Overdue Child Support? How to Collect It!

Overdue Child Support? How to Collect It!

Many custodial parents who are having a difficult time collecting their overdue court-ordered child support payments are unaware of the options available to them. There are several ways that a custodial parent can collect overdue child support money in New York State. The Child Support Enforcement Bureau (“CSEB”) has the authority to collect overdue child support, also known as “arrears,” through various administrative procedures. These procedures can be put into action before having to go to court, but you must open an account with the CSEB to do so. The noncustodial parent is notified by the CSEB and given information about the procedure to be followed, how to comply with or challenge the action, and the consequences of failure to comply.

In addition to the administrative procedures, you can also petition the court for enforcement of the child support order. A judge may hold a parent in contempt of court for failing to pay child support, and that parent would then have to pay all of the overdue child support and may be subject to fines or possibly jail time.

More than one type of enforcement action may occur at the same time, depending on how much child support is owed or how long it has been overdue. It is important to consult an experienced family lawyer in order to understand the various methods available for collecting overdue child support. These methods include:

  • Income Execution: a process by which payments for current and/or overdue support are deducted from a noncustodial parent’s income by the employer or income payor.
  • Unemployment Insurance Benefits Intercept: a process by which the NYS Department of Labor automatically deducts current and/or overdue child support payments from a noncustodial parents’ unemployment insurance payments.
  • Income Tax Refund Intercept: a delinquent noncustodial parent’s Federal and/or State income tax refund can be intercepted in order to satisfy overdue child support payments.
  • Credit Bureau Submission: the names of delinquent noncustodial parents can be submitted to major consumer credit reporting agencies, making it difficult to obtain a loan or other forms of credit until the child support obligation is paid.
  • Lottery Intercept: NYS lottery winnings can be intercepted to pay overdue child support.
  • Property Execution: financial assets, such as bank accounts, can be seized in order to satisfy overdue child support payments.
  • Driver’s License Suspension: NYS driver’s license may be suspended for a noncustodial parent with overdue child support payments.
  • Passport Denial: delinquent noncustodial parents can be prevented from renewing or obtaining a passport until overdue child support payments are satisfied.
  • Liens: liens may be filed against the noncustodial parent’s real estate or personal injury claims or awards in order to satisfy overdue child support.
  • Tax Referrals: the names of delinquent noncustodial parents are sent to the NYS Department of Taxation and Finance, which can then apply specific tax collection remedies to collect the overdue child support.

There is now interstate enforcement and collection of child support laws that make it easier to obtain payment when parents live in different States. The Uniform Interstate Family Support Act (“UIFSA”), which has been adopted in some form by every State, allows a State court to exercise jurisdiction over a noncustodial parent in a child support proceeding, even when that parent is not a resident of the State. This gives a New York State court the ability to obtain jurisdiction over a nonresident in a proceeding to enforce a child support order if one of the bases for jurisdiction laid out in UIFSA is satisfied. An experienced attorney can explain that procedure to you.

As an alternative to the CSEB administrative or court procedures, an experienced family law attorney can assist custodial parents with mediation, rather than pursuing the case inside of a courtroom. This is recommended for parents who maintain a civil relationship with their former partner. If a mediation process is not recommended or fails, the case can always be taken into the court system at that time. It is always wise to consult with a family law attorney for expert legal counsel to increase your chances for a successful outcome.

As you can see, parents seeking enforcement of overdue child support obligations can go through a local child support enforcement agency or through a privately retained attorney. Experienced attorneys can explain the many ways to get the child support that your child needs and deserves, as well as help you track any financial assets of the noncustodial parent, which can be used to pay that support. That process is often tricky and complicated and cannot be done by yourself.

Contact the attorneys at Fass & Greenberg anytime for more details on how to obtain those child support payments that you and your child are rightfully owed.

In all court cases that affect a child, such as divorce and custody disputes, the court will consider the “best interest of the child” when making decisions. This standard refers to the factors a judge will consider when deciding what will best serve the child and which person is best suited to care for the needs of the child. In divorce cases, both partners may suffer emotional distress, but often the most affected are the children. The divided atmosphere of parents fighting over who should be able to have custody of the children can cause great confusion. Making decisions according to the best interests of the child is the court’s way of finding the best outcome to minimize harm to children.

