The Heart of the Matter? Try the Hard Drive

  • By lemaster
  • 04 Aug, 2017

Social media searches often provide electronic evidence in divorce cases — but make sure not to overlook the hard drive.

While Internet infidelity leaves its footprints in chat rooms and email, information essential to your divorce matter could also reside on a home or business computer.

New York follows a rule of equitable distribution . This means a court splits the assets and property of your marital estate fairly — not necessarily equally — by dividing wealth based on documents and evidence offered by both parties.

In many cases, one party deletes or revises important financial information stored on a computer. What can you do?

Forensic computer examination is essential to ensure the details of a marital estate are clear. During a divorce, consider requesting the cloning and/or imaging of hard drives from devices including:

  • Computers and laptops
  • Personal digital assistants
  • Cell phones and digital cameras

Even if business and personal information is deleted or revised, a forensic expert can usually restore data and offer testimony on the intended deception. Basic material reviewed during an investigation includes:

  • Saved and named files
  • Deleted and revised files
  • Temporary files
  • File slack that may contain unintentionally saved information

Courts take a dim view of parties who conceal assets and destroy evidence during a divorce matter.

Inside or outside of your computer, electronic data can influence custody, alimony or property division. As previously discussed in an earlier blog post, social media searches can locate unwitting — and potentially damning — comments that can be used in court. Thorough forensic investigation of a hard drive could also reveal useful financial or personal information.

When you need to get to the heart of the matter about the use of electronic evidence during divorce in New York, speak with an experienced family law attorney in White Plains.

By lemaster 04 Aug, 2017

Social media searches often provide electronic evidence in divorce cases — but make sure not to overlook the hard drive.

While Internet infidelity leaves its footprints in chat rooms and email, information essential to your divorce matter could also reside on a home or business computer.

New York follows a rule of equitable distribution . This means a court splits the assets and property of your marital estate fairly — not necessarily equally — by dividing wealth based on documents and evidence offered by both parties.

In many cases, one party deletes or revises important financial information stored on a computer. What can you do?

Forensic computer examination is essential to ensure the details of a marital estate are clear. During a divorce, consider requesting the cloning and/or imaging of hard drives from devices including:

  • Computers and laptops
  • Personal digital assistants
  • Cell phones and digital cameras

Even if business and personal information is deleted or revised, a forensic expert can usually restore data and offer testimony on the intended deception. Basic material reviewed during an investigation includes:

  • Saved and named files
  • Deleted and revised files
  • Temporary files
  • File slack that may contain unintentionally saved information

Courts take a dim view of parties who conceal assets and destroy evidence during a divorce matter.

Inside or outside of your computer, electronic data can influence custody, alimony or property division. As previously discussed in an earlier blog post, social media searches can locate unwitting — and potentially damning — comments that can be used in court. Thorough forensic investigation of a hard drive could also reveal useful financial or personal information.

When you need to get to the heart of the matter about the use of electronic evidence during divorce in New York, speak with an experienced family law attorney in White Plains.

By lemaster 04 Aug, 2017

Paternity is the legal term for determining the father of a child. In New York, when parents are married at the time a child is born, the husband is presumed to be the father. Parents can also establish paternity through a voluntary, signed acknowledgement, or, when there is disagreement, through a court order.

Whether the parents agree or disagree on who the father is, establishing paternity is important for both parents and children. For children, paternity has a significant emotional benefit in that it gives them a sense of identity and the reassurance that both parents care about them. This also gives children valuable insight into their family medical history. In addition, paternity provides the child with financial support by both parents:

  • Child support
  • Social Security benefits
  • Veterans’ benefits
  • Medical and insurance coverage
  • Inheritance

Mothers and fathers also benefit from establishing paternity. For mothers, paternity means you can share responsibility for your child, including care of the child and financial support, insurance benefits, medical coverage and other benefits. If a father disagrees, paternity may be the only way to obtain a child support order and enforce it. Mothers also benefit from knowing the father’s medical history when treating young children.

There are many reasons for fathers to seek a paternity establishment. Without a determination of paternity, a father may have no right to custody of his children, including parenting time and decision-making rights in the upbringing of his children. Paternity also gives a father the right to be informed about adoption proceedings, as well as other legal proceedings. For example, if the mother wishes to give up the child, the child has been removed from her care, or if the mother has remarried and her new spouse wishes to adopt the child, a paternity order may be useful for the father. Without paternity, a father’s rights to his child could be cut off by the new husband.

Paternity establishment may be as simple as seeking genetic testing and a court order or as complicated as proving the husband at the time of birth is not the real father. An experienced New York family law attorney can assist parents and children through all types of paternity issues and related matters.

By lemaster 04 Aug, 2017

The flu isn’t the only thing families should watch out for this season. According to a new study from Brown University, divorce may also be contagious.

