New York Family Law Blog

What are the grounds for divorce? What is "No Fault Divorce"?

2014-12-10T13:20:00.005-08:00

In order to obtain a divorce, the party seeking the divorce must establish "grounds" for the divorce. Stated differently, each state determines what reasons they believe justify a divorce.

New York has seven different grounds for divorce:

Cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant.
Abandonment of the plaintiff by the defendant for a period of one or more years.
Confinement of the defendant in prison for a period of three or more consecutive years after the marriage of plaintiff and defendant.
Commission of an act of adultery.
Each spouse having lived separate and apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.
Each spouse having lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. Such agreement shall be filed in the office of the clerk of the county wherein either party resides. In lieu of filing such agreement, either party to such agreement may file a memorandum of such agreement, which memorandum shall be similarly subscribed and acknowledged or proved as was the agreement of separation and shall contain the following information: (a) the names and addresses of each of the parties, (b) the date of marriage of the parties, (c) the date of the agreement of separation and (d) the date of this subscription and acknowledgment or proof of such agreement of separation.
The relationship between the spouses has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath, and the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce

DRL § 170.

It is tremendously important to discuss the final grounds for divorce, commonly referred to as "irretrievable breakdown for a period of six months or more," or "no fault divorce." It was passed into law in 2010, only a few short years ago, and has made proving grounds tremendously easier. Rather than having to prove adultery or cruel and inhuman treatment, all that is required is for one spouse to swear, under oath, that the relationship between the spouses has been irretrievably broken for a period of at least six months. This has saved countless unhappy couples a great deal of time, expense, and emotional trauma in having to re-live and prove the couples' reasons for wanting a divorce.

Although the facts of a particular case may justify obtaining a divorce on grounds other than irretrievable breakdown, irretrievable breakdown has become the most frequently used grounds for obtaining a divorce.

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

Can I Bring a Divorce Action in New York? What is Residency?

2014-12-08T07:31:00.000-08:00

Depending on what side of the litigation a spouse is on, New York's laws can be much more generous than the laws of other states.

In order to prevent people from moving from state to state for the sole purpose of picking a state with laws more favorable to them, i.e., "forum shopping," New York requires that a plaintiff establish a sufficient connection to the State of New York in order to commence a matrimonial proceeding in New York. Proving this connection to New York is commonly referred as establishing "residency."

Residency can be met by proving that:

The parties were married in New York, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement proceeding, or
The parties have resided in New York as a married couple, and either party is a resident of New York when the action is commenced and has been such a resident for a continuous period of one year immediately prior to commencement of the proceeding, or
The grounds for the action occurred in New York, and either party has been a resident of New York for a continuous period of one year immediately prior to commencement of the proceeding, or
The grounds for the action occurred in New York, and both parties are residents of New York at commencement of the proceeding, or
Either party has been a resident of New York for a continuous period of at least two years immediately prior to the commencement of the proceeding .

DRL § 230.

This then begs the question, who is a "resident" of New York?

Prior to 1976, the term "resident" meant "domiciliary"; however, after an amendment to DRL § 231, "resident" has been regularly interpreted to mean either "domiciliary" or "physical resident." Guedes v. Guedes, 45 A.D.3d 533 (2d Dept. 2007).

So, who is a domiciliary? Who is a physical resident?

A domiciliary of New York is a person whose "domicile" is located within New York. "A person can have but one domicile at any given time. Every one acquires a domicile of origin at birth, which continues until effectively changed." In re Sorrentino's Will, 71 N.Y.S.2d (Surrogate's Ct., King's Cty. 1946). "In order to effect a change [of domicile] there must have been proof that the [individual] had freely chosen another domicile and that this choice was followed by physical presence at a dwelling place and the intention to make it a home" In re Johnson's Will, 259 A.D. 290 (2d Dept. 1940). Thus, to change a domicile, their must be both physical presence at the new domicile and an intent to make that place their permanent residence.

Whether a person is a physical resident "depends upon whether he [or she] has a significant connection with some locality in the State as the result of living there for some length of time during the course of a year.” Wittich v. Wittich, 210 A.D.2d 138 (1st Dept. 1994) (quotations and citations omitted). This can be a rather complicated issue and will involve a weighing of many facts.

For help determining whether residency has been satisfied in your case, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

New York Equitable Distribution: Marital Property, Separate Property, and Liability for a Spouse's Debts

2014-11-20T20:11:00.001-08:00

QUESTION: WHAT IS MARITAL PROPERTY, SEPARATE PROPERTY, AND CAN I BE HELD LIABLE FOR MY SPOUSE'S DEBTS?

I. What is Equitable Distribution of Marital Property?

During a marriage, each spouse will usually accumulate assets in his or her name. Frequently, there will also be assets titled in the name of both spouses, jointly. "Equitable distribution" is the equitable, and not necessarily equal, division of those assets between the spouses pursuant to a matrimonial action.

Absent an agreement between the parties, a court will determine each parties respective rights to "marital property" and "separate property," and will provide for the disposition thereof in the final judgment. DRL 236-B(5)(a). Marital property "shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties," whereas separate property shall remain that spouse's property. DRL 236-B(5)(b), DRL 236-B(5)(c).

II. What is Marital Property? What is Separate Property?

All property can be divided into either marital property or separate property.

Marital property is “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” DRL 236-B(1)(c) (emphasis added). Marital property does not include any separate property. Id. It is important to note that, in determining whether the asset is marital property subject to equitable distribution, it does not matter which spouse holds title.

Separate property is any property:

acquired before the marriage;

acquired (inherited) by bequest, devise, or descent;

gifted to one spouse by someone other than the other spouse;

representing compensation for personal injuries (except to the extent that the claim represents deferred compensation earned during the marriage);

acquired in exchange for separate property;

representing the increase in value of separate property during the marriage, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

described as separate property by written agreement of the parties pursuant to DRL 236-B(3).

DRL 236-B(1)(c).

The courts have developed a presumption that property acquired during a marriage, and prior to commencement of a matrimonial proceeding or the execution of a separation agreement, is marital property.
A spouse attempting to prove that such property is actually separate property must do so by by clear and convincing evidence. Fields v. Fields, 905 N.Y.S.2d 783, 785 (N.Y. 2010) (citing, DeJesus v. DeJesus, 665 N.Y.S.2d 36 (N.Y. 1997)).

This presumption is supported by the legislative intent that the definition of marital property be read broadly, while separate property be construed narrowly. Price v. Price, 511 N.Y.S.2d 219, 222 (N.Y. 1986) (citing, Majauskas v. Majauskas, 463 N.E.2d 15 (N.Y. 1984)).

Remember: marital property can be almost anything, so think creatively

Accumulated vacation days over the years? Marital property.
Tax exemptions for the children in the years following divorce? Marital property (technically).
Escrow account associated with mortgage on residence for payment of next year's property taxes? Marital property.

III. Can Separate Property Transform into Marital Property? Transmutation & Commingling

“[S]eparate property which is commingled with marital property or is subsequently titled in the joint names of the spouses is presumed to be marital property.” Gately v. Gately, 113 A.D.3d 1093, 1094 (4th Dept. 2014) (internal quotations omitted). In other words, separate property can be transformed into marital property by way of commingling or transmutation. So, what is commingling and transmutation?

Transmutation is where separate property in one spouse's name is transferred into or exchanged for property held in both parties' names, that is called "transmutation." By putting separate property into a joint account, it is presumed that the titled spouse intended to give an interest in the property to the other spouse, i.e., there was "donative intent." See also, Banking Law 675(b).

The only way to overcome this presumption is by "clear and convincing evidence that the asset was titled jointly as a matter of convenience, without the intention of creating a beneficial interest, and that the funds in the account originated solely in the separate property of the spouse who claims the separate interest." Renga v. Renga, 86 A.D.3d 632 (2d Dept. 2011).

