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The Pope weighs in on Catholic divorce

November 16, 2016 in Uncategorized by nydfl

pope-francis

REUTERS/Tony Gentile

In our practice, we’ve experienced how deep the impact of religious beliefs and practices not only on individual and couples when it comes to divorce. All faiths, Judaism, Buddhism, Catholicism and others, are guided by historic doctrines, rules and books outlining how individuals not only practice their faith, but share it with others. These matters are immediately thrust to the forefront when a man and a woman choose to marry, as well as when (or if) they choose to divorce.

Catholicism, a religious faith affecting more than 1.2 billion people worldwide, underwent a small but monumental evolution in how it handles divorced couples when Pope Francis called for more grace and less dogma in matters of divorce. Through his efforts, Pope Francis conveyed a keen desire to reach out to the Church’s “most fragile sons and daughters, marked by wounded and lost love,” and “to bring justice and mercy on the truth of the bond to those who have experienced the failure of their marriage.”

Couples who marry in the Catholic Church are not just legally bound; they are bound by Church law. Therefore, should the marriage fail, and the couple opt to legally dissolve the marriage by way of divorce, they still remain bound in the eyes of the church unless they obtain an “annulment.” An annulment (formally known as a “declaration of nullity”) is a church ruling that a particular marriage was null from the beginning—that is, something was gravely wrong at the time the wedding vows were made and it prevented a valid marriage from coming into existence.

Examples include:

  • the brevity of married life (i.e., the couple divorced very quickly after being married)
  • procured abortion to prevent procreation (presumably during the marriage itself, prior to bearing other children and thus showing an unwillingness to procreate)
  • the stubborn persistence in an extramarital affair at the time of the wedding or at a time immediately following
  • the physical violence inflicted to extort the consent to marry

The process of annulment has, in the past, been arduous and lengthy, occasionally causing devout Catholics to abandon completely the Church and faith. Pope Francis this year offered relief by establishing parameters to make the process more efficient and expeditious. Through his proclamations, Pope Francis created a single judgement of nullity and has placed the responsibility and decision making squarely on the shoulders of the bishop, ultimately eliminating unnecessary procedural delays.

This evolution has benefits, but does not deliver any absolutes or a bee line to annulment for couples whose marriage is found to be valid. What the pontiff has done instead is give local clergy permission and space to try innovations that are more merciful, and pastoral, while giving bishops or dioceses flexibility to derive their own policies.

His ultimate goal, it seems, is to encourage clergy to extend an olive branch of mercy to divorced and remarried Catholics long barred from the highest sacrament of the church: Holy Communion, while also wooing back to the Church those couples that have endured marital upheaval.

If you are considering a divorce but aren’t sure how to proceed, contact The Law Offices of Russell I. Marnell, P.C. to arrange an initial consultation. We can walk you through optimal first steps.

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*

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Due Process and Custody : Legal steps upheld by the law

July 13, 2016 in Uncategorized by nydfl

divorce custody Law Offices of Russell MarnellChild custody matters are particularly challenging in divorce cases where filed charges of domestic violence and orders of protection exist. Judges presiding over such cases must take into consideration all facts to legally and properly assign sole or joint custody arrangements.

A recent case where a mother initially lost custody of her children (after having set fire to her ex-husband’s clothes and broken out windows of the family home), provided sufficient evidence in the court’s mind to grant sole temporary custody to the father. Not long after, the mother’s visitation was suspended as a therapist reported that it would not be in the best interest of the children to allow visitation until the mother entered an anger management program. The mother in this case was also being charged in three (3) pending cases of domestic violence.

Several months later and without a custody hearing, the father was granted sole custody by the court. When granting sole custody to the father, the presiding judge declared, “while custody decisions are generally only made following a comprehensive evidentiary hearing, no hearing is necessary when the court possess adequate relevant information to enable it to make an informed and provident decision as to the child’s best interest,” citing the 2004 ruling in Matter of Hom v. Zullo, 6 AD3d 536.

