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There are many considerations a court has to make when it comes to child custody cases. Though, ultimately, thecourt must put the best interests of the child first when it comes to dictating who should be given parenting or visitation rights.  There are numerous factors that come into play when helping the court to define the best interests of a specific child. For instance, one issue that the courts of New York might consider may be the financial stability of the parents in question. Alternatively, if the child in question within the case is old enough to make informed decisions about his or her own future, the wishes and requests of that child may be taken into consideration.

It’s worth noting that a child who is already suffering from the discomfort and trauma of a broken home can often benefit from avoiding any further disruption in his or her life.  This was the concern of the New York Court of Appeals in the case Lincoln v. Lincoln that established how to take testimony of children in divorce and child custody cases.  As such, it can be a good idea to consider solutions for obtaining information about the child’s wishes regarding custody, in a private format. No child would feel comfortable having to publicly share information about his or her relationship with his parents, or choose between them while either party watches. As such, “In Camera” testimony and interviews can be conducted to help provide a less harrowing experience for a child of divorce. Continue reading ›

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In any divorce or child support case that involves children identified as minors, it’s crucial to determine how much support needs to beprovided to give those children an on-going, and undisrupted lifestyle following a divorce or separation of parents. Child support is often a very complicated issue within divorce cases, and I often remind my clients that the courts of New York must examine a number of crucial factors before determining how much should reasonably be awarded.

Generally, the guideline amount of child support is determined by the parent’s income.  There are a number of factors upon which a deviation from the guideline amount of child support can be based, including, but not limited to:

  • The non-custodial parent’s financial abilities
  • The custodial parent’s earning capacity: Both parents have a duty to support their children, thus the earnings of the custodial parent must also be considered.
  • Other factors that a court might deem appropriate.

Here, we’ll examine the difficulties that can become present during a child support case when it comes to considering combined income in excess of $143,000.00 (the initial cap in 2017, when this blog was written on child support), and the ultimate financial abilities of the paying spouse. In determining parental income, the courts of New York adhere to the Child Supports Standard Act, starting with an evaluation of parent’s “gross” income. Often, this income is evaluated according to the numbers on that individual’s most recent income tax return. Once that gross amount has been considered, the court continues to evaluate potential other compensation including, but not limited to voluntarily deferred, or additional income. Continue reading ›

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A divorce is a complicated process that requires the partners involved to answer a lot of crucial questions about theirfuture – 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 ›

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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 actualfiling 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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The 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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A family offense petition, or order of protection, can be filed in New York on the behalf of a child when a parentsuspects, or has evidence of an act of abuse or neglect initiated by another family member. To act within a child’s best interests, the New York courts must consider who should be permitted to file a family offense petition on the behalf of that child. The court inherently recognizes that a parent will always have the standing to commence a proceeding of family offense on the behalf of his or her child, under New York Family Court Act Article 8. However, grandparents and other individuals who share the same family home do not always have the same rights.

When dealing with cases that ask the court to re-consider issues of child custody and visitation, it’s important to remember that, in an effort to act in the best interests of the child, the court will not make changes to pre-existing custody orders unless there is evidence of a substantial change in circumstances that requires a need to look at whether modification is in the best interests of the child. As such, when it comes to family offense petitions made on the behalf of the child, the court must also be equally stringent about who it believes to be an appropriate individual to launch a complaint on the behalf of that child.

Usually, only a parent of the child, as recognized by the law, will be able to act on the behalf of that child when presenting an issue in court. For instance, in a case entitled Hitchcock v. Kilts, 772 N.Y.S.2d 386 (N.Y. App. Div. 3d Dep’t 2004), the family court awarded sole custody of two children to the mother during the divorce, but gave the father visitation rights. During the visitation, the oldest child told his father that his mother had slapped him, dragged him by the hair, and poured Tabasco sauce into his mouth. Those allegations led the father to file a family offense petition which was heard by the court because the father was recognized as an appropriate person to act on the behalf of the child. Though a temporary order awarded custody to the father for a short time, the order was reversed and the original order was reinstated after evidence from both parties had been presented. Continue reading ›