EXAMPLE: John and Mary are married in 2001. In 2002, John gets a $100,000 settlement from a lawsuit regarding a personal injury he sustained in 20000. For simplicity sake, assume the entire $100,000 represents pain and suffering. On June 1, 2002, John deposits the $100,000 in a joint bank account with Mary. On June 20, 2002, John withdrawals $25,000 and moves it into an account in his sole name. After numerous deposits of marital money and withdrawals for marital expenses, $50,000 remains in the account in 2010 when Mary and John file for divorce. What is marital or separate property? Most likely, the $25,000 John withdrew will remain John's separate property, as the deposit was in the account for such a short period of time. However, the remaining $50,000 will likely be marital property, particularly considering the deposits of marital property.

Commingling is where separate property has been mixed in with marital property, regardless of who has title to the marital asset. Once commingled, the party making the separate property claim must "trace the source of the funds [that he contended were separate property] with sufficient particularity to rebut the presumption that they were marital property." Bailey v. Bailey, 48 A.D.3d 1123 (4th Dept. 2008) (internal quotations omitted).

EXAMPLE: In 2000, Mary has a bank account in her sole name with a balance of $100,000. John and Mary are married in 2001. Mary is earning $200,000 per year and deposits her earnings into the bank account. She makes frequent withdrawals for marital expenses, such as groceries and rent. When John and Mary file for divorce in 2010, the account balance is $100,000. The account is still in Mary's sole name. Is the account marital property? Almost certainly, yes, unless Mary can trace the deposits of marital money made during the marriage.

III. How Will a Court Divide Marital Property?

In the context of equitable distribution, even where an asset is entirely marital, it is well-established that "equitable" does not always "equal." Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034 (N.Y. 1985); Guarnier v. Guarnier, 155 A.D.2d 744 (3rd Dept. 1989); Ackley v. Ackley, 472 N.Y.S.2d 804 (4th Dept. 1984).

As noted by well-known author and expert in New York matrimonial law, Timothy Tippens, Esq.:

"The purpose of equitable distribution law is to achieve a fair allocation of marital property upon dissolution of the marital economic partnership. Towards this end, the statute bestows broad power, flexibility, and discretion on the matrimonial court. While there are those who urge that the statute should be amended to embody a mandate or presumption of equal division, the legislature has, to date, declined to adopt such a restriction"

1 New York Matrimonial Law and Practice, Section 3:29.

Again, the Courts have repeatedly held that the equitable distribution law does not require an equal division of martial property. In fact, just because a particular asset is marital does not necessarily mean that a spouse is entitled to a distribution of any part of it.

The distribution of marital property will greatly depend on the type of asset (home, business, rental property, etc.) and the particular facts of a case. For example, it is typical to have equal division of the marital residence. On the other hand, based upon relevant case law, an unequal division of marital appreciation from a separate property business asset should be expected.

Furthermore, short term marriages without children tend to have distributions based upon each parties' economic contribution to the marriage, while distributions in longer marriages tend to be closer to 50-50.

Nonetheless, in determining equitable distribution of the marital property, the court will consider the following factors:

the income and property of each party at the time of marriage, and at the time of the commencement of the action;
the duration of the marriage and the age and health of both parties;
the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
the loss of health insurance benefits upon dissolution of the marriage;
any award of maintenance under subdivision six of this part;
any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
the liquid or non-liquid character of all marital property;
the probable future financial circumstances of each party;
the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
the tax consequences to each party;
the wasteful dissipation of assets by either spouse;
any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
any other factor which the court shall expressly find to be just and proper.

DRL 236-B(5)(d).

While it is in the discretion of the court, a spouse may be entitled to certain credits during equitable distribution, including, but not limited to reimbursement for:

marital money used to pay down the other spouse's separate property indebtedness (such as student loans, or expenses related to a separate property residence0
separate property used to create a marital asset

Thus, it is very important that a spouse seek an experienced matrimonial attorney will will guide the spouse through the nuances of equitable distribution law and advocate persuasively in furtherance of their best interests.

IV. Equitable Distribution of Marital Debts

A. Can a Court Distribute Marital Debts as Well?

Simply put, yes. In effecting equitable distribution of property, a court can also allow marital debts to be split between the parties. Nielsen v. Nielsen, 256 A.D.2d 1173 (4th Dept. 1998). However, the court has discretion to refuse to take into consideration marital debts that are unproven. Fabricius v. Fabricius, 199 A.D.2d 695 (3d Dept. 1993).

In determining whether the debt is marital or separate, the court will look at “the nature of the debt itself, the manner in which and for whose benefit the funds were expended and the source of repayment.” Jonas v. Jonas, 660 N.Y.S.2d 487, 487 (3d Dept. 1997). In other words, “the proponent of sharing the debt has the burden of proof as to its obtainment and the ultimate purpose and use of the fund borrowed.” Oliver A. v. Christina A., 806 N.Y.S.2d 446 (Suffolk Cty, Supreme Ct. 2005). “Outstanding financial obligations incurred during the marriage which are not solely the responsibility of the spouse” are to be considered marital debts. Jonas, 660 N.Y.S.2d at 487. “Where, however, the indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, the obligation should remain that party's separate liability.” Id. at 488.

So, if there are marital debts, be prepared to prove, with documentation,

the amount of the debt,

who the debt is owed to, and

for what purpose was the debt incurred.

Marital debts are typically distributed in the same proportion as marital assets; however, marital debt can be allocated differently based on other factors, such as one spouse's ability to pay compared to the other, or one spouse's responsibility for incurring the particular obligation. Solomon v. Solomon, 10 A.D.3d 584 (1st Dept. 2004); Madori v. Madori, 201 A.D.2d 859 (3d Dept. 1994); Kuhn v. Kuhn, 134 A.D.2d 900 (4th Dept. 1987).

EXAMPLE: Marital debts tend to include student loans taken out during the marriage and credit card balances used to purchase groceries, clothing, and other necessities for the spouses and/or children. On the other hand, marital debt will likely not include gifts made by one spouse to a paramour.

B. Can a Court Distribute Income Tax Liability?

Although there have been exceptions, courts will usually distribute tax liabilities incurred during the marriage between the parties.

The general understanding seems to be that income tax liability incurred during the marriage is marital debt. Carlin v. Carlin, 217 A.D.2d 679 (2d Dept. 1995) (“any future liability arising from the parties' failure to file tax returns for several years is joint and several.”). In Cooper v. Cooper, the wife was responsible for one-half of federal tax liability incurred when husband filed amended income tax returns, but she was not responsible for any interest and penalties as a result of the filing of the amended tax returns, because the federal tax liability was incurred during the marriage and husband was responsible for delay in reporting income declared on those amended returns. 84 A.D.3d 854 (2d Dept. 2011).

A similar result was found in Conway v. Conway, in which a spouse was found to be responsible for one-half of the parties' tax obligation arising out of their failure to pay proper income taxes during their marriage. The rationale was that, since the wife shared equally in the benefits derived from failing to pay income taxes (i.e., there was ultimately more property in the marital estate subject to equitable distribution), she must share in the financial liability arising out of the tax liability. 29 AD3d 725,726 (2d Dept.2006)

It is important to note that in Capasso v. Capasso, while a wife was held equally responsible for the income tax debt resulting from her husband’s criminal tax evasion, she was not responsible for the $500,000 fine imposed on the husband after his criminal conviction for income tax violations, nor should she, as an innocent spouse, be liable for any “civil fraud or other penalties imposed by IRS on account of the acts” of her husband. 517 N.Y.S.2d 952 (1st Dept. 1987).

However, at least one court has found that it was appropriate to order a spouse, who bore a tax liability accumulated during marriage, to pay the liability when the spouse engaged in “economic fault.” Frey v. Frey, 68 A.D.3d 1052 (2d Dept. 2009). When the divorcing spouses of Frey v. Frey, “for the most part, maintained separate finances, and determined from the start of the marriage to file separate tax returns,” the trial court acted within its discretion to direct the defendant, “who failed to file tax returns throughout the duration of the marriage,” to bear the responsibility for paying income taxes, interest, and penalties. Id.

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

How Much is New York Maintenance (Alimony)? When Does Maintenance (Alimony) End in New York?

2014-11-18T14:38:00.004-08:00

QUESTION: HOW MUCH IS MAINTENANCE (ALIMONY)?

