If I Date, Will It Affect My Divorce Case?

If I Date, Will It Affect My Divorce Case?

couples dating

Ending a marriage with divorce is one of the most difficult things a couple could go through. It can be mentally exhausting and emotionally overwhelming, especially with the drastic changes that are about to happen. 

The proceedings may also take longer than expected, particularly when one of the parties is opposed to the divorce.  This is why it’s important that you consult with one of the attorneys at Fass & Greenberg, LLP., divorce lawyers in Garden City NY. They can help facilitate a smooth flow of proceedings for a speedier resolution. 

While your divorce lawyers in Garden City take care of the legalities, you can focus on your own well-being, as well as arranging the final details for the separation. In some cases, it also opens up opportunities to meeting new people, and in some cases, dating.

Is this okay, though, and would it not negatively impact your divorce case?

Dating While Divorcing

Affairs of the heart tend to be arbitrary and complicated. It’s not something that you can necessarily plan for, and often takes you by surprise. Timing is everything when it comes to making it work, though, and this same timing could potentially have an effect on your official return to single status. 

Technically speaking, there should be no problem with casual dating while going through a divorce. After all, commencing a divorce proceeding does not necessarily mean the rest of your life comes to a halt.   However, clients must take heed that, a significant change in your relationship status could inevitably impact the results of your divorce case. Our advice to clients about dating is simple: be discreet.

While it is something personal, because it could impact your ongoing case, you should consider informing your family lawyer Garden City NY about these new developments in your life.   This is particularly important if your spouse is not being amicable or even hostile during the proceedings.  Finding out about a “significant other” could complicate the proceedings, particularly if finances are involved.   While dating, keep in mind that in a matrimonial action, all financial information is relevant and discoverable.  For instance, if the payor spouse takes a significant other to dinner, or buys a present with a credit card, the non-monied spouse can find out about it if they seek production of the credit card statements.  That can and often does present credibility issues when the payor spouse claims they cannot afford to pay adequate support.

Here are some other ways dating could affect your divorce proceedings:

Alimony/Maintenance

This is temporary financial support provided by the higher-earning spouse to the other. The objective of providing alimony (or spousal maintenance)  is to ensure that the lower-earning spouse, if at all, would have the means to rebuild their life as a single individual. This is especially important for those who may have had to stop working or slow down in their careers in order to give more focus to marriage and raising a family. 

If you’re seeking alimony, dating can affect the court’s judgment if you move in with your new partner. This is because you now have somebody who can help give the assistance you need. It’s not going to be an automatic denial of alimony, but it could significantly impact the court’s view of how much financial assistance should be granted to you. 

Child Custody

The other crucial element in a divorce is child custody. In any custody hearing, the best interests of the child are given utmost priority. Getting into a new relationship while this hearing is ongoing could present certain complications.

Previously set agreements could be revoked by your spouse if they become further antagonized by this development in your life. In some cases, it could even be used to show proof or indicate poor parenting.

That is why Garden City divorce attorneys would advise you to exercise caution and prudence when getting into a new relationship, and especially when you update your change in relationship status publicly. 

The last thing you would want is for the divorce proceedings to put a wedge on your new relationship as well, not when you’re trying to start your life anew. For this, Garden City mediation attorneys can help.

It is to your benefit to consult with Garden City lawyers when it comes to these legal matters affecting your matters of the heart. Law firms like Fass & Greenberg can help you navigate through the divorce proceedings, so you can finally and truly move on with your new life after the divorce.

annulment

For two people to marry, the law states that it is necessary that they do so freely and make a conscious declaration.  If either of the two circumstances does not occur, it is impossible to create a legitimate marital bond. Similar to a divorce, an annulment terminates a marriage. The difference, however, is that an annulment takes a step further by declaring a marriage invalid or void, making it as if the marriage never happened.   To help clarify the difference, and see if your situation qualifies for an annulment, you need to consult with Garden City divorce attorneys, Fass & Greenberg, LLP. 

Who Can Request Marriage Annulment?

Unlike divorce or separation, marriage annulment can be requested by individuals  other than the spouses themselves. The following parties can request an annulment of a marriage if they have reason to believe the marriage is invalid:

  • Either spouse.
  • Anyone who has a legitimate and direct interest. For example, a Father or Mother who is aware of the marriage of a minor daughter.
  • The prosecutor’s office.

