On April 2, 2020, the Child Parent Security Act (CPSA) became law, making gestational surrogacy agreements finally legal in New York State.

Until the new law, New York seriously lagged other States as the ways and means to create a family continued to expand and evolve. For those struggling to have a child, and for LGBTQ families, the restriction was especially painful and limited their options in creating a family in New York.

Prior to April 2, 2020, Domestic Relations Law § 122 stated explicitly that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable.” Not only were the contracts unenforceable, but if the surrogate was compensated under a contract, the parties and anyone who helped them prepare the agreement, including attorneys, could be subject to fines. The statute even contemplated a felony conviction for more than one offense.

The CPSA introduces a new article to the New York State Family Court Act, codified as Article 5-C. Parties may now enter into enforceable surrogacy agreements, and those agreements may include compensation to the surrogate, whether by direct payments or payments for expenses. But there are still clear requirements that must be followed to comply with the statute and to enforce the agreement. There are limitations on who can act as a surrogate, what the surrogate must do to qualify, who the intended parents are and how they qualify, requirements as to the intended parents’ relationship to each other, and whose egg can be used.

There is also now codified the Surrogate’s Bill of Rights, which applies to anyone acting as a surrogate in New York, and those rights cannot be waived or limited. Every person acting as a surrogate in New York has the right to make all of their own health and welfare decisions, including how many embryos are transferred, whether they will have a c-section, or whether to reduce or terminate the pregnancy. Every surrogate has the right to their own independent attorney, as well as health insurance and to have all of their pregnancy-related health expenses paid for. They also have the right to counseling in pregnancy-related issues and to a life insurance policy. All of these expenses are to be paid for by the intended parent(s). The surrogate also has the right to cancel the agreement at any time for any reason before becoming pregnant.

The surrogacy agreement itself is only enforceable if it complies with all of the requirements set forth in the statute, and the requirements are complicated and extensive. In addition to requiring provisions about various insurance policies and expenses to be paid on behalf of the surrogate, the statute also mandates the timing of the agreement in the surrogacy process, as well as the placing of funds in escrow with an independent escrow agent to cover base compensation and reasonable anticipated additional expenses for the surrogate. All of these things must be addressed in the surrogacy agreement within the bounds of the law.
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Once the agreement is drafted in compliance with all of the statutory requirements, the intended parents still need to obtain a judgment of parentage, and that process also is regulated by statute. Strict compliance is crucial. If the attorney got it right, and all the requirements are met, the parties are automatically entitled to a judgment of parentage of the baby the surrogate carries. But if the requirements have not been met, a judge may be empowered with discretion to determine parentage based on additional and other factors, despite what the surrogacy agreement says. That could be a nightmare for intended parents, who may find themselves losing entitlement to parental rights because a surrogacy agreement was not properly drafted.

As this is a brand new statute and area of law in New York, it is also new territory for most New York attorneys. Navigating the statute, regulations, and everything they require is complicated and the stakes are extremely high. If you have questions or would like to talk through the process, contact me.  

While I have written previously about the rarity of the truly uncontested divorce, it does happen that sometimes a separating couple is able to sit down together and work through the details of their separation without any outside help.  Now the question is, what do you do with that piece of paper on which you scribbled out your agreement? 
 
To protect your interests and insure your rights, your arrangement should be formalized into a Separation Agreement.  In New York, when properly prepared and executed, a Separation Agreement is a binding contract and can be enforced if either party fails to comply with its terms.  The piece of paper you both went over at the kitchen table is most likely not enforceable as it probably does not meet the requirements of a binding contract under the law.  A Separation Agreement should be comprehensive and address all issues relevant to your separation, including addressing child custody and child support, maintenance, the marital home, division of marital property, allocation of marital debt, distribution of retirement assets, etc.  It also must be signed before a notary by each of you and meet certain other requirements set forth in the law. 
 
Once a Separation Agreement has been prepared and signed by each party before a notary, you can choose to go no further with the process, or either party at any time can file for a divorce and ask the court to incorporate the Separation Agreement into the final Judgment of Divorce.  The Separation Agreement will then become not just a binding contract but an order of the court as to the terms of your divorce. 
 
For some individuals, the only reason you want to get a lawyer involved in your divorce or separation is to make sure you have thought of everything and to make sure it is done correctly. The bottom line is you want to save time and money, but want the peace of mind of an attorney’s knowledge and experience without making the situation overly complicated.  For some, where a splitting couple is able to reach compromises and agreements between the two of them, it is possible for an attorney to be involved simply to advise you and prepare the paperwork.
 
If this describes your situation, one caveat you should be aware of is that an attorney cannot represent both parties if a couple is divorcing or separating.  Your attorney will only represent you and your interests and cannot advise your spouse.  Your spouse may retain his/her/their own counsel or may choose not to be represented in the process. 
 