What other states call "alimony" or "spousal support," New York calls "maintenance." However, there are two different types of maintenance and the lingo can be quite confusing. Even more importantly, the Legislature has recently enacted, and is expected to enact even more, major changes to the statutes controlling maintenance.

In the context of a matrimonial action, there are technically two different types of maintenance: "Temporary Maintenance" and "Post-Divorce Maintenance." Temporary maintenance is support to be paid by the monied spouse to the less monied spouse while a matrimonial proceeding is going on. In other words, from date of commencement through the final order of support, which could be years, a less monied spouse may receive temporary maintenance. Post-divorce maintenance is maintenance which is ordered by the final judgment and received after the proceeding is over.

Due to the recent changes to the statute, there are significant differences between temporary maintenance and post-divorce maintenance.

I. Purpose of Maintenance

“The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.” Gordon v. Gordon, 979 N.Y.S.2d 121, 123 (2d Dept. 2014) (citing, Sirgant v. Sirgant, 842 N.Y.S.2d 483 (2d Dept. 2007).

Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award….” Hartog v. Hartog, 647 N.E.2d 749, 757 (N.Y. 1995). Therefore, courts “must consider the payee spouse's reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly.” Hartog, 647 N.E.2d at 758.

Ultimately, the award of maintenance should reflect a balancing of the payee's needs against the payor's ability to pay. Fischer v. Fischer, 606 N.Y.S.2d 494, 495 (4th Dept. 1993).

II. Temporary Maintenance

As with post-divorce maintenance, there are two questions to be asked: one, how long should temporary maintenance last, and two, how much is temporary maintenance?

A. How Long is Temporary Maintenance?

As we already know, temporary maintenance will begin sometime during the matrimonial proceeding after a motion is made and a temporary order issued. It will end at the conclusion of the proceeding, when a final order is issued. However, proceedings can go on for a very long time, and sometimes, even longer than the marriage itself! For such short-term marriages, particularly those less than two years in length, courts tend to end temporary maintenance after a certain period of time, rather than letting it run naturally through the end of the proceeding.

B. How Much is Temporary Maintenance?

The Legislature has provided a formula to determine the presumptively correct amount of temporary maintenance. From there, the Court must determine whether additional maintenance is needed or to deviate from the presumptively correct amount of presumptive maintenance based upon the facts of the case.

i. Determining Each Spouse's Income

To calculate the presumptively correct amount of temporary maintenance, we must first identify each spouse's gross income. We calculate gross income for the purpose of temporary maintenance in the same way we do for child support. So, some of this may seem familiar.

The statute requires the addition and subtraction of many different types of income. All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet. However, to come up with a very rough estimate for most cases, take the spouse's adjusted gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the spouse. If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.

ii. The Presumptively Correct Amount of Maintenance

The Legislature has provided a formula for determining the presumptively correct amount of temporary maintenance, but the formula only calculates temporary maintenance up to the statutory cap imposed on the monied spouse's income. In other words, if the monied spouse's income is above the statutory cap (2014: $543,000), then there are additional steps which will need to be taken, as discussed below.

The EASY way to calculate temporary maintenance up to the statutory cap is by taking the incomes calculated above and putting them into Box 1 of this easy-to-use Support Calculator. Alternatively, if you are more interested in knowing more about how the calculation is performed, the following calculator explains the calculation a little more thoroughly. For those more mathematically inclined, the formula is:

The lesser amount of either:

(Payor's income x .30) - (Payee's income x .20)

(.40)(Payor's income + Payee's income) - (Payee's income

When the payor's income is over the statutory cap, courts will look to the following factors to determine the appropriate amount of temporary maintenance over the cap:

the length of the marriage;
the substantial differences in the incomes of the parties;
the standard of living of the parties established during the marriage;
the age and health of the parties;
the present and future earning capacity of the parties;
the need of one party to incur education or training expenses;
the wasteful dissipation of marital property;
the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
the existence and duration of a pre-marital joint household or a pre-divorce separate household;
acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in SSL 459-a;
the availability and cost of medical insurance for the parties;
the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
the inability of one party to obtain meaningful employment due to age or absence from the workforce;
the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
the tax consequences to each party;
marital property subject to distribution pursuant to DRL 236-B(5);
the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
any other factor which the court shall expressly find to be just and proper.

iii. Deviating from the Presumptive Amount

The court can then "deviate" from the presumptive amount if the court finds that the amount would be unjust or inappropriate based upon a consideration of the following factors:

the standard of living of the parties established during the marriage;
the age and health of the parties;
the earning capacity of the parties;
the need of one party to incur education or training expenses;
the wasteful dissipation of marital property;
the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
the existence and duration of a pre-marital joint household or a pre-divorce separate household;
acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
the availability and cost of medical insurance for the parties;
the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
the inability of one party to obtain meaningful employment due to age or absence from the workforce;
the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;
the tax consequences to each party;
marital property subject to distribution pursuant to DRL 236-B(5);
the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
any other factor which the court shall expressly find to be just and proper.

Thus, if maintenance is an issue in your case, it will be important to have an attorney who will help prepare your Statement of Net Worth, scrutinize the other parties' Statement of Net Worth, and argue for a deviation from the presumptive amount.

II. Post-Divorce Maintenance

A. How Long is Post-Divorce Maintenance? Durational v. Permanent Maintenance

How long a party will receive maintenance depends on the facts of each individual case; however, as a general rule of thumb, it is safe to assume that a party will be entitled to receive maintenance (temporary and post-divorce combined) for 1/3 to 1/2 of the length of the marriage. As discussed above, this seems to be a length of time that many courts find reasonable to enable a former spouse to become self-supporting in the manner and lifestyle in which he or she has been accustomed during the marriage and in which the or she should continue to enjoy. See generally, Carrozzo v. Carrozzo, 609 N.Y.S.2d 123, 123 (4th Dept. 1994). Whenever there is a ticking clock associated with the maintenance award, it is described as "durational."

However, self-sufficiency is not always feasible, particularly when an older recipient has been out of the labor market for many years. See generally, Seamans v. Seamans, 199 A.D.2d 790, 791 (3d Dept. 1993). In this situation, the Appellate Division, First Department, has articulately stated that:

"A time limitation on maintenance…should be imposed solely to enable the dependent spouse to obtain training to become financially independent, or to allow the dependent spouse to restore his or her earning power to a previous level. When the dependent spouse is unlikely to become completely self-supporting, durational limits on maintenance are inappropriate. Lifetime maintenance may be awarded when the dependent spouse is incapable of future self-support, has no skills or training, or is mentally or physically ill. The appellate courts of this state have often granted permanent maintenance to dependent spouses who…had psychiatric problems, had been out of the work force for a number of years, lacked advanced degrees, and were middle- aged."

Michelle S. v. Charles S., 683 N.Y.S.2d 89 (1st Dept. 1999) (citing, Sivigny v. Sivigny, 624 N.Y.S.2d 120 (1st Dept. 1995); Jones v. Jones, 519 N.Y.S.2d 22 (2d Dept. 1987); Carrozzo, 609 N.Y.S.2d 123) (some internal citations omitted) (emphasis added).

Therefore, non-durational maintenance or "permanent maintenance" may be appropriate in situations where the payee is simply unable to be self-supporting in the manner and lifestyle in which the payee has been accustomed during the marriage and in which the payee should continue to enjoy. See, Carrozzo, 609 N.Y.S.2d 123 (4th Dept. 1994) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was approximately 52 years old at the time of trial, had not worked outside the home since she was 18 years old, never graduated from high school, and suffered from physical and psychological impairments that made her unemployable); Fischer v. Fischer, 606 N.Y.S.2d 494 (4th Dept. 1993) (three-year durational maintenance was error and replaced with non-durational maintenance in light of the parties’ respective incomes; the nearly 35-year long marriage; payee being 56 years old with a lack of education and work experience resulting from the parties' decision that payee would assume the role of full-time homemaker and caretaker of the children; and the unlikelihood that payee could become self-supporting); Fleitz v. Fleitz, 223 A.D.2d 946, 948 (3d Dept. 1996) (five-year durational maintenance was error and replaced with non-durational maintenance where payee was 42 years old; had a lack of earning capacity; withdrew from the labor market to be wife, mother, and homemaker; forewent educational opportunities occasioned by her withdrawal from school to accompany payor to California where he sat for dentistry boards; and payor’s tax free income); White v. White, 204 A.D.2d 825, 828 (3d Dept. 1994) (ten-year durational maintenance was error and replaced with non-durational maintenance where the trial court found payee to be “unable to be self-supporting in the manner and lifestyle to which she has been accustomed during the marriage and which she should continue to enjoy”).