However, on June 9, 2016, the Court of Appeals unanimously reversed the Second Department’s decision.

Judge Michael Garcia wrote for the court, “While there should be no one-size-fits-all rule mandating a hearing in every custody case, custody decisions should generally be made after a full and plenary hearing.”

In support of the mother in this case, a coalition of advocacy groups argued that it is assumed there will be a full hearing prior to the issuance of a final custody decree. However, the Second Department has occasionally and historically made final custodial determinations without evidentiary hearings when “adequate relevant information” standards are met. The advocacy groups opine that such determinations and failing to hold hearings, ultimate infringe upon a parent’s constitutional rights.     child custody NY divorce lawyer

This argument supports the existing legal due process for child custody matters which outlines final child custody decisions should be made only after a hearing, at which all admissible evidence can be considered.

More details of the case can be found at: http://www.newyorklawjournal.com/id=1202759918961?keywords=Andrew+Denney

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*

 

 

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Prenups: Sometimes ‘Callous’ yet Legally Binding

May 9, 2016 in Uncategorized by nydfl

Russell I. Marnell Those that have endured divorce proceedings know well that emotions can escalate quickly and sometimes without warning, and that even when situations seem relatively amicable, one small disagreement on the value of an asset or about child custody can instantaneously set back the entire process.  Marital agreements, (also known as prenuptial agreements) can be both a source of relief as well as contention,  especially those who enter marriages with individual assets–be they real estate, businesses, trust funds, etc.  The legal protection can be a lifesaver should a relationship dissolve. Too often however, those deep in the throes of love forget the truth that some relationships, do fail. Having a level of legal protection, courtesy of a marital agreement, may be the difference between an amicable or nasty separation.

Case in point: Gottlieb v Gottlieb, 311197/12.  A hedge fund magnate by the name of Jacob Gottlieb met, fell in love and moved in with Alexandra Lumiere. Prior to Gottlieb’s proposal of marriage, he explained that he would not go through with a marriage unless and until Lumiere signed a prenuptial agreement. Lumiere, being advised not to by her matrimonial attorney, expressed objections to the agreement contents and postponed signing it after Gottlieb progressively reduced his offer. One year later, Lumiere became pregnant with the couple’s first child yet Gottlieb refused to consecrate the marriage until after the child’s birth, at which time he again lowered his prenuptial agreement offer.  When Lumiere became pregnant with the couple’s second child three years after they met, she claimed she succumbed to his unfair demands in order to “end the madness.” The prenup entitled Lumiere to a lump sum payment of $1.6 million and the right to live in an $8.9 million Manhattan apartment for the next 10 years with maintenance utilities and health insurance for her and the children, after which the apartment would revert to Gottlieb. While various additions and stipulations were made within the marital agreement, the question posed in this case is whether or not a “callous” prenuptial agreement is legally-binding and enforceable? 

The courts ruled that yes, it is. love-divorce-17971746

In the opinion, Justice David Saxe asserted that “the purpose of such agreements is not to achieve fairness, but to protect the assets of the monied party from being turned over to the other, and to strictly limit what the non-monied spouse will receive in the event of a divorce.” Furthermore, the court opined that Gottlieb “indicated to his fiancée (Lumiere) that he was not prepared to be generous with her in any way and that marriage to him required her to accept a hard bargain.”

While Gottlieb never fully disclosed his income and financial holdings in full as the agreement was being negotiated, the courts did not find his dealings unfair. Lumiere, held an economics degree from the University of Pennsylvania and had worked in the finance industry, therefore, fully understood the information that was provided.  In the end, the court made it clear that “the refusal to marry a pregnant girlfriend without a prenuptial agreement is not in itself overreaching or duress.”

Therefore, even if a marital agreement seems unequal, once it is finalized and signed, (regardless of how seemingly “unfair” or “callous”), it is legally-binding.