There is no one definition of the best interest of the child, nor is there one single factor that will ultimately decide what is in a child’s best interest. Rather, a judge looks to a culmination of factors to gain the best understanding of the situation and to hopefully provide the best outcome. Every situation, like every child, is unique, so each case is decided on its merits pertaining to the particular situation. The guidance of an experienced family law attorneys, Fass & Greenberg, LLP is important to help you know and understand what a judge may look for when deciding what is in the child’s best interest. Below are some common factors that judges evaluate during child custody proceedings:

  • Stability: This is one of the major factors that is normally used to determine the custody of a child. Courts are reluctant to disrupt a child’s lifestyle and are more likely to grant custody to a parent who has been living with the child while the other parent was away.
  • Primary Caregiver: When it comes to awarding custody rights, the court will always consider the person who has been taking care of the child before the separation or divorce. For instance, if both of you lived in the same house, the court will seek to know who was directly responsible for taking care of a child’s daily needs, such as providing food, bathing, supervision of homework, doctor’s appointments, etc. on a daily basis.
  • Child Care Arrangements: In most cases, both parents are working and require childcare. In such a situation, the court will give priority to a parent that appears to have a better child care arrangement.
  • Mental and Physical Health of the Parent(s): Untreated mental illnesses, emotional instability, and poor parenting choices can affect a custody award, as well as history of drug or alcohol abuse. The court is unlikely to award custody to a parent who is emotionally unstable or has a history of untreated mental illnesses or addictions. In addition to mental illness, severe physical illness or disability that affects a parent’s ability to take care of the child can lessen that parent’s likelihood of being awarded custody.
  • Domestic Violence and Home Environment: If a parent has a history of domestic violence against the other spouse, the Court is less likely to award custody to the abusing spouse, particularly if the child has been a witness to such abuse.  If a third party (relative or romantic partner) in a parent’s household poses a danger to the child, the court is less likely to award that parent custody.
  • Child’s Preference: Depending on a child’s age, a court may consider the child’s preference to live with one parent over the other. The closer the child is to 16 years of age, the more weight a court will give to the child’s preference. The court will typically take care to assess that the reason behind the preference is a rational one that serves the child’s best interests.
  • Existence of Siblings: If a child has siblings, a court will take that into consideration as it is often beneficial for children to continue living with their siblings. This helps maintain stability and lessens the unnecessary trauma that can come along with separating siblings.
  • Parents’ Behavior and Ability to Foster a Relationship with the Other Parent:  The court will observe each parent’s behavior in the courtroom and asses each parent’s ability to cooperate with the other.  It is important for each parent to encourage a relationship with the other parent, as long as it is safe to do so. Courts are more likely to give custody to the parent who will encourage the child’s relationship with the other parent.

This list is not exhaustive and the court can weigh any factors that have bearing on a child’s best interests or how best to promote the child’s welfare. Courts may also consider any existing written agreements between parents, but is not bound by the terms of such an agreement.

There is no doubt that child custody cases are difficult to handle. That is why you need a qualified family law attorney to increase your chances of winning your child custody case. It is important to engage a lawyer throughout the entire process, and the attorneys at Fass & Greenberg, LLP  have the knowledge and experience to help you succeed regarding the best interest of the child.

separation or divorce

When spouses decide to go their separate ways, there are a lot of difficult decisions to make. Often, many people assume that the next logical step is to get a divorce. However, it is worth examining other options available before dissolving the marriage. Sometimes, spouses choose to obtain a legal separation. A legal separation can be the final decision for a couple, or the separation agreement can be used as grounds for a subsequent divorce. Other times, people may choose to initially get a divorce. There are benefits and drawbacks to both methods, and the advice of an experienced divorce attorney is crucial to choosing the best option for you.

When a couple obtains a separation agreement or judgment, they are still legally married. There can be several benefits to this. A main concern for many people when separating from their spouse is health insurance, as it is often tied to a spouse’s employment. A legal separation allows you to remain eligible to be covered under your spouse’s health insurance plan. Similarly, marital status affects the ability to collect social security as a spouse. If your marriage was over ten years long, you can be eligible to collect social security as a spouse of your ex-spouse, as long as you have not remarried and are at least 62 years old. If you and your spouse were married less than 10 years, you can opt to get a legal separation and wait to get a divorce until 10 years have passed in which you were “legally married,” which would render you eligible to collect the benefits.