However, there are events, other than a set date in the future, which will terminate maintenance. Such events include the death of either party or the payee's remarriage, whether valid or invalid. DRL 236-B(6)(c). DRL 248 further addresses what is to happen to an order of maintenance upon a payee's remarriage. DRL 248 states that maintenance shall terminate upon the application of the "husband," and of proof of the "wife's" remarriage. It further states that, where the husband proves that the wife is habitually living with another man and holding herself out as that man's wife, although not married to him, the Court may terminate maintenance.

Notably, while DRL 248 specifically refers to "husband" and "wife" and the Legislature has not chosen to amend DRL 248 to make it gender neutral, at least one Court has interpreted the statute as such to save its constitutionality from an attack based upon gender discrimination. Wood v. Wood, 428 N.Y.S.2d 136 (Family Court, Queens County 1980).

Furthermore, although the burden of proof associated with these events tends be quite heavy, a party may be able to modify, either upwards or downwards, a maintenance award based upon:

the payee's inability to be self-supporting,
a substantial change in circumstances,
termination of child support, or
financial hardship upon payor.

DRL 236-B(9)(b)(1); see also, McGuire v. McGuire, 606 N.Y.S.2d 440 (3d Dept. 1994).

Finally, if the parties agree to an award of maintenance, they can also agree to end maintenance on any number of events, including retirement or the payee's "cohabitation" with another individual. However, BEWARE:

FIRST: To the disdain of many payors, courts have been notorious in interpreting the phrase "cohabitation." A drafting attorney must be more than diligent in defining "cohabitation" to ensure compliance with the relevant, and relatively recent, appellate decisions.
SECOND: if the agreement includes a list of events on which maintenance will terminate, but fails to include, let's say, the payee's remarriage, then the event which was not included will not terminate maintenance. Deangelis v. Deangelis, 285 A.D.2d 593 (2d Dept. 2001). In such case, the payor will likely be considered to have implicitly agreed to maintenance post-remarriage! The relevant latin phrase here is: Expressio Unius Est Exclusio Alterius ("the expression of one thing is the exclusion of the other")

B. How much is Post-Divorce Maintenance?

As discussed above, post-divorce maintenance is not the same as temporary maintenance. While there is a formula for calculating temporary maintenance, there is no formula for calculating post-divorce maintenance.

Thus far, it seems, Courts have been reluctant to use the presumptive amount of temporary maintenance as the amount for post-divorce maintenance. Courts seem to be finding that the actual, reasonable needs of the payee are less than the presumptive amount of temporary maintenance. That is not to say, however, that the presumptive amount of temporary maintenance is never used to determine post-divorce maintenance.

Ultimately though, the amount of post-divorce maintenance will greatly depend on what is reasonable, based upon the marital standard of living and the ability of the payor to pay. These are questions of fact which will require proof and persuasive argument. Thus why it is important to have a diligent attorney that you can trust to focus and prepare your case.

Don't forget, when determining "how much" maintenance is, maintenance is deductible to the payor and includible as income to the payee on their federal and state income tax returns. On one hand, this is good for the payor, as he or she now receives a substantial deduction on their taxes; on the other hand, it could be devastating to the payee, who may no longer qualify for certain things, such as an Earned Income Credit. A keen awareness of these tax implications is critical.

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

2014.11.10, Daily Links

2014-11-10T16:54:00.003-08:00

How to Keep an Inheritance During a Divorce (to the extent that you legally can)

This article provides sound advice regarding what to do with an inheritance or even a large gift received by one spouse during a marriage. In sum,

Negotiate a Prenuptial (or Antenuptial) Agreement
Save documentation regarding how you obtained the inheritance or gift, such as receipts or bank records indicating from whom, to whom, and how much

NOTE: Make sure, if possible, any checks indicate whether a large gift is to one spouse individually, or both spouses jointly. Too often there are checks written to one spouse, later claimed by an adverse spouse to have been a joint gift to the marriage. REMEMBER: Get and save the documents NOW, because banks typically destroy data after 7 or so years! Evidence of your separate property claim may not exist in the future!

Maintain Separate Accounts

This means keep your inheritance or gift from other money which could be considered marital property. Mixing separate property, such as an inheritance or gift, is called commingling, and can entitle the other spouse to a large portion of what was formerly separate property.

Rely on Trusts
Keep Titles in One Name

This means do not open accounts in joint name and put the inheritance or gift in it, or use the inheritance or gift to purchase property titled in joint name. Donative intent will be presumed and the property will become marital in nature. This is called transmutation.

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Can I Get Attorneys and Experts Fees?

2014-11-06T13:19:00.000-08:00

QUESTION: CAN I GET THE OTHER SIDE TO PAY FOR MY ATTORNEY'S FEES?

In the United States, we follow what is commonly referred to as the "American Rule": that a "prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser." Alyseka Pipeline Services Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). Accordingly, it is the rule in New York that "a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule.” No. 1 Funding Center, Inc. v. H & G Operating Corp., 49 A.D.3d 908, 911 (3d Dept. 2008) (internal citations omitted). Thus, unless there is a statute or rule which authorizes an order of payment of attorneys and experts' fees, such cannot be ordered without consent of the adverse party. So, without an applicable statute, good luck getting an adverse party to volunteer to pay their own counsel fees, as well as yours.

Fortunately, the Legislature has enacted many statutes which authorize awards of attorneys and experts' fees in matrimonial and family law proceedings. This was meant to reflect the reality that there is often an income disparity between parents and spouses, and that the "monied" litigant should not be able wear down or financially punish the opposition by recalcitrance, or by prolonging the litigation. Prichep v. Prichep, 52 A.D.2d 61, 65 (2d Dept. 2008). Simply put: a parent or spouse "shall not be permitted to control [the] litigation by controlling the purse-strings." Darby v. Darby, 953 N.Y.S.2d 549 (Sup. Ct., Kings Cty., 2012).

Counsel and expert's fees can be requested in, including, but not necessarily limited to:

Most matrimonial proceedings, including an action for divorce - and the "less monied" spouse is presumptively entitled to them. DRL § 237(a);
Proceedings to enforce, modify, or annul an order arising out of a matrimonial proceeding - and the "less monied" spouse is presumptively entitled to them, and where a court finds that an adverse party willfully failed to obey an order of support or maintenance, or distributive award, the court shall order them. DRL §§ 237(b), 237(c), 238;
Family Court support proceedings to obtain, enforce, or modify an order of support - and where a court finds that an adverse party willfully failed to obey an order of support, the court shall order them. FCA § 438;
Family Court custody proceedings. FCA § 651; DRL § 237(b); and
Family Court family offense proceedings. FCA § 841(d); FCA § 842(f).

It should be noted that when the proceeding is brought by someone other than a spouse, former spouse, or parent of the child, the statutes may not necessarily allow for that person to seek fees. Each individual statute will have to be analyzed to determine whether a party has standing to request them.

There is also law that provides that, where an adverse party fails to provide adequate disclosure, an order of counsel fees may be appropriate.

Finally, a court may order counsel fees to sanction "frivolous conduct" by a party during the proceeding. 22 NYCRR 130-1.1. Conduct is frivolous if it:

is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification, or reversal of existing law;
is undertaken primarily to delay or prolong the resolution of the litigiation, or to harass or maliciously injure another; or
asserts material factual statements that are false.

Id. Entertainingly, frivolous claims of frivolous conduct are, in and of themselves, frivolous conduct!

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.

How Much is New York Child Support? When Does Child Support End in New York?

2014-11-04T08:03:00.001-08:00

QUESTION: HOW MUCH IS CHILD SUPPORT?

Years ago, the New York Legislature passed the Child Support Standards Act ("CSSA") to add consistency to awards of child support. The CSSA sets forth a formula for calculating orders of child support. DRL § 236-B(7); DRL § 240; FCA § 413. However, there are several components of a support order and it can become fairly complex.

