Can Family Court Deal With Spousal Support or Child Support When a Divorce is Also Filed?

Kitchen-Fight-300x200In Nassau County and Suffolk County, as well as the surrounding areas of Long Island and New York, the law generally allows for concurrent jurisdiction in either the Supreme or Family court to tackle issues of spousal or child support for married couples not living together. For a married couple living together, usually, unless it was clear that one of the parents has custody over the other, if one of the parents filed a child support case in family court, the family court would usually dismiss the case and direct that the issue of child support should be the topic in a matrimonial case. Matrimonial cases are dealt with in the Supreme Court.  Proceedings for legal separation or divorce are the most common marital cases, although an annulment proceeding is also a matrimonial case.  The family court does have jurisdiction to hear a child support case for a married couple not living together.

If there isn’t a matrimonial case pending already, spousal support cases can be filed in the family court. This may be true even in a situation where a married couple remains living together, without support for the non-monied spouse. The family court does not have jurisdiction to hear newly filed cases for assistance when a matrimonial case is pending with the Supreme court. However, there’s a general exception to this rule which allows for the filing of a support petition in the family court, even when matrimonial cases are pending if one spouse and the children are likely to become public charges or are already on public assistance.

Examining Spousal Support Cases Before Matrimonial Cases Begin

But what about a situation where a spousal support case is filed in family court, before the filing of a matrimonial claim, but then a matrimonial case is started immediately afterward? We can go to the case law for guidance.  The Appellate Division Second Department (which covers Queens and  Long Island among other areas) has held in the Ramirez case that the Family Court has the discretion not to hear the case while a matrimonial case is pending.  In the case of Ramirez v. Ramirez, 171 A.D.2d 784 (Second Department 1991) the family court decided, and the appellate court affirmed, not to consider the petitioner’s application for support in family court as they were not required to exercise jurisdiction over the case when a divorce was pending. The examiner in the hearing said that she would not consider the application when a matrimonial action was pending with the Supreme court. Under the circumstances, the appellate court saw no reason to go against this decision.

Similarly, in the case of Roy v. Roy, 109 A.D.2d 150, 491 N.Y.S.2d 202 (2nd Department 1985) the court found that although the Family Court had the option to exercise jurisdiction when a matrimonial case was filed after the family court case, it could also decline to exercise that jurisdiction. This is particularly true in a situation where the same petitioner in family court then files a matrimonial case in the Supreme Court.  The theory is that by starting the matrimonial case, the Plaintiff (Petitioner in family court) elected to litigate the matters in Supreme Court.  There is a strong argument that it makes sense to deal with the issues in Supreme Court as the matrimonial case can tackle child support, maintenance (alimony or spousal support), child custody, equitable distribution, which are all related topics that might have bearing on each other.

The principles involved for the Supreme and family courts in dealings with cases regarding child custody and matrimonial cases can also be applied to cases analogously when dealing with support in family court at the same time as a matrimonial case for the parties is in Supreme court. In the 2005  case of Moloney vs. Moloney, 19 A.D.3d 496, 798 N.Y.S.2d 455 the court held that the trial cour should have dismissed the case for custody when issues were under examination in the matrimonial case taking place in Supreme court. In a similar situation, the family court, in the case of McKay vs. McKay, 82 Misc. 2d 929, decided to decline to hear the issue regarding support in family court while the same petitioner filed a matrimonial case. The court believed it was appropriate to decline jurisdiction when they thought that the actions of the filing spouse indicated that she was attempting to avoid motion practice in Supreme court for temporary maintenance in the matrimonial case.

Dealing with Family and Supreme Court Issues

Moreover, when a family court petitioner for support then starts a matrimonial action, the respondent in family court and defendant in the Supreme Court divorce or separation case is prevented from filing for relief in family court.  There is an argument to be made that this is not equitable. The court may feel that the Petitioner or Plaintiff is forum shopping.  This kind of behavior is frowned upon by the courts. The family court in the LaMonde v. Leon, 111 Misc. 2d 781, 783, 444 N.Y.S.2d 371 case believed this to be the situation at hand.  In this case, the courts noted that the petitioner in the family court case had then commenced a matrimonial case in the supreme court. The McKay court suggested that the plaintiff was forum shopping.

There are cases, however, that the family court may decide to make rulings on a support case when that case takes place before the matrimonial case begins. The second department in the case of Fischman vs. Fischman, 379 N.Y.S.2d 143 made this decision. They determined that it was suitable to exercise their jurisdiction because a matrimonial application hadn’t begun before the support case went to court. In the case of James P.W vs. Eileen M.W, 136 A.D.2d 549 the courts made the same decision, noting that the family court had not been divested of its jurisdiction by the commencement of a subsequent matrimonial action in the supreme court during the family court proceeding.

In issues of divorce, custody, and support, timing can be crucial in ensuring that you take the right steps for your best interests. To discuss the concept of support cases, matrimonial cases, and other issues associated with family law further, contact my office to schedule your initial consultation (up to the first half hour is free of charge).