Divorce

How is the guideline amount of child support calculated in New York?

October 21, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

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 ›

How are New York Order of Protection cases done in Family Court ?

October 4, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

People that are considered family, by the law, have the ability to get orders of protection against other family members in New York Family Court (or New York Supreme Court while in a divorce) if a Family Offense has been committed by the person against whom the order of protection would be made. Otherwise, orders of protection can be given in favor of victims or alleged victims of crimes against the perpetrator or the defendant in a criminal prosecution. What that means is that family members have the unique ability to get orders of protection against their family members without having the person go through the criminal prosecution system. Of course, the victim, or alleged victim, has the right to seek a criminal prosecution instead, or in addition to, seeking the order of protection through the Family Court or Supreme Court.

If a person properly alleges a Family Offense in the petition, the court will usually grant a temporary order of protection, just based on the one sided presentation by the petitioner, for the accused to either stay away from the protected person(s) or to refrain from doing prohibited acts against that person (such as harassment, disorderly conduct, assault, etc.). Frequently, agreements are made to settle an order of protection case for an agreement to have an order of protection in place for a specified period of time such as six months, one year, or two years with the accused not admitting any of the allegations. If there is not an agreement for an order of protection, the court must hold a hearing to determine based on a fair preponderance of the evidence whether a family offense has been committed. This is a much lower burden of proof than is required in a criminal case which is guilt beyond a reasonable doubt. If the court finds a family offense was committed then the court must decide what order of protection would be appropriate to issue on a “permanent” basis which means for some duration after the completion of the case.

So, you might be wondering what is a family offense. A family offense is defined as conduct between family members that are crimes or violations under the New York Penal Law. Section 812 of the New York Family Court Act has the list of crimes and violations that qualify as Family Offenses. In order for a New York Family Court to award an Order of Protection after the filing of a Family Offense petition, it must find that one of these specifically enumerated Family Offenses was committed. Since these are activities are crimes and violations under the Penal law, it is possible that the alleged perpetrator could also face criminal prosecution. The more detailed elements of each of these family offenses can be found in the Penal law. But remember, a family offense proceeding in family court is not a criminal prosecution, it is a civil proceeding that is usually about obtaining an order of protection not having someone put in jail. Although, if someone violates the order of protection, jail is a distinct possibility. Continue reading ›

How Is a Child Custody Case Decided in New York?

September 24, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

I have handled a lot of Long Island child custody and visitation (aka parenting time) cases, particularly in Nassau, Suffolk, Queens, New York City and the surrounding areas. I will discuss below how custody cases are decided in the Family Court and Supreme Court in contested child custody litigation or, what is aptly called a custody battle. Mediation, collaborative law, and uncontested cases are alternative methods which will be addressed in other blog entries.

If a couple is not married, or they are married but there is not a divorce case pending, parents can consider using the Family Court for a custody case. If a couple is married, living together, and co-parenting then the Family Court might decline to hear the case. Parties should discuss with an experienced family law or matrimonial lawyer whether the Family Court would have jurisdiction in their particular situation. Once a decision is made to file in Family Court or Supreme Court then appropriate papers must be drafted, filed, and served. Although parties may represent themselves, it is advisable to use an attorney as navigating through a custody case in court can prove to be a tricky process. The first court appearance is a conference date, whether in the Supreme Court or Family Court, in which the parties are free to consent to an agreement on what the custody terms and parenting time schedule will be for their children.

If an agreement is not made, often, an attorney to represent the child or children is appointed. Usually, in the Family Court, the County will pay the fee for the attorney for the children. In the Supreme Court, where a divorce must proceed in New York, usually the parties pay the costs for an attorney for the children. The attorney for the children is required to advocate for the children’s’ desires. In the case of very young children, sometimes it is appropriate for the attorney for the children to substitute their own judgment despite what the children are expressing. This is determined on a case by case basis based, in part, on the maturity of each child. Continue reading ›

What is a typical divorce mediation like in Long Island?

September 13, 2013 | Law and Mediation Office of Darren M. Shapiro, P.C.

Each mediator has their own approach; therefore this blog entry is not intended to be a definitive map for divorce mediation in Long Island and surrounding areas. The purpose of this article is to be illustrative of how a typical mediation could proceed.

A couple that is interested in getting a mediated divorce can come to the mediator’s office for a half hour no fee consultation. The mediator will meet with the couple together as he or she is a neutral person. Although some mediators are experienced divorce lawyers, as the mediator, he/she is not acting as the lawyer for either party. In the initial consultation a mediator will describe the process and answer the general questions that the wife or husband may have.

If a couple is ready to begin the process after the half hour consultation, then they can usually start to work on a settlement of the issues right away. The first topic that is usually addressed is what the grounds for the divorce will be. More often than not, there is an immediate agreement to use the no fault ground that now exists in New York. All that is required for this ground is that either the husband or wife needs to be able to swear that the marriage has been irretrievably broken for at least six months. It is not the husband’s fault or the wife’s. One person will need to be the plaintiff and the other the defendant when the actual divorce is filed. Usually this is not a source of contention.