Research by Brown University political science professor Rose McDermott, and colleagues from Harvard University and the University of California, San Diego, shows that divorce spreads through social networks like a disease. According to researchers, this “social contagion” occurs when divorcing couples spread information, attitudes and behaviors through their social network, including coworkers, friends and family members.

Data collected from 12,000 people over three decades revealed a startling trend:

  • The divorce of a close friend increases your likelihood of divorce by 75 percent
  • A coworker’s divorce increases your likelihood of divorce by 55 percent
  • The divorce of a friend of a friend increases your likelihood of divorce by 33 percent
  • A divorced sibling increases your chances of divorce by 22 percent

Physical proximity matters less than emotional or psychological closeness and, while the “divorce disease” spreads even to friends of friends, thankfully that’s where it ends. This means a divorce three degrees removed from you — your friend’s friend’s friend — should not have any effect on your likelihood of divorce.

Psychotherapist Talia Filippelli has a different take on the divorce study . According to Filippelli, divorce itself is not contagious, but emotions often are. For example, if you are frequently around someone in an unhappy relationship, you can become more critical of your own relationship, increasing the probability of divorce. Filipelli suggests avoiding associating your own relationship with that of your friends, while McDermott believes you can avoid the divorce contagion by providing support for the marriages of your friends.

If you are contemplating divorce, or want to avoid it by enumerating each spouse’s rights and responsibilities in the marriage ahead of time, an experienced family law attorney in Westchester and Putnam counties can help.

By lemaster 04 Aug, 2017

Child support can be an essential part of a divorce or custody arrangement, but sometimes obtaining the initial order for support is only half the battle. Even after a support order is issued, many parents fail to pay, miss payments or stop paying over time. Child support enforcement is key to ensuring your children benefit from the standard of living of both parents and have the financial support to pay for daily needs such as food and clothes, school, medical care and other costs.

In many situations, parents can enforce child support orders through administrative procedures without going to court. In an administrative proceeding, notice is sent to the parent who owes support explaining when payments are due and how to comply or challenge the enforcement action. In New York, child support enforcement services are provided by local Child Support Enforcement Units and Support Collection Units. These units provide a variety of services for collecting child support , including overdue support, by:

  • Locating parents who owe support
  • Collecting, tracking and disbursing child support
  • Collecting child support automatically through payroll deductions from the noncustodial parent’s paycheck
  • Collecting child support through other enforcement actions
  • Referring the case for collection to the New York State Department of Taxation and Finance

To request an enforcement action through the court, you must file a petition with the Family Court for willful nonpayment or violation of a child support order. After evidence is presented in a court hearing , a judge or support magistrate may enforce the order in a variety of ways including issuing a money judgment or sentencing the parent to jail for up to six months.

Enforcing an order in court may be the only solution against a parent who willfully fails to pay child support. A knowledgeable family law attorney in Westchester and Putnam counties can guide you through your enforcement and collection options to help obtain the financial support your child needs.

By lemaster 04 Aug, 2017

So much can change after a divorce. Ex-spouses may remarry, obtain new jobs or promotions, lose income, or relocate. The needs of children may change or be affected by their parent’s decisions. When circumstances change significantly after a divorce, it is time to seek a modification.

Modification of child custody

Parents and children can face a change in circumstances after a final order that necessitates a modification in custody arrangements. Parents can agree to modify a custody order or go to a court for a hearing, but either way the court reviews the proposed changes to ensure they are in the best interest of the child. In order for a court to approve a modification, a change in circumstances must also be substantial, such as:

  • Relocation
  • Remarriage
  • Financial changes, such as a new job or promotion, loss of employment or transfer
  • Changes in physical or mental health
  • Changes in the relationship between the parents
  • Increased or decreased parental involvement
  • Domestic violence or criminal conviction of a parent
  • Other changes making the arrangement difficult to follow

Child support modifications

Child support is calculated based on guidelines that take into consideration factors such as the parents’ incomes and the number of children. When there is a substantial change in circumstances, child support may be modified , such as when:

  • A parent loses his or her job or income or gains income.
  • There is a change in physical custody or parenting time.
  • The child’s costs increase.

Child support may also be adjusted for cost of living.

Modifying alimony

In general, spousal maintenance is awarded for a certain length of time, such as for a set period, temporarily until a spouse secures employment, or permanently until the spouse receiving support either dies or remarries. However, a spouse may seek a support modification when there is a significant change in circumstances regarding finances, including job loss or promotion, inheritance, illness, or a good faith retirement.

Changing a final divorce, custody or support order is not always easy, but an e xperienced New York family law attorney can make the situation manageable and provide the support families need.

By lemaster 04 Aug, 2017

Domestic violence is a serious — sometimes deadly — problem for family and household members in New York and across the United States. Such violence can include all types of abuse, including physical, sexual, psychological, emotional and financial.