The Law Offices of Russell I. Marnell, P.C. can assist in expertly crafting a comprehensive and completely collaborative prenuptial agreement that sensitively considers each party’s concerns. Contact us at: 1-866-MARNELL (866-627-6355) to arrange a consultation.

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*

 

 

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Halachic Prenups Gain Traction

April 25, 2016 in Uncategorized by nydfl

divorce-decree-24549533For enfianced couples, the very words “prenuptial agreement” (or premarital agreement) can incite a level of concern. Men and women engrossed in deep love and powerful, passionate emotions for one another tend to avoid consideration of a legal document which basically defined, establishes the property and financial rights of each spouse in the event of a divorce. In each individual social, cultural, and religious circles, a premarital agreement can be referred to or written in its own manner, yet once signed by both parties, becomes legally binding.

In the Orthodox community for example, the “halachic prenup” isn’t as much about assets as it is about ensuring that the couple, under Jewish law, can obtain a religious divorce. This document, which dates decades back, helps to avoid challenging or abusive situations as well as reduce incidences of “agunot,” a Hebrew term for women who remain married against their will. Orthodox Jewish couples are required to both civilly and religiously divorce, however only men maintain the power to grant religious divorce called a “get.”  When husbands refuse a get, wives are often not allowed to participate in religious ceremonies or worse, can be ostracized from the larger Orthodox community which can be not only very difficult for women but their children.

In a recent Wall Street Journal article, writer Melanie Grayce West reports on how both the halachic prenup and postnuptial agreements are gaining more traction in the youthful Orthodox community.

If you or your intended would like to meet to discuss the merits of a premarital agreement or halachic prenup, contact the Law Offices of Russell I. Marnell, P.C. as we can most certainly assist.

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.

 

 

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Russell I. Marnell Soars as a 2016 Top Legal Eagle

April 4, 2016 in Uncategorized by nydfl

LIPulseLegalEagles The Law Offices of Russell I. Marnell, P.C. is delighted to announce that its founder, Russell I. Marnell, has been named to Long Island Pulse magazine’s 2016 list of Top Legal Eagles. Each attorney represented on the list has set standards for the legal industry and specifically, their individual areas of practice. Mr. Marnell, no stranger to accolades, is consistently ranked by Super Lawyers®, AVVO, and maintains an AV Preeminent® 5.0 rating, the highest level of professional excellence, from Martindale-Hubbell® given a deep commitment to exceptional representation of his clients.  RM

 Long Island Pulse created its “Top Legal Eagles” list to feature the region’s top attorneys so that those seeking counsel, can easily reference the guide to locate the proper attorney to meet their needs. The list includes attorneys who strive for excellence in all endeavors and those that give back to their communities. Additionally, each remains active in the development of the law outside the courtroom by participating in, and in some cases leading, organizations that uphold the strictest ethics and legal principles. 

“For more than 30 years, we have consistently polished our legal expertise,” said Russell I. Marnell, founder of the Law Offices of Russell I. Marnell, P.C. “Being named to Long Island Pulse magazine’s 2016 list of Top Legal Eagles is a testament to our efforts to showcase exceptional legal acumen as well as our commitment to jurisprudence, whether holding positions in various legal associations or educating others about the law. We are delighted to be recognized for our dedication to not only our clients and community, but the industry we serve.”

Long Island Pulse magazine

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NY Family Court Protection Order, Clarified

January 26, 2016 in Uncategorized by nydfl

divorce-family-split-up-32882688A 2010 change in New York’s Family Court Act allowing a petitioner to seek an extension to orders of protection upon a showing of “good cause” was clarified in Matter of Molloy v. Molloy 2014-07966.

In this case, Jennifer and William Molloy were married in 2002 and had one child together. In 2010, Jennifer Molloy filed a family offense petition against her husband in family court, which was granted. Prior to the expiration date of this two-year order of protection, Jennifer Molloy filed for an extension (until December 1, 2018) arguing that there was “good cause” as defined by the Family Court Act. She did so after reporting that her husband had violated the order by showing up at her apartment, banging on the door, and driving his vehicle too closely to her while she was en route to a police station for a custody exchange. She was granted an additional two-year order of protection through the Queens Criminal Court when her ex-husband pleaded guilty to violations and disorderly conduct.

