Articles Posted in maintenance

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New York has a history of having a concentrated population of Jewish people who observe Jewish law. Currently, observant Jews who want to be divorced must effectuate a divorce that is valid under both Jewish law and New York state law, or they can choose not to marry under secular law and not be concerned with the way these two different systems intersect. Jewish law recognizes private marriages and private divorces that do not require court supervision.

However, Jews bound by both religious law and secular law are in a more difficult position when trying to obtain a divorce. One way in which the Orthodox community in New York ensures that traditional Jewish values are part of divorce proceedings is to use prenuptial agreements that are signed by both parties, allowing determinations to be made by the Beth Din of America, which is the largest rabbinical court in the United States.

In the 1983 case of Avitzur v. Avitzur, a New York court considered the enforceability of the Ketubah entered into as part of the religious marriage ceremony. The Ketubah is supposed to show the bridegroom’s intent to cherish the wife and provide for her, as well as the wife’s willingness to carry out her obligations according to Jewish law. The couple agreed to recognize the Beth Din of the Rabbinical Assembly and a Jewish seminary to have authority to counsel them and impose compensation as it saw fit for failing to respond to its decision appropriately.

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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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Parties are free to agree upon what is fair for child support, equitable distribution, and maintenance when they negotiate their own divorce terms though mediation, settlement negotiations or collaborative cases. In litigated cases, in general, when it comes to making determinations during a divorce case about issues such as child support, equitable distribution, and maintenance, the court will generally follow a set of pre-appointed guidelines or principles that have been developed through years of case precedents or outlined in the most recent relevant statutes. This makes it easier for judges to establish a starting point from which to create orders. However, there are particular circumstances in a variety of different cases, which may allow for the standard amounts to be deviated from. This blog will be a summary about the awards at the end of a divorce case for child support, maintenance (alimony), and equitable distribution. Pendente lite or temporary awards (that which is ordered while the case is pending) has been the topic of previous articles and will be the topic of future blogs.

Child Support

In child support, the suggested basic child support amount may be changed as a result of the courts close consideration of the finances each parent has and the needs of the children to be cared for. Another reason why the court may deviate from guideline child support amounts could be attributed to the emotional or physical health of the child in question, as well as any aptitudes or special needs that child might have that may require extra expenses to be paid. What’s more, the court will need to consider the standard of living that the child has gotten used to within the parental relationship that they had previously – ensuring that a state of comfort remained intact following a divorce procedure. Aside from the reasons mentioned above, tax implications may cause a judge to deviate from a basic amount of support, as could the non-financial input a father or mother contributes to the wellness of a child. Continue reading ›

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In New York, annulments are rarer than divorces. However, though they may be less common, the procedure is still available for partners so long as the correct legal grounds are present. Underlying the concept of annulment is the legal theory that the “marriage” to be voided, after the annulment, was never a valid marriage. Legally, marriages that have been annulled are regarded as “nullified” or “void” marriages, and the action to begin this procedure must begin at a certain time to be considered applicable. The time limit that applies to your particular circumstances will depend on the circumstances as well as other crucial factors.

An annulment is distinctly different to a divorce in that the legal procedure for divorce is used to terminate a marriage that was considered to be previously legitimate and valid under the eyes of the law. An annulment, on the other hand, becomes a declaration that the marriage was never legally valid to begin with. However, as in a case of divorce, annulment cases may permit the courts to award custody and parenting or visitation rights regarding the children involved in the marriage, and may require the payment of child support or other forms of maintenance. For instance, according to Domestic Relations Law, there are formulas for both temporary maintenance (support for the spouse while a matrimonial case is pending) and durational or permanent maintenance if any (support for the ex-spouse for some time period after the case is finished), and courts have some discretion to decide whether or not to order a maintenance award within any matrimonial action – including annulments. Continue reading ›

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I recently wrote about the revisions to the New York maintenance (alimony) law which was passed in September 2015.  It became effective for the temporary maintenance provisions on October 25, 2015 and for durational or permanent maintenance (the maintenance ordered for some period of time after the divorce if there is any) it will be effective as of the end of January 2016. This article will be about the narrow issue if maintenance should exist when a spouse/former spouse is living with a new romantic partner. The law about this situation is contained in New York Domestic Relations Law Section 248 (DRL 248) which also received some changes in the recent law update. It seems, mostly, that section of the law remains intact. The language, though, was updated to be more gender neutral and reflective of our modern times.

