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Articles Posted in maintenance

Negotiationpic-300x207For quite a while now, I have been sharing divorce litigation bullet point guides, summarizing my posts over the years, as a way to assist people looking for more information about the details of divorce. It can be difficult to come to terms with all of the complicated considerations that appear at the end of a marriage. While this blog and my website offer a lot of articles to help you answer some complex questions, you might find these bullet point guides helpful for quick answers to queries.

In this section of our bullet point guide, we will be looking at temporary orders and “pendente lite” orders in a divorce. Pendente lite orders require a party in a divorce to do something “during” the litigation, while the case is pending. This might mean that for the course of the litigation case, a spouse is required to pay maintenance to another. Continue reading ›

Coupledisputebacktoback-300x205A while ago, I started a blog series to introduce residents of New York to some of the realities of divorce litigation in the current time. After a break where we turned our attention to some of the family law issues during the coronavirus pandemic, we’re continuing these bullet point guides, summarizing my articles throughout the years, to continue offering an easy insight into the world of divorce and family law.

In this particular guide, we will be discussing the concepts of spousal maintenance in New York divorce cases concerning high-income earners. We’ll also discuss the contributions that individuals can make to a marriage, and how the court and judge consider them. Finally, we’ll be asking how the courts can look at marriages as economic partnerships.

High-Income Earners and Spousal Maintenance

In a New York divorce, a judge presiding over a case may ask for one or more parties to provide spousal maintenance to the other party. These payments, known as alimony or maintenance, are calculated according to specific formulas outlined by New York Domestic Relations law. Continue reading ›

Young-Couple-300x200If you have been following the recent blogs published here this year, then you’ll notice that I have been providing a selection of bullet-point lists, summarizing my prior articles throughout the years  designed to provide quick and easy information about crucial divorce topics. In the latest series, I am concentrating on matters that can arise during divorce litigation.

One of the concerns that is often discussed during divorce litigation, is the matter of spousal maintenance, otherwise known as alimony. These payments can be important to each spouse whose cash flow situation will change following the end of a marriage. Knowing how the New York courts determine spousal maintenance orders, and when they may deviate from set guidelines can help you when planning your divorce case.

Ordering Spousal Maintenance for Set Periods

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Coronavirusmasks-300x200For everyone’s information we are still doing business and trying our best to help people during this crisis. In difficult times such as the COVID-19 pandemic, we all still have issues that we need to face in our personal lives, such as dealing with child support and maintenance awards. The default law around child support modification indicates that either party in a case can file for a modification of child support based on:

  1. A substantial change of circumstances
  2. That income has changed by 15% or more
  3. That three or more years has elapsed since the last support order

These default requirements apply unless the parties agreed that they would opt out of options 2 and 3 in a written agreement. If the parties have changed from the default with a written agreement, the language of that document would highlight in which circumstances a modification can be sought.

Before the coronavirus pandemic, it was clear that you could file a request at any time if you had one of the circumstances that would normally apply to the parties to get a child support modification. If a modification was granted, the law is that it would be retroactive to the filing date in court of the petition of application for child support to be modified. This basically means that if you filed for child support to be changed on December 1 and then the court case was decided on February 1 in your favor, the amount due would be recalculated backwards from December 1 (the filing date) forward. Continue reading ›

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. Continue reading ›

Maintenance-Fight-300x200While many aspects of family law may stay the same over the years, certain components may also need to be changed to adhere to the evolving nature of life in the United States. Recently, the federal tax law was changed, with the change in the taxation of maintenance (alimony) payments that came into effect on the 1st of January 2019. According to the rules of this new law, maintenance payments delivered from one spouse to another can no longer be classed as a tax deduction for the payor. Additionally, the payee no longer has to count those payments as taxable income. What this means is that there can be greater resistance to the payment of maintenance than before.

The last update in the New York State maintenance guidelines was made at the time that maintenance payments were tax deductible to the payor and taxable income to the payee. These maintenance guidelines are still in place, and at as of the time of this blog have still not been revised by the New York State legislature.  The law still reflects an environment wherein maintenance is tax deductible to the payor, and taxable income for the recipient. Accordingly the courts may decide to deviate from the guidelines for maintenance based on this change in the taxability, now that the rules are different, as deviation may be required to creating an agreement that’s fair for both parties. Continue reading ›

It’s impossible for anyone to predict the future with complete accuracy, as the world we live in is often a very unpredictable place. However, we can look back at the Window-Mediation-300x200lessons that we’ve learned over the years and use what we know in the present to guide predictions about the years ahead. That’s exactly what I plan to do with this blog post about mediation in 2019. This blog is conjecture and should be taken as nothing more than my best guess at what will be available in terms of alternative dispute resolution and mediation options for couples in 2019 and the years beyond.