On July 21, 2014, Queens Family Court Judge Dennis Lebwohl denied her request for an additional extension, ruling that since the Criminal Court had already provided her with a protection order, the goal of the Family Court Act had been accomplished. A concerned Jennifer Molloy appealed and a decision handed down on January 20 reversed Lebwohl’s ruling. Justice Cheryl Chambers, writing for the court, said Criminal Court’s decision to grant an order of protection did not negate or “otherwise render superfluous” the request to extend the Family Court order.

The critical element of this case is whether or not Jennifer Molloy met the “good cause” standard under the Family Court Act §842.

When enacted in 1962, the Family Court Act §842 gave Family Courts the authority to grant orders of protection, but did not empower them to grant extensions. The law was modified ten years later to grant courts the authority to extend orders “upon showing special circumstances.” Unfortunately, this discouraged victims from applying until abuse occurred again. Domestic violence groups fought for further remedy and the law was amended in 2010 thus lowering the standard from “special circumstances” to “good cause.”

To determine what defines “good cause,” Justice Chambers said courts should consider the nature of the relationship between parties, the circumstances leading up to the entry of the order of protection, the state of the relationship between the parties when an extension is requested, how frequently the parties interact, instances of domestic violence or violations of the original order and whether there is a reasonable concern for the safety of the petitioner.

In Molloy, Justice Chambers said “it is clear from the record that the petitioner’s fear that the respondent may stalk, harass, or attack her is well-founded and that the unavailable interactions between the parties (as they share custody of their one child) may subject her to a reoccurrence of violence” which in her opinion, establishes “good cause” for an extension of the order.

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*

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How State Laws Define ‘Parent’ Can Impact Child Custody

December 16, 2015 in Uncategorized by nydfl

Russell I. Marnell, P.C. Within the past several months, the U.S. Supreme Court’s legalization of same-sex marriage has given rise to a variety of unexpected challenges for the justice system, particularly in the area of child custody.  Compounding the problem is the fact that the definition of ‘parent’ differs from state to state, leaving same-sex parents with no biological connection to a child completely vulnerable to losing their parental rights. One of several pending cases across our nation has gained traction due to the impending question about what it means to be a ‘parent.’

In Kentucky, a 9-year-old girl now awaits a decision as to whom she will refer as ‘parents’ given the separation of her two mothers in 2011. One of two mothers, impregnated in 2006 via sperm donor, is the girl’s biological parent who has since remarried a man. The other mother, whom the girl refers to as ‘nommy,’ raised her until the age of 4 year and carried her on her insurance plan.

The new husband of the girl’s biological mother is now seeking to adopt the child, and the non-biological mother is attempting to intervene the adoption process.

Child custody laws in most states don’t yet fit all families. Therefore, should parental relationships with a child not be recognized by the laws governing the state in which you reside, the situation becomes much more complicated and potentially, losing.

No decision has yet been finalized in this case, however this is one of several seeking to sort out parental rights of same-sex couples.

The Law Offices of Russell I. Marnell, P.C. stands equipped and prepared to discuss your rights and the rights of your child. We are knowledgeable and well-versed in New York State laws and remain current of the evolution of laws that may impact our clients.  Should you be concerned about a potential custody arrangement, we urge to you contact us at: 1-866-MARNELL (866-627-6355).