I. Basic Child Support

A. Purpose

The purpose of basic child support is to provide for the child's basic needs, such as food, clothing, and shelter. Lenigan v. Lenigan, 159 A.D.2d 108, 111 (4th Dept. 1990).

Basic child support shall be paid by the primary custodial parent to the non-custodial parent. The primary custodial parent is the parent with whom the child spends more time with. DRL § 236-B(7); DRL § 240(1-b); FCA § 413. Traditionally, this is determined by the number of nights that the child spends with each parent.

Basic child support is primarily based upon the income of the parents. The statute sets forth a mathematical formula to determine the presumptively correct amount of basic child support. The parties can agree to or a court can order a deviation from the presumptively correct amount based upon the circumstances of the case.

B. Combined Parental Income Income

To calculate basic child support, we must first identify each parent's gross income.

The statute requires the addition and subtraction of many different types of income. All of the additions and subtractions can be found on Steps I, II, & III of the New York Child Support Worksheet. However, to come up with a very rough estimate for most cases, take the parent's adjusted gross income on their most recent income tax return, or the number in Box 5 of their most recent W-2 forms, and subtract the amount of FICA (i.e., medicaid and social security tax) actually paid by the parent. If you are having trouble determining how much FICA was owed and presumably paid, MoneyChimp.com provides a reliable and easy to use calculator.

Example: In 2013, John earned $60,000 a year from his employer; had $20,000 of profit in self-employment income; and he received $10,000 in disability pension payments from Veterans Affairs. Calculate John's gross income for child support purposes. First, calculate the FICA paid by John on the $60,000 ($4,410). Then subtract that amount from the $60,000. That equals $55,590. Then, calculate the FICA paid by John on the $20,000 ($2,826). Then subtract that amount from the $20,000. That equals $17,174. Remember: the amount of FICA owed by an employed person is different the amount paid by a self-employed person. Next, simply add the $10,000, because FICA is not paid on disability pension payments from Veterans Affairs. Finally, add together all three components of John's income. Thus, John's gross income, for child support purposes, is $82,764.

If the non-custodial parent's income is less than the amount designated under the New York Self-Support Reserve (2014: $15,755) or Poverty Guidelines (2014: $11,670), or the presumptive amount will reduce the non-custodial parent;s income below the Reserve or the Guidelines, then the child support obligation will be substantially limited based upon his or her income.

Now, we add the gross incomes for both parents. This total amount is called the "Combined Parental Income." We also determine the "pro rata share" for each parent based upon how much they each contribute to the Combined Parental Income. The pro rata share is calculated by dividing one parent's gross income by the Combined Parental Income.

Example: John has a gross income is $82,764 and Mary, the custodial parent, has a gross income of $37,236. Calculate the Combined Parental Income, John's pro rata share, and Mary's pro rata share. John's gross income ($82,764) plus Mary's gross income ($37,236) equals a Combined Parental Income of $120,000. John's pro rata share is then calculated by dividing $82,764 against $120,000 for a pro rata share of 68.97%. Mary's pro rata share is then calculated by dividing $37,236 against $120,000 for a pro rata share of 31.03%.

C. Applying the Child Support Percentages and the Circumstances of the Parties

Next, we calculate how much child support is owed on the Combined Parental Income, but only up to the Statutory Cap (2014: $141,000).

The EASY way to do this is by taking the gross incomes calculated above and putting them into Box 1 of this easy-to-us Support Calculator, choose the number of children that the non-custodial parent will be providing support for, and hit Calculate. If the non-custodial parent is also going to be paying maintenance, be careful with this, as the non-custodial may or may not be entitled to an adjustment of his gross income based on those maintenance payments.

To calculate it by long hand, take the Combined Parental Income (but only up to $141,000) and multiply it by the applicable Child Support Percentages (1 child in the care of the custodial parent: 17%, 2 children: 25%, 3 children: 29%, 4 children: 31%, 5 or more children: 35% or more). That result is called the "Combined Child Support Obligation." This is how much New York presumes it will take both parents, combined, to raise the child(ren) each year. From there, divide the Combined Child Support Obligation based upon each parent's pro rata share. This results in the "presumptively correct amount of basic child support" to be paid by the non-custodial parent.

Example: John and Mary's Combined Parental Income is $120,000. John's pro rata share is 69%. Mary and John have two children together. Mary is the primary custodial parent for all three children. Calculate John's basic child support obligation. First, multiply the Combined Parental Income ($120,000) by the applicable Child Support Percentage (.25) to obtain a Combined Child Support Obligation of $30,000. Then, multiply the Combined Child Support Obligation ($30,000) by John's pro rata share (.6897). John's basic child support obligation, is $20,961.00 per year.

The Court can then "deviate" from the presumptive amount based upon the circumstances of the case. For example, it can be argued that a non-custodial parent should pass less basic child support because:

the non-custodial parent provides all transportation for the child, or
the child resides with the non-custodial parent 49% of the time, or
the non-custodial parent pays a substantial amount in union fees, dues, or student loans, or
the non-custodial parent provide for the child's cell phone.

For all income beyond the Statutory Cap (2014: $141,000), the Court will either apply the Child Support Percentages or it will determine how much is fair and appropriate under the circumstances, or a combination of both. Cassano v. Cassano, 85 N.Y.2d 649, 653 (N.Y. 1995); Marcklinger v. Liebert, 88 A.D.3d 1114, 1115.

In determining how much is fair and appropriate, the Court will look to, amongst other things, the child's actual, reasonable needs. Gluckman v. Qua, 253 A.D.2d 267, 271-72 (3d Dept. 1999) (internal citations omitted); Anonymous v. Anonymous, 222 A.D.2d 305, 306 (1st Dept. 1995) (“as the combined parental incomes exceeded [the statutory cap], the court properly determined child support based on the children's ‘actual reasonable needs’”); Matter of Brim v Combs, 25 A.D.3d 691, 693 (2d Dept. 2006)

To find out how much it would be simply applying the Percentages, you can, again, use this Support Calculator, as discussed above.

II. Health Insurance & Cash Medical Support

Every order of support must ensure that the subject children are covered by health insurance. There are many rules in place to determine which parent shall provide the health insurance coverage; however, whichever parent is providing the health insurance, if that parent is incurring costs in providing the health insurance, then they are entitled to a credit added to or subtracted from the presumptive amount of basic child support called "Cash Medical Support." This credit is in the amount it costs for the parent to provide health insurance for the children, presumptively multiplied by the other parent's pro rata share.

Typically, to calculate the cost of providing insurance for the children when a family plan is utilized, take the cost of the family plan and subtract it from the cost of the single plan. Any employer's human resources representative should be easily able to provide the costs for the available health insurance plans. DRL § 240(1-b)(c)(5); FCA § 413(1)(c)(5).

Example: John owes Mary basic child support. John has health insurance coverage available to him and the children through his employer. Mary does not. The family plan costs $1,250 per year. The single plan costs $250 per year. John's pro rata share is 69%. Mary's pro rata share is 31%. Calculate the Cash Medical Support and how this will affect John's basic child support obligation. The family plan ($1,250) minus the single plan ($250) equals Cash Medical Support in the amount of $1,000 per year. John's share of the Cash Medical Support is determined by multiplying his pro rata share (.69) by the amount of Cash Medical Support ($1,000). Thus, John is responsible for providing an additional $690 a year as Cash Medical Support, and he will, just by paying the $1,000 premiums. However, Mary's share of the Cash Medical Support is $310 (.31 x $1,000). Mary will need to somehow reimburse John. Therefore, John's basic child support obligation should be reduced by $310 to credit him for Mary's share of Cash Medical Support that he is providing.

III. Unreimbursed Medical Expenses

Kids tend to have many health related expenses. They get sick, they need contact lenses, they want braces, etc. They just can't help themselves. In the process, they cost parents a great deal of money. Accordingly, it is only fair that these expenses shall be split divided between the parents, if reasonable. Typically, the expenses are split based upon the parent's pro rata shares. DRL § 240(1-b)(c)(5(v)); FCA § 413(1)(c)(5)(v).