Aside from the financial benefits, there are emotional and spiritual factors that may make legal separation a better alternative. Legal separation may be more appealing if divorce goes against your religious beliefs, or if, emotionally, you may not be ready for the finality of divorce and may have hope to reconcile. Also, in the event you choose to get divorced later on, a separation agreement can make the divorce process speedier and less costly. The separation can provide grounds for divorce and most contested issues are usually already decided in a separation agreement (child custody, spousal support, division of property, etc.). It is important to note that separation agreements are presumed to be valid but a court can make modifications in the event of duress or fraud, or if a provision of an agreement is so inequitable or unfair so as to be unconscionable. Also, in agreements that make decisions related to children, the court always has the ability to modify those provisions if it finds they are not in the best interests of the child.

There are also some drawbacks to obtaining a legal separation instead of a divorce. First and foremost, with a legal separation, you are still legally married. Therefore, you cannot get remarried. You also cannot get equitable distribution of property in a separation action whereby a judge renders a judgment of separation. However, parties can enter into a separation agreement that deals with equitable distribution to resolve that issue. It is also important to be aware of how a separation is enforced. If you obtain a court-ordered judgment of separation, you will have the same enforcement remedies as you would in a divorce judgment. However, with a separation agreement, enforcement remedies are limited to those of a contract.

When deciding what is best for you and your spouse, there are a lot of factors to consider before dissolving the marriage. Whether you opt for a legal separation or a divorce, it is important to be represented by an experienced attorney. The divorce attorneys at Fass & Greenberg can help you weigh your options and guide you down the path that is best for you.

divorce pay

In New York, maintenance is money that one spouse (the payor) is ordered to pay to the other spouse (payee) for his or her financial support during and/or after a divorce. Maintenance is calculated according to a formula, which takes into account the income of both parties. With a divorce, maintenance obligations can result from a written agreement created by the parties that then becomes “incorporated but not merged” into the divorce judgment. This means that the parties’ written agreement still exists as an enforceable contract, and any violations or modifications can be addressed either by contract law or by the court as part of the divorce judgment. Alternatively, when the parties cannot agree, maintenance can be imposed upon the parties by a judge after a trial.  The difference in how maintenance is awarded (either by agreement or by a judge) in any given case is important because it affects a payor spouse’s ability to seek modification or termination of a maintenance obligation if their financial circumstances change down the road.  If you are obligated to pay support, and have experienced a job loss or other financial hardship, you should consult family law  attorneys Fass & Greenberg, LLP to discuss your chances of obtaining a modification of your support obligations.  

According to Domestic Relations Law Section 236(B)(9)(b)(1), there are two different standards for modification of a maintenance obligation based upon how the maintenance was awarded.  If maintenance was awarded as part of a written agreement between the parties, the standard for modification or termination of maintenance is a showing of extreme hardship. This is the higher of the two standards and is an extremely difficult standard to meet. In Marrano v. Marrano, 23 A.D.3d 1104 (App. Div. 4th Dept. 2005), the court reduced the former husband’s maintenance obligation of $40,000 per year based on a showing of extreme hardship, where the husband’s business earnings decreased significantly, from approximately $174,000 to $18,000 over a five-year period.   However, in V.P. v. C.P., 32 Misc. 3d 1230(A) (Sup. Ct. 2011) emphasized that extreme hardship “calls for a substantial dislocation of financial circumstances so that the litigant is nearly without resources or shelter,” and rejected the former husband’s request for modification despite an increase in his medical expenses and a decrease in his income since the time the agreement was made.  

For maintenance awarded as part of a court’s judgment after trial, the standard for modification is a “showing of either the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstance, including financial hardship or upon actual full or partial retirement of the payor if the retirement results in a substantial change in financial circumstances.” What constitutes a substantial change in circumstances is determined on a case-by-case basis, and courts will compare the payor’s financial circumstances at the time of the motion for a downward modification and at the time of the divorce. In Simmons v. Simmons, 11 Misc. 3d 1055(A) (Sup. Ct. 2004), the court decreased the former husband’s maintenance obligation based on his involuntary job loss due to downsizing, a subsequent significant decrease in his income (from $116,000 to $30,000), and the fact that he exhibited sufficient efforts to obtain employment. In Dinozzi v. Dinozzi, 49 Misc. 3d 1220(A) (Sup. Ct. 2015), the court terminated the former husband’s maintenance obligation based on a substantial change of circumstances, which was the fact that the marital home was sold and the maintenance award was based on the wife’s expenses related to the marital home. Conversely, in Taylor v. Taylor, 107 A.D.3d 785 (App. Div. 2nd Dept. 2013), the Court held that the defendant failed to establish that his disability and retirement constituted substantial changes in circumstances, where the evidence showed he received a substantial lump sum pension payment upon his retirement making him capable of meeting his maintenance obligation.  The simple fact of retiring is not enough to obtain a downward modification.  You should consult with family law attorneys Fass & Greenberg, LLP to determine whether your retirement results in a substantial change in your finances. 

