Child Custody Modification Change of Circumstances from Entered Order or Settlement Date?

December 4, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

It is a fundamental principle in New York Family law that for a request to modify a custody order to be able toproceed in court, be it Supreme Court or Family court, there needs to be a substantial change of circumstances. Only if there is a substantial change of circumstance can the court make a determination on what new child custody order is in the best interests of the child or children. I have previously blogged about the quandary about when should the change of circumstances be measured from? Is the change of circumstances to be measured from the date the case was settled or in the cases that went through trial from the close of evidence at trial? Or, in the alternative, should the change of circumstances be measured from the date the order is finally drafted and entered with the clerk of the court? This can be an important distinction as often there is a substantial lag in time between the two events.

A recent case, Matter of Ladd v Krupp, 136 A.D.3d 1391 (4^th Dept. 2016) decide in the fourth department has highlighted this disparity. One of the issues raised on appeal was if it was error to use one date as opposed to the other. The court ended up resting its decision on the fact that it believed it did not matter, for that case, which date the change of circumstances was measured from as from either date there was a substantial change of circumstances. However, clearly, it can matter in other cases. That case cited various precedents which detailed the different dates that are used to measure the change. Continue reading ›

Self Employed Spouses, Parents, Child Support, Divorce and Proving Income

November 25, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

One fact that presents itself to me time and time again as a family lawyer in New York, and Long Island, is thatdivorce and family law can deliver a wide range of different complications. From issues regarding child custody, equitable distribution, to matters concerned with child support, spousal support and at times, orders of protection, each unique family brings with it specific issues to navigate. One of the most common issues that raises conflict in family law is proving the income of the other parent or a spouse.

Child support, in New York is payable to the residential custodial parent until the children are emancipated. Spousal support is what a court can award, under appropriate circumstances, when a couple is still married. Maintenance, f/k/a as alimony is the payment that a spouse makes to another spouse after a divorce or during the process of a divorce. The purpose of this payment is to help the less monied spouse get in a position to be self-supporting. In some cases, spousal support can also be useful for giving supported individuals the finances they need to gain the training they need to earn employment in a new job. In New York, as of 2016, there are guidelines now, based on income, for maintenance, spousal support and child support.

The challenge sometimes becomes, then how does one prove income when the other side of the case is being less than forthright? This might happen when someone works off the books or is self-employed.

Determining Accurate Income Details

If one or more of the parents or spouses within a case is working off the books, self-employed – working as a business owner, licensed professional, or independent consultant perhaps – then the matter becomes even more complex. Not only do you need to work out the details of maintenance or child support, but you also need to find a way to prove the other parent’s income. Proving the income is essential because it represents a key factor for the courts to consider when it comes to deciding whether to award spousal support, child support, and attorney fees. If your spouse was a standard employee, then getting the information you needed for spousal support would be simple enough – as you’d be able to simply look at his or her paychecks. However, providing the income of a spouse who is working off the books or is self-employed can be dangerous, as many self-employed people are less than stringent with their deductions and may claim a large amount of expenses. Continue reading ›

New York and Long Island Divorce and the Home

November 20, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Divorce and the Marital Residence

Divorces often aren’t easy. I have spent a number of years now guiding clients through the complications of divorce throughout Long Island, and New York. I’ve seen very few cases, although they exist, where there is a big dispute over lower priced property like furniture. Often if there is a dispute over assets it involves higher priced items like the marital residence. For most couples undergoing divorce, the biggest shared asset to consider is the family real estate, marital residence or former matrimonial home, as it is referred to in legal circles. The family home is an emotive subject, and often the largest asset to share amongst parties – though investments, businesses, savings, retirement assets and pensions could be worth more or be considerable assets too.

Although it’s possible to leave the concerns of asset distribution to a judge – I often find that this leads to dissatisfaction for both spouses involved. In most cases, it seems that couples are best served when they exercise their right to come up with personal solutions themselves. My office gets involved with litigated matters, settlement negotiations, and alternative dispute resolution like mediation and collaborative law.

Agreeing on an Outcome

I often find that if both parties within a divorce still have a civil relationship, and would prefer to end their marriage with a simple, clean, and quick break – selling the property might be a good idea. The only issue that presents itself here is that the individuals involved will need to think about how the proceeds from the home are going to be divided between spouses. Regardless of how you choose to break up the family home, it’s important to remember that if you can agree to a solution using mediation or collaborative law, you can often find a solution that both parties can live with. If the attempt to come up with a solution outside of the courtroom fails, like through settlement negotiations between the lawyers on a case, then the judge presiding over the divorce case in New York will need to make a determination based on existing facts and laws. However, that process will remove the parties’ ability to create a better arrangement between themselves – sometimes causing both parties dissatisfaction with the outcome. Continue reading ›

Proof of Marital Debt and Divorce

November 12, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are various subcategories of issues that need to be addressed in a divorce settlement or final order from acourt. Not only do you need to make decisions about various different things – including the debt that you and your spouse have gathered over the years – but you also need to think about what steps you can take to protect your financial future. Parties sometimes expect their debt and loans will be split in a certain way – only to find that a court may see things differently.