Practice Tip: Do not get lazy when drafting this provision an agreement. Clearly delineate what expenses will or will not be included. Will orthodontic work be included? How about contact lenses?

IV. Work & Education-Related Child Care Expenses

Where a custodial parent is working or is receiving education or training which will lead to employment, and incurs child care expenses as a result, a court shall also order reasonable child care expenses to be divided between the parties, presumptively based upon their pro rata shares. DRL § 240(1-b)(c)(4); FCA § 413(1)(c)(4).

Example: Mary and John are the parent's of two young children. Mary is the custodial parent. John is the non-custodial parent. Mary's pro rata share is 69%. John's pro rata share is 31%. Mary works 8:30 a.m. to 5:30 p.m. She requires a babysitter to pick up and watch the children after school from 3:00 to 5:30 p.m., Monday through Friday. This costs her $10,000 per year. Determine how will this effect John's child support obligation. The $10,000 expense, if and only if it is reasonable, is an Education-Related Child Care expense to be divided between the parents. Mary's share of the Work Related Child Care Expense is determined by multiplying her pro rata share (.31) by the amount of the expense ($10,000). Thus, Mary is responsible for providing an additional $3,100 a year as a Work-Related Child Care Expense, and she will, just by paying the babysitter. However, John's share of the Expense is $6,900 (.69 x $10,000). John will need to somehow reimburse Mary. Therefore, John will be required to pay an additional $6,900 per year to Mary for Work-Related Child Care Expenses.

IV. Seeking Work Related Child Care Expenses

As discussed above, a custodial parent who is working and incurs reasonable child care expenses as a result is entitled to contribution from the other parent. The same thing applies to those custodial parents who are seeking work and incur reasonable child care expense; HOWEVER, this is entirely within the discretion of the court, i.e., it is not mandatory. The amount each parent contributes shall be in a manner determined by the court. DRL § 240(1-b)(c)(6); FCA § 413(1)(c)(6).

VI. Educational Expenses

A court may order educational expenses if the court determines that post-secondary, private, special, or enriched education for a child is appropriate. The expenses shall be ordered "as justice requires," "having regard for the circumstances of the case and of the respective parties and in the best interests of the child." DRL § 240(1-b)(c)(7); FCA § 413(1)(c)(7). Courts tend to look at:

The financial resources of the parents and child;
Whether the child has shown an interest and proficiency in the relevant area of education; and
Whether the non-custodial parent has been given the opportunity to be involved in the child's choice of school or education provider.

The amount each parent contributes shall be in a manner determined by the court.

Many years ago, court ordered college expenses were a rare thing; however, today, they are much more common, especially if both parents themselves are well educated. Despite this, other types of educational expense still tend be quite rare. They are typically only ordered where the parents are relatively wealthy or the child has shown a high degree of proficiency in the skill area.

Example: Mary and John's youngest son, Sam, is 16 years old. Sam plans on going to college in two years. John is a doctor. Mary has her bachelors degree in social work. Both have middle-class lifestyles. Sam is also quite skilled in archery and hunting. He has won many trophies and is quite skilled, but Sam is not really interested in continuing through college. Mary petitions the Family Court for John to contribute towards Sam's college expenses and John cross-petitions for Mary to contribute to Sam's hunting related expenses. Which education related expenses, if any, will be ordered? As this is quite discretionary, it is much more a balancing of facts to determine what "justice requires." Considering their levels of education and the availability of income, it seems likely that Mary and John will have to contribute to Sam's college education; however, considering Sam's lack of interest, hunting expenses are likely off the table.

Courts can put reasonable limitations on these expenses too. For example, the court may place a "SUNY cap" on the expense, limiting the parents' contributions to the average tuition which would be required for the child to attend a State University of New York. Courts may also require the child to maintain a certain grade point average or that the non-custodial parent be involved in the college selection process.

Note: if your child is 4 years old, do not expect college expenses to be mandated by a court. You can still, however, get the other parent to agree to college expenses many years down the road.

Practice Tip: Again, do not get lazy or complacent when drafting this provision an agreement. Clearly delineate what expenses will or will not be included. If you leave something out, it will be presumed you intended it to be left out. Consider whether you want any or all of these things included in the order: SAT classes, pre-college campus visit related expenses, tuition, room, board, fees, expenses related to involvement in sports, transportation expenses, books, laptops, and personal (spending) money.

VII. When does New York child support end?

In New York, a parent's duty to support their child lasts until the child is emancipated. FCA § 413. The child may be deemed emancipated by any number of events, including, not necessarily limited to:

Reaching the age of twenty-one (21) years;
Marriage, even if void, voidable or annulled;
Death;
Entry into the armed forces of the United States or a United States Service Academy;
Becoming substantially self-supporting, although substantial self-support shall not involve part-time school year employment or full time employment during summer recess from school; or
Permanent residency away from the custodial parents.

Thus, in New York, child support will end, at the very latest, when the child turns 21 years old, unless the parent contractually obligates them-self to do so by expressly agreeing, in unmistakable terms, to pay child support past the child reaching the age of 21. Hoffman v. Hoffman, 122 A.D.2d 583 (4th Dept. 1986); Gray v. Pashkow, 173 A.D.2d 1100 (3d Dept. 1991).

If you have any questions or concerns, feel free to email me at cjudge@melvinlaw.com, or call at (315) 422-1311, ext. 113.

Christopher M. Judge, Esq.
---------------------------------------

TOOLS:

New York Child Support Worksheet

MoneyChimp.com

Support Calculator

2014.11.02, Daily Articles

2014-11-02T14:45:00.003-08:00

NEW PENALTIES FOR YOUNG AND NEW DRIVERS TEXTING WHILE DRIVING

A new law imposed yesterday imposes new penalties upon young and new drivers caught using hand held phones while operating a motor vehicle. These drivers will face a 120-day license suspension and a second offense will lead to a year-long suspension. More experienced drivers will now face additional fines for repeat offenses, in addition to the whopping 5 moving points on their license per violation.

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DIVORCE HOTEL?

In 2011, Netherlands saw its first "Divorce Hotel." In September 2014, Divorce Hotel has come to Saratoga Springs, New York. The idea is to let married couples undergo divorce mediation, negotiating a separation or opting-out agreement while spending a "luxurious" two-day weekend away from home. It has been described as less intimidating than a typical courtroom setting. "It's eight hours a day of pretty hard work, pretty hard questions and answers and decisions that [divorcing couples] have to make." But there is also champagne, massages, and bike trails.

There seems to be no mention whatsoever of attorneys being involved in the mediation. The mediator is not an expert in the matrimonial law of the state in which the couple will be divorced, although the article does state that a local attorney was "contacted" to ensure compliance with state law. Hopefully, that was a very long conversation. An expert consultant for asset valuation or even for just exceedingly complicated areas of the law, such as military pensions, are not available.

This seems like an exceedingly bad idea. Mediation can be a fantastic process, but mediation also typically involves disclosure and an analysis of all issues prior to the mediation. Also, breaks can be taken to sort out problems which may suddenly turn up. There is no invisible ticking clock against which the mediator will undoubtedly be watching, as it is he or she who profits when they can boast another "successful" stay at the Divorce Hotel.

Furthermore, New York matrimonial law is much different than, say, Colorado matrimonial law. For example, degrees and celebrity status earned during the marriage is marital property in New York and California, but not in many, or any, other states. The age of emancipation for child support purposes is 21 in New York, but in many other states, it is 18.

What happens when the mediator forgets to put into the agreement the statutorily required "presumptive child support amount"? The entire agreement can become invalid and unenforceable as a matter of law. What happens when it is realized that the mediator forgot to distribute a certain asset within the agreement, such as a bank account which one party "forgot" to disclose or the yearly child tax exemptions, which can be worth tens of thousands of dollars? Probably absolutely nothing. The non-titled spouse will lose, plain and simple, absent fraud, duress, unconscionability, or the like.

Mrs. Kathrine Robbins says that attorneys who criticize Divorce Hotel have an ulterior motive: "Of course, they don't want this to be the big thing because it's going to take business from them." Mrs. Robbins and her (soon to be ex-) husband, Jonathan, "besides divorcing, biked, dined and drank champagne together" during their weekend. They still live together in Colorado.

