Articles Posted in maintenance

When a marriage is ending, unless there is a valid agreement between the parties, it is left up to the judge to determine the financial responsibilities of the parties in what they call in New York equitable distribution. In most cases, this requires the judge to figure out all of the marital assets as well as the marital debts. Student-loan debt is no exception; however, calculating which party is responsible for the payment of student-loan debt may be more complicated that it initially seems.

Graduation CapStudent-Loan Debt Incurred Before the Marriage

As a general rule, student-loan debt that is incurred prior to the marriage is not considered a marital debt, and the party who took the loan out will be solely responsible for the payment of that debt. However, student-loan debt that is incurred during the marriage presents a more difficult situation and often requires the court to apply a multi-faceted test to determine which percentage of the debt, if any, is attributable to the spouse who did not incur the debt.

Student-Loan Debt Incurred During the Marriage

Under New York case law that was decided prior to the 2015-2016 updates to the New York Domestic Relations law student-loan debt may be considered marital debt that is subject to equitable distribution, depending on all of the surrounding circumstances. However, prior to the 2015-2016 update to the New York Domestic Relations law this used to also means that the degree or professional license that was obtained through the procurement of the debt may also be subject to equitable distribution.  The updated Domestic Relations law, however, specifically changed the law to say that degrees were not subject to equitable distribution.  In one of my next blogs we will examine whether the change to the New York Domestic Relations Law about degrees being subject to equitable distribution has altered the landscape about student loan debt.

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When a marriage is in the process of coming to an end, it is common for one spouse to make payments to the other spouse not just throughout the pendency of the divorce proceeding but also moving forward on a permanent or semi-permanent basis. The term for these payments is spousal maintenance. Payments made during the divorce proceeding are called temporary support payments, whereas payments made after the divorce is final are called post-divorce payments. Spousal maintenance, which is intended for the benefit of the payee spouse, is different from child support benefits, which are intended for the benefit of the children of the marriage.

CourtroomHow New York Courts Determine Spousal Maintenance Payments

Recently, New York lawmakers passed a new law that tweaked the way spousal maintenance payments were calculated. Under the new law, if an agreement is not made between the parties and their divorce lawyers, the judge presiding over the divorce proceeding will use a predetermined formula to calculate both temporary maintenance support payments as well as post-divorce payments.  Incidentally, this same formula applies to spousal support proceedings in Family Court.  While the formula is somewhat complicated and beyond the scope of this post, it takes into account the following:

  • Whether the payor spouse is also paying child support payments;
  • The total income of the payor spouse (under the new law, only the first $175,000 of the payor spouse’s income will be used in the calculation);
  • Whether the parties entered into a valid written agreement regarding the determination of spousal maintenance payments; and
  • How long the marriage lasted.

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A divorce is a complicated process that requires the partners involved to answer a lot of crucial questions about their Young-Couplefuture – from who is going to have custody of the children, to who will pay or receive payments to or from the other if at all. Dividing property in a divorce is generally one of the most contentious issues that need to be resolved before a pair can continue their lives and go their separate ways. Moving through a divorce when, as a couple, you know that you have an outstanding mortgage, can be a huge worry. However, understanding what might happen to your home can help to make the process somewhat less stressful.

Today, we will attempt to examine the question of whether a New York divorce court can order a mortgage to be paid during a pending divorce. However, like most things in divorce law, it’s worth acknowledging that the answer may not be a simple one. Often, when it comes to equitable distribution, maintenance payments, child support and custody / visitation or parenting time maters a range of other concerns in the legal system, there are short and long answers to consider. The short answer is that if a New York court has ordered child support and maintenance to be paid – according to the new law that has taken effect in 2016 – the recipient of that award is intended to use the funds they have received to pay the mortgage and their other expenses where they are living – while the case is pending or Pendente Lite. Continue reading

 

Until “no fault” divorce became possible in the state of New York in 2010, couples wishing to file for divorce typically went through a process that included a period of separation prior to the actual Sophisticated-couple-fightfiling of a summons for divorce. Although legal separation is no longer technically required in New York, some couples still choose to follow this procedure or sign a separation agreement, in order to make sure all the issues are settled, and then immediately file for divorce on the no fault grounds without waiting.