The current old law, which is effective only until January 23, 2016, states that when the wife remarries the court must terminate any support payments (not child support) that are to be made by the Husband for the Wife. The antiquated language here I think is apparent – “Husband” and “Wife”. While courts have in recent years read gender neutrality into these terms, those terms are changed in the new law to “payor” and “payee”, thus recognizing that either spouse might need to pay maintenance. The current/old law goes on to say that the husband can make a motion, and the court in its discretion may grant the motion, for termination of support payments for the wife if the husband can prove that the wife is habitually living with another man, and holding herself out as his wife, even though they are not married. The updated law, again, modernizes the terms to “payor”, “payee” and “spouse” (which is also reflective of the fact that same sex couples can now marry). Continue reading ›

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The long awaited divorce law overhaul, that has major changes to the maintenance (fka alimony laws) was signed into law by the Governor on September 25, 2015 and is effective as of October 25, 2015 for temporary maintenance and in January 2016 for the remaining changes. The new law continues the temporary maintenance guidelines (maintenance that is to be paid while a divorce case is pending), but also extends these guidelines to post-divorce maintenance awards (maintenance for some duration after the divorce judgment is entered. The old law put a cap of $543,000.00 for the income to be considered in the maintenance guideline calculation while the new law lowers this cap to $175,000.00.  The cap will change over time according to Consumer Price Index changes. In a court’s discretion a judge may consider income over the cap or deviate from the guidelines by using the criteria established in the statute. Family expenses, while the divorce case is ongoing, under the new law need to be considered and allocated between the parties by the court where it is appropriate.

Many practitioners felt that the guideline temporary maintenance calculation under the old law produced unduly burdensome awards, and perhaps this lower income cap might address that feeling. Further, under the old law there was a guideline formula for temporary maintenance but none for post divorce maintenance. Post divorce or durational maintenance was rather to be based on a subjective list of criteria contained in the statute. Since the considerations were subjective, including no guide on how long maintenance should last (if there was to be any at all) resulted in a wide range of results that varied from case to case, courtroom to courtroom, and between venues. Hopefully the new law can provide more predictability in matrimonial cases. This can be helpful regardless of the process used to get to a divorce be it mediation, litigation, settlement negotiation, or collaborative law.  If people have a better idea what to expect after trial, it can obviate the need for certain issues to be litigated.  Continue reading ›

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The old law in New York for temporary or pendente lite (Latin for while the case is pending) maintenance, prior to the 2010 revisions, was that temporary maintenance was supposed to “tide over” the spouse with less income (the “non-monied” spouse) while the divorce case was ongoing.  There was no formula for the calculation, rather it was to be based on subjective criteria which was outlined in the statute.  The 2010 law that is in effect now, however, contains a guideline formula, much like we have in place for child support (although the formulas and amounts differ from child support) to give guidance as to what the presumptively correct amount of temporary maintenance that a court should order.  An amount of temporary maintenance can be agreed upon by the parties in a case with the help of their mediator or lawyers.  Often, however, Judges are called upon to decide the amount, and that is where the statute must be considered.  It is important to note, however, that the temporary maintenance amount is not what is ordered at the conclusion of the divorce.  That maintenance, if there is any, is usually durational in nature and does not have a specific formula to guide in its determination.

The temporary maintenance law is in Domestic Relations Law Section 236(B)(5-a).  Each sides gross income, as reported in the most recent federal tax returns, after the deduction of FICA and any applicable local taxes (city only).  The lesser of two calculations is supposed to be the guideline amount of temporary maintenance.  Initially, a cap of of $543,000.00 (this is the cap as of the current date) of the payor’s income is to be used in determining the calculations.  The first calculation involves taking the difference between thirty percent of the income of the monied spouse and 20% of the non-monied spouse.  The next calculation involves taking forty percent of the combined parental income minus the payee’s income (non-monied spouse’s).  The lower number from these two calculations is the guideline temporary maintenance amount. Continue reading ›

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There are various resources out there free on the internet which are useful in practicing New York family law.  The New York statutes are one of the most important sources of information and are located in different places on the internet.  As a Long Island Divorce Lawyer, family law attorney and mediator, I pay for services where I have access to statutes, cases and public records information that enhance my ability to search for information.  But, there are also a lot of areas on the internet where there is helpful free information.

One convenient place to find statutes for the various New York laws is the Cornell Law website. The Domestic Relations Law is controlling for matrimonial practice in the New York Supreme Court. The Family Court Act controls for practice in the Family Court. The Civil Practice Law and Rules contains rules about the dynamics on procedure such as the filing and service of cases, rules of evidence in civil cases, the making of motions and discovery procedures just to name a few areas this law controls.  This website is also a good source to locate legal professionals who practice specific areas of law in various geographies. Case decisions for New York matters may also be found through this website.  There are links to published decisions for New York and other jurisdictions on this site.