Grounds for an Annulment and Their Time Constraints

According to Domestic Relations Law § 140, New York recognizes six grounds for annulment as detailed below. Time constraints related to when you can file for an annulment vary depending upon what grounds you are requesting the annulment:

  • A spouse’s former husband or wife is still alive and that former marriage is still in force
    • An annulment action on this ground may be maintained at any time during the parties’ lifetime.
  • A spouse had not reached the age of consent at the time of the marriage
    • The ability to obtain an annulment on this ground expires if the spouses continue to freely live together after they both reach the age of consent.
  • A spouse was unable to consent to the marriage due to mental incapacity
    • Where the mentally ill person is not restored to sound mind, the court may allow an annulment action on this ground to be maintained at any time during the lifetime of both of the parties to the marriage.
  • A spouse is physically unable to have sexual intercourse
    • The physical incapacity must be continuing and incurable, and the action for annulment must be commenced within the first five years of the marriage.
  • A spouse obtained marriage consent by duress, coercion, or fraud
    • For the ground of fraud, the spouses can waive the ability to claim this ground if they continue to live together after becoming aware of the fraud. For the ground of duress, New York law does not allow the court to annul a marriage on this ground if at any time before the marriage, the spouses voluntarily lived together as a couple.
  • A spouse was incurably mentally ill for a period of five years or more
    • If the mentally ill spouse has a period of sound mind and the parties continues to cohabitate as a married couple, the court considers the marriage valid and waives the ability to obtain an annulment on that ground.

How a Lawyer Can Help

A lawyer can help guide you through the process. A lawyer will file a lawsuit before the court of the domicile of one of the spouses to declare the marriage null and void. As long as you contact an attorney within the specified time frame, a lawsuit can be filed on your behalf. Of all the Garden City divorce attorneys, Fass & Greenberg is a law firm that can help you resolve your marriage annulment.

American Rescue Plan

Many Americans have faced financial crises since the start of the pandemic. This past March, the American Rescue Plan Act was enacted into law in an effort to provide economic support to many families by making changes to the Child Tax Credit, Child Care Credit and Earned Income Credit. To understand how this may affect divorcing parents, contact Garden City divorce lawyers, Fass & Greenberg to schedule an appointment.  Every year, parents can claim a tax credit for their dependents, but the IRS rules allow each dependent to be claimed only by one taxpayer. For married couples filing jointly, this is not an issue. However, for divorced parents, as well as those who are not married, this can pose a problem since only one parent can claim a child each year. If one parent has custody of the child for the majority of the time, typically that custodial parent is the one who claims the credit. However, if the parents have 50/50 joint custody, typically the parent with the higher income is the one who will stand to gain the most financially will request the credit  Parents are encouraged to work out their own agreements. Many parents choose to alternate who claims the tax credit each year. Other parents with an even number of multiple children may divide up their children as dependents and each claim a set amount per year. However, keep in mind that the American Rescue Plan’s changes to the Child Tax Credit for 2021 raise concerns for parents in some situations.

Specifically, For 2021, the Child Tax Credit has been increased from $2,000 per child to $3,000 per child age 6 and older and $3,600 per child under the age of 6. In addition, the 2021 credit is fully refundable, which helps low-income people who are eligible to claim the dependent exemption. The credit is scheduled to be partially dispersed in monthly payments through the second half of 2021, with the remainder being claimed on your 2021 tax return. Because eligible parents will be receiving part of the tax credit in advance over several months, it is likely that the benefits will be sent to the person who claimed the child on their tax return in 2020. This can be problematic for parents who alternate who claims the child tax credit each year, as one parent will essentially be receiving the benefit for 2020 and at least some of the increased benefit for 2021. The legislation directed the IRS to create an online portal where people can update their tax information, which will be important for parents to make sure that the correct parent receives the payment, depending on the terms of their agreement. Consulting Fass & Greenberg, LLP, who are knowledgeable family law attorneys is essential to making sure this increased credit is fairly distributed between you and your child’s other parent. It also may be necessary to make changes to prior arrangements to account for this increase in tax credits for 2021 that may financially advantage one parent over the other.  