Meeting these standards to obtain a downward modification is not easy. The fact of job loss or retirement may not be sufficient on its own, especially if your change of circumstances appears to be voluntary.   The question becomes how can you protect yourself against as a payor spouse against an unforeseen change of circumstances when negotiating a written divorce agreement? 

Even though divorce written divorce agreements are held to the higher standard of “extreme hardship,” they also provide the ability to deliberately contract around that standard.  In Glass v. Glass, 16 A.D.3d 120 (App. Div. 1st Dept. 2005), the Appellate Court held that, where a judgment of divorce incorporates but does not merge a written agreement between the parties, “the parties to such agreement may contractually provide for a support modification on a lesser standard than legally required.” If the written agreement provides for a lower standard than extreme hardship to seek maintenance modification, the court will look to the standard outlined in that agreement. Therefore, it is crucial to hire an experienced family law attorney to help you protect yourself in a written agreement regarding maintenance obligations. Our lives can change course unexpectedly, and the prospect of having to pay maintenance in the face of job loss or serious financial problems can be daunting. By taking the initial step of clearly outlining maintenance provisions in a divorce agreement, you can protect yourself and your finances, and the divorce attorneys at Fass & Greenberg can help you obtain the best possible outcome.

international travel

With divorce comes a whole host of issues to be resolved, and when children are involved that means deciding on child custody arrangements. Suddenly, new concerns arise as custody arrangements place restrictions on a parent’s ability to spend time with their children. International travel is one area that is impacted by child custody matters. Ideally, parents can work out agreements on their own regarding travel plans with children. However, parents must be aware of strict requirements when it comes to planning international travel with your children.

First and foremost, a passport is required for any person, including a child, to leave the country. The Two Parent Consent Law requires both parents to consent to the issuance of U.S. passports for children under the age of 16. If the child is 16 or older, he or she can sign all documents independently. However, for those under 16, both parents will typically need to consent. In cases where one parent has sole custody of the child, the consent of the other parent is not needed but the custodial parent will have to submit one of the following documents as evidence: a court order granting sole legal custody, a court order permitting that parent to apply for the child’s passport, a copy of the child’s birth certificate or adoption decree listing you as the only parent, a copy of the judicial declaration of incompetence of the other parent, or a copy of the death certificate of the other parent. For joint-custody arrangements, both parents will need to appear to give consent. Alternatively, if one parent cannot appear, that parent can provide a signed statement of consent.

The best way to handle custodial concerns regarding travel is by incorporating a vacation clause into the custody agreement, which should contain as much detail as possible. The experienced family law attorneys at Fass & Greenberg can help to ensure your interests are communicated clearly. The agreement should include detailed provisions governing the parents’ ability to travel with their children, such as limits on where and when a parent can travel with the children, requirements that the non-traveling parent be notified within a specified time frame, requirements that the traveling parent obtain permission from the non-traveling parent beforehand, a duty to provide the non-traveling parent with the trip itinerary including all lodging and contact information, and how the logistics of obtaining the child’s passport will be handled. If there is no mention of vacation or travel in the custody agreement, either parent would have the ability to take the child out of state within the confines of his or her normal visitation time. However, to avoid conflict, obtaining permission from the other parent is always in everyone’s best interest.