Spouses who enter into a period of formal separation must do so through a written separation agreement, which addresses financial issues such as temporary child support and pendente lite spousal maintenance (aka “alimony”) while the parties are living separately.

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wedding ringsThe Uniform Interstate Family Support Act (UIFSA) and its amendments limit the modification of child and family support orders. The purpose of developing this uniform law was to get rid of multiple lawsuits dealing with child support and alimony payments across state lines. UIFSA has been adopted in some form in New York and every other state.

Under New York Family Court Act section 580-205, New York courts that issue a spousal support order under New York law keep exclusive jurisdiction over those orders throughout the existence of the support obligation, even when both spouses move out of state. That means that only New York courts can enforce this obligation.

New York courts cannot modify spousal support orders issued in other state courts that also have continuing exclusive jurisdiction over a spousal support order under their own state laws. Once a state has issued a spousal support order, only that state can modify the order, even if neither of the parties continues to live in that state.

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In the state of New York, it is possible for a spouse to request maintenance, or a modification to maintenance that has already been awarded under very specific circumstances. Crucially, an woman-with-moneyex-spouse cannot simply request additional maintenance because they believe that the first award was unfair. During my time as a family and divorce lawyer, I have seen cases in which an ex-spouse has requested a modification of maintenance payments without the correct proof to show that such an alteration is necessary. If a plaintiff cannot produce any evidence that they are suffering from financial hardship, or that their income, assets, or job status have changed, then there is often no need for the court to hold a hearing regarding a change in maintenance. According to how the  Domestic Relations Law is applied in New York, if a party wishes to modify a maintenance obligation that was set forth by stipulation that was incorporated, but not merged into the judgment of a divorce, that party is responsible for showing a substantial change in their circumstances that warrants such modification, ie:  extreme hardship.  The standard is slightly relaxed when the obligation comes from a court order or judgment.

People are free to alter what the default law is by including specific language in their agreements.  For example, without specifying that maintenance is to continue upon remarriage of the recipient spouse, maintenance should end upon the new marriage.  Where either the ex-husband or wife wants to change or modify the amount or duration of the alimony, now known as maintenance, set forth in a divorce, that person needs to demonstrate a substantial change of circumstances that merits the consideration of maintenance again.  The cases stand for the proposition that the change can be financial hardship, but extreme financial hardship is usually what must be shown.  The desire to get more or pay less money alone is not enough.

The New York court considers changes in circumstances by measuring the scenario that a spouse is in at the present time, against the situation that was presented during the original court order. When no evidence representing a significant change has been provided, then a court does not need to have a hearing on maintenance, as there is nothing to evaluate.  A situation that might qualify to look at maintenance again is a financial emergency such that one of the parties is at risk of becoming a “public charge”.   The presence of sudden huge medical bills or another disaster that requires additional support or a decrease in the support to be paid might be a factor to consider modifying the prior award. Continue reading

One fact that presents itself to me time and time again as a family lawyer in New York, and Long Island, is that CoupleMoneyFightdivorce and family law can deliver a wide range of different complications. From issues regarding child custody, equitable distribution, to matters concerned with child support, spousal support and at times, orders of protection, each unique family brings with it specific issues to navigate. One of the most common issues that raises conflict in family law is proving the income of the other parent or a spouse.

Child support, in New York is payable to the residential custodial parent until the children are emancipated.  Spousal support is what a court can award, under appropriate circumstances, when a couple is still married.  Maintenance, f/k/a as alimony is the payment that a spouse makes to another spouse after a divorce or during the process of a divorce. The purpose of this payment is to help the less monied spouse get in a position to be self-supporting. In some cases, spousal support can also be useful for giving supported individuals the finances they need to gain the training they need to earn employment in a new job. In New York, as of 2016, there are guidelines now, based on income, for maintenance, spousal support and child support.

The challenge sometimes becomes, then how does one prove income when the other side of the case is being less than forthright?  This might happen when someone works off the books or is self-employed.

