Articles Posted in Child Support

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Most people know what in hand delivery service of process of court papers looks like as they have seen process servers depicted in TV Shows and movies. Courts prefer actual hand delivery of the court papers as that is the surest way to know that someone has received the papers. In New York this kind of service is enumerated under the Civil Practice Law and Rules (CPLR) Section 308(1). The process server swears before a notary in an affidavit that they hand delivered the papers. This affidavit of service is filed with the court. After starting an action, the CPLR allows for 120 days for the service to be made.

We also know that a lot of people like to avoid service of process. In a divorce, the question becomes, can I get a divorce if I do not know an exact address for my spouse or if he or she is ducking service? Yes, it is possible, but permission of the court needs to be obtained. In other words a motion needs to be made requesting the court to allow service by some alternate method such as posting the summons to a door and mailing (commonly known as “nail and mail” service), service by mail, or service by publication. If the time for service will be past the 120 day period from when the case was initiated, then permission to extend the time for service needs to be requested from the court as well. Good practice would be to include this request in the motion for permission to serve by publication or some other alternate method. Continue reading ›

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Last week, I blogged about temporary or pendente lite maintenance.  This blog will discuss temporary child support or pendente lite (while the case is pending) child support in New York cases.  Pendente lite child support is the child support that is either agreed upon or awarded by a court while a divorce or legal separation proceeding is pending and not yet resolved.  In Family Court child support cases, the amount that is paid while the case is pending and not yet resolved is called temporary child support.

The Child Support Standards Act dictates the presumptive amounts of child support to be applied in both the Supreme Court or Family Court cases.  The law for Supreme Court cases is found in the Domestic Relations Law Section 240 [1-b].  The Family Court Act contains the provisions in Family Court Act Section 413.  Courts may use the Child Support Standards Act in applications for pendente lite or temporary child support but they are not required to do it.  Davydova v Sasonov, 109 A.D.3d 955, 957-958, (N.Y. App. Div. 2d Dep’t 2013). Continue reading ›

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There are various resources out there free on the internet which are useful in practicing New York family law.  The New York statutes are one of the most important sources of information and are located in different places on the internet.  As a Long Island Divorce Lawyer, family law attorney and mediator, I pay for services where I have access to statutes, cases and public records information that enhance my ability to search for information.  But, there are also a lot of areas on the internet where there is helpful free information.

One convenient place to find statutes for the various New York laws is the Cornell Law website. The Domestic Relations Law is controlling for matrimonial practice in the New York Supreme Court. The Family Court Act controls for practice in the Family Court. The Civil Practice Law and Rules contains rules about the dynamics on procedure such as the filing and service of cases, rules of evidence in civil cases, the making of motions and discovery procedures just to name a few areas this law controls.  This website is also a good source to locate legal professionals who practice specific areas of law in various geographies. Case decisions for New York matters may also be found through this website.  There are links to published decisions for New York and other jurisdictions on this site.

Another huge resource for family law and all other areas of practice in New York court is the court website located at nycourts.gov.  This site also has links to find published decisions for case law in New York.  There is a large volume of information, tools and forms on this website which are invaluable for lawyers and litigants alike.  I’ll spend the rest of this article highlighting just some of these that I find important. Continue reading ›

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I have previously discussed modifications of judgments of divorce. As a reminder, a modification does not erase the order that was made, but if there is an adequate change of circumstances under the law, a party to the case can change the order going forward in certain circumstances. But, can one vacate a judgment of divorce or have it taken away as if it never existed?

The law, in New York, specifically the Civil Practice Law and Rules, details the mechanism by which a party to a divorce case can request a court to open up, vacate, or relieve them from the terms of the judgment. The person that wants the relief needs to make a motion asking the Supreme Court to grant it. The first enumerated reason that the law allows for this relief to be granted is if there is an excusable reason that the person defaulted. The motion needs to be made before the expiration of a year after the moving party received notice of the entry of the judgment or within a year after the movant entered the judgment if that is the situation. The other reasons outlined in the statute involve: new found evidence; fraud type issues; no jurisdiction; an agreement to vacate a default judgment; or if a previous order that the Judgment of Divorce was based upon was changed, vacated or modified then it could be a basis to vacate the judgment of divorce.

