Foreign Divorce | Divorce Lawyer Long Island

Will a foreign divorce be recognized in the state of New York?  The first question that must be answered is what is a foreign divorce?  A foreign divorce is one granted from another state in the union or another country.  With respect to divorces from a sister state, under full faith and credit clause of the U.S. Constitution, New York will give grant full faith and credit to judgments from sister states. What if the judgment came from another country?  That was the issue presented to the Court in Ahmad v Khalil.

In this case, the parties were married in Jordan.  After two years, they moved to New York.  After approximately eight years, the mother moved back to Jordan with the children.  Father continued to provide financial support to his family.  A court in Jordan granted the Wife’s petition for divorce.  That divorce action dissolved the marriage but did not address issues relating to child support and distribution of assets.  The Husband commenced an action in Jordan relating to the custody of the children.  The Wife then starts an action in New York, seeking maintenance and child support.

Courts will generally accord recognition to the judgments rendered in a foreign country under the doctrine of comity which is the equivalent of full faith and credit given by the Courts to judgments of sister states.   Absent a showing of fraud or some showing that recognizing a divorce from a foreign state would be against some strong public policy.  With respect to public policy, this exception is rarely used and only considered when the divorce in the foreign country is counter to fundamental notions of what is decent and just.  Therefore, for a court to refuse full recognition to a lawful foreign judgment, it must be demonstrated that he decree violates some fundamental principle of justice, some prevalent conception of good morals or some deep-rooted tradition of the common good.  Essentially, Courts will generally look to validate and enforce foreign judgments.

In this case, the Wife attempted to set aside the Jordanian divorce decree by arguing a lack of due process.  She argued that in Jordan, a husband is allowed to obtain a divorce unilaterally without notice or consent of the wife.  The Court did not give much credit to this argument.  It appears that the wife actually started the divorce in Jordan and then withdrew her action there when she discovered that it was to her financial best interests to obtain a divorce decree in the State of New York.   Thus, the Court recognized the Jordanian divorce.

Though the divorce decree was recognized by the Court, there was martial property that was located in New York.  The Court allowed the wife to litigated the issue regarding the equitable distribution of the New York property as this court would be the most convenient court to hear this matter.  The Court declined to hear issues related to child support, maintenance and distribution of property in Jordan.  The Court reasoned that the children had lived and current live in Jordan.  There is Jordanian property to be disposed of and there are procedures in Jordan which the wife can avail herself to address these issues.

When faced with a foreign divorce, the going in position of the Courts will be that the divorce will be enforced absent a showing of fraud in the procurement of said divorce.  If your spouse comes home one day and announces that you have been divorced through a judgment from another country, see us immediately.  Typically we see this issue arise from divorce decrees granted in the Dominican Republic.  Swift motion practice will be needed to protect your rights.

Equitable Distribution Isn’t Necessarily Equitable Distribution

Many people believe that when you get divorced, especially after a long term marriage, your assets are split equally.  This is not true.  New York is an equitable distribution state, meaning that equity, or fairness, will decide how assets are to be split.  Who determines what’s fair or equitable? Well if the parties cannot amicably settle their dispute and come up with an accommodation between them, the Court will make that determination.   If you leave it to the Court, you may or may not get what you deem is appropriate at the parties in Cornish v. Cornish recently discovered.

The parties in the Cornish matter were married in 1991 with three children.  The wife was the monied spouse in this case and the husband was awarded, amongst other things, 30% of his wife’s pension, vice 50%.  He was also awarded 50% of the parties credit card debt.   The husband appeals seeking to modify the trial Court’s ruling increasing his share of the wife’s pension to 50%.  The first thing the husband needed to realize is that the Courts are accorded substantial deference in determining what distribution of the marital property is equitable.  Note the equitable standard which is based upon considerations of fairness and the respective situations of the parties.

The trial Court looked at the marriage.  Here, the husband was a stay at home father.  However, as the wife testified, the once the children reached school age, the wife implored the husband to find employment, which he declined despite the financial difficulties the family faced.  In addition to his refusal to earn a living and contribute financially to the family, it was ascertained that husband was an alcoholic and his alcoholism was contributing to his ability to find employment.  Additionally, the husband had inherited money.  Instead of using this money to assist the family, the Court found that he wasted his inheritance and in a few short months, it was gone.  Finally, the Court did not find the husband’s testimony regarding his job search credible.  Thus the Court, taking all of this into consideration, believed it was only fair that 30% of the pension go to the husband vice 50%.

In the same vein, the Court determined that the family’s finances were compromised by their use of credit cards to pay for family expenses.  However, the Court also found that the credit card was not only used for daily expenses, but that the husband used the cards for unnecessary expenses unduly burdening the already precarious family financial picture.  As a result, the Court awarded half of the debt to the husband.