Determining Accurate Income Details

If one or more of the parents or spouses within a case is working off the books, self-employed – working as a business owner, licensed professional, or independent consultant perhaps – then the matter becomes even more complex. Not only do you need to work out the details of maintenance or child support, but you also need to find a way to prove the other parent’s income.  Proving the income is essential because it represents a key factor for the courts to consider when it comes to deciding whether to award spousal support, child support, and attorney fees. If your spouse was a standard employee, then getting the information you needed for spousal support would be simple enough – as you’d be able to simply look at his or her paychecks. However, providing the income of a spouse who is working off the books or is self-employed can be dangerous, as many self-employed people are less than stringent with their deductions and may claim a large amount of expenses. Continue reading

When it comes to arranging a divorce, many couples look for the various ways in which they might be able to protect themselves from future financial issues. Part of this may involve looking closelyseniorbrokenheart at concerns regarding asset distribution between partners, and split pensions. In the case of senior divorces, one particularly important concern is the issue of social security benefits, and how they can be distributed between both spouses. Importantly, it’s worth noting that social security is not something that can be argued and negotiated in family law through litigation, collaborative law, mediation, or any other dispute resolution method. Instead, social security is something that must be determined by the federal law of social security.  However, it is probably helpful to know what one’s financial situation will be, taking into account all resources, in the future.

As the social security administration posts on their website, in most circumstances, if you were married to your ex for a minimum period of ten years, and you decide to undergo divorce procedures, then you may be able to qualify for a social security benefit that is equal to (at most) 50% of your former spouse’s benefit amount. However, for this benefit to be received, you will need to be unmarried, aged 62 or over, and ensure that your ex-spouse is entitled to disability or social security retirement benefits. Crucially, to receive a portion of your ex-spouse’s social security payments, the benefit that you are entitled to will need to be lower than the benefit you would receive from your ex-spouse. Continue reading

synagogueNew York has a history of having a concentrated population of Jewish people who observe Jewish law. Currently, observant Jews who want to be divorced must effectuate a divorce that is valid under both Jewish law and New York state law, or they can choose not to marry under secular law and not be concerned with the way these two different systems intersect. Jewish law recognizes private marriages and private divorces that do not require court supervision.

However, Jews bound by both religious law and secular law are in a more difficult position when trying to obtain a divorce. One way in which the Orthodox community in New York ensures that traditional Jewish values are part of divorce proceedings is to use prenuptial agreements that are signed by both parties, allowing determinations to be made by the Beth Din of America, which is the largest rabbinical court in the United States.

In the 1983 case of Avitzur v. Avitzur, a New York court considered the enforceability of the Ketubah entered into as part of the religious marriage ceremony. The Ketubah is supposed to show the bridegroom’s intent to cherish the wife and provide for her, as well as the wife’s willingness to carry out her obligations according to Jewish law. The couple agreed to recognize the Beth Din of the Rabbinical Assembly and a Jewish seminary to have authority to counsel them and impose compensation as it saw fit for failing to respond to its decision appropriately.

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When a New York couple undergoes a divorce, it’s natural for their financial circumstances to change. After all, JudgeReadingseparating partners are moving from a single-household environment, to a situation where they each must pay their own bills, rent, and expenses.  Or as the couple moves apart emotionally, while still living together they might not be taking care of their financial obligations to each other and the household.  The divorce may draw attention to the fact that one spouse has expenses, such as a mortgage, that they are unable to afford by themselves, and pendent lite maintenance awards help that individual to cover their basic expenses and maintain a particular lifestyle until the divorce is formally settled. Commonly, in a Pendente Lite award, the spouse with the greater income might be required to provide monthly payments to the spouse with less income, or pay for certain bills. Pendente lite can also commonly apply to payments of attorney fees, child custody and temporary child support.

Determining the amount to be awarded in a pendente lite case can be complicated, as it depends on a number of crucial factors to be addressed by the court.  There is a formula for pendente lite maintenance that courts are supposed to follow or enumerate specifically why the court deviated from the formula.  Before the first enactment of the formula for Pendente Lite maintenance in 2010, which law was updated in 2015, the foundation for determining the appropriate level of pendente lite support, a court would look at the needs of the dependent spouse in maintaining a reasonable standard of living, as well as the means held by the supporting spouse, and the level of income required for each spouse to remain comfortable until the finalization of the divorce. Continue reading