Articles Posted in Child Support

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Each County has some particular nuances that make practicing divorce and family law a little different in each venue.  Although most of the same laws are applicable throughout the state, besides differences in geography, each court, as well as each judge has their own rules and procedures.  As a New York City, Long Island and Nassau County Family Law Attorney, I have had the opportunity to see geographic differences in my practice.  Although I do cases all around the area, my highest volume at this time is in Nassau County.  The purpose of this blog entry is to provide information about divorce and family law practice in the Nassau County Supreme Court and Nassau County Family Court.
Separation proceedings, divorces and post judgment divorce proceedings are the types of cases that we mostly handle at the Nassau County Supreme Court.  The Supreme Court of Nassau County has an address of 100 Supreme Court Drive Mineola, New York 11501.  Matrimonial cases are usually assigned to a court room at the Nassau County Supreme Court Matrimonial Center, which is located at 400 County Seat Drive Mineola, New York 11501.  Divorce cases are initiated by purchasing the Index Number at the Nassau County Clerk’s office which is located at 240 Old Country Road Mineola, New York 11501.  All the legal documents on file for the Supreme Court cases become part of the records maintained at the Nassau County Clerk’s office.

At the Nassau County Matrimonial Center a case is assigned to a:   Justice of the Supreme Court; Judicial Hearing Officer; or a Special Referee.  There are mediation services to help aid in resolution of matters to minimize the litigated issues.  There is a Model Custody part at the Nassau County Matrimonial Center specifically designed for child custody and parenting time disputes.  I frequently find myself at the Nassau County Supreme Court, which is less than five miles from my office, whether it is to follow up or appear on one of my cases. Continue reading ›

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No matter how amicable or contentious a divorce case was, issues can arise after judgment that can be dealt with in the Supreme Court.  As a Nassau County Divorce Lawyer, I frequently defend against or bring applications in the Family Courts in Long Island, New York City and the surrounding regions of New York involving post judgment child support, child custody, maintenance or orders of protection issues for both my ex-husband and ex-wife clients.  The Supreme Court, however, is usually available to deal with these post judgment issues as well.

Sometimes, the issues must be dealt with in the Supreme Court such as for enforcement of a property settlement, an attempt to vacate certain terms of the divorce, or in the event that exclusive continuing jurisdiction is reserved in the Supreme Court for future matters involving child support, child custody, or maintenance. Often times the Supreme Court is selected to deal with issues over the Family Court as the Supreme Court can deal with the issues as part of one case, while the Family Court requires the issues to be dealt with in separate cases.  For example, support issues are assigned to a Support Magistrate while custody issues may be assigned to a Referee or a Judge in the Family Court.   This blog entry is intended to outline some of the more common issues that the Supreme Court can deal with that come up soon after or many years after a couple has divorced.  More specifics about the specific areas of law are covered in other blog entries and on my website.

Contempt or enforcement applications often come up after a divorce.  These applications are done when either the former wife or husband is asking the court to punish the other party for their disregard of the order or to help them enforce the terms of the divorce.   The contempt allegation may be that one of the parties violated:  an Order of Protection that was issued as part of the divorce; the provisions involving a property settlement; the requirement to sell the marital residence; the custody and parenting time provisions in the divorce; the terms of the payment of child support or maintenance (formerly known as alimony); or other provisions that were a part of the terms included or incorporated into the Judgment of Divorce.  Remedies for contempt could be money damages, incarceration, modification of the previous terms, or the award of attorney fees among other possibilities. Continue reading ›

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People are free to make arrangements in their settlement agreements concerning the circumstances that would allow for child support to be changed as time moves on from their last child support order.  Absent an agreement, however there are two different methods to try to change child support.  The first, which most people know about, is filing a petition, application, or motion in the Family Court or Supreme Court to modify child support.  The second method, not as widely known, is to serve and file a timely written objection to a notification by the Support Collection Unit of a Cost of Living Adjusted Order.  If a timely written objection is properly made to the notice of the COLA increase or Cost of Living Adjusted Order, the court is required to then determine what child support would be based on current income or circumstances.  This is called a “denovo” hearing on child support. This blog entry is intended to provide a general outline of these two different techniques.  I am a Long Island Child Support Lawyer that handles cases on Long Island and all around the New York City area.  Through experience, research and education, I gained my knowledge and experience with child support.