Your behavior during the marriage is important when it comes to equitable distribution.  Keep in mind that marital property is divided between the parties and that not only will the Court divide property/assets, it will also divide liabilities. If you have a spouse, like in this case, who is wasting marital assets coupled with refusing to contribute to the marriage, the Court will take that into consideration when determining how to fashion an equitable distribution award.

Relocating With Your Child | Long Island Family Law Lawyer

After a divorce is complete, if there were children of the marriage, custody of the child was resolved. Typically, though not always, one parent is awarded residential custody of the child subject to visitation rights of the other party.  After some time passes, one question which may rise is it whether is it possible for the residential parent to move out of the state.  The appellate department discussed this issue in Batchelder v. Bonhotel.

In Bonhotel, Father and Mother, never married and had one child.  They separated and stipulated that Mother was to be the residential parent, subject to the visitation of rights of the Father.  Father was entitled to see his son every other weekend and one overnight every other week.  The Father was consistent with his visitation with the Court finding that the Father and son benefitted from a close relationship.  Two years later, the Mother lost her job and made plans to move out of New York to Alabama. She informs Father the night before her departure.  Father petitions the Court for residential custody of the child.

As a first step, to change the custody arrangement there must be a significant change of circumstance.  In this case, step one was easily met.   The Mother moving out of the state constituted a significant change of circumstances.  Therefore, the Court immediately turned its attention to whether the Mother could relocate with the child.  In making such a determination, the Mother bears the burden of proof that she should be allowed to move by a preponderance of evidence.  The Court will look at the following factors: (1) the relationship with the parents; (2) the effect of the move on the noncustodial parent; (3) the potential enhancement to the custodial parent and child due to the move; and (4) parents’ motives for seeking or opposing the move.

In this case, the Mother claimed that she was unemployed and had better prospects in Alabama with her fiancé.  With a little digging, it was discovered she recently met her fiancé online and was planning to stay at his residence.  It was also discovered that her ability to support herself and her son, in addition to the child support, was completely dependent on the fiancé.  Finally, and the fatal blow to the custody issue, the Court found that the Mother failed to foster a relationship between her son and the Father.  She had quit her job so that she could move to Alabama and failed to demonstrate that she was providing a stable environment for her son.  Evidence to support her lack of support between the son and the Father was the fact that she sprung the move on the Father the day before and refused to give the Father contact information regarding where she was going and how he could contact his son.   The Father, on the other hand, had a steady job, and though he had a girlfriend, was in a steady relationship providing a stable environment.  The key though was the Father’s willingness and work towards fostering a close relationship between his son and the Mother.  He explained that if the Mother were to leave for Alabama, he committed to skype sessions with his son to see his mother no less than two or three times a week.  As a result, the Court denied the Mother’s request to take the child out of the State and granted the Father’s request to change residential custody to the Father.

In this case, the Mother was unable to show how leaving the state would enhance the child’s life, and what I believe was the key to this ruling, the Mother failed to show how she planned on dealing with separation between the Father and his son.  Here the Mother was actively hostile to the Father and in no way fostered the relationship.  The lesson to take away from this ruling is that the Courts do not look favorably on a party who in any way interferes with the relationship between the child and your former spouse.  One can surmise that the uphill battle she had to move her son to Alabama was not made easier with her open hostility to the Father.

If you do want to move your child from the state, make sure that you have a well thought out plan which includes fostering the relationship between your child the non-custodial parent.  In addition, be ready to explain how moving your child out of state and away from the non-custodial parent is in the best interests, i.e., will advance the child’s education, financial welfare, and education. If you face any problems with relocation and child custody make sure to contact a divorce attorney a Long Island family divorce lawyer at Divins & Divins, P.C. for a free consultation.

False Accusations Against a Spouse Can Lead to Losing Custody of Your Child

Often in divorce cases, the parties lose focus of the big picture and turn to a “win at all costs” strategy.  As any attorney will tell you, this seldom, if ever, works out the way you think it will.  This type of scorched earth policy tends to come out when fighting over custody of the children.  A prime example of how this tactic can back fire is found in the case of Carnike v Kasson.

In the Kasson matter, the parties had  one child.  The parties divorced and the Court awarded joint physical custody as it was clear both parents were loving responsible people.  The order directed the child moving from mother to father on a weekly basis. Right before the child, a little girl, was to start kindergarten, the wife made accusations that the father was sexually molesting the child, abusing alcohol and as a result of his job, rarely if ever home to take care of his daughter.   As a result, she petitioned the family court to have physical custody granted to her with the father only having supervised visitation.  Based on these accusations, father crossed moved for sole custody claiming that these accusations were only made to pull custody away from him and destroy any relationship he had with his daughter.