Another huge resource for family law and all other areas of practice in New York court is the court website located at nycourts.gov.  This site also has links to find published decisions for case law in New York.  There is a large volume of information, tools and forms on this website which are invaluable for lawyers and litigants alike.  I’ll spend the rest of this article highlighting just some of these that I find important. Continue reading ›

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When calculating income for child support or temporary maintenance (alimony), according to the New York Domestic Relations Law and the Family Court Act, the Court may, if the court believes it is appropriate, add in or “impute” income to people. The statutes outline some enumerated items to be considered for imputing income and mentions that other resources can be additionally considered. Assets that are not producing income is one of these enumerated resources. Fringe benefits and “perks” that someone receives as part of their job like for food, housing, cars, memberships, and other benefits, if they are for personal use or if they result in a financial benefit to the party, are mentioned in the statutes as things that can be imputed as income by a court. Funds, services, or benefits received by friends or family can be added in as income for child support or a maintenance calculation under the law.

If a court concludes that someone has diminished their income or assets to try to get around a child support or a “pendente lite” (Latin for while the case is pending) maintenance obligation, a court can impute income for the party’s previous income or resources. This might be, for example, if the court believes someone voluntarily left their jobs, were fired for cause, or chooses not to work full time or at all. Besides past earnings, a court can consider their education and ability to earn. Whether or not the party is diligently applying for employment commensurate with their background, experience, and abilities may be a factor in determining income. A support magistrate or judge can look at what people with comparable educations and backgrounds earn to impute income.

There is of course another side to these cases. The person or lawyer arguing against income being imputed to their client can show that the loss of employment or income was due to no fault of their own like for medical reasons, the economy, or downsizing. If that person proves that the circumstances were out of her or his control, and they have been making diligent attempts to get replacement employment or income, albeit unsuccessfully, then they might convince the court that income should not be added in. Relevant questions might be “Where did you apply for jobs? Who did you talk to? What interviews did you go on? How often would you make applications each week? Did you receive any offers” – and so on.   Ultimately, a court needs to weigh each side’s presentation for or against the imputation of income. Continue reading ›

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An order to pay child support or maintenance, that is part of a divorce judgment, can be enforced by filing a violation or contempt petition in the Supreme Court after the entry of a Judgment of Divorce. If exclusive jurisdiction was not reserved in the Supreme Court for dealing with future matters involving child support or maintenance, then either the Family Court or the Supreme Court could be utilized to bring the violation or contempt application. People for which the order was initiated in the Family Court for spousal or child support can bring their violation petition in the Family Court. When there is a choice between the Family Court and Supreme Court, there might be different reasons or motivations for choosing either one. For example, a party might choose the Supreme Court because they also want to discuss enforcement of a property settlement or child custody issues in the same case. The Family Court separates support issues from child custody issues into different cases, which are handled in different court rooms at different times. Also, the Family Court does not have jurisdiction over a property settlement. Other parties might choose the Family Court as they want to focus on one issue at a time or to avoid the more detailed paperwork associated with the Supreme Court. As a New York City and Long Island Child Support Lawyer that handles cases all over the area, I regularly appear in both the Supreme and Family Courts.

Usually, the contempt motion is brought by what is called an Order to Show Cause when it is done in the Supreme Court. Typically, the structure of an Order to Show Cause starts with the order pages, which are signed by the Judge, directing the other side to come to the court and show cause why an order should not be issued punishing the person for failure to pay the maintenance, child support or other requested relief. After the order pages, an affidavit from the client that outlines the reasons for making the motion and what they would like the court to do usually follows the aforementioned order pages that were signed by the Judge. After the affidavit from the client, in most instances, an affirmation from the attorney follows. The affirmation from the attorney contains legal arguments and reasoning to support their client’s position.   Any exhibits in support of the motion are attached after the attorney’s affirmation.  The other side is given an opportunity to submit opposition papers to which the moving party may submit a Reply. A Sur-Reply from the person defending the motion occasionally is made which might be considered by the court. Sur-Replys are the exception rather than the rule and not always permitted by the Court.

Family Court, in most cases (but not always), is less paperwork intensive and a more streamlined process. A petition that details the violation is submitted and signed by the client and their attorney if they have one. The court then issues a summons requiring the respondent to appear in court. The law provides that if there is a support order that has not been paid, there is a presumption that there is a willful violation. The burden then shifts to the other side to show that the violation was not willful. Willfulness means the ability to pay and the failure to do so. An important task of the attorney for someone accused of failing to pay child support is to show that the violation was not willful, if in fact the support order was not paid. Therefore, the financial ability to pay is a big issue in hearing on contempt motions or violations. If loss of employment is at issue, the payor needs to show that the job loss was due to no fault of their own and that they have been making diligent efforts at securing replacement employment to no avail. The other side might argue that diligent efforts have not been made or that the loss of employment was the payor’s fault. Continue reading ›

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