Just like a marital home, and various other assets, debt acquired during the course of a marriage can be regarded as marital debt, and therefore allocated between the spouses involved. Commonly, this means that couples during a divorce will have a choice to either settle the responsibility for debt before filing for divorce in a negotiation, mediation, collaborative law or other process, or a determination or agreement will be made while a divorce makes its way through the court system. Ultimately, the court will make the decision if the parties do not settle ahead of time.

The New York Domestic Relations Law indicates that financial obligations taking place through a marriage which aren’t the sole responsibility of one spouse, can be offset against the total marital assets that need to be divided. However, there needs to be some kind of proof showing that the debts in question were created for marital purposes. In other words – it’s up to the person who is claiming marital debt to prove that the debt they’re referring to was incurred for marital purposes (like paying household bills, rather than a separate vacation for example). Continue reading ›

Understanding Divorce and Social Security Benefits

November 8, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When it comes to arranging a divorce, many couples look for the various ways in which they might be able to protect themselves from future financial issues. Part of this may involve looking closelyat concerns regarding asset distribution between partners, and split pensions. In the case of senior divorces, one particularly important concern is the issue of social security benefits, and how they can be distributed between both spouses. Importantly, it’s worth noting that social security is not something that can be argued and negotiated in family law through litigation, collaborative law, mediation, or any other dispute resolution method. Instead, social security is something that must be determined by the federal law of social security. However, it is probably helpful to know what one’s financial situation will be, taking into account all resources, in the future.

As the social security administration posts on their website, in most circumstances, if you were married to your ex for a minimum period of ten years, and you decide to undergo divorce procedures, then you may be able to qualify for a social security benefit that is equal to (at most) 50% of your former spouse’s benefit amount. However, for this benefit to be received, you will need to be unmarried, aged 62 or over, and ensure that your ex-spouse is entitled to disability or social security retirement benefits. Crucially, to receive a portion of your ex-spouse’s social security payments, the benefit that you are entitled to will need to be lower than the benefit you would receive from your ex-spouse. Continue reading ›

What are the Underlying Concerns of Mature and Senior Divorces?

October 28, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

There are many reasons why couples may choose to get a divorce at a later stage in their lives. Indeed, divorces cantake place for many of the same reasons attributed to younger breakups – including financial pressures, infidelity and more. Between 1990 and 2010, the divorce rate for people between the ages of 50 and older in the U.S. doubled according to a study by sociologists at Bowling Green State University, indicating that the further we move into the future, the more natural it is to consider divorce as a solution to an unhappy marriage. One thing I notice regularly about divorces that take place between older partners, is that there are a different set of concerns in play than the worries that might have taken precedence during divorce at an early stage. For instance, when seniors get a divorce, the main focus is on both the immediate and future financial security of those individuals. Child custody, parenting time, and child support might still be at issue. Often, however, with more mature couples, there are no issues regarding child support and child custody – as the children have grown into adults who can care for themselves. Instead, the primary issues are on things like the distribution of pensions and 401ks, the choice of whether a house is sold or kept, and whether maintenance, alimony or spousal support should be awarded.

In mature people and senior divorce cases, the financial issues can be particularly crucial because if both of the people involved are already retired, then there is less likelihood that either spouse will be in a position to create new assets or income. Even if one individual is still working, they may choose to retire and find that their earned income ceases. One of the first considerations in these divorce circumstances will often be maintenance. While many young couples agree to maintenance agreement that provides support for an ex for a shorter period of time, those exiting in long-term marriages might be seeking maintenance for a longer duration. The New York 2016 maintenance law does contain not only guidelines for maintenance amounts based on income, but it also has guidelines for the duration of post divorce maintenance. Continue reading ›

Child Support Arrears in New York

October 24, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Both parents are expected to support their children in New York. Generally, however, a non-custodial parent pays support to a child through the custodial parent. Many feel that child support is predicated on the idea that children should have the same lifestyle after a divorce as they had beforehand, which, as people transition from one household to two, is not always exactly possible. Child support, however, is not only applicable to divorcing parents.

