Articles Posted in Divorce

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As discussed in previous posts, the judge presiding over a New York divorce has the ability to order one party to pay the other spousal maintenance. There are two types of spousal maintenance.The first is called pendente lite. Pendente Lite is a Latin term meaning “during litigation.” This is a temporary maintenance award that is designed to last only through the divorce proceeding. The justification for this order of support is that the spouse who controls the finances could otherwise cut off the other spouse’s access to money during the divorce proceeding before any judicial finding has been made. The second type of spousal maintenance is post-divorce maintenance, which continues for either a set term of years or, in rate circumstances, until death.

Both types of spousal maintenance are calculated by the formula contained in DRL section 236 and take into account similar factors. However, under certain circumstances, a judge can deviate from the maintenance amount provided by the formula by awarding more or less support, depending on the circumstances.

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Following a New York divorce, the judge presiding over the case may require one of the parties to provide regular spousal maintenance payments to the other party. These payments – known as maintenance in New York but commonly called alimony – are calculated according to a specific formula laid out in New York Domestic Relations Law section 236(B)(6). Spousal maintenance may be ordered for a specific period of time, or, in rare circumstances, it may be ordered for the lifetime of the receiving spouse.  There are presumptive guidelines for the amount and duration of maintenance based on incomes and length of the marriage.While spousal maintenance payments are primarily determined by the formula contained in section 236(B), there is a fair amount of judicial discretion in divorces with high-income earning spouses. As a general matter, New York law imposes an income cap when determining the appropriate amount of spousal maintenance. Back when the New York Domestic Relations Law was rewritten, the income cap was set at $175,000. However, the income cap increases incrementally year-over-year according to the consumer price index. The current New York spousal maintenance income cap is $184,000.

If a party to a New York divorce earns above the current income cap, the judge will apply the formula in section 236(B)(6) to determine the amount of spousal maintenance up to the income cap. However, a judge may exercise her discretion in ordering additional spousal maintenance by taking into account the party’s income in excess of the cap.

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In a recent post, we looked at the court’s power – and, in some cases, obligation – to order a DNA test in New York paternity proceedings. New York lawmakers have passed a similar, albeit slightly different, statute establishing when a court must order a DNA test in a New York child support case.Genetic testing can be a crucial part of a child support proceeding when one party disputes paternity. While the over-the-counter DNA testing that has recently become popular to determine an individual’s ethnic heritage has come under fire for its less-than-perfect accuracy, official DNA tests can often determine results with near certainty. That isn’t to say that state-administered tests always return an answer to a paternity question; however, when an answer is returned, the methodologies are such that courts are confident basing important legal decisions on the results.

Under Article 2 section 418 of the New York Consolidated Statutes, “[t]he court, on its own motion or motion of any party, when paternity is contested, shall order the mother, the child and the alleged father to submit to” DNA testing. When the language in the statute is broken down, the following is clear:

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Divorce or family law issues for unmarried people is a complicated time for any couple, but situations can become far more complex when children are added into the mix. Not only do New York divorce attorneys and the New York Supreme or Family Courts need to determine who should provide care for those children in terms of custody, but they must also decide whether and what child support should be given from a non-custodial parent. If child support is awarded, then the New York Courts may use a range of factors to determine exactly how much should be given. The decision comes from a careful consideration of both the payor’s income, the custodial parent’s income, the child support guideline’s and reasons to deviate from the guidelines.

Before a payor’s income can be used to calculate child support payments, certain deductions may be applied to the total earning potential of the individual. The New York Child Support Standards Act provides a formula based on percentage of income, to determine exactly how much support should be paid. Deviations from the guideline amount of support can be argued or negotiated by family law attorneys or divorce lawyers. The Child Support Standards Act indicates that there are numerous things that can be deducted from a person’s income before the formula is applied, including:

  • Maintenance/ alimony to be paid to the current spouse
  • Maintenance/ alimony paid to a previous spouse
  • Child support paid pursuant to a written agreement or court order for a child for whom the parent already has a duty of care.
  • Supplemental security income
  • Public assistance payments
  • New York City earnings or income taxes paid
  • Federal insurance contributions act taxes paid
  • Unreimbursed employee business expenses

This blog will briefly discuss, what are unreimbursed business employee expenses? Continue reading ›

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New York is an equitable distribution state. Thus, when it comes to dividing up a couple’s assets in a New York divorce case, the court will consider a number of factors. However, before the court gets to the point of dividing up the assets, it needs to determine which assets are subject to the equitable distribution rules.Only marital property is subject to equitable distribution. And as a general matter, property that is determined to be the “separate property” of one spouse will remain with that spouse. Courts use a common-sense approach when determining whether property is marital or separate property. Under New York Domestic Relations Law section 13-236, separate property includes property acquired before the marriage and property that was gifted to one spouse by someone other than the other spouse.

In addition, “property acquired in exchange for [separate property] or the increase in value of separate property” will be considered separate property unless the increase in value is due in part to the “contributions or efforts of the other spouse.” This last category of separate property is often the subject of much dispute. A landmark case decided by the New York Court of Appeals set forth the framework regarding how courts view these claims.

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When most people get married, they take into account their prospective spouse’s financial situation. Indeed, to some degree, it would be foolhardy not to take this information into account, given that in most cases a married couple acts as an economic partnership, sharing in both income and expenses. Indeed, New York courts take this reality into account when it comes to dividing up assets following a New York divorce proceeding.The idea behind the economic partnership model of marriage is important to grasp when it comes to understanding how courts divide assets following a New York divorce. New York is an equitable distribution state, meaning that the court does not merely divide up all assets 50/50 and send the parties on their way. Instead, courts take into account a number of factors in determining how to divide a couple’s assets.

New York Domestic Relations Law Article 13 section 236 outlines the criteria courts use to equitably distribute assets after a divorce. In all, the statute lists 13 considerations, including the duration of the marriage, as well as the age, income, and education of the parties. Courts will also consider the sacrifices one spouse made for the benefit of the couple. In addition, courts are able to consider “any other factor which the court shall expressly find to be just and proper.”

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When a couple goes through a New York divorce proceeding, the court is tasked with dividing up the couple’s assets and liabilities. While this may seem intuitively simple, in practice, dividing up assets and liabilities that have accrued over the course of a relationship can be exceedingly complex. In New York, courts use a method called equitable distribution to do this.When a judge uses equitable division to divide up assets and liabilities, the judge takes into account many factors about the couple, including their roles in the marriage, level of education, income-earning potential, and future obligations. The judge will generally not include separate assets or liabilities that were obtained or taken on prior to the marriage.

Back in 2009, the New York Court of Appeals issued an important decision discussing how lower courts should equitably distribute certain assets and liabilities.

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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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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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