To warrant a modification of a pre-existing custodial arrangement, there must be sufficient evidence to support a change of circumstance reflecting a real need for a change in the order to continue the best interests of the child.  Courts have held that starting school is enough to warrant a change in circumstance requiring the establishment of a residence for the child.   Additionally, Courts have held that the lack any ability of the parties to communicate with each other concerning the needs of the child does not advance the best interests of the child and that it in itself is enough to establish a change in circumstances which may be enough for the Court to change the custodial arrangement.  Had the wife in this case stopped at that, simply saying that her daughter was beginning school and having her change her residence every Saturday evening was not in the best interest of the child, this case might have been decided differently.

At the hearing, the evidence showed that despite being seen by six different doctors there was no evidence of sexual abuse.  Additionally the court took note that there were no outstanding child protective service investigations nor any reports made by the mother to the police department.  The Court found that the mother in this instance was purposely attempting to interfere with the father’s parental rights.  Finally, despite the mother’s attempts to curtail visitation and custody, the father testified that he was willing to continue to promote the relationship between the mother and daughter.  As a result, the Court granted the father full physical custody of his daughter. Unexplainably, the Court declined to grant sanctions against the ex-wife for her accusations and actions.  This is the only part of the case that is surprising.  One can only assume that after losing physical custody of her daughter the Court deemed sanctions as unduly “piling on.”

False accusations and parental alienation is the fastest way for you to lose physical custody of your child.  Remember, divorce is hard enough for children to adapt to, the last thing they need is for you to ruin the relationship with your former spouse for no other reason that you are employing scorched earth tactic.  The best interests of your child is always to have a loving relationship with both parents.  It is imperative that you always foster such relationships and not interfere.  While you may no longer wish to speak to your ex-spouse, for the sake of the children, until they are emancipated, you must have at least a cordial relationship where you can discuss your child’s up bring.  It is to your peril if you are unable to keep such a relationship going. If you’re facing such problems, call a an experienced Long Island divorce attorney at Divins & Divins, P.C. for your free consultation.

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Separate Property and Maintenance on Long Island

On June 13, 2013, the appellate court decided the case of Owens v. Owens.  At issue in this case was the maintenance awarded to the wife.  The parties were married in 1985 and had two children.  Before the parties were married, the husband owned, through an inheritance, an apartment building in New York City.  He sold this property during the marriage netting six million dollars.  He promptly placed that money in separate account however the parties were living off the proceeds.  Further, the husband owned the marital residence which the parties shared throughout the marriage.  The couple divorced and the wife argued that the husband had wasted his inheritance and the separate property he owned.  As a result, the wife wanted the Court to take into consideration this wasteful dissipation of assets when awarding maintenance.

When dealing with property in a marriage, the first step the Court will take is to classify all property.  Domestic Relations Law defines separate property as that acquired before the marriage or by bequest, devise or descent or gift from a party other than a spouse. Separate property also includes the increase in value of the separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.

The crux of the wife’s argument wasn’t that she was directly entitled to the separate property, she argued that the Court should consider the husband’s willful dissipation of his assets when determining what if any maintenance she is entitled.  The Court agreed.  The Court held that evidence of egregious economic fault in mismanaging, dissipating and wasting separate assets can and should be considered under the statutory catchall “just and proper” factor for equitable distribution and maintenance.  In addition the Court will take into consideration separate property as part of a spouse’s income, property, present and future earning capacity and ability of each party to become self-supporting.  Thus, the Court, in determining a maintenance award—with an eye to her ability to be self-supporting—must take into account her pre-divorce standard of living, which in this case, was provided mainly by the separate property income of the husband.

Separate property on its face may be a simple determination, however as this case illustrates, classification of property is only the first step.  How that property was used and the effect on the marriage can and will be used as a factor when the Court is contemplating a maintenance award.

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Litigating a Matrimonial Case

When seeking a divorce, you should always attempt, in good faith, to settle your matter if possible.  By entering into a separation agreement, you are able to control some if not all of the terms.  If settling is not possible, then you are leaving your fate to the Court.  Lets look at the recent case of Musacchio v. Musacchio, which the appellate division recently decided on June 27, 2013.