If you find yourself trying to plan a vacation but facing opposition from your child’s other custodial parent, a family law attorney can help you navigate the issue. If vacationing is not addressed in your custody arrangement and permission is not granted by the non-traveling parent, the parent seeking to travel with the child must obtain court permission to legally take the child out of the state. A parent could petition the court for such permission. For parents with joint legal custody who disagree about whether the child should travel, a New York State Court judge can decide what is in the child’s best interests and either authorize a parent to obtain the child’s passport over the other parent’s objection, or restrict the ability for the parent to travel internationally with the child. In Matter of Arroyo v. Agosta, 78 A.D.3d 938 (App. Div. 2nd Dept. 2010), the Court affirmed that a parent cannot unreasonably withhold consent to the other parent’s requests to travel with their child.

Conversely, if you have reason to contest your child traveling with their other parent, there are some protective mechanisms in place. If parents disagree about their child obtaining a passport, the parent opposing the passport can register with the Children’s Passport Issuance Alert Program. This program will notify the parent if anyone attempts to obtain a passport for their child, thus providing the opposing parent the opportunity to prevent the issuance of the passport. If your child already has a passport and you are a custodial parent concerned that the other parent may be a flight risk or try to unlawfully remain with your child in the foreign country they are traveling to, the Hague Convention on the Civil Aspects of International Child Abduction provides some refuge. This is an international treaty that provides a legal basis for securing the speedy return of wrongfully removed or retained children back to the country of their residence where a court can decide custody issues.

Laying out agreed upon terms in your child custody agreement initially is a great way to establish clear boundaries when it comes to travel, and a family law attorney can provide the proper guidance for doing that. If you find yourself in disagreement with your child’s other parent about travel plans, be sure to contact the attorneys at Fass & Greenberg to understand and enforce your rights as a parent.

child support payment

Whenever children are involved, the court must render a child support award in a divorce or custody case to ensure that the children have the resources they need to support their well-being. In New York, child support is available for children who are unmarried, unemancipated and under 21 years old. Support is calculated pursuant to Domestic Relations Law Section 240 (1-b) and the Family Court Act Section 413 (1) using a formula that takes into account the income of both parents and the number of children being supported. The combined income is multiplied by a percentage based on the number of children: 17% for one child; 25% for two children; 29% for three children; 31% for four children; and no less than 35% for five or more children. Then, from that sum, the court allocates support between the parents based on the percentage that each parent’s income contributes to the total combined income.

The formula is not straightforward because, in accordance with Social Services Law § 111-i, the court is only required to apply the formula to a combined income of $154,000. When the combined parental income amount exceeds the current cap of $154,000, the law does not require the court to apply the formula to the entire amount of combined income. However, the court may choose to factor in a larger amount of the income and has the discretion to add additional support as it sees fit.

The Domestic Relations Law Section 240 (1-b) states, “the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage.” Therefore, when deciding whether to factor in additional need based on the excess income above the cap, the court may take the amount in excess of the income cap and apply the child support percentages (based on number of children) to determine what should be paid in support out of the excess. The court will also look at the following factors laid out in paragraph (f) to determine if additional support is appropriate, including:

  • The financial resources of the parents and of the child;
  • The physical and emotional health of the child and any special needs;
  • The standard of living the child would have enjoyed had the marriage or household not been dissolved;
  • The tax consequences to the parties;
  • The non-monetary contributions that the parents will make toward the care and well-being of the child;
  • The educational needs of either parent;
  • A determination that the gross income of one parent is substantially less than the other parent’s gross income;
  • The needs of other children receiving child support from the non-custodial parent who are not subject to the instant action;
  • Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and
  • Any other factors the court determines are relevant.

When choosing to award support based on the excess income, the court must give an explanation for the basis for its calculation of child support. Cassano v. Cassano, 85 N.Y.2d 649 (1995). After looking at the factors laid out in the Domestic Relations Law and the lifestyle of the children, a court will determine how much income above the cap is necessary to factor in. An award of child support based on excess income “should be based on the child’s actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties.” Doscher v. Doscher, 137 A.D.3d 962 (App. Div. 2nd Dept. 2016) (basing support upon income of $360,000, where total amount of combined income available was $600,000). In L.P. v. C.B., 48 Misc. 3d 1208(A) (Sup. Ct. 2015), the Court chose to award pendente lite (temporary) child support based on the full combined income of the parents, $299,533.45. The Court came out similarly in Matter of Hipp v. Ryan, 188 A.D.3d 1206 (App. Div. 2nd Dept. 2020), basing support upon the total combined income of $211,220.52. In Spinner v. Spinner, 188 A.D.3d 748 (App. Div. 2nd Dept. 2020), the Court found that the children “lived a middle-class lifestyle,” and subsequently chose to base the support on the combined parental income of $250,000, rather than $400,000.

