Articles Posted in Divorce

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Issues of parenting in child custody and visitation cases are often very complicated, as they consider a wide range offactors when determining the best interests of a child. After all, it is the responsibility of the New York court to ensure that their decisions regarding custody orders are made according to the needs of the specific children, or child involved in the case. Because of this, before a final decree is declared in a dissolution, divorce, or custody case, the court of New York might require parents to complete a course of Parental education which may be different and cover different matters depending on the nature of your circumstances.

Although the lessons can be different in parental education classes in regards to such things as format, the general idea of all parent education classes is to help parents separating from a partner or spouse to better understand the way their divorce from an ex-partner might affect their children. This education therefore ensures that the parents have the skills and resources necessary – regardless of whether they are a non-custodial, or custodial parent – to provide the appropriate care for their child, and help them move through a transitional period in their lives with as little distress as possible. Continue reading ›

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When a New York couple undergoes a divorce, it’s natural for their financial circumstances to change. After all,separating partners are moving from a single-household environment, to a situation where they each must pay their own bills, rent, and expenses.  Or as the couple moves apart emotionally, while still living together they might not be taking care of their financial obligations to each other and the household.  The divorce may draw attention to the fact that one spouse has expenses, such as a mortgage, that they are unable to afford by themselves, and pendent lite maintenance awards help that individual to cover their basic expenses and maintain a particular lifestyle until the divorce is formally settled. Commonly, in a Pendente Lite award, the spouse with the greater income might be required to provide monthly payments to the spouse with less income, or pay for certain bills. Pendente lite can also commonly apply to payments of attorney fees, child custody and temporary child support.

Determining the amount to be awarded in a pendente lite case can be complicated, as it depends on a number of crucial factors to be addressed by the court.  There is a formula for pendente lite maintenance that courts are supposed to follow or enumerate specifically why the court deviated from the formula.  Before the first enactment of the formula for Pendente Lite maintenance in 2010, which law was updated in 2015, the foundation for determining the appropriate level of pendente lite support, a court would look at the needs of the dependent spouse in maintaining a reasonable standard of living, as well as the means held by the supporting spouse, and the level of income required for each spouse to remain comfortable until the finalization of the divorce. Continue reading ›

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Although divorce lawyers are required to remain current with their knowledge in all areas involving family law, thisdoesn’t negate the value of accessing external insight from other professionals during a divorce mediation or collaborative law procedure. I often find that divorcing couples seem unsure of their rights regarding financial matters during a divorce, and may be unaware of the financial implications posed by different settlement options. Just as a child specialist can be effective in helping couples to navigate the complexities associated with child-centric cases, a financial neutral can be beneficial in providing guidance regarding financial concerns. Specifically, financial neutrals can be particularly helpful in answering the question of how both sides in a divorce can manage the transition from one household, to two households, in a way that maintains financial stability.

Unlike collaborative cases – which often involve a team of professionals, most mediation sessions involve a divorcing couple, and a mediator. However, this doesn’t mean that mediation, like collaborative law, cannot be supported by independent parties. In fact, mediating coupes are regularly advised to seek out review attorneys who can review their mediated agreement and help them understand their rights. In the same vein, there’s nothing preventing other professionals from joining the mediation for the best interests of both parties involved. After all, during a litigated case, other experts are frequently retained and court ordered. In collaborative cases, financial neutrals, and neutral divorce coaches usually make up vital parts of the team. Continue reading ›

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Grueling custody battles between parents are rich with emotion and frustration, which means that they areperfectly poised to become hostile and antagonistic. In most circumstances, the greatest amount of conflict may not even be caused by addressing significant life-altering decisions, but when dealing with the day-to-day agreements of where to meet to exchange children, or how to provide the correct educational and medical care. Because of the significant friction in custody cases, it can be difficult to find a scenario that works well for both parents, and the children involved. However, in New York and Long Island, the presence of a parenting coordinator, as part of the custody and parenting time order, could be the tool required to prompt an amicable agreement for the resolution of future issues.

Usually, the parenting coordinator comes in to assist with decision making issues, after the case is done.  After all, if there are two parents voting there could be ties on certain issues.  How will the ties be broken?  Continue reading ›

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The goal of divorce mediation is for a couple to reach a settlement on one or more issues related to their divorce. To that end, a neutral third party known as a mediator helps each side understand the relative strengths and weaknesses in their position and tries to move them closer to a consensus. While neither party may get exactly what they want, they try to come to an agreement with which they can both live. Often, mediation allows for a better outcome than litigation, and it can be easier on a couple’s children.

If an agreement is reached at mediation, it may be formalized in a separation agreement. Courts treat this agreement the way they would treat other contracts. Although a neutral third party may help the parties reach a different outcome than what a judge would have decided, the court will treat the agreement seriously, except in certain circumstances.

In Ruparelia v. Ruperalia, a husband and wife were married in 1994 and had three children. The husband was a doctor, and the wife had a Master’s degree in social work. In 2011, the couple experienced significant discord, causing them to participate in divorce mediation. During the mediation, they reached an agreement as to asset distribution, spousal maintenance, and child support. These agreements were formalized in a separation agreement, executed in the summer of 2011.

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There are several different ways to approach divorce. Among the gentlest, yet sophisticated disputeresolution methods is collaborative divorce. The parties in a collaborative divorce enter into a contract (“Participation Agreement”) to negotiate a divorce settlement without involving the court, or a mediator, but rather assembling a team comprised of collaborative attorneys, a neutral psychological professional (divorce coach), and often a neutral financial professional. During the collaborative law process, the parties sometimes engage experts for assistance, such as appraisers.

