

Evidence Required to Obtain an Order of Protection

In the court appearances that follow, we will have to use evidence to convince the judge to grant a Permanent Order of Protection. Case law and the Family Court Act provide guidance on the evidence required to obtain an Order of Protection in New York. 

“To prevail on her family offense petition, petitioner bore the burden of establishing, by a fair preponderance of the evidence, that respondent committed one of the enumerated family offenses set forth in Family Ct Act § 821 (1) (a)” (Matter of Allen v Emery, 187 AD3d 1339, 1340 [2020] [citation omitted  ]; see Family Ct Act § 832; Matter of Marianna K. v David K., 145 AD3d at 1362; Matter of Elizabeth X. v Irving Y., 132 AD3d 1100, 1101 [2015]). “The question of whether a family offense has been committed presents a factual issue to be resolved by Family Court, and Family Court’s determinations regarding the credibility of witnesses are accorded great weight” (Matter of Allen v Emery, 187 AD3d at 1339 [citation omitted]; see Matter of Jasmin NN. v Jasmin C., 167 AD3d 1274, 1276 [2018]; Matter of Shana SS. v Jeremy TT., 111 AD3d 1090, 1091 [2013], lv denied 22 NY3d 862 [2014]).

The evidence required may include, but are not limited to:

• Affidavits or sworn statements: The petitioner may submit affidavits or sworn statements describing the incidents of abuse or violence, including dates, times, and specific details of the incidents. Affidavits from witnesses who have firsthand knowledge of the abuse may also be submitted.
• Police reports: If the abuse or violence has been reported to law enforcement, police reports can serve as evidence of the incidents.
• Medical records: Medical records documenting injuries or medical treatment related to the abuse or violence can be presented as evidence.
• Photographs or videos: Photographs or videos of injuries, damage to property, or other evidence of abuse or violence can be powerful evidence in obtaining an order of protection.
• Other documentation: Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence, may also be presented as evidence.

Evidence	Description
Affidavits or sworn statements	Written statements from the petitioner or witnesses describing incidents of abuse or violence, including dates, times, and specific details.
Police reports	Reports filed with law enforcement documenting incidents of abuse or violence.
Medical records	Records documenting injuries or medical treatment related to the abuse or violence.
Photographs or videos	Visual evidence, such as photos or videos, of injuries, property damage, or other evidence of abuse or violence.
Other documentation	Any other relevant documentation, such as emails, text messages, social media posts, or recordings that support the allegations of abuse or violence.

It’s important to note that hearsay evidence, which is generally an out-of-court statement offered to prove the truth of the matter asserted, may be admissible in family court proceedings for orders of protection. However, the admissibility of hearsay evidence in family court is subject to certain limitations and requirements, as established by case law.

In conclusion, obtaining an order of protection in New York requires providing evidence of abuse or other family offenses. The Family Court Act provides for several types of family offenses that can be the basis for an order of protection. If you or someone you know is experiencing abuse or harassment, it is important to seek legal advice from an experienced family law attorney. At The Law Office of Richard Roman Shum, our team of New York family lawyers may be able to help you navigate the legal system and obtain the protection you need to stay safe. Contact us today at (646) 259-3416 to schedule a consultation.

If you or someone you know is experiencing domestic violence, harassment, or other forms of abuse, you can contact the National Domestic Violence Hotline at 1-800-799-SAFE (7233) for help and support.

from Law Office of Richard Roman Shum, Esq. https://www.romanshum.com/blog/understanding-the-evidence-required-to-obtain-an-order-of-protection-in-new-york/