As we have previously discussed in past blog posts, a New York family court can order payment from one spouse to another of maintenance during the pendency of Nursewithman-300x200the divorce as well as after the divorce is final. Payments made during the pendency of the divorce are called temporary maintenance, pendente lite maintenance or sometimes spousal support, and payments made following the divorce are termed spousal maintenance or post-judgment maintenance.

Under the New York Domestic Relations Law, section 236(B), a court is required to consider a formula based on income and certain factors when determining a deviation from the formula guidelines for the appropriate amount of temporary maintenance, spousal support or maintenance. By and large, the factors are similar for the two types of awards, with the difference being that spousal support or temporary maintenance is designed only to last during the divorce proceeding. When it comes to determining whether a court can order one spouse to pay for another spouse’s medical expenses, the first place to look is at the factors outlined in section 236(B).

The statute lists a number of factors that a judge should consider, none of which explicitly mention the payment of medical expenses. However, several of the factors tangentially relate to medical expenses. So, in effect, a court could indirectly take a party’s medical expenses into account.

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One of the most critical and often overlooked issues in a New York divorce is how the parties will obtain health insurance. Many families, especially those with only one working partner, rely on health insurance benefits that are obtained through the working party’s employer. However, in the event a couple divorces, those insurance benefits will no longer be available to the non-working spouse and arrangements will have to be made to provide for their health insurance.

One option a non-working spouse has to obtain health insurance after a divorce is to obtain COBRA benefits. COBRA is a federal law that requires insurance companies to extend coverage to qualifying beneficiaries in the event of a qualifying event. Commonly, COBRA benefits are offered to an employee when their position is terminated; however, COBRA benefits are also available for spouses after a divorce.

One downside of COBRA benefits is that they can be quite costly because the employer will no longer be covering any of the cost. Thus, determining how each spouse will obtain health insurance benefits and how those benefits will be paid for is often a contested issue.

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Going through a New York divorce or couple split is often very difficult for all of the parties involved, including any children of the divorcing couple. Children are often unwitting parties to the entire process, yet their lives can change significantly as a result. It is not uncommon for children to resist the fact that their parents are getting divorced or separated. Consequently, they may take one parent’s side over the other.

When it comes to a New York family law court’s custody orders, however, children are obligated to follow the visitation or parenting time arrangement set forth by the court. While a judge will listen to a child’s wishes in regards to visitation, ultimately the court will consider factors other than the child’s expressed preferences when determining whether visitation with the non-custodial spouse is appropriate. If the court determines that the non-custodial spouse has parenting time or visitation rights, then the child must attend visitation.

If a child refuses to honor court-imposed parenting time, courts have several available courses of action, depending on the reasons why the child does not want to participate in visitation with the non-custodial parent.  A child of employable age can be deemed constructively emancipated if without good cause he/she refuses to have a relationship with the non custodial parent.  But the parent seeking emancipation has the burden.  I have previously blogged about constructive emancipation and have represented a number of people in such cases. For example, in one case, the non-custodial parent could have been relieved of their child-support obligation if the child is determined to have “abandoned” the parent, but in this linked case the petitioning parent did not show a lack of justification for the abandonment.

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As we approach the end of the calendar year, taxes are on everyone’s mind.  Perhaps people are thinking more about taxes than usual because of the passage of the new tax law by Congress at the end of 2017.   To many who have been through a New York divorce or separation, the tax implications of dissolving a marriage are incredibly important and must be part of the overall discussion regarding other issues, such as the division of assets and child custody.

One issue that frequently arises in New York divorce cases is which parent is able to claim a child or children as a dependent for tax purposes. The ability to claim a child as a dependent can have a significant effect on a party’s tax liability.

For the most part, only one person can claim a child as a dependent on their tax return. However, a custodial parent can waive their right to claim certain benefits, such as the child’s personal exemption, the child tax credit, and the tuition and fees deduction. Notably, a custodial parent could still retain the head-of-household filing status, the child and dependent care credit, and the earned income credit. However, according to the IRS, if the parties have multiple children the parties can either agree on how to split up the dependency credits or a court may make that determination.

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Divorce is a complicated process at the best of times, but when you’ve got a narcissistic personality to deal with throughout the entire experience, it can feel like you’re two steps away from tearing your hair out. These people make it feel as though you’ll never be able to move on with your life because they go out of their way to make the settlement as complicated as possible. Narcissists refuse to relinquish their control over a former partner, and that makes coming to terms on things like equitable distribution, maintenance, and more incredibly tricky.

according to “LiveAbout.com“, the characteristics of a narcissist might include:

  • An overwhelming need to be right
  • An obsession with control
  • A lack of interest in negotiation
  • No ability to feel remorse
  • Wants to be admired and respected
  • May go out of their way to slow down the divorce procedure
  • Hangs onto resentment and negative feelings

So, how do you deal with a narcissist in a divorce? The simplest solution is to prepare yourself for a bumpy road.