However, in Matter of Murray v. Murray, 164 A.D.3d 1451 (App. Div. 2nd Dept. 2018), where the parties’ combined income was $371,697.08, the court declined to go above the income cap when calculating child support because the non-custodial parent was also responsible for the family health insurance, the children’s college expenses, the home equity loan on the former marital residence, and had two other dependents of his own. In Rosenstock v. Rosenstock, 53 Misc. 3d 1218(A) (Sup. Ct. 2016), the Court also declined to award child support based on excess income to the father because he was the custodial parent and had been earning income alone that exceeded the cap, so the children’s financial needs did not require additional support.

On the flip side, the court may also deviate from the typical child support formula if the basic child support obligation would place the non-custodial parent below the poverty level or below the self-support reserve. The current poverty income guideline amount for a single person is $12,760 and the current self-support reserve is $17,226. In the case where the non-custodial parent would find themselves under the poverty level, the child support obligation would be $25 per month, unless the court finds such obligation to be unjust or inappropriate. In the case where the non-custodial parent would be below the self-support reserve but above the poverty level, the support obligation would be $50 per month or the difference between the non-custodial parent’s income and the self-support reserve (whichever is greater).

Child support calculations can be tricky. There are many factors to take into consideration to ensure a fair outcome for all parties involved. If you are a parent involved in a custody dispute, it is important to hire a family law attorney to understand what child support obligations may arise. The attorneys at Fass & Greenberg have the knowledge and experience to guide you through the process to ensure the best outcome for all.

filing a divorce

Divorce is one of the hardest things that anyone can go through. It can generate a range of anxieties, fears, and frustrations that are not easy to deal with. You may be currently separated from your spouse, but are you ready to take the next step and file for divorce to make the dissolution of your marriage official? The divorce process may be further complicated if you live outside of the state of New York. If you have had to go abroad or out of state for work or for some other reason, it is still possible for you to terminate your marriage. The divorce attorneys at Fass & Greenberg are here to guide you through the process.

The New York Court of Appeals in Rosenstiel v. Rosenstiel held that New York will generally recognize a foreign divorce decree granted to a spouse living out-of-state as a matter of courtesy. Typically, the following requirements must be met in order for the foreign divorce to be recognized:

  1. Both spouses must receive adequate notice.
  2. At least one spouse must be physically present in the jurisdiction of the foreign court that is carrying out the divorce (typically, the spouse requesting divorce in the foreign country).
  3. The responding spouse must also have some type of appearance or acknowledgement to the authority of the foreign court. This third requirement can be satisfied by the responding spouse physically appearing in the foreign court or signing a written response showing agreement to this foreign divorce decision.

According to the Supreme Court of the United States in Williams v. North Carolina, states are required to give full faith and credit to divorce decrees obtained in other states, including ex parte decrees (where the court issuing the divorce only had jurisdiction over one spouse, and the other spouse never appeared in court). However, New York Courts are hesitant to give recognition to ex parte foreign divorce decrees obtained abroad. New York will not recognize ex parte foreign divorce decrees that violate public policy concerns. In Farag v. Farag, the Second Department refused to recognize an ex parte divorce attained by a spouse who was present but not domiciled in the foreign country where the other spouse did not appear and was not properly served with process.

New York follows the divisible divorce doctrine, and therefore a valid divorce obtained in a foreign jurisdiction dissolves the marriage but will not distribute property or decide any ancillary relief, such as support, child custody, or counsel fees. Either party may then bring an action to enforce the equitable distribution of property or support in New York. Recently, in Bernhardt v. Schneider, the Appellate Division of the Supreme Court of New York emphasized that “an ex parte foreign divorce decree cannot divest the nonappearing spouse of his or her rights” pursuant to New York marital property.

It is also possible to file for divorce within the New York State Court System if you live out of state or in a foreign country. You may want to file for divorce in New York if you have real property in the state or because of the way the state handles certain matters (for example, New York courts often grant more favorable child support awards). For this to be possible, at least one spouse must satisfy the residency requirement as laid out in the Domestic Relations Law Section 230. A spouse can satisfy the residency requirement in several ways:

  1. At least one spouse has been living in New York continuously for at least two years before the divorce case is started; or
  2. At least one spouse has been living in New York continuously for at least one year before the divorce case is started and (1) you got married in New York, or (2) you lived together in New York as a married couple, or (3) the grounds for your divorce happened in New York; or
  3. Both spouses are residents of New York on the day the divorce is started and the grounds for your divorce happened in New York.