This blog article will focus upon the first reason a court can relieve a person from the Judgment of Divorce which is the excusable default. There is a liberal policy in New York to vacate default judgments in divorces as it is the preferred public policy that matrimonial cases be decided on the merits. All the requirements do need to be in place, however, to successfully vacate the judgment. As mentioned, the one year period after notice of its entry applies. Although the statute only mentions that the default be excusable, the case law made another requirement which is that there also be alleged what is called a meritorious defense. Continue reading ›

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When calculating income for child support or temporary maintenance (alimony), according to the New York Domestic Relations Law and the Family Court Act, the Court may, if the court believes it is appropriate, add in or “impute” income to people. The statutes outline some enumerated items to be considered for imputing income and mentions that other resources can be additionally considered. Assets that are not producing income is one of these enumerated resources. Fringe benefits and “perks” that someone receives as part of their job like for food, housing, cars, memberships, and other benefits, if they are for personal use or if they result in a financial benefit to the party, are mentioned in the statutes as things that can be imputed as income by a court. Funds, services, or benefits received by friends or family can be added in as income for child support or a maintenance calculation under the law.

If a court concludes that someone has diminished their income or assets to try to get around a child support or a “pendente lite” (Latin for while the case is pending) maintenance obligation, a court can impute income for the party’s previous income or resources. This might be, for example, if the court believes someone voluntarily left their jobs, were fired for cause, or chooses not to work full time or at all. Besides past earnings, a court can consider their education and ability to earn. Whether or not the party is diligently applying for employment commensurate with their background, experience, and abilities may be a factor in determining income. A support magistrate or judge can look at what people with comparable educations and backgrounds earn to impute income.

There is of course another side to these cases. The person or lawyer arguing against income being imputed to their client can show that the loss of employment or income was due to no fault of their own like for medical reasons, the economy, or downsizing. If that person proves that the circumstances were out of her or his control, and they have been making diligent attempts to get replacement employment or income, albeit unsuccessfully, then they might convince the court that income should not be added in. Relevant questions might be “Where did you apply for jobs? Who did you talk to? What interviews did you go on? How often would you make applications each week? Did you receive any offers” – and so on.   Ultimately, a court needs to weigh each side’s presentation for or against the imputation of income. Continue reading ›

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The New York Family Court Act dictates that paternity proceedings can be initiated any time from the pregnancy of a mother until the child is 21 years of age.  If a party makes a motion for DNA testing, the law provides that the court should order DNA or genetic marker testing unless the court finds, in writing, that the test is not in the best interest of the child due to equitable estoppel, the presumption of legitimacy of a child born to a married woman, or res-judicata (a Latin term that means the issue has already been judicially determined).  In any of these instances the court would not allow the test.  As a New York City area, Long Island and Nassau County Child Support Lawyer, I have represented people on both sides of the estoppel issue.  This blog will go into further explanations about equitable estoppel, which I have touched upon in other articles about child support and paternity.

As in most family law cases involving children, the finding to apply equitable estoppel must be found to be in the child’s best interests.  Equitable estoppel is designed to not allow rights to be enforced against someone that would result in fraud or injustice.  Equitable estoppel occurs when someone has held himself out as the father of a child.  Someone may hold themselves out as the father of the child which, can commonly be done by exercising parenting time or providing support.