In New York, a domestic violence victim can file a petition in Family Court for an order of protection against an abuser when the parties:

  • Are related by blood or marriage
  • Are or were legally married
  • Have a child together
  • Are or were in an intimate relationship

The goal of an order of protection is to restrict the actions of an alleged abuser, including forbidding the abuser from injuring, threatening or harassing you or your children. It may require the abuser to do any number of things:

  • Leave your shared home
  • Stay away from you and your children
  • Follow custody arrangements
  • Not carry a gun or other weapon or surrender to the Police Department a gun or other weapon

Domestic violence may affect many different aspects of divorce and child custody arrangements. If a parent is found guilty of domestic violence by a preponderance of the evidence, he or she may face the loss of child custody, restricted or supervised visitation rights, or restricted contact, depending on what the court determines is in the child’s best interest.

Many parents who are victims of abuse are afraid to file a petition for child support because of their fear of violence. However, parents who are victims of domestic violence can request to have their information kept private, including removing addresses from court forms, keeping work and residence addresses private and leaving the court separately. When awarding spousal maintenance , courts may consider domestic violence as a factor when it inhibited or continues to inhibit a spouse’s earning capacity or ability to obtain meaningful employment.

Allegations of domestic violence are serious and should not be taken lightly. Spouses and parents who are wrongfully accused of abuse face serious repercussions and should act quickly to protect their rights. A knowledgeable family attorney in Westchester and Putnam counties in New York can provide families with the help they need to protect their rights and safety during divorce.

By lemaster 04 Aug, 2017

There are certain circumstances under which it may be appropriate to terminate parental rights. In fact, in Westchester County and throughout New York, termination of parental rights may be either voluntary or involuntary. A parent may voluntarily relinquish his or her parental rights in order to allow the child to be adopted by a stepparent or other non-relative. Conversely, one parent may seek involuntary termination of the other parent’s rights if the other parent is unable or unwilling to provide and care for the child adequately.

Legally speaking, acceptable grounds for termination of parental rights in New York are limited to the following:

  • The parent has abandoned the child for at least six months.
  • The parent is mentally disabled or otherwise incapable of parenting the child.
  • The child has been permanently neglected by the parent.
  • The child has suffered repeated or severe abuse by the parent.
  • The parent was convicted of murder, attempted murder, involuntary manslaughter, assault or aggravated assault of another of his or her children.
  • The parent is incarcerated and refuses to cooperate with efforts to care for the child.

When a parent's rights are terminated their child can be legally adopted. Additionally, a parent whose rights are terminated no longer has any financial (child support) obligation to the child — nor does he or she have any further rights to custody or visitation. Those seeking termination of a parent’s rights, such as foster parents, stepparents and exes, must complete a process that includes several steps, such as petitioning the court, appointing an attorney for the child and attending a hearing.

It’s important to remember that termination of parental rights is meant to be a permanent arrangement and should therefore be taken very seriously. It is possible for parental rights to be reinstated, but only after two years pass, if the child has not been adopted and if several other conditions are met. For assistance with this and further family law issues, consult a trustworthy and supportive attorney.

By lemaster 04 Aug, 2017

Family courts treat domestic violence claims seriously. A history of domestic violence involving parents, children or other relatives can greatly influence the outcome of a custody dispute.

According to New York laws , domestic violence is defined as any physically, sexually, emotionally, psychologically or economically abusive behavior among two or more people in an intimate relationship. It’s common to assume that domestic violence can only occur between family members. However, the term “intimate relationship” actually encompasses all of the following:

  • Those related by blood or marriage
  • Those married or formerly married
  • Those currently or formerly in a dating relationship
  • Parents and their biological or adopted children
  • Cohabitants or former cohabitants who are related by neither blood nor marriage (partners, roommates)
  • Two people with one or more children in common, even if they never married and never lived together

Custody is decided based on what is in the best interests of the child. Clearly, safety is of the utmost importance when determining best interests , and the court will not grant custody to a parent or guardian believed to pose a risk to child’s health or well-being. But there is also a general belief that children benefit most from having healthy relationships with both parents, if possible, and courts generally favor joint custody arrangements. In fact, there is current pending legislation in the New York State Senate that would establish a legal presumption that shared or joint custody is in a child’s best interests.

Additional factors that affect a child’s best interests include the following:

  • Health of the child and parents
  • Ability of each parent to care and provide for the child
  • Willingness of each parent to encourage the child to maintain a relationship with the other parent
  • Relationships the child has with siblings and other family members
  • The child’s wishes, if he or she is of appropriate age and maturity level

Clearly, child custody is a complicated issue, especially when domestic violence is a factor. Consult a family law attorney in Westchester County for guidance and support.

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