If you would like to have a Separation Agreement prepared or reviewed, or would like to discuss your unique situation, click here to contact me.

So you've been served with a Summons for divorce or a Petition in Family Court in New York State - what should you do now?  Call an attorney.  

I know that answer seems a bit self-serving coming from a family law lawyer, but it is truly the smartest thing you can do for yourself right now.  You may think you can't afford an attorney or you may think talking to an attorney will only complicate the situation, but it doesn't hurt to at least have a consultation with an attorney experienced in divorce or family law so that you know the proper way to proceed. Then you can make an informed decision about whether to hire counsel or go it alone.  The worst options are to ignore the situation, assume you and the petitioner/plaintiff will be able to work it out, or assume the judge will be on your side once she/he hears your story.  The consequences can be catastrophic.  

Every attorney I know who practices in this area has received a call from someone desperately seeking advice because the person just appeared in court and isn't sure what just happened, or because they signed an agreement or consented to an order, didn't fully understand it, and now regret it.  It is almost always more expensive and time consuming (and not always possible) to try to put right these situations than it is to have an attorney guiding you from the outset. Don't do that to yourself - at the very least, speak to an experienced attorney as soon as you are served and let yourself be informed about what will be involved.

If you are served with a Summons and Complaint in a New York Supreme Court for a divorce, you typically have 20 days (but sometimes longer) to respond by filing an Answer. Failing to respond timely can result in a default judgment against you, meaning you may lose your right to defend yourself in the action or to put forth your own claims.  

If you are served with a Petition in a New York Family Court, typically you will be given a court date on which to appear.  A Petition in Family Court may relate to custody of a child, child support, spousal maintenance, or even a restraining order. Failure to appear can result in a default judgment against you, meaning you might be handing a victory to the petitioner regarding whatever relief he/she is seeking against you at great consequence to you.  If it is impossible for you to appear on the court date you are given for good reason, it is possible to ask for another date and the court will usually accommodate your request. Don't assume you have no options.

If you've been served, call me.  I will go over your situation with you and give you an idea of what to expect so that you can avoid costly mistakes.  Click here to contact me.  

"Exclusive use and occupancy" in the context of New York divorce and family law, is a phrase basically used to mean who gets to live in the marital home.  Whichever spouse has "exclusive use and occupancy" (or EU&O) gets to live in the house.  The other party must vacate the marital home and cannot access the home unless invited by their spouse, or by formal agreement or court order.  

A party to a divorce gets exclusive use and occupancy typically by filing a written application to the court seeking it.  It is not a given that the court will grant one party exclusive use and occupancy and preclude the other party from accessing the home. There must be good reason to do so.  A court may consider whether one party has already vacated the marital home and established another residence, whether the safety of people or property may be at stake if the parties continue to reside together, or generally whether "domestic strife" would be caused by both parties having access to the marital residence.  A court may also consider whether the vacating party has somewhere else to live, whether an alternative residence is affordable, and how the parties' children may be impacted.

If you have questions about exclusive use and occupancy, want to raise it as an issue in your divorce case, or need to defend against it, contact me to discuss your situation.  

In 2015, the laws governing maintenance (also known as "alimony" or "spousal support") in New York State were completely overhauled.  The laws applicable to temporary maintenance, or maintenance paid while a divorce is being litigated through the courts, went into effect on October 25, 2015.  The new provisions regarding temporary maintenance will only impact divorce cases filed after the October 25, 2015 effective date.  The laws applicable to maintenance paid after a divorce is final (post-divorce or permanent maintenance) went into effect on January 25, 2016 and will only apply to divorce cases commencing after that date. 
 
Modifications Based on the New Statute
If you receive or pay temporary maintenance pursuant to an order made by the court prior to October 25, 2015, the new statute is not grounds to modify your existing order.  Further, if your divorce is already final and you are paying or receiving maintenance pursuant to your Judgment of Divorce, the passage of this new statute does not provide a basis for modification.  In other words, you cannot seek to change a maintenance order you already have simply because the new statute would be more favorable to you.  It is also important to note that if you have an existing maintenance order, the new statute does not change an obligation to pay in any way. 

How much maintenance will I get/have to pay? 
The new statute provides two formulas for calculating temporary and post-divorce maintenance based upon whether the payor is also paying child support to his/her spouse.  In setting a maintenance award, the court will use the appropriate formula and plug in the payor's income and the payee's income to calculate the guidelines maintenance award.  Under the old statute, a formula was given for calculating temporary maintenance, but there was no formula for calculating post-divorce maintenance leaving much uncertainty.  Under the old statute, there was also only one formula regardless of whether the payor was also paying child support to his/her spouse.