The highest court in New York State, the New York Court of Appeals has held that it is proper to invoke equitable estoppel to protect an already recognized child and father relationship that is in place.  The case is Matter of Shondel v. Mark D., 7 NY3D 320 (New York Court of Appeals 2006).  The court recognizes a big quandary faced by potential father’s in this case.  If a man has doubts about whether or not he is the father, he has a choice to make before starting the father / child relationship.   He can request a DNA test before assuming the role of father.  This, of course, can have the effect of causing a strain on the relationship between him and the mother.  On the other hand, he can jump right into the role of father and might be precluded from ever getting a paternity test again and being forever defined by the law as the father.  It’s a tough dilemma because a court can later find that it is not in the child’s best interest to allow DNA testing because he has held himself out as the father.  It is not required that the person who holds himself out as the father did so knowing that this representation was false.  If someone, namely the child, justifiably relies on this representation, whether factual or not, estoppel can apply. Continue reading ›

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The law in New York does contain reasons to deviate from the guidelines amount of child support. The Child Support Standards Act contains a formula, based on income, that dictates what the presumptive amount of child support should be in each particular case.  The law also contains ten reasons that a deviation from the presumptive amount may be ordered.  The reasons may be used to justify an upward or downward departure from the guideline amount. New York State, New York City and Long Island Child Support Lawyers need to consider these reasons when their clients want more or less child support than it would appear that the guidelines would suggest.

The first is that a deviation can be ordered, after a consideration of the finances of each parent, and the children dictates that a different amount is appropriate.  Second, the physical or emotional health and a child’s aptitudes or special needs may suggest a deviation is appropriate.   The third consideration is the standard of living that the child would have lived under if the parental relationship or home remained intact, instead of dissolving.  Tax impacts to both sides are a reason that may be considered to deviate.  Non financial input that the mother or father will contribute to the care and wellness of a child is a permissible reason to deviate.

If either the father or mother has a need for additional education, that may be weighed when deciding if there is reason to deviate from the presumptive amount.  If the total gross income of either party is significantly less than the other parties’, it is one of the enumerated reasons to deviate from the guideline amount.  If the financial resources available to support children living with the payor or that he/she is supporting is less than the children in the subject case, and this support is not a deduction from the income of the non-custodial parent in the subject case, then the needs of these children may be considered when calculating the instant child support order.  Extraordinary visitation expenses (as long as the child is not on public assistance) or extended visitation expenses that significantly reduce the custodial parent’s expenses.  Finally, there is a catch all provision, that a court may order a deviation based on any other factor that it deems relevant. Continue reading ›

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The Uniform Interstate Family Support Act (UIFSA) has been adopted, in some form, by every state in the United States.  New York’s version of the law may be found in the New York Family Court Act Article 5-B.    The Act became necessary since parents and children end up having connections to multiple states.  A mechanism to determine which states have the power to initiate or modify a support order in each particular instance was needed.  The law also provides which state’s law should be applied when looking at child support issues.  New York and Long Island Child Support Lawyers have to sort out interstate support issues on a daily basis.

The child support laws can vary widely from state to state, therefore which state law is being applied is an important determination.  For example, people are required to support their children until age 21 in New York, unless they are sooner emancipated, while in other jurisdictions the age is 18.   The guideline amount of child support to be paid is different from state to state as well.   In New York, the guideline amount of support for one child is based on 17 percent of income while elsewhere different guidelines apply.

If there are proceedings simultaneously going on in two different states, the Act will help deterrmine which state should exercise jurisdiction.  If New York issues a child support order under New York law, New York will continue to have exclusive jurisdiction over the order, provided the child or one of the parties still lives in New York or consent has not been given for another state to assume jursidiction.  New York employers, under the law, are supposed to treat income-withholding orders from another state the same as an order made in New York.  Orders from other states can be enforced by the Support Collection Unit in this state, as long as there is not a contest to enforcing the order without registering it. Continue reading ›