Dealing with a Narcissist in Divorce

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It is no secret that going through a New York divorce can be a difficult and trying time. However, it does not necessarily have to be. In some cases, in which a couple agrees that it is time to go their separate ways and can also agree to work together in negotiating the details of the divorce, it may be possible to complete a stipulation of settlement.

A stipulation of settlement is a document that is filed with a family court that includes all the terms of a New York divorce. A properly drafted New York stipulation of settlement includes all aspects of a New York divorce, including: property division, child custody and support, and future costs for the couple’s children, such as college tuition. Not only will the document cover these items, it should also outline what is important to each party, so in the event an unanticipated concern later arises the parties can refer to the document to resolve the issue.

In order to be a legally binding document, the stipulation must be written in a specific manner and contain certain language. Otherwise, points that a party thought were already negotiated and agreed upon may later turn out to be unanticipated impediments.

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Parents have an obligation to keep their children safe and to make sure that a child’s naiveté does not put them in harm’s way. At the same time, most parents want to encourage some level of independence to help develop a child’s decision-making skills. In today’s society, with the prevalence of cellular phones, text messaging, instant messaging, and the like, the question of a parent’s right (and in some cases, obligation) to monitor their children’s phone use frequently comes up.

The general rule is that a parent is able to monitor their children’s cell phone use, including the text messages that have been sent and received. This can be done in a number of ways. The easiest way for a parent to view a child’stext messages is to simply scroll through the child’s phone. Parents can also view a log of all of the messages sent and received in most carriers’ monthly billing statements or online. There are also apps that allow for parents to monitor a child’s phone activity remotely.

Thus far, we have discussed monitoring a child’s cell phone activity to keep tabs on with whom they are talking and what they are saying. However, if a parent wants to use text messages in a New York family law proceeding, other issues may arise.

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When it comes to dividing up assets after a New York divorce, New York is an equitable distribution state. This means that, rather than dividing up a couple’s assets straight down the middle, if a court needs to resolve the issue, a court will consider a number of factors to ensure that the marital assets are divided fairly. However, only marital assets are subject t0 an equitable distribution analysis.A spouse’s separate property — such as that which was owned prior to the marriage — will not generally be considered marital property. However, property acquired throughout the marriage, including a businesses started during the marriage, is usually considered to be a marital asset that will be subject to equitable distribution.

In addition to the distribution of marital assets, a court may also order that one spouse pay post-divorce maintenance to the other spouse. The determination of how much spousal maintenance is appropriate is governed to some extent by formula, but it is left largely up to the discretion of the judge overseeing the divorce.

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As we have discussed in previous posts, when a New York court is tasked with determining the amount and duration of spousal maintenance payments following a New York divorce, the court will start with the formula contained in Domestic Relations Law section 236(b). For determining the duration of spousal maintenance payments, the statute breaks marriages down into three categories and assigns each a percentage range:

  • Marriages less than 15 years in length: 15-30% of the length of the marriage
  • Marriages between 15 and 20 years in length: 30-40% of the length of the marriage
  • Marriages over 20 years in length: 35-50% of the length of the marriage

Domestic Relations Law Section 236(b) makes room, however, for the situation where the presiding judge believes that the guidelines do not adequately account for the party’s situation. In this case, the judge can order post-divorce maintenance for a duration that is shorter (or longer) than recommended by the formula. However, if a judge decides to depart from the guidelines, she must detail her reasoning in writing.

The spousal maintenance duration formula was made law back in 2015, and there have been relatively few cases testing a judge’s limits to depart significantly above the guidelines. However, the cases that have been issued are instructive. For example, a late-2016 case presented a situation where the party seeking maintenance payments was able to obtain them for the upper range of the guidelines.

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When a judge presides over a New York divorce, one of the parties will often request to receive post-divorce maintenance payments, formerly called alimony, from the other party. Up until 2015, the determination of the amount and duration of post-divorce maintenance was largely left up to the discretion of the judge overseeing the case. However, in 2015, the New York Legislature enacted sweeping reforms of the New York Domestic Relations Act, particularly in regard to how post-divorce maintenance is awarded.

Hoping to standardize the manner in which judges were calculating and awarding post-divorce maintenance, the legislature stepped away from a standard that was almost completely relied on judicial discretion, and implemented a more formula-based system. Previous posts have discussed how judges arrive at the amount of spousal maintenance, but we have not recently looked at the durational aspect of post-divorce maintenance.

Under Domestic Relations Law section 236(b), the court still retains some discretion in determining how long a party is entitled to post-divorce maintenance payments. However, the formula for calculating the timeline provides a range of time, as a percentage, based on the length of the marriage as the presumptive time period for maintenance to last. For example, post-divorce maintenance payments in marriages lasting less than 15 years should last between 15% to 30% of the marriage’s length. For marriages lasting between 15 and 20 years, the post-divorce maintenance payments should last between 30% to 40% of the overall length of the marriage. Finally, for marriages that were over 20 years in length, the post-divorce maintenance payments should last for 35% to 50% of the length of the marriage.

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