Among the benefits are more control over the process than you have by going to court, less acrimony and stress, usually less expense and time than a highly litigated case, and the preservation of existing family relationships. In many cases, collaborative law is the best choice for parents trying to protect their children from the emotionally destructive aspects of traditional divorce litigation.

The parties also have the benefit of counsel advice during the process, which they sometimes don’t during mediation (even though people are advised to use review attorneys in mediation). However, critically, if a matter does not get resolved through the collaborative process, the attorneys who represented the parties in the collaborative divorce cannot represent them in the litigation that follows. The rule is intended to allow the divorcing parties to be more honest and direct and posture less. It also ensures that attorneys commit themselves to the collaborative process, rather than abandon it for litigation.

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A noncustodial parent is required to pay child support to a custodial parent in New York until a child is 21 years old. In many cases, this means that support continues to be paid while a child is in college.

Basic child support is calculated based on a formula using initially the first $143,000 (as of 2016, this number changes over time) of both parents’ combined income and a discretionary amount or an amount based on the same formula for income that exceeds $143,000.00. For a noncustodial parent of one child, basic support is their pro-rata share of 17% of that $143,000, a “cap” that changes every two years in addition to any amount ordered above that cap as mentioned above. The percentage changes based on the number of children. However, a child can also receive add-on support if his or her parents’ combined income is beyond that cap, after the court looks at what are called “paragraph f” factors. Under Domestic Relations Law 240 1-b(c)(7), the court can award educational expenses, such as college costs, as an add-on to the basic support.

This type of support is not mandatory, however. When deciding whether to make the award, the court may consider the parents’ financial circumstances, their educational backgrounds, the parents’ history of paying for these types of expenses to the child at issue or other children, and the child’s academic qualifications. However, college expenses usually aren’t awarded before ascertaining whether a particular child will actually attend college.

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In New York, child support has a basic component, as well as an added component. The basic support is calculated first by looking at the initial $143,000(known as a “cap” which is current as of 2016) of combined annual parental income. The amount of the cap is adjusted every other year. Income includes gross total income, investment income, and various benefits, such as workers’ compensation, unemployment, or retirement benefits. After adding your income with your co-parent’s income, the court multiplies the total by a percentage per child, which is 17% of the combined parental income for one child, 25% for 29% for three, 31% for four or more, and no less than 35% for five or more children.  The non-custodial parent pays their percentage share of this amount (pro-rata share).  If your combined income with your co-parent is greater than this $143,000 cap, the court may look at whether there should be additional support for the amount of combined income that exceeds $143,000.

However, if you and your co-parent’s combined income is more than $143,000, you can get additional child support beyond what that cap allows if you can establish certain factors known as “paragraph f” factors. The court can use the same formula of taking 17% or the appropriate percentage, or it may make adjustments to the amount of the add-on according to its analysis of the factors.

These factors include the financial resources of you and the other parent and child, the health of the child and any special needs or aptitudes (like learning disabilities), tax consequences, educational needs of one or both of the parents, the standard of living the children would have enjoyed had the parents stayed together, a determination that one parent’s gross income is substantially less than the other’s, any needs of other children for whom a non-custodial parent is providing support, extraordinary expenses like international travel, and other relevant factors. For example, DRL § 240 (1-b)(c)(4) provides that if a custodial parent is either working or going to school in order to be able to work and incurs child care expenses as a result of this, the court can determine reasonable child care expenses to be prorated in the same proportion as each parent’s income is to the combined income. The pro rata share of the child care expenses are separately stated and added to the basic child support as an add-on.

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When making custody determinations, a court is likely to consider whether a custodial parent is likely to encourage the child’s relationship with the noncustodial parent. It is considered in a child’s best interests to have a relationship with both parents. This means that a court will not look favorably upon a custodial parent who interferes with children’s relationship with the noncustodial parent. The noncustodial parent may have grounds to request a modification of a child custody order if the custodial parent tries to harm his or her relationship with the kids.

In Musachio v. Musachio, a New York married couple stipulated to a child custody settlement that was supposed to survive and not be merged into any divorce judgment that followed. The parties had agreed that they would have joint custody of their four children. The defendant (the mother) would have residential custody.

In 2008, the court granted the father’s application to get temporary sole custody of the four children. It also suspended his child support obligations based on information that the mother had interfered substantially with his relationship to their children.

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In some cases, divorce mediation can be the best solution for a couple who want to find an amicable way inwhich to end their relationship. It allows individuals the opportunity to settle disputes that typically arise in the instance of divorce, outside of the discomfort of a court-room setting, and promotes a less formal, yet often effective way to overcome and negotiate differences. However, the success of your mediation will not only depend on your willingness, as a party of divorce, to negotiate, but also the skills, techniques, and experience of the mediator you are using to guide you through the process.

Although in most mediations, the legal system only has a minimal amount of involvement, it is still a legal process that benefits from the use of a professional with extensive knowledge of matrimonial and divorce law. Ultimately a court needs to review the papers, approve the agreements and sign off on any divorce judgment. Mediation should provide a structured format in which friction can be minimized during a spousal settlement conversation. Mediators are not judges, arbitrators, or referees, and they cannot make decisions on any party’s behalf about important concerns. However, what they can do is offer insight as a neutral and impartial third party, helping disputants to reach a compromise that they both find acceptable. Continue reading ›

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