Here the parties were unable to settle and went to trial.  They were married in 1990 with three children.  If you are a follower of my blog posts, you know by now,  in a custody battle normally, a law guardian is appointed to represent the best interests of the children.  While appointing a law guardian is strongly encouraged such an appointment is discretionary and not mandatory.   In this case, the Court decided not to appoint a law guardian.  Without a law guardian the court must decide custody without the benefit of an attorney representing the children.  The wife in this case was awarded physical custody of the children. The Court relied on all relevant factors including the parents’ ability to provide a stable home environment for the children, the children’s wishes—though without a law guardian one can only surmise what their wishes are after perhaps through questioning by Court and having them put in the uncomfortable position of choosing—the parents’ past performance, relative fitness, ability to guide and provide for the children’s overall well-being, and the willingness of each parent to foster a relationship with the other parent.   In this case, the wife was a stay at home mother and the husband worked long hours in the financial industry with frequent travel.

When it came to distributing the property, the Courts fashioned a distribution which was not necessarily 50/50.  When you leave it to the Court to distribute assets remember that there is no requirement that the distribution of each item of marital property be on a equal or 50/50 basis.  A trial court has substantial discretion to fashion awards based on the circumstances of each case and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors.  In this case, the Court considered the  needs and circumstances of the parties.  Here the husband made over $200,000.00 a year while the wife barely made $10,000.00.  While the Court did not list the equitable distribution award, I am hard pressed to think, after the rationale given by the Court, that the husband and wife split all the assets 50/50.

Finally, the Court awarded maintenance to the wife for seven and half years.  The Court considered the parties’ financial circumstances, their respective ages, the length of their marriage and the wife’s loss of income while she was a stay at home mother, and the wife’s ability to increase her earning potential taking into account her age and prolonged absence from the work force.  In other words, maintenance was left up to the Court.  Unlike the temporary maintenance formula, there is lacks a guide that one can look to even attempt to figure out what, if any maintenance will be awarded and for how long.

As you can see, if you and your spouse cannot come to a settlement, the Court will decide.  Once the Court decides, if the decision is supported by the evidence presented at trial and well-reasoned, it is unlikely that the awards will be disturbed.

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Modification of Child Support

English: MANAMA, Bahrain (Feb. 10, 2010) Instr...

(U.S. Navy photo by Mass Communication Specialist 2nd Class Aramis X. Ramirez/Released) (Photo credit: Wikipedia)

Once child support is established, the terms are normally placed in an agreement which is then used to facilitate your divorce.  This separation agreement which is normally incorporated but not merged into a judgment of divorce is a contractual obligation on the parties.  Thus, when entering into such an agreement, you must make sure that the terms are something that you can live with.  It is assumed, upon execution of this separation agreement that you have anticipated and have adequately provided for the child’s welfare.  If you later on decide that you want to change the terms of the agreement, the Courts will first look to the agreement and will only deviate from the terms of the agreement if the needs of the child are not being met.

Generally speaking, child support will not be changed unless there has been an unforeseen change in circumstances and a concomitant showing of need. What qualifies as an unforeseen change in circumstance?  That will be decided on a case by case basis.  The one change in circumstance which never works is when the paying spouse intentionally quits their job and then runs into Court claiming that they can no longer afford to pay child support.  If you have a child support obligation and you purposefully or intentionally quit your job, you will still be liable for child support at the amount in which you agreed in your divorce.

What if you lose your job due to no fault of you own.  That’s where the facts and circumstances of your matter come into play. Lets suppose you lose your job because the factory you were working at closed down.  Clearly, not foreseen nor anticipated.  You are not allowed to sit home and not work.  You are not allowed to claim you cannot pay for child support because you lost your job. It is incumbent on you to find another job.  Of course you can petition the Court to modify your child support, but you have to show the Court that you are actively searching for a job.  We advise our clients to immediately start looking for a job.  Go on interviews, attend job fairs do anything that can show that you are actively looking for work.  If you can show the Court that due to no fault of your own, you have lost your job but you are doing everything you can to obtain new employment, you maybe be able to get a modification of child support.

What if after your search, you immediately find a new job but it is substantially less than what you were making?  Again, it depends on the facts of your case.  If you were a doctor, and you took a job as a waiter, the Court will not look kindly to that as you are under employed. What if you were a waiter, and you obtained a job as a waiter in another restaurant.  Depends.  Were you a waiter and Ruth’s Chris and now you are at a local diner?  Maybe you’re underemployed, maybe you’re not.  Did you take this job pending other interviews?  Again, it all depends on your facts and circumstances and what you are doing to obtain employment.

If you are the one receiving child support and your spouse has stopped paying, you want to look into why.  If your spouse intentionally quit their job, then move for contempt.  The best interests of your child dictates that your spouse should not be allowed to quit a job to avoid child support.  What if the loss of employment was clearly not your spouse’s fault?   The best thing would probably agree to a temporary reduction in child support, pending new employment. If there is a legitimate change in circumstance, you cannot get money from a source that doesn’t exist. A temporary adjustment will give your spouse time to get a new job and shows that you are reasonable to the Court should you go that far.  Second, if you have to go to