When a non-custodial parent doesn’t pay court-ordered child support, there are numerous ways for the custodial parent or Support Collection Unit to enforce payments. If a parent is delinquent and owes back child support, that parent is considered to be in arrears. Unpaid arrears, that are reduced to judgment, accumulate interest even if you are paying child support currently.

For support orders entered after August 8, 1987, the Support Collection Unit or the other parent can require a delinquent parent to pay off arrears for 20 years from the date of default, regardless of whether that amount was reduced to a judgment. When arrears are reduced to a judgment, that judgment then is good for twenty years. The statute of limitations to enforce arrears for orders entered before that date is six years. Generally, child support obligations terminate automatically when a minor turns 21 years old, although there are instances when they continue, such as by agreement to pay beyond the age of 21 and payments of arrears can continue until the arrears are satisfied, but subject to the above statute of limitations.

How Do You Get a Spouse to Agree to Divorce Mediation?

October 14, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

When you and your spouse agree that it might be time to consider a divorce, you’ll discover that there are a number of different routes available for you to choose from. Divorce doesn’tautomatically have to be about stressful litigation – it can be something that you come to terms about collaboratively, with the use of mediation. Mediation is a flexible process that can be used to help you sort out existing problems regarding the financial results of your divorce, or what needs to be done about child custody and parenting time. Unfortunately, just because one spouse decides that mediation may be the right call for their divorce needs – doesn’t mean that the other spouse will agree.

Sometimes, simply broaching the topic of mediation with caution and patience is a good way to get started in encouraging your spouse to agree to an alternative form of dispute resolution. After all, divorce is easily one of the most uncomfortable experiences a person can go through. Although you might be getting a divorce, that doesn’t mean that you shouldn’t be mindful and respectful of the other person’s feelings.

Approaching the Topic on Neutral Ground

A good way to encourage a reluctant spouse to reconsider the option of mediation, is to approach the subject from a position that is important to both of you. For example:

Consider the Children

Make sure that your spouse understands that through mediation, you can reduce some of the discomfort typically associated with aggressive court-based battles and litigation. This can be beneficial to the future relationships that both of you maintain with your children. What’s more, throughout the mediation process, you will both be in control of any decisions made about the support and parenting of your children – meaning that you can work together to fashion an agreement that works for both of you. Continue reading ›

When Should a New York Court Refrain From Ordering Forensics in Child Custody Cases?

October 7, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

In an overwhelming number of cases, parents agree to a child custody arrangement without involving the court. However, some child custody cases are brought to court because parents are unable to agree. In those cases, the Supreme Court or Family Court is supposed to allocate to each parent decision-making, care-taking, and access to the child, making these determinations based on what would be in the best interests of the child.

Custody determinations related to best interests depend largely on the court’s assessment of the parties’ credibility, character, and temperament. The higher courts are not supposed to interfere with these determinations, made by a trial court, unless they lack a sound and substantial basis in the record.

Under New York Family Court Act § 251, the court can order anyone within its jurisdiction and the parent or other person legally responsible for the care of a child within its jurisdiction to be examined by a physician, psychologist, or psychiatrist designated for that purpose if the examination serves the purposes of the act. This person can provide a forensic evaluation that allows the court to determine which custody and visitation arrangement would be in the best interests of the child.

When Should a New York Court Order Forensics in Child Custody Cases?

September 30, 2016 | Law and Mediation Office of Darren M. Shapiro, P.C.

Child custody and time-sharing arrangements in New York are determined based on the children’s best interests. In some cases, a forensic evaluation is ordered. This may include general and specialized psychological testing and clinical interviews of the parents and children. In some cases, collateral information is also gathered, and home visits are made.

Forensic evaluations are not always necessary, but they may be appropriate in cases in which there are sharp factual disputes that affect the final determination of where a child will live and which kind of custody, parenting time or visitation arrangement is in the child’s best interest. Generally, the court will look at the circumstances of the parents and child and see whether there are particular issues that would warrant an in-depth inquiry. The court is supposed to order forensic evaluations sua sponte (on its own motion), even if neither party expressly requests it. The evaluator is typically appointed based on recommendations.

Issues that might necessitate a forensic evaluation may include relocation issues, a parent or a child’s emotional problems, allegations of alcohol abuse, or facts that indicate a custodial parent might undermine the relationship between a child and the other non-custodial parent. In Matter of Shanika M. v. Stephanie G., for example, Stephanie was the aunt of a child that her domestic partner, Shanika, and she were taking care of but never formally adopted. The parties separated when the child was two years old, and the child continued to live with Stephanie.