All areas of family law come connected to their own range of primary concerns, complex nuances, and complicated matters that ultimately a judge, or trier of fact may be forced to decide upon. Darren Shapior has extensive experience as a family lawyer, and began practicing law in 1999. He has many years of training and skill which he uses to help numerous families discover the best possible routes available to them when taking steps to achieve the best possible legal outcome. During any court case, it’s worth noticing that judges have discretion over certain decisions that may be made, which could have a significant impact upon the results of your case. However, it is also important to recognize that parties to a case, with the help of their attorney, can help shape the decisions that are made by the judge or court.
In areas of family law, from child custody, to support matters, and even divorce – there are a wide range of different discretionary points to be considered that can help to manipulate or change the decision the judge makes at the close of a hearing or case. These matters can range all the way from the determination of what should be considered as “equitable distribution” in the dissolution of a marriage, to the imputation of income. It is only with the right legal assistance that you can hope to change the course of actions within a court hearing towards the outcome that is most beneficial to you.
One of the matters most frequently considered during divorce procedures is the issue of maintenance. In reference to temporary maintenance, the court will be given the discretion to deviate away from the typical or common guidelines used, when certain circumstances are in place. The factors that allow a court to order maintenance that differs from the presumptive amount of temporary maintenance awarded in family law cases are recorded under the law of Domestic Relations. These factors could include, but are not limited to: the standard of living individuals grew accustomed to during a marriage, the ages and health of the parties, the ability that both sides have to earn, the issues such as care of children that inhibit the ability to earn, exceptional expenses required for children, and other factors relevant to the concept of what is “fair”. Importantly, the introduction of the New York no-fault divorce law means that laws regarding permanent maintenance continue to be largely unchanged. In issuing permanent maintenance awards, judges must consider factors such as: the length of the marriage, equitable distribution, health, and ages of party, the ability to earn for both parties, issues that could restrict abilities to earn, exceptional expenses for children, and any other factors deemed to be relevant.
Another highly important part of any divorce procedure relates to the determination of equitable distribution. In equitable distribution, Mr. Shapiro often finds that the discretion of the court arises as a particularly relevant factor. Within the courts of New York, Mr. Shapiro frequently advises his clients that the term “equitable” is used to describe what is “fair” – and though this may equate to what is considered “equal” in dividing marital assets – this is not always the case. In certain circumstances, post or pre-nuptial agreements are made that will help to point out how property should be divided, and in most cases these agreements will be honored by the members of the court. However, there are some (very particular) instances wherein the court will choose to set aside post or pre-nuptial agreements. If an agreement has not been put in place, then the parties within a court dispute and the attorneys assisting with the case may choose to come together and make a mutual decision on what they imagine to be “equitable”. However, if an agreement cannot be made on amicable terms, then the distribution of assets at an equitable level becomes the task of a judge.
A further example of discretion involved within the application of family law involves discovery penalties and violations. Judges generally have a great deal of discretion when it comes to determining penalties for discovery violations, and if someone does not object correctly to a discovery demand, or fails to comply properly, the other party will be able to access remedial options. The rules and law of civil practice provide solutions and methods of remedy for non-compliance regarding the matter of financial discovery. The law ensures that anyone who refuses to comply completely with a discovery order may be faced with an order that permits the issues on which the discovery would be relevant to be automatically resolved for the benefit of the party that requested disclosure in the first place. What’s more, an order could also be made by the court that the non-compliant party within the court procedure is not permitted to offer evidence or witnesses at a hearing or trial, and that the pleadings of the non-compliant side should be dismissed or struck from the record. This particularly extreme remedy is known as preclusion.
Finally, discretion can be used by court officials when making decisions regarding parenting time and child custody. Decisions made by tiers of fact and judges will always be required to focus on providing an outcome relevant to the best interests of the child. However, with this in mind, it’s important to note that a court may only make a final order for a contested case after holding a full evidentiary hearing in which both parties involved in the dispute are given the opportunity to testify about relevant information and provide witnesses. Parties will also be given the right to make agreements towards settling the case at any time prior to the start or before the trial closes.
Though the results of any case are determined at the discretion of the judge, help from the right legal guidance can help you to pursue results that are more beneficial to you. Mr. Darren Shapiro helps to guide his clients throughout the complications of matrimonial and family law, so that they achieve the best possible outcome for their needs. To discover more about divorce, legal discretion, and family law, please visit our blog or contact us. Those who are interested in using Mr. Shapiro’s legal skills should contact our office regarding their free consultation at their earliest convenience. We look forward to speaking with you.