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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, anex-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 ›

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In the world of family law, many issues regarding everything from divorce, to maintenance, and even child custodywill depend on the unique factors that exist behind a particular case. For instance, whether child support is appropriate and how much should be awarded, though guided by a formula, will ultimately be determined by the circumstances of the parents, parties or spouses involved. However, one matter that always remains the same in cases concerning children is that New York courts are supposed to place the “best interests” of the child at the head of their considerations in making a decision about custody and parenting time. In deliberating about child custody, the New York Courts will endeavor to make a decision for the future of the child that will be most beneficial to the development, and future of that individual. However, as the needs of a child can change over time, the fact that an order is marked “permanent” doesn’t necessarily mean it cannot be changed under the right circumstances. There are two primary situations in which child custody orders are modified:

  1. When a parent violates court orders
  2. When one or both parents suggest a significant and material change in circumstances.

The circumstances that are deemed to be within the “best interests” of a child are subject to change in accordance with the elements surrounding that child at any given time. Therefore the New York court may grant custody modifications if circumstances change significantly since the time the original order was put in place. Modifications, however, must be made based on a change that was not obvious or present during the time of the original order. Examples of a substantial and material change in circumstances might include the use of illegal drugs, a felony conviction, or evidence of child abuse. If the needs of the child changes – such as a changing need in medical attention or schooling, the courts may also consider modification, but only if enough evidence is available to determine that such an alteration is in the child’s best interests.

Defining a Material Change in Circumstances

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The first thing to understand about divorce – is that no matter how you go about it, you’re probably going to facesome emotional complexities and other personal difficulties. Divorces are a difficult process – after all, most couples enter a divorce after years of trying to make it work with their spouse, and find themselves suddenly considering the prospect of single life all over again. It can be extremely difficult to regain your confidence, find financial stability, and make sure that you’re ready for the change in lifestyle that lies ahead, but that doesn’t mean that everything about divorce is negative. As I often tell my clients – it’s up to you to decide when your marriage is over. If you simply can’t be happy in the relationship that you’re in – for any reason, then divorce may well be the answer.  My last blog article discussed some of the negative, as well as positive aspects of divorce and separation.  This article will focus on the up sides.

After you receive those final divorce papers, it’s easy to find yourself mourning the loss of your relationship, but it’s also important to focus on the positives that could come your way now that you’ve removed yourself from a potentially toxic situation.

Divorce Could Make You Happier

I often find that it can be difficult for some clients to believe that they may enjoy a happier life after their divorce is over, but I frequently see ex-spouses moving on to live more peaceful, fulfilling lives once their divorce is settled. Though the initial feelings that you experience during the onset of a divorce may center around a fear of the unknown, that anxiety and sadness will in most instances eventually get better. Continue reading ›

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Nobody gets married with the belief that a few years, or even decades, down the line they’ll be considering visiting adivorce lawyer. In fact, most couples get married with enthusiasm and hope for an ever-lasting relationship. Unfortunately, marriage can be a difficult construct to maintain, and can break down in ways that we are unprepared to deal with. While some problems in a relationship can be overcome, others lead to the dissolution of a marriage that is impossible to repair. Rather than continuing to live in a painful or unhappy situation, this is when many people consider divorce.

Of course, no matter how bad the situation may seem, there’s always a nagging question in the back of your mind when you’re considering divorce – a question that many of my clients ask me: “How can I know for sure that divorce is the right choice?”  This is not a question that I can answer for them.  Many clients may hope for a checklist of features that can convince them whether divorce is the right step forwards or not, the truth is that dissolving a marriage will always be a personal decision. Only the people within a marriage can know whether it is right for them to divorce or not.  In many instances chances are you’ll have a lot of considerations to address regarding whether to divorce or not.  This article will touch upon some of the more negative aspects and mention the positive.  My next article will enumerate the benefits that many find from moving on from what they view as a negative marriage.  Continue reading ›

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