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At some point in a New York divorce case, the court will generally make a child support determination, a spousal support determination, or both. Support determinations can have an enormous effect on both of the parties to the divorce, and the court is supposed to rely on specific information when making them. However, in some cases, when an income execution for an employer to take the support direct from the obligor’s pay is made by the support collection unit, the income execution may contain information that was not correct, or it may have not have all of the relevant information. In such cases, New York family law allows for the adversely affected party (the debtor) to bring this to the court’s attention. Under New York Consolidated Laws, Article 52, section 5241(e), the party can claim that the income was based on a “mistake of fact.”  It should be noted that this process is different than the process for making written objections to the support order itself which is the subject of other articles in this blog and on my website.

A mistake of fact is defined as “an error in the amount of current support or arrears or in the identity of the debtor or that the order of support does not exist or has been vacated.” Most commonly, the mistake is related to the amount of support ordered by the court.

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It is rarely the case that both parties agree in a New York child custody proceeding. More often than not, one party initiates the proceeding, leaving the non-filing party a choice of how to proceed. If the non-filing party believes that they have a claim against the party that filed the original petition, they should be sure to include their claim in a response to the original petition or, if the claim is only tangentially related, file a cross-petition.New York Civil Practice Laws and Rules section 602 discusses the consolidation of related matters. Specifically, the statute allows for a court to consolidate matters “involving a common question of law or fact.” Importantly, courts are left with discretion regarding whether to consolidate multiple issues. However, section 602 does provide some guidance, indicating that the purpose of consolidation is to “avoid unnecessary costs or delay.”

An Example

Husband and wife have been divorced for several years. Currently, husband has primary physical custody, and wife has visitation privileges. Husband filed a petition in a New York court, asking the judge to order that wife’s future visits with the children are supervised by the court. In response, wife may ask the court to modify the original order to grant her primary custody.

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When going through the process of a divorce or family law dispute in New York, it’s important to make sure that you fully understand what your rights and responsibilities are as a client. Themore you know, the more you can make an informed decision about your future. Therefore, a divorce lawyer will always provide his clients with a document known as the “Clients Rights and Responsibilities” form. The document is prescribed by the Appellate Division, and it’s provided at the initial conference, before any retainer agreements are signed.  I am attaching a link to the complete Statement of Clients Rights and Responsibilities here, while this blog is intended to highlight some of the features.

When I give my clients the “Clients Rights and Responsibilities” document, it’s intended to give that individual not only an insight into what they’re entitled to by law, but also what is expected from them. Of course, it’s always possible for my clients to come to me with any questions they might have about their rights or responsibilities, or the case that they will be addressing with me in the future. It’s well within the rights of any family law client to speak to their divorce attorney, child custody attorney or family lawyer if they have any concerns or questions about the manner in which their case is handled.  I endeavor to make myself available.  One of the rights people have is that an attorney never has the right to refuse your case based on creed, color, sex, orientation, origin, race, or disability. Continue reading ›

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In today’s society, it is very common for families to move between states, especially when a couple’s children are young and parents are still developing their careers. While it has become easier over the past few decades for families to move between states, this situation presents a potentially complex situation if the couple divorces and one of the parents moves out of the state.Years ago, courts in different states were routinely entering conflicting orders in New York child custody cases. For example, a New York court may make an initial determination, only to have the non-custodial parent move out of the state and file a case in that court for a modification of the order. Under the Full Faith and Credit Clause of the U.S. Constitution, the court in the non-custodial parent’s new home state should defer to the New York court; however, in practice, that was not always the case.

The result was the eventual passage of the Uniform Child Custody Jurisdiction and Enforcement Act of 1997 (UCCJEA). The UCCJEA developed a system that has since been adopted by 49 states, including New York, which courts use to determine which state has jurisdiction over a child custody case.

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When a divorce takes place between partners with children, there’s a lot more to consider than just who will maintain custody of the child. One of the standard issues that I address with myclients is who will be able to claim the child as a dependent on their tax returns. After all, the tax credits associated with caring for a child can be substantial and may help a great deal with transitioning to the new life.

As usual I advise that I am not a tax lawyer and therefore for specifics about taxes everyone is advised to consult with tax professionals such as CPAs.  This blog, however, is to outline some of the new concerns, after passage of the tax reform law, that people need to think about regarding children, taxes and child support agreements.  Because of the new tax laws passed in December 2017 in the United States, the rules surrounding tax and support in New York divorces and everywhere will change dramatically, which could lead to more complex discussions between divorcing parties. For instance, in the past, it has been common for the custodial parent to claim for the child.  The parties often make agreements that the non-custodial can claim the children or some of the time claim the child(ren) if he or she was responsible for a significant amount of child support. Now, as my last blog pointed out, that after 2018 maintenance (alimony) payments will no longer be able to be deducted from income for tax purposes, it may be that child support paying party might find the dependent claim more important than in the past for tax purposes.  The deductibility of child support payments is not changing as still child support payments are not deductible for child support purposes and it is not income for the recipient.  Continue reading ›

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Divorces may surge in 2018 due to the new tax law that was just passed.  The end of a marriage can bring several concerns to the front of mindfor people in New York, and across the United States. After all, divorce isn’t just an emotional issue for everyone involved, it’s also a financial quagmire. Beyond the expenses of a divorce attorney or child custody lawyer, those seeking a divorce will also need to think about how they’re going to dissolve the family household and transition to two. This means making decisions about everything from parenting time and visitation, to maintenance payments (otherwise known as alimony).