I am glad that the process ended up working out for Mrs. Robbins; however, the possible problems and ethical issues at play here are undeniable, as further pointed out by Anju Jessani, an accredited professional mediator, and founder of New Jersey-based "Divorce with Dignity." Link. There are ways to have a quick and relatively affordable divorce. It is a simple thing to draft an opting-out agreement with a couple who can agree on everything. But this is seems like it can present major, unfixable problems for divorcing couples down the line.

There are certain things that should never be rushed. Marriage is one of them. Divorce is another. As the old adage says: "Haste makes waste." ALWAYS consult with a local attorney before signing any document, whether it be drafted by your spouse or a mediator.

Now, if only attorneys could accompany the clients at the luxurious Saratoga Springs resort...

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2014.11.01, Daily Articles

2014-11-01T12:31:00.001-07:00

TENNESSEE ATTORNEY CENSORED FOR MISHANDLING DIVORCE

The number of attorneys who take matrimonial and family law cases without proper knowledge of the subject area is stunning. Even more reprehensible are those who will take your case and neglect your case. Oversight of this practice area is critical. REMEMBER: If your attorney is not returning your phone calls, something is wrong. Hopefully, censure is enough in this case:

""The Board of Professional Responsibility filed a “petition for discipline” against Long on June 13, 2013, which included two complaints of ethical misconduct.

According to the first complaint, [Fletcher] Long was hired to handle a divorce and child custody matter and failed to properly communicate with or advise his client about the objectives of the representation in a divorce matter.

Due to the lack of appropriate communication between Long and his client, the client’s divorce case was dismissed for lack of jurisdiction because Tennessee was not the proper forum to determine child custody and property issues, the release said.

According to the second complaint, a client hired Long to represent her in an appeal of a child custody matter from juvenile court. Long filed the appeal in the wrong court, it claimed, but the opposing party agreed to enter an Order for the purpose of filing a proper appeal. Long failed to enter the agreed order in a timely manner because it was not entered until a year later, the release said.

According to the release, Long’s actions violate the Rules of Professional Conduct, including competence, communication; fees, meritorious claims and contentions and misconduct.""

< LINK >

OKLAHOMA IS REQUIRING THAT DIVORCING PARENTS TAKE CLASSES WHICH ENCOURAGE THEM TO RECONCILE WITH SPOUSE

Oklahoma has recently passed a new law requiring that divorcing spouses with underage children be required to take parenting education classes. Topics will cover the effects divorce has on a child’s well-being," and will include "reconciliation as an option; the effects of family violence; potential child behaviors and emotional states and how to respond; and communication strategies to reduce conflict and foster cooperative parenting." TulsaWorld (emphasis added).

One of the stated purposes of the law is to lower the state's high divorce rates and make parents reconsider divorce.

This seems absolutely ripe for abuse. Oklahoma should not be attempting to convince (force) people to stay together, whether it be by exertion of persuasion by trained social services employees or by economic means, i.e., the cost of the classes. It is widely acknowledged and supported by many studies that a dysfunctional two parent household is by far more destructive upon a child than a functional one parent household. If keeping miserable parents under one roof is the goal, then it comes at the cost of the children. This portion of the legislation is misguided.

There also seem to be many more concerns with the law, one of which, is that "[t]he law also said both partners must get the certificate of completion to move forward with divorce proceedings." What if one parent refuses? Can they prevent divorce? There is even concern whether these classes will even be available on November 1, 2014! OK-Divorce.com

While New York courts encourage and can order similar parenting classes to help parents learn how to raise their children in a post-divorce household, they are not required as a matter of law.

< LINK >

2014.10.30, Daily Articles

2014-10-30T07:48:00.004-07:00

SPANISH JUDGE ORDERS FATHER TO PAY CHILD SUPPORT UNTIL DAUGHTER IS 31

The woman, 29 years old, is still in school. Father petitioned for child support to end. However, "the presiding judge decided the assistance would continue until the woman finished her studies in two years time, noting both Spain's poor economic situation and the fact that the father in the case was in a good economic situation..."

Despite the decision being described as "surprising, crazy...not normal....absurd," Father will still be required to pay unless successfully appealed. If this was New York, in which the age of emancipation is 21, Father would most certainly not be able to get back those payments, even if successful on appeal.

< LINK >

2014.10.28, Daily Articles

2014-10-28T17:38:00.004-07:00

TIGER CHARITY DIRECTOR 'FABRICATED' DIVORCE CLAIMS AGAINST HUSBAND, JUDGE RULES

While every person deserves their day in court, it is terrifying to realize what some people decide to do with that day:

"Wife in a divorce action accused her husband of using money for the Save China’s Tigers charity as a personal piggy bank for him her, arguing that she was therefore entitled to a share of the £25 million assets. 'After a 25-day private hearing in the Family Division of the High Court, judge Sir Paul Coleridge sided with [husband], describing wife as a 'unreliable' liar who had 'become blinded by her desire for revenge.' He said this had led the 'very intelligent' 50-year-old estranged wife "to fabricate where she thinks it will assist her case'. Ruling that there had been no improper use of funds, the judge also rejected the wife’s claims the charity was a 'sham or 'a money laundering operation'. His ruling means neither husband nor wife are entitled to any of the £25 million, which will instead be spent trying to save China’s endangered tigers."

< LINK >

WHO TAKES THE CHILD TAX EXEMPTIONS WHEN THE DIVORCE DECREE IS SILENT

QUESTION:

"On my divorce decree (that was changed from what we mediated) stated that he was allowed to claim the children until they turned 18 and that's when support also ends. My daughter turned 18 on May 26, 2013, so I claimed her. She lives with me and always has. He is trying to claim her as well. Who will the IRS choose in this type of situation? The letter states that if I feel I qualify, do nothing."

ANSWER:

"The IRS will generally follow tax law rather than the divorce decree. For divorced or separated parents or parents who live apart, the custodial parent, if eligible, or other eligible person who the child lived with for more than half the year, can claim head of household filing status, the credit for child and dependent care expenses, the exclusion for dependent care benefits, and the earned income credit. The non-custodial parent, if allowed by divorce decree or consent of the custodial parent on form 8332 or similar signed statement, can claim the dependency exemption and child tax credit. For post-2008 divorce decrees or agreements, form 8332 or similar signed statement is required. The child tax benefits cannot be split any other way.

You should do what the letter from the IRS asks you to do."

However, as one commenter astutely points out:

"There is another rule that might be in play in this situation if the age at which a child becomes an adult (emancipated child) is 18 in your state, as it is in most states. (in some states the age is different).

See IRS Pub 17 (http://www.irs.gov/publications/p17/ch03.html#en_US_2013_publink1000170876) examples 5 and 6 which basically say:

"Example 5—child emancipated in May.  -- When your son turned age 18 in May 2013, he became emancipated under the law of the state where he lives. As a result, he is not considered in the custody of his parents for more than half of the year. The special rule for children of divorced or separated parents does not apply. "

In other words, the rule that allows a parent that does not live with the child (the special rule for divorced or separated parents) to claim the exemption, ends when the child becomes an adult.  The concept of "custody" does not apply to an adult.   In order to claim the exemption under the special rule, the child must have been in the custody of at least one parent more than 1/2 the year.  Since the child turned 18 in May, the child was in the parents custody, less than 1/2 the year.

So, even with a signed 8332 form (or other document), the parent that did not physically live with the child more then 1/2 the year cannot claim the child if the child became an adult in May.   Only the parent where the child actually lived more than 1/2 the year can claim the dependent and all the benefits, they cannot be split."