*The information contained in this blog is presented as general information and is not to be construed as legal advice to apply to any person or particular situation. Please keep in mind that the law is constantly changing and therefore you should always consult an attorney for legal advice based on the individual circumstances of your situation.*

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Family Law Attorney Russell I. Marnell to Present at the 2015 Long Island Tax Professionals Symposium

November 16, 2015 in Uncategorized by nydfl

222878_215057785188210_4714289_nFamily law attorney Russell I. Marnell will speak at the 2015 Long Island Tax Professionals Symposium to be held this week, November 18-20, 2015, in Woodbury, N.Y.  Mr. Marnell, who is founder of the Law Offices of Russell I. Marnell P.C., has practiced matrimonial law and represented clients in matters of divorce, custody and family law for more than thirty years. He has regularly been sourced by the press for comment regarding celebrity marriages and divorces, and is consistently and highly ranked by legal industry associations including SuperLawyers®, Martindale-Hubbell® and AVVO.

RMMr. Marnell’s presentation, titled, “Pre-Nuptial and Post-Nuptial Agreements…not just for celebrity couples” will outline the benefits of and need for such agreements as well as what should be included within, what is enforceable, and issues that can surface when these documents are improperly drafted.  Further, it will outline the legal and social aspects of pre- and post-nuptial agreements, as well as challenges now being faced by the courts given revised marital laws in New York state, civil unions, dual income couples, and later-in-life marriages.

With extensive experience across both legal and financial disciplines, Russell I. Marnell, is highly regarded as an expert in complex divorce, matrimonial and family law. When not litigating on behalf of his clients, he is a sought after guest lecturer and news media resource.  He successfully navigates clients through challenging legal situations which require a disciplined legal and financial eye given his cross-industry expertise in both finance/accounting and law.  Currently, Mr. Marnell is admitted to practice law in New York, California, Nevada and Florida, as well as the United States Tax Court and Federal District Court.  He earned his J.D. from Hofstra University School of Law (Long Island), holds an MBA in Accounting, and passed the Certified Public Accountants examination.

The Long Island Tax Professionals Symposium (LITPS) is a thirteen-year old event started by the Internal Revenue Service. Twelve-years ago, Nassau/Suffolk Chapter of NCCPAP became the primary sponsor and coordinator of the Symposium, now a forum for more than 700 CPAs, enrolled agents, corporate tax executives, financial planners and attorneys. Attendees are provided with the most current, authoritative information on tax law and interpretations affecting business and clients nationwide. The three-day seminar contains more than 80 professional presentations delivered by acknowledged leaders and experts in their respective fields, as well as speakers from the IRS, NYS, the Social Security Administration and local government tax officials. The event is being held November 18-20, 2015 at the Crest Hollow Country Club in Woodbury, N.Y.

About the Law Offices of Russell I. Marnell, P.C.

The Law Offices of Russell I. Marnell, P.C. concentrates its legal expertise in the areas of complex divorce, matrimonial, and family law. For 30 years, the firm has provided exceptional legal representation to Nassau and Suffolk county (Long Island) residents and defended the rights and interests of clients amid divorce, custody and family law proceedings.  Firm founder Russell I. Marnell is an expert in the area of complex divorce and has been consistently recognized for professional excellence by Super Lawyers®, The Best Lawyers in America®, AVVO and Martindale-Hubbell®.  For more information about the Law Offices of Russell I. Marnell, P.C. and its team of divorce attorneys, visit http://www.nyfamilydivorcelawyer.com.

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Judge Declines to Apply Marital Property Rules in Same-Sex Divorce

November 10, 2015 in Uncategorized by nydfl

pic12In the last week, the New York Law Journal’s Andrew Keshner reported that a New York judge handling the dissolution of a same-sex couple’s Vermont civil union could not apply New York’s equitable distrubtion rules on marital property to assets acquired during the civisl union and prior to their marriage. Given the language of the current law, the judge believed that any ‘civil union’ property stayed titld in the name of the current title holder. Marital properly acquired after the 2006 civil union would therefore be reserved for trial.