My previous blog post discussed the complexities that we saw in mediation throughout 2018. Many aspects of mediation are likely to stay the same going forward, while other elements are bound to change. For instance, mediation will always be a helpful alternative dispute resolution option for couples who would prefer to avoid things like court-room trials and litigation. Additionally, as we move into 2019 at least, it seems that the grounds for divorces done with divorce mediators or otherwise will remain the same too. As I mentioned in my last blog, all the couples I have worked with during divorce mediation have chosen the no-fault divorce law for their procedure, since the No-Fault law was passed in 2010, while other grounds do remain available. The no-fault solution simply means that it is neither side’s fault, it’s simply the marriage that is irretrievably broken.  Fault doesn’t need to be admitted or proven for the divorce to go ahead. Continue reading ›

One important thing that we know about divorce mediation in December 2018 is that we can work through the settlement issues with the knowledge of the current laws that areMediation-Contract-300x200 in effect.  This includes the effect of the taxability or non-taxability of maintenance (alimony) and child support for separation and divorce agreements signed before 2019.  I know general taxation principles as they apply to divorce and family law, as every experienced matrimonial lawyer and divorce mediator should.  As always, however, I give a little disclaimer here and say check with your tax adviser, such as your Certified Public Accountant or tax lawyer, for tax advice as I do not give tax advice.

Sometimes things seem to wind down a little for a Law and Mediation Office as we move towards the end of the year.  People tend to want to deal less with their legal issues.  Less court appearances are scheduled because of the holidays, holiday parties and vacations schedules.  The same is often true on the divorce mediation side of things.  So why does it happen?  It could be that people do not want to deal with resolving their family law issues during the holidays.   People also might want to save their money to spend on gifts, trips and otherwise.  At times a couple might know that they need to move on from their marriages but want to keep it peaceful with the family until after the New Year.  Others might want to wait to start their new lives and new resolutions in the New Year.  Interestingly, I understand that the belief that January has the highest volume of divorce filings is a myth. Maybe people start working towards that in January, or soon after, but historically, according to an article in the Atlantic, August and March apparently have the most divorce filings.  Continue reading ›

As we have previously discussed in past blog posts, a New York family court can order payment from one spouse to another of maintenance during the pendency of Nursewithman-300x200the divorce as well as after the divorce is final. Payments made during the pendency of the divorce are called temporary maintenance, pendente lite maintenance or sometimes spousal support, and payments made following the divorce are termed spousal maintenance or post-judgment maintenance.

Under the New York Domestic Relations Law, section 236(B), a court is required to consider a formula based on income and certain factors when determining a deviation from the formula guidelines for the appropriate amount of temporary maintenance, spousal support or maintenance. By and large, the factors are similar for the two types of awards, with the difference being that spousal support or temporary maintenance is designed only to last during the divorce proceeding. When it comes to determining whether a court can order one spouse to pay for another spouse’s medical expenses, the first place to look is at the factors outlined in section 236(B).

The statute lists a number of factors that a judge should consider, none of which explicitly mention the payment of medical expenses. However, several of the factors tangentially relate to medical expenses. So, in effect, a court could indirectly take a party’s medical expenses into account.

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One of the most critical and often overlooked issues in a New York divorce is how the parties will obtain health insurance. Many families, especially those with only one working partner, rely on health insurance benefits that are obtained through the working party’s employer. However, in the event a couple divorces, those insurance benefits will no longer be available to the non-working spouse and arrangements will have to be made to provide for their health insurance.

One option a non-working spouse has to obtain health insurance after a divorce is to obtain COBRA benefits. COBRA is a federal law that requires insurance companies to extend coverage to qualifying beneficiaries in the event of a qualifying event. Commonly, COBRA benefits are offered to an employee when their position is terminated; however, COBRA benefits are also available for spouses after a divorce.

One downside of COBRA benefits is that they can be quite costly because the employer will no longer be covering any of the cost. Thus, determining how each spouse will obtain health insurance benefits and how those benefits will be paid for is often a contested issue.

Continue reading ›

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