Income Cap and Deviations
The new statute lowers the income cap for temporary maintenance from $543,000.00 to $175,000.00 of the payor’s income, which in 2016 was increased to $178,000.00.  The $178,000.00 income cap also applies to post-divorce maintenance.  This means that in determining a maintenance award, the court will apply the formula only to the first $178,000.00 of the payor’s income.  If the payor has income above the $178,000.00 cap, payment of additional maintenance based upon the surplus income is at the discretion of the court guided by “deviation factors” set forth in the statute.  There are thirteen factors which the court is obliged to consider before deviating in setting temporary maintenance, and fifteen deviation factors to consider before setting post-divorce maintenance. 
 
The formulas contained in the statute will always determine the amount of maintenance to be paid, unless the court determines that the formulas result in an “unjust or inappropriate” outcome.  The court can make that determination and choose to set a different amount as the maintenance obligation, but before doing so the court must consider the deviation factors set forth in the statute. 
 
How long will maintenance be paid?
Temporary maintenance will always last until your divorce action has concluded, unless it is otherwise modified by agreement or by the court.  As to how long post-divorce maintenance may last, the new statute sets forth a duration schedule based upon the length of your marriage.  However, the duration schedule is advisory only and the court may choose not to follow it.  It remains to be seen how closely the courts will be guided by the advisory duration schedule set forth in the new statute. 
 
No Guarantees
While the new statute is intended to reduce unpredictability in maintenance outcomes, it does not completely remove the element of uncertainty.  A court can choose to deviate from the guidelines and there are no guarantees as to how long post-divorce maintenance may last.  It is therefore essential that you have an attorney fully familiar with the prior and current maintenance laws who can assist you to achieve a fair result if maintenance is an issue in your case.
 
Taking Control
Regardless of whether the new maintenance statute applies to your case or whether you are subject to the prior law, you always have the option to take control of your case and deviate from the law by coming to an agreement with your spouse as to whether maintenance will be paid, how much, and for how long.  If a fair and reasonable agreement can be reached, that will remove the element of unpredictability and is always preferable to leaving your financial well-being to the courts to decide.
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In cases where maintenance is an issue, my focus is on resolving this element of your case as quickly as possible. Addressing maintenance quickly will ensure the financial stability of the family while a divorce is ongoing and give you some clarity as to your financial position going forward as you disentangle your economic ties to your ex-spouse.  If you think you may have to pay maintenance, you will want to know the amount and duration so that you can plan for your future accordingly.  If you expect to receive maintenance, you will need this element of your case resolved quickly so that you can budget and make definitive plans for the next phase of your life. 

You also will need questions answered such as who will be responsible for paying the mortgage on your marital home while a divorce is ongoing and how might maintenance impact child support.  An experienced attorney is imperative to getting these questions answered for you by either negotiating with your ex-spouse or navigating the court system. 

Contact me to further discuss maintenance and how the new statute will impact your case.  

​Clients will often tell me that they and their spouse want an “uncontested divorce.”  There is a good reason for this – in theory, an uncontested divorce is easier, quicker, and cheaper than a divorce where the parties intend to fight over every issue.  However, what an uncontested divorce really means should be clarified so that you and your attorney are on the same page. 
 
A truly “uncontested divorce” in New York State is a divorce in which you and your spouse agree that you both want a divorce and also agree on every issue which must be made as part of that divorce.  You have already decided whether the marital home will be sold or whether one of you will buy the other out and for how much.  You have already decided the custodial schedule for the children, where they will spend holidays and how to divide vacation time, who will be making important decisions on their behalf and how that will work.  You have already decided how much child support will be paid and whether maintenance will be paid, how much, and for how long.  You have already decided how to divide any marital debt.  You have already decided how to divide retirement assets.  You have already decided about whether you will have an obligation to maintain life insurance, how to divide your personal property, who will claim the children on tax returns, and so on. 
 
In that context, as you may expect, a truly uncontested divorce is rare because usually divorcing couples do not agree so easily on these often difficult topics.  However, if you and your spouse are amicable and are able to sit down and hash these issues out, then your attorney needs only to review your plan to make sure it is fair to you and is within the bounds of the law, draft an agreement to memorialize your arrangement which will be signed by you and your spouse, and then submit the divorce paperwork to the court along with your agreement. It can be that painless if you really do agree on everything and your agreement is fair to both of you.  
 
Ideally, a divorcing couple is able to come to a fair agreement on their own to save time and attorney fees, but usually in my experience, when someone says he or she wants an “uncontested divorce,” the reality is that the couple agrees that they want a divorce but don't completely agree on all of the other details.  That’s okay and is normal when a couple is divorcing.  If this applies to your situation, I will go through all of the relevant issues with you and identify the areas where you and your spouse are in disagreement.  We will focus on negotiating and narrowing those areas of disagreement so that an agreement can ultimately be reached, with the goal still being to get you divorced as quickly and cost-efficiently as possible while avoiding the courtroom. 

To speak with me about your divorce, uncontested or otherwise, click here to contact me.