Wherever you may be situated in the world, it is crucial that you hire a divorce lawyer to ensure that your rights and interests are protected. You must re-build your life wherever you are, and to allow you to move forward, you must ensure that your marriage has been properly dissolved. It is important to be sure that the divorce is in fact recognized by both U.S. authorities and the courts of your host country. At Fass & Greenberg, we have the necessary knowledge of divorce law to help guide you through the process. If you need to get a divorce from an overseas location, you should speak to the Garden City divorce attorneys at Fass & Greenberg.

There are other considerations in obtaining an out-of-state divorce which include how and when you apply for other relief in New York State (such as custody, maintenance, child support, and equitable distribution). We will cover this topic in a separate blog post.

divorce paper

Divorce is a hard thing to get through. It can be a confusing process and can bring up a lot of emotions. Traditionally, a spouse had to allege some fault on the part of the other spouse in order to file for a divorce. As of 2010, this has changed with the introduction of the no-fault ground for divorce in New York. A no-fault divorce gives a spouse the ability to file for divorce without having to show any fault on part of the other spouse. On the other hand, a fault-based divorce indicates a reason as to why one spouse is to blame for the breakdown of the marriage.

The provision for no fault divorce is premised on the irretrievable breakdown of the relationship between the husband and wife for a period of at least six months, a fact that one spouse must state under oath. This provision also requires that all economic issues are taken care of before any divorce is granted, including equitable distribution, spousal support, child support, custody, visitation, and payment of fees. If you and your spouse are able to come to agreement on all of the relevant issues, a no-fault divorce can be a quicker and more efficient path to dissolving your marriage.

In addition to irretrievable breakdown of the marriage, or no-fault divorce, there are six other grounds for divorce outlined in Domestic Relations Law Section 170, including: (1) cruel and inhuman treatment, (2) abandonment, (3) imprisonment, (4) adultery, (5) living apart pursuant to a decree or judgment of separation for a period of at least one year, and (6) living separate and apart pursuant to a written agreement of separation for a period of at least one year. The first four grounds require a spouse to prove to the court the reason why the other spouse caused the breakdown of the marriage. Grounds (5) and (6) require proof of separation and a longer waiting period than no-fault divorce. If you find yourself in a situation where your spouse has filed for a fault divorce, the attorneys at Fass & Greenberg can help you understand your rights and the next steps to take.

If your spouse files for a fault divorce, it will put them in the position of receiving a much larger share of the assets or a larger alimony if they can demonstrate that your actions caused the dissolution of the marriage. You can protect yourself against this sort of judgment by hiring a divorce lawyer. Your spouse will have to offer proof of the alleged misconduct, and divorce law gives you the right to protect yourself by disproving the allegations. Because of what is at stake, New York law allows several defenses to fault divorce actions, including:

  • Connivance: this occurs when your spouse has baited or set you up to commit an improper act
  • Condonation: this is your defense when your spouse knew of the misbehavior, forgave it, and went on with the marriage
  • Recrimination: your spouse is guilty of the same conduct they have accused you of
  • Provocation: your spouse purposefully did something that left you little choice but to leave the marriage
  • Collusion: this is your defense when your spouse fabricated grounds for a divorce

If your spouse is seeking a fault divorce, then they are initiating a form of litigation. You have the right to build a legal defense against it. For your spouse to succeed, they must have proof of the allegations they have made against you, and your legal team is entitled to challenge any evidence they may bring forward. Being hit with a fault divorce petition can be infuriating. The worst thing you can do is allow your emotions to control your response. Doing so may lead to actions that you will later regret. The best option is to work with your attorney to refute every argument your spouse makes against you. If you have received a petition for divorce, then you should contact the Garden City divorce attorneys at Fass & Greenberg

Divorce has become a common occurrence in the U.S. and other parts of the world. But sometimes a divorce process can be stressful and time-consuming.

If you receive a notification about a preliminary conference, then you know that your spouse has initiating the process of having your divorce case go through the court system.  One of the factors that determine the duration of a divorce case is the Divorce Law Garden City NY firm you have hired.

