Court Discretion in Support, Divorce, Family Law, Child Custody … Part 2

In a previous blog post, we touched upon issues of discretion of judges and other triers of fact (referees, judicial hearing officer and support magistrates), and the ways in which parties in a legal proceeding, and their attorneys may have the ability to shape the decision of a judge or court. In matters of family law, there are a number of discretionary points to consider that may help to change or manipulate the decision a judge makes at the end of a case or hearing. These matters can range from imputation of income, to the determination of what should be considered “equitable” distribution in the dissolution of a marriage.

Imputation of Income

In child support and spousal support cases, for example, the court may conclude that an individual involved within a particular case has attempted to diminish their assets or income in an attempt to avoid a child support or spousal support obligation. If such circumstances are found to be true, then a court may choose to “impute” income or calculate someone’s income based on their previous resources or income, lifestyle or based on expenses paid on their behalf by other people. For example, this may happen if the court believes that the individual in question chose to voluntarily leave their previous jobs, were fired for cause, or personally chose not to work either full time, or at all. In combination to previous earnings, a court may consider the education and ability to learn of the party involved. Whether that party has chosen to diligently apply for employment in a manner that is commensurate with their experience, abilities and background could become an important factor when determining income. A judge or support magistrate may consider what people with similar backgrounds and educations are capable of earning when imputing income.

Of course, as with any legal proceeding, there is often another side to these cases, and the family law lawyer or person who is arguing against the imputation of income to their client may show that the loss of income or employment was due to no fault of their own and they have diligently applied for replacement employment to no avail. For example, a lawyer may present that their client lost income due to medical reasons, economy issues, or downsizing. If the individual in question is capable of proving that the circumstances as they stand were out of their control, and that they have been diligently making attempts to replace the lost income or employment, then they might convince the court of their case that their income should be calculated as their new lower or non-existent salary. Some of the relevant questions that the court may ask include: Who did the individual speak to? Where did they apply for jobs? Which interviews did they pursue? How many applications were made each week? – and so on.

Paternity Cases

Equitable estoppel is another discretionary decision that must always center on a consideration of the best interests of any children involved. The Family Court Act in New York dictates that paternity proceedings may be initiated any time from the pregnancy of a mother to the moment when the child turns twenty one years old. If a party requests DNA testing, the law provides that the court should order those tests unless they find that it is not in the best interests of the child because of, for example, equitable estoppel. As in most cases of family law with connections to children, the decision to apply equitable estoppel must be considered in the child’s best interests. The principle is designed to ensure that rights aren’t enforced against someone in a way that would result in injustice or fraud.

Maintenance in Divorce

In regards to cases of temporary maintenance, the court has discretion to deviate from the common guidelines in certain circumstances. The factors that permit a court to order something beyond the presumptive amount of temporary maintenance in a family law case are contained within the law of Domestic Relations. These factors may include, but aren’t limited to: the health and ages of the parties, the standard of living during marriage, the ability of both sides to earn, the care of children or others that inhibits an ability to earn, exceptional expenses for children and other factors that could be determined as relevant to what is deemed “fair”. As a result of the no-fault divorce law passed in New York, the laws regarding permanent maintenance have remained largely unchanged. The factors that judges must consider in issuing permanent maintenance awards include, but are not limited to: equitable distribution of marital property, length of the marriage, ages and health of each party, ability to earn on both sides, the care of children or others that may restrict ability to earn, additional expenses for children, and any other factors found to be relevant.

Equitable Distribution in Divorces

Something that was mentioned in the above paragraph is the issue of “equitable distribution”, and this is another matter wherein the discretion of the court becomes particularly relevant. In New York, the term equitable could either mean “equal”, or something completely different, as it refers to what is “fair”. In some circumstances, pre, or post-nuptial agreements exist that help to determine how to divide property, and usually these agreements will be honored, however there are times a court could choose to set them aside (under very particular circumstances). If no agreement is currently in place, then attorneys and parties may come together to agree on what is equitable. If an agreement cannot be made on what is fair, then the equitable distribution of assets becomes the task of the judge. Although usually, debt and marital assets are simply divided in half during a divorce – this result is not a forgone conclusion. The court may decide that the marital assets be split 20% to one side and 80% to the other, whereas other times the split may be equal after applying credits to one side before a division is made.


Child Custody and Parenting Time Decisions

The decision that is made by judges and triers of fact will always be required to focus on providing an outcome that is considered to be within the child, or children’s, best interests. With this in mind however, it is worth noting that a court can only make an ultimate order for a contested case after a full evidentiary hearing has been held, in which both parties are given the opportunity to present witnesses and testify about relevant information to the court. Parties also have the right to make an agreement in settling the case at any time before the trial is completed or proceeds.

Financial Discovery Issues

A final example involving discretion in application of the law, and there are many, involves discovery violations and penalties. Judge’s have a lot of discretion in determining discovery violation penalties. If someone fails to comply properly with a discovery demand, or does not object to it correctly, the other party does have remedial options. The Civil Practice Law and Rules offers methods of remedy for non-compliance, and the law states that anyone refusing to comply with a discovery order may be faced with an order that allows the issues on which the discovery would be relevant to be resolved in the favor of the party requesting disclosure. Furthermore, an order may be made that the non-compliant party cannot provide witnesses or introduce evidence at a trial or hearing, and pleadings of the non-compliant side could be struck from the record or dismissed. This is called preclusion.

As I have mentioned before, although the results of any case are determined at the judge’s discretion, it’s important to know that the right legal guidance and assistance can help you to pursue the results that are most beneficial to you. This is just one of the reasons why accessing a highly trained lawyer during a case of matrimonial and family law is so important. To learn more, explore our blog posts, our website, or get in touch with us to discuss your personal legal matter.

Contact Information