The guidelines that are set in place to help divorce lawyers and courts come to terms with the amount of maintenance that should be paid to a spouse in certain circumstances are designed to make the process as simple and streamlined as possible for everyone involved. However, thanks to the recent changes in tax law that was just signed into law in December 2017, the considerations involved with planning a divorce are about to change. Continue reading ›

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While any person’s definition of “family” might be unique to them, it’s important to remember that it’s the court ofNew York’s delineation that matters most when decisions are to be made around child custody, parenting time, and visitation. As a child custody attorney, I’ve been involved with several complex cases around how a child should be supported and raised by people within their family. As I have reminded my clients in the past, up until now, only a “parent” – as dictated by the courts, will be able to petition for visitation or custody according to the outlines of Domestic Relations Law § 70. Perhaps one of the issues that makes this idea so complicated, however, is that Domestic Relations Law § 70 does not define what a “parent” is. This means that the courts need to determine that for themselves.

In issues presented to the courts of New York, except for in the case of “extraordinary circumstances” a parent should prevail over a non-parent in a custody battle. The law, up until now, is that for unmarried couples, partners that have no biological adoptive connection with the child had no standing to seek parenting time and custody. However, extraordinary circumstances like abandonment of the child, surrender of parenting rights, and more can alter the situation. The court of Appeals in New York highlighted the definition of parentage in New York in the case of Alison D. v Virginia M., 572 NE2d 27 (N.Y. 1991). However, this outline has become less applicable in a modern world, where the family relationship is now more varied and complex than ever. The case that presented the previous definition of “parent” was established in 1991, and since then, times have changed significantly. Continue reading ›

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If you and your partner have been hoping to have a baby, then the potential new law in New York could be the answer. After all, there are plenty of reasons why a couple might be unable toconceive a child on their own. Some people experience issues in conceiving, while same-sex partners are forced to seek out alternative options to the traditional method.  Adoption is often the answer.

For many, surrogacy can seem like the simplest way to create a family. However, the truth is that this process isn’t nearly as straightforward as it might seem. Not only is paying for surrogacy incredibly expensive, but the legal guidelines currently in place within New York mean that couples could be penalized for entering into a contract with a surrogate.  The article by Sheryl F. Colb in Verdict, Legal Analysis and Commentary from Justia on November 8, 2017 provides a thorough analysis of the topic.  This blog summarizes and in spots supplements the article

Understanding Surrogacy Law in New York

From a medical perspective, there are two types of surrogacy that can be considered by those searching for alternative methods of conception. Traditional surrogates are women who are inseminated with sperm to fertilize their own egg. This means that the resulting child is biologically related to the surrogate parent. On the other hand, “gestational” surrogates are implanted with an embryo that is created in a lab using the egg and sperm of the intended parents. In the case of a gestational surrogacy, the surrogate is not related to the child. Continue reading ›

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When parents decide to bring an end to their relationships together or to their marriage in divorce, there areseveral complicated concerns that they’ll need to think about. Just one of those issues, involves how parenting time and custody should be handled.  When a court needs to decide the issues the court will look at best interests of the children.  Sometimes, parents can simply come to terms about child custody and parenting times on their own, through the process of negotiations through their child custody lawyers, mediation, or collaborative law. However, as a family law attorney, I’ve also seen many instances wherein parents have needed to turn to the help of the court to determine how a child’s care should be divided between spouses.

One common issue that can cause complications in deciding how a child’s custody and parenting time should be managed, is the presence of drugs, alcohol, or issues with sobriety in the lifestyles of one of the parents involved in the divorce. If a parent is known to have issues with sobriety, then it may be the court struggles to determine whether exposure to that parent is in the best interests of the child. Sometimes, visitation may be limited to “supervised” visitation, depending on whether or not the court believes that unsupervised visitation might harm the child in some way.  But also getting sober can be a significant positive to allow for a custody and parenting time order to be revisited.  Continue reading ›

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The process of divorce isn’t just complicated because it creates a lot of uncomfortable emotions for the people involved.While the stress, sadness, and anger that can emerge during the divorce process can be difficult to manage for some, another important thing to remember is that it’s crucial to ensure you’ve covered all the different elements that you need to think about as a divorce takes place. Using an alternative resolution process like mediation can help minimize the emotional turmoil by avoiding an adversarial process. In mediation, like any process though, parties will need to consider how they’re going to manage child custody and visitation agreements, while others will need to think about how they can address the equitable distribution of debts and assets between both parties.

As a divorce attorney, child custody lawyer, and an experienced mediator, I attempt to offer my clients as many options as possible when it comes to helping them decide how to simplify divorce and prepare for the next stage of their life. Often, mediation can emerge as a less combative solution for coming to decisions about everything from spousal support to asset distribution. Because there are no cemented rules in place for how a mediation should take place, every session I conduct is shaped by the parties that are involved. After all, just as every couple, individual, and family is unique, every mediation session should be one-of-a-kind too. Continue reading ›

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