A look at the divorce process

The divorce process officially begins after one spouse files a Summons in an Action for Divorce and serves it properly to the other spouse. The deadline for the defendant spouse to appear is twenty (20) days.  

After being served with the Summons, if a spouse doesn’t respond within the required time period, he or she risks facing a default judgment, wherein the initiating spouse could possibly obtain a “wish list” of requested relief. 

Whereas some couples decide to negotiate and reach an agreement without having to go to court, other face what appear to be insurmountable obstacles at the time, and feel they have no choice but to seek judicial relief.

What is a preliminary conference?

A preliminary conference refers to a meeting between the divorce attorneys for both sides of the divorce case and a judge assigned to the case.  Since COVID-19 19 protocols have been put into effect in the Court systems, all preliminary conferences have been held virtually.  In Nassau County, in particular, the conferences are held via Microsoft Teams.

How should you prepare for a preliminary conference?

It is difficult to prepare for a preliminary conference, because it often occurs at the onset of litigation, when information is not readily available about your spouse’s finances.   However, you will need to work with your attorney to complete a Unified Form which your spouse must also complete prior to the preliminary conference.  The Unified Form will require basic background information for both parties, and time limits for disclosure of assets.  You should also meet with your Garden City divorce lawyer and provide him or her with enough financial information to complete your Statement of Net Worth prior to the preliminary conference.   In this way you and your attorney can anticipate and respond to your spouse’s request for information and or judicial relief, and can have a better idea of your requests will be.

What should you expect at a preliminary conference?

The purpose of the preliminary conference is to identify issues, the need for outside experts, such as appraisers and or forensic evaluations, provide for interim relief, if necessary, and establish discovery deadlines.  During a preliminary conference, the attorneys for both spouses have a chance to present and resolve any pending issues in the case. The court will review the form prepared and signed by the parties and their attorneys, and give an additional date for the parties to complete their discovery. By the time the preliminary conference comes to an end, you will definitely have an idea as to how long the entire process will take.

Who is allowed to attend the preliminary conference?

All of you will be required to attend the preliminary conference.   It is always best to meet with your Garden City divorce attorney beforehand to prepare and make sure that you are on the same page during the conference.  

Working with your lawyer

A divorce process can be stressful and protracted if there is no proper planning and preparation. It is always good to hire an experienced divorce lawyer from Fass & Greenberg to make the process smooth and seamless.

Divorce is painful and it can be costly. If your marriage is at an end, divorce is the only way for you and your spouse to move forward. It is best to get through the process as quickly and painlessly as possible, and there are options for doing so.

Mediation is a speedy and less expensive way to come to a divorce settlement. This is a good option for two individuals who are amicable in their general relations and have both decided that divorce is the best path forward. You will avoid litigation and months of haggling over money and property.  Mediation may seem attractive to a spouse looking for a less costly alternative to litigation, but it will not be effective if one or both spouses are unable to remain civil during the sessions.  There are some lay people, i.e., social worker, psychologists, and or paralegals who conduct mediations, but it is preferable to hire a divorce lawyer Garden City. This is the only way to ensure that divorce law Garden City NY is followed.

The presence of children will usually influence the duration of the divorce process. The courts lean toward shared joint custody regarding decision-making.  Only in the most extraordinary circumstances will judges grant one parent single custody. Unless your spouse is a danger to your children, the courts will usually grant physical residence to one parent, with extremely liberal access to the other.  Going against the court’s recommendations will lengthen the time it takes to finalize the divorce.  The two of you should put great effort into  working out a parenting schedule. Otherwise, it will be put into the hands of a judge.

Having substantial assets can also lengthen a divorce proceeding. If you are going through a high net worth divorce, you will need to account for all the money, property, and investments in the marital estate. It may take a while to track all these down, especially if your spouse is trying to hide them.   Once you are able to identify all of the marital assets, some may need to be valued.  Choosing the right accounting firm to value a business, or real estate appraiser to value property is critical, expensive, and time consuming.

On average, an uncontested divorce usually takes 3 months. A contested divorce can last any time from 9 months to several years.   If your divorce is complicated by child custody issues or substantial assets, things can drag on even longer. To get the best outcome in the most efficient and cost effective manner, you should contact the Garden City divorce attorneys at Fass & Greenberg.

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