The law in New York regarding child support is commonly referred to as the Child Support Standards Act and is set forth in both the Domestic Relations Law and the Family Court Act.  As the law stands in New York today, the default rule is that a party to a support order may seek to modify child support if since the last order:  there exists a substantial change in circumstances; three years or more elapsed since the order was entered, modified or an adjustment made; or since the entry, modification, or adjustment of the order either party to the order has had a change to their gross income of fifteen percent or more.  This is the law for cases filed subsequent to the law change in 2010.  For orders that were before the law change, the old standard applies which was that absent an agreement for modifications otherwise, there would need to be a substantial change of circumstances.  It was more challenging to obtain modifications under the old law.     Continue reading ›

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Pendente lite motions are requests made by a party to litigated divorce cases to ask the Court to grant certain relief while the case is ongoing.  Pendente lite is latin for “while the action is pending.”  Pendente lite orders are not intended to settle  the divorce in its entirety as the final settlement or Judgment of Divorce becomes the final resolution of the case.  They are supposed to tide things over, so to speak, until the rest of the case can be decided.  There are various things that your New York City or Long Island Divorce Lawyer  might ask the court to rule upon in a pendente lite motion.  Motion practice usually consists of motions, opposition, cross-motions and any reply papers.

Custody and parenting time might be a part of a pendente lite order.  This can include the issue of residence of the children, a schedule of parenting time or visitation, and the decision making involving the children.  Sometimes the court will appoint an attorney for the child(ren) when there are issues involving the children that are not resolved.  The allocation of fees between the parties for the attorney for the child(ren) is often ruled upon.  A forensic investigation might be ordered by the court to help give insight into the children and the family to aid the court in deciding issues on custody and parenting time.  Courts will usually not make a custody determination without having an evidentiary hearing, but it might be more inclined to issue a temporary order regarding the parenting time to help alleviate any preliminary scheduling issues.

Exclusive use and occupancy of the marital residence might be requested.  Absent an agreement for exclusive use and occupancy, the law in what is called the Second Judicial Department is that a pendente lite award for exclusive use and occupancy should not be made unless there is a showing that the award is necessary in order to protect people and property.  The Second Department covers Suffolk and Nassau County, Queens, Brooklyn, Staten Island, Rockland, Westchester, Dutchess, Putnam and Orange Counties.  In cases where there is shown to be a risk to persons or property, an order of exclusive occupancy while the case is pending is appropriate.  Without a showing or an agreement for the order, a Court should not deprive a person of access to his/her own property. Continue reading ›

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Parents have a duty to support their children, in New York, until the age of 21 unless they are sooner emancipated.  The doctrine of constructive emancipation has been developed by the Child Support Standards Act and corresponding case law in New York.  Children can be emancipated because they get married or join the military.  Other ways for emancipation to occur is where a child of employable age becomes economically independent or voluntarily and without cause, abandons a parent or the parent’s home, against the will of the parent and for the purpose of avoiding parental control.  New   York courts have held that in these cases the child forfeits his/her right to demand support.  It is a difficult case for the moving party to win.  I have argued both sides of the issue at trial as a Long Island Child Support Attorney.

Economic independence is usually an easier concept to grasp than the abandonment cases.  Economic independence commonly occurs, according to the Child Support Standards Act law, when a child is working full time and is self supporting.  The debate under this aspect of constructive emancipation usually comes under the topic of whether or not the child is generating sufficient income even when working full time.  Therefore, when a child of employable age is working but still receives help from a parent for important economic items like food, utilities and insurance the child likely is not to be deemed emancipated.  This might even be the case when the child does not reside with either parent but still needs help for financial support.

Although economic independence is not always an easy call, abandonment cases can even be trickier and more subjective.  The courts in New York have held that a child’s right to support and the parent’s right to custody and services are reciprocal.  A parent may impose reasonable regulations.  When the abandonment fact is that the child left a parent’s home, the debate can be whether or not it was against the will of the parent to avoid parental control and whether or not there was good cause.  Good cause is the key phrase in that situation which the court would need to decide in disputed matters.  The foregoing abandonment situation applies when dealing with the leaving of the home of what was the residential custodial parent. Continue reading ›

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There is a formula in New York contained in the law, commonly called the Child Support Standards Act, which is designed to provide a presumptive amount that a non-custodial parent should pay for child support.  The policy behind the enactment of the statute was to attempt to provide standard amounts that people that have similar income should pay.  The legislature tried to establish a mechanism, through the guidelines, to estimate how much money individuals would contribute for the children if the family lived together.  As a Long Island family lawyer, mediator, and child support attorney, it is a formula that I have to contend with on a daily basis.

The first step is to start with each parties’ gross income.  That is, what a person makes before taxes or other deductions are taken out.  There can be some add-ons to determine the gross income.  After any add ons are made,  from the gross income, each party is entitled to certain deductions for child support purposes.  Common deductions, for child support purposes, are for FICA taxes (social security and medicare), New York City or Westchester taxes, and child support for other children or maintenance being paid pursuant to a prior court order or written agreement.  There are other, less common, deductions enumerated in the statute.

After the adjusted gross income is determined for child support purposes, each parties’ pro-rata share of the total income should be determined.  What this means is what percentage of the total income each parties’ income makes up.  For an easy example, for illustrative purposes, if the father makes $75,000.00 and the mother makes $25,000.00, the father’s pro-rata share would be 75% and the mother’s pro-rata share would be 25%. Continue reading ›

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