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An order to pay child support or maintenance, that is part of a divorce judgment, can be enforced by filing a violation or contempt petition in the Supreme Court after the entry of a Judgment of Divorce. If exclusive jurisdiction was not reserved in the Supreme Court for dealing with future matters involving child support or maintenance, then either the Family Court or the Supreme Court could be utilized to bring the violation or contempt application. People for which the order was initiated in the Family Court for spousal or child support can bring their violation petition in the Family Court. When there is a choice between the Family Court and Supreme Court, there might be different reasons or motivations for choosing either one. For example, a party might choose the Supreme Court because they also want to discuss enforcement of a property settlement or child custody issues in the same case. The Family Court separates support issues from child custody issues into different cases, which are handled in different court rooms at different times. Also, the Family Court does not have jurisdiction over a property settlement. Other parties might choose the Family Court as they want to focus on one issue at a time or to avoid the more detailed paperwork associated with the Supreme Court. As a New York City and Long Island Child Support Lawyer that handles cases all over the area, I regularly appear in both the Supreme and Family Courts.

Usually, the contempt motion is brought by what is called an Order to Show Cause when it is done in the Supreme Court. Typically, the structure of an Order to Show Cause starts with the order pages, which are signed by the Judge, directing the other side to come to the court and show cause why an order should not be issued punishing the person for failure to pay the maintenance, child support or other requested relief. After the order pages, an affidavit from the client that outlines the reasons for making the motion and what they would like the court to do usually follows the aforementioned order pages that were signed by the Judge. After the affidavit from the client, in most instances, an affirmation from the attorney follows. The affirmation from the attorney contains legal arguments and reasoning to support their client’s position.   Any exhibits in support of the motion are attached after the attorney’s affirmation.  The other side is given an opportunity to submit opposition papers to which the moving party may submit a Reply. A Sur-Reply from the person defending the motion occasionally is made which might be considered by the court. Sur-Replys are the exception rather than the rule and not always permitted by the Court.

Family Court, in most cases (but not always), is less paperwork intensive and a more streamlined process. A petition that details the violation is submitted and signed by the client and their attorney if they have one. The court then issues a summons requiring the respondent to appear in court. The law provides that if there is a support order that has not been paid, there is a presumption that there is a willful violation. The burden then shifts to the other side to show that the violation was not willful. Willfulness means the ability to pay and the failure to do so. An important task of the attorney for someone accused of failing to pay child support is to show that the violation was not willful, if in fact the support order was not paid. Therefore, the financial ability to pay is a big issue in hearing on contempt motions or violations. If loss of employment is at issue, the payor needs to show that the job loss was due to no fault of their own and that they have been making diligent efforts at securing replacement employment to no avail. The other side might argue that diligent efforts have not been made or that the loss of employment was the payor’s fault. Continue reading ›

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Paternity is a legal declaration that someone is the father of a child in New York. The legal recognition of paternity is required under the law for the establishment of many rights and obligations such as for custody, parenting time, child support, and inheritance to name some of the more common. What sounds like it should be a clear cut determination is not always so straightforward. Since New York has finally recognized same sex marriages, paternity and parentage is a developing area for same sex couples. There are complexities as well for opposite sex couples which require skills for a New York City, Long Island, and Nassau County Family Law Attorney to properly handle.

For example, a married man is presumed, under the law, to be the father of a child born to his wife. Therefore, unless and until there is a legal declaration that he is not the father, or that someone is the father, the man that was married to the mother at the time of the birth of the child is legally the father. If another man files a paternity case concerning the child, the presumed father must receive notice for the case to be able to proceed.

Unmarried parents may establish paternity by both parents duly executing an Acknolwedgement of Paternity which is then recorded with the child’s birth certificate. Recorded Acknowledgments of Paternity are the equivalent of a court order of paternity or order of filiation. Within sixty days after the signing of the Acknowledgment of Paternity either party may file a petition in a New York Family Court to vacate the acknowledgement. After the sixty days, either party can still file a Family Court petition to vacate the acknowledgment but there would need to be fraud, duress, or material mistake of fact. The foregoing rules are applicable to parents that are 18 or older at the time of the signing of the Acknowledgement. There are different time period rules applicable to parents under the age of eighteen of the signing. Continue reading ›

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