In addition, the American Rescue Plan will also implement changes that affect the Child Care Credit and the Earned Income Credit, just for the year 2021. These changes will affect child support calculations, since many states deduct federal income taxes when calculating child support. If you are paying or receiving child support, it would be beneficial to consult an attorney to understand how these policies may affect your child support. It may be wise to calculate the child support obligation based on the provisions of the American Rescue Plan and compare with what the obligation would be without those provisions. Since the plan is only effective for the year 2021, an attorney can help you specify what the support obligation will look like for 2021, and what the support obligation will look like in 2022 when the plan is no longer in effect. It would be wise to come up with an agreement between the parties that recognizes these changes and implements them equitably, so that each parent is receiving fair treatment in terms of child support obligations. While the American Rescue Plan was put into effect to help many Americans financially, it can have some negative consequences for separated or divorced parents who have custody arrangements and child support obligations to take into consideration. If you are in a situation where the plan’s policies may alter your child support obligation or award, or your arrangement for the child tax exemption, contact the attorneys at Fass & Greenberg to protect yourself financially.

There are many reasons why a parent may be looking to change a child’s name. For questions relating to changing a child’s name, you should contact the Garden City divorce law firm of Fass & Greenberg, LLP.   The attorneys at Fass & Greenberg will explain that when parents’ divorce, disagreements can arise over the last name of any children of the marriage. Also, when a parent gets married or remarried, he or she may want to change the last name of any pre-existing children. For example, where a mother has primary custody and remarries, she may want to change the child’s last name to her new married name. Or, where a mother reverts to using her maiden name following a divorce or separation from the child’s father, the mother may want to change her child’s name to her maiden name as well.  It is important to note that a legal name change does not change parental status – if you remarry and want your new spouse to be your child’s legal parent, only an adoption can do that.

In New York, a child who is 17 years old or younger is considered a minor.  Garden City divorce and family law attorneys can help a parent or legal guardian petition the court to change a minor child’s name. The petitioning parent must give a reason for changing the child’s name, so that a judge may assess whether this change is in the best interests of the child. Judges consider several factors in making this decision, such as what the child wants, how the name change will affect the child’s relationship with each parent, how long the child has used the current name, the motives of the parents, and any problems the child may have experienced from the current or new name.  In most matrimonial cases, there is a clause prohibiting a parent form changing a child’s name to any other than the child’s current sur-name, which is usually the last name of the Father.  This issue must be addressed prior to the filing of any petition to change the child’s name.

If a child has two living legal parents or guardians, the law requires that you notify the other, non-petitioning parent or guardian and obtain their consent to the name change. If you are unable to locate your child’s other parent, you must demonstrate that you have made attempts to locate and contact the parent. If you know the other parent’s last address, you must send a notice advising the non-petitioning parent of the proposed name change. If the child’s other parent is under 18 years old, you will need to obtain permission from the non-petitioning parent’s parent. Additionally, many courts require children ages 14 to 17 years old to give consent for their own name change.  Clearly, this request will carry great weight.

A name change request pursuant to the New York Consolidated Laws Article 6 can be made in the County Court or Supreme Court of the county in which you reside.  In order for the Court to change your child’s name, you will need to provide the Court with the following:

  • Name Change Petition: which includes information such as
    • The reason you want to change your child’s name
    • If you or the child were convicted of a crime, information about the crime and time served
    • If you were convicted of bankruptcy, when the judgment was made and the terms
    • Any judgments or liens against you or the child
    • Any lawsuits you or the child are involved in
    • If you pay child or spousal support
    • Information about the other parent or legal guardian
  • Name Change Order
  • Consent Form
    • To be filled out by the non-petitioning parent/guardian and by the minor if 14 or older
  • Proof of Birth
  • Request for Judicial Intervention (RJI): to have a judge assigned to the case
  • Court Fee

If the Judge hearing the petition and supporting documentation finds the name change is in your child’s best interest and approves the request, you will need to publish your child’s new name in the newspaper according to the court’s instructions. Conversely, if a judge believes the name change is not in the child’s best interests, is being made for fraudulent or deceptive purposes, or is offensive or misleading, the judge may deny the request.

To assist with their application, parents can utilize the online Child Name Change Program provided by the NYS Unified Court System. It is a free program that helps a parent complete all of the required paperwork needed to ask the Court to change the name of their child, and provides instructions on how to file the papers and pay the fee.   However, the best recommended practice is to hire Garden City divorce and family law attorneys, Fass & Greenberg, LLP., who can provide you with the insight and expertise on how to properly change your child’s name. If the child’s other parent is refusing to comply or is unable to be located or contacted, an attorney can help you convince a judge that this name change is still in your child’s best interests. If you are a custodial parent looking to change your child’s name, be sure to contact the family law attorneys at Fass & Greenberg to obtain the desired outcome for you and your child.

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.

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