< LINK >

2014.10.27, Daily Articles

2014-10-27T19:11:00.005-07:00

STAY AT HOME PARENTS FACE UNIQUE CHALLENGES DURING DIVORCE AND SUPPORT PROCEEDINGS

Although the author greatly understates a less monied spouse's ability to obtain maintenance (alimony), particularly since the advent of the temporary maintenance (alimony) formula in 2010, the article makes a very fine point:

“I’ve been in court where a judge would outright admonish my clients for not working or looking for work, telling them that ‘care-taking for a child does not absolve you from supporting yourself.’ This is a harsh reality check for some stay-at-home moms, who sometimes have a real sense of entitlement about the decision to stay home. On one hand, that was a marital decision, but on the other hand, the marriage is over,” Richardson says. “There is little sympathy for women who quit their jobs to stay home from the courts, particularly when the magistrate is a woman who has worked her way up as a lawyer — most likely having to put her own children in daycare to earn a seat on the bench.”

Divorce or separation will change everything, particularly for once "stay at home" parents. This is why it is all the more important to consult with an experienced and dedicated matrimonial and family law attorney.

< LINK >

RISE IN GRAY DIVORCES CONTINUES

It is becoming clear that divorce is becoming more and more common amongst the older generations. While divorce was once considered social deviancy, many now view it as a legitimate reality of life. Nonetheless, a "gray divorce" can be emotionally and financially devastating. It can be inextricably tied to veterans benefits, social security, medicaid, and other programs. It will almost certainly require knowledge of pensions and how to prepare domestic relations orders. Much of this knowledge can only be learned through practical experience. Picking an attorney dedicated to matrimonial law will allow you to share in and reap the benefits or his or her experiences and lead to better outcomes in your case.

"A 2013 study from the National Center for Marriage & Family Research at Bowling Green State University titled “The Gray Divorce Revolution: Rising Divorce Among Middle-aged and Older Adults, 1990-2010” found one in four people who divorced in 2010 was 50 or older, which led researchers to conclude the tendency for older couples to call it quits is becoming more common."

"Other factors are also at play in the trend. Older adults are becoming more accepting of divorce as they know more people who have gone through it. With more women working, those with jobs are better able to support themselves outside of marriage. And with people living longer, there’s a longer period in which marriages could fall apart."

"Divorcing after 50 often means dealing with financial issues not typically faced by younger couples, such as dividing up retirement plans, real estate holdings and businesses, as well as dealing with debt issues.

There is not always a dependent spouse. When both partners are working, there are many times they both just walk away, losing tax benefits and shared expenses but not much else — financially, at least."

"A non-working spouse, often female, stands to lose social status and financial security. Also, an important role that she played — raising children — no longer exists. Even if she is financially stable, the divorce is devastating from an emotional standpoint."

< LINK >

DO NOT DATE DURING THE PENDENCY OF A DIVORCE

Practical Tip: While there is nothing in New York that prevents you from dating while the divorce action is pending, when your spouse finds out that you have moved on without him or her, the probability of amicable settlement in advance of trial shrinks dramatically.

< LINK >

2013.12.08, Daily Links

2013-12-08T16:27:00.001-08:00

Ga. Man Must Pay $50,000 After Breaking Engagement to Fiancee, Appeals Court Says

< LINK >

Daily Links 2013.06.03

2013-06-03T09:51:00.005-07:00

In a New Jersey homicide case, Prosecutors want to call a Defendant's attorney to show that the woman began poisoning her husband after a very contentious mediation session in their divorce case, four days before he went to the hospital and 16 days before he died. The judge will rule Tuesday whether state-imposed confidentiality laws can be waived to permit Green to testify about the mediation session.

[ LINK ]

10 years after Oklahoma, who has the highest divorce rates in the country, passed the Oklahoma Marriage Initiative. Unfortunately, the legislation did little, if nothing. Now, "Gov. Mary Fallin signed a bill aimed at promoting marriage and fighting poverty. House Bill 1908 calls for the Department of Human Services to create a statewide public service campaign promoting marriage as a tool to fight poverty and decrease the likelihood of child poverty."

While it is good news that the Oklahoma government is recognizing the correlation between poverty and divorce rates, it may prove to be unfortunate that they see marriage as solving poverty, rather than solving poverty as decreasing divorce rates.

[ LINK ]

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2013.05.29, Daily Link

2013-05-29T13:47:00.002-07:00

The "gift" of free burgers to life for Charles Ramsey might come at a cost: income tax.

The article doesn't mention the fact that Mr. Ramsey could also be responsible for child support as a result of this "gift." Food for thought: at a rate of $6 per meal, once per day, Mr. Ramsey would be receiving a benefit of $2,190 per year. However, applying a 20% tax rate (approximately the average effective tax rate for those paying income tax), he would then owe to the IRS $438 per year. THEN, he could also be required to pay child support on this amount, which, at the New York rate of 17% for one child, would be $372.30 per year. Thus, his "gift" could end up costing him as much as $810.30 per year.

Burgers for Life: Gift or Curse?

[ LINK ]

2013.05.28 Daily Link

2013-05-28T10:11:00.002-07:00

"According to new data released today by the Australian Institute of Family Studies on Monday, more Australians are divorcing after twenty years or more of marriage...."

"AIFS' Director, Professor Alan Hayes said that the proportion of divorces ending after twenty years had increased from 13% in 1990 to 28% in 2011."
"We are...seeing partnership rates falling among middle aged people, reflecting both the decline in the marriage rate and the increase in divorce rates for middle age men and women."

[ LINK ]

Evander Holyfield to lose driver's license for failure to pay child support

[ LINK ]

2013.05.23 Daily Links

2013-05-23T05:58:00.000-07:00

Texas, which prohibits a divorcing spouse who has physical custody of the children to allow a romantic partner to spend the night, has ruled that a lesbian couple can’t live together because of a morality clause in one of the women’s divorce papers. The couple filed for divorce in September 2010.

[Link]

Glenn C. Lewis, once one of the Washington area’s highest-paid and most-respected divorce lawyers and a former president of the Virginia Bar Association, has been disbarred for dishonesty, mismanaging clients’ funds and failing to fulfill his legal obligations, according to a state bar ruling. He charged $850 per hour.

[Link]

How do we create child support laws which ensure that children are adequately taken care of but which do not encourage "gold-diggers"?

[LINK]

"America's Worst Deadbeat Dad" sentenced to jail for two and a half years for owing $1 million in child support.

[LINK]

2013.05.21, Daily Links

2013-05-21T10:17:00.005-07:00

Akon ordered to pay $5,000 out of his $40,000 per month for the support of his two children, born out of wedlock in 2008 and 2009. Apparently, he also makes six other child support payments, in addition to the $5,000.

[LINK]

Link of the Day: February 20, 2013

2013-02-20T14:26:00.005-08:00

Forbes asks, "Will the new tax laws impact your divorce settlement?" The answer is, absolutely.

< LINK >

Links: 8.19.12

2012-08-19T18:50:00.001-07:00

Court of Appeals upholds child support ($1,000/month) for woman who adopted a Russian child and subsequently abandoned him by sent him back to Russia.

< LINK >

Who is the expert witness in Halle Berry's child custody/visitation (relocation to France) case? Salma Hayek.

< LINK >

Links: 08.14.2012

2012-08-14T10:36:00.004-07:00

U.S. Supreme Court to hear international custody case, which will analyze portions of the Hague Convention on the Civil Aspects of International Child Abduction.

< LINKS >

Link: Son May Represent Father In Divorce Against His Mother

2012-08-12T11:23:00.004-07:00

Nevada Supreme Court holds that son may represent Father in divorce Against his Mother, while the Las Vegas Review-Journal notes that the representation might be contrary to common sense, if not legal ethics.

< LINK >

5.16.12 Links of the Day

2012-05-16T08:20:00.001-07:00

Guatamalan mom to come and ask US state courts to help return her kidnapped child
< LINK >

Links of the Day 5.15.12

2012-05-15T18:39:00.003-07:00

Man spends $60,000 in a custody fight for his dog taken by ex-girlfriend.
< LINK >

How much would you sacrifice for your pet?

A Missouri couple will not be forced by U.S. officials to return a girl adopted from Guatemala in 2008, despite evidence that the girl was kidnapped from her birth mother by a child trafficking ring, < LINK >

Links of the Day 5.8.12

2012-05-08T06:23:00.003-07:00

Childhood Obesity Becomes a Legal Custody Battle.

< LINK >

Does Money Correlate with Divorce?
< LINK >

Are Temporary Marriage License a Solution to Increasing Divorce Rates? No.
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