The depth and uniqueness of this case spans multiple countries, states, years and unions. To read Keshner’s article in full, visit: http://www.newyorklawjournal.com/id=1202741076956/Judge-Declines-to-Apply-Marital-Property-Rules-to-Dissolved-Union 

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Russell I. Marnell Earns Distinction on 2015 New York Metro Super Lawyers List

October 7, 2015 in Uncategorized by nydfl

Super-Lawyers-logo-customThe Law Offices of Russell I. Marnell, P.C. proudly announce that family law attorney and firm founder Russell I. Marnell has been named to the 2015 New York Metro Super Lawyer® & Rising Stars list.  Mr. Marnell has consistently been ranked year over year as a New York Super Lawyer®, while also earning the highest rating of 5.0 (AV Preeminent®) on Martindale-Hubbell® Peer Review Ratings™,  and the most elite rating of ’10-Superb’ by AVVO. Each of these noteworthy distinctions is based on Mr. Marnell’s dedication to professional excellence in the practice of complex divorce and family law.

 

“Inclusion in the New York Metro Super Lawyers list highlights the exceptional work done by attorneys dedicated to not only their craft, but their clients,” said Russell I. Marnell, founder of the East Meadow, NY-based firm. “Our firm refuses to rest on its laurels and consistently operates at the highest level of excellence. This dedication has paid dividends not only in the form of satisfied clients, but distinctions that mark a concerted effort to excel in our profession. We are incredibly pleased to have been again named to the Super Lawyers list.” russell

 

With extensive experience across both legal and financial disciplines, Russell I. Marnell, is highly regarded as an expert in complex divorce, matrimonial and family law. When not litigating on behalf of his clients, he is a sought after guest lecturer and news media resource.  He successfully navigates clients through challenging legal situations which require a disciplined legal and financial eye given his cross-industry expertise in both finance/accounting and law.  Currently, Mr. Marnell is admitted to practice law in New York, California, Nevada and Florida, as well as the United States Tax Court and Federal District Court.  He earned his J.D. from Hofstra University School of Law (Long Island), holds an MBA in Accounting, and passed the Certified Public Accountants examination.

 

An Elite Distinction

 

In order to determine the top lawyers in each state, Super Lawyers uses a multiphase selection process that evaluates candidates on 12 indicators of peer recognition. The organization uses nominations, evaluations, and independent research to find which attorneys are the leaders in their respective fields. Each year, Super Lawyers seeks to compile a diverse, credible, and comprehensive list of outstanding attorneys.

 

During the selection process, candidates are evaluated by the Super Lawyers research department after being nominated for recognition by fellow attorneys. Evaluations of an attorney’s honors and awards; special licenses and certifications; position within law firm; verdicts and settlements; professional activity; pro bono community service; transactions; representative clients; education and employment background; scholarly lectures and writings; and other outstanding achievements are completed and included within a patented, multiphase process.   The result of these efforts is a comprehensive list of the top five percent (5%) of attorneys in each state—and a resource to be used by both attorneys and consumers in their search for outstanding legal counsel.

 

For more information about the divorce and family law attorneys from the Law Offices of Russell I. Marnell, P.C. visit http://www.nyfamilydivorcelawyer.com.

 

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Spousal Maintenance: Revised Law in New York State

 

October 2, 2015 in Published Works by nyfdl

 

divorce-cash-25545550Significant revisions have been made to the guiding laws used to decide both pre- and post-judgement maintenance payments (support) in New York. The new law (Bill A7645/S5678) was officially signed into law by Gov. Andrew Cuomo on September 25, 2015.

 

“Establishing revised formulas to calculate both the duration and amount of maintenance and spousal support, the new law will hopefully bring more uniformity to judicial decisions,” said Russell I. Marnell, divorce attorney and founder of the Law Offices of Russell I. Marnell, P.C. “It will also make it easier to advise clients with greater confidence as to the amount and duration of the probable final maintenance award.”

 

Mr. Marnell continued, “The revisions will also simplify equitable distribution since licenses, degrees and enhanced earning capacity are no longer marital assets subject to valuation and distribution.”

 

To review the bill in full, visit: Bill A7645, or read Joel Stashenko’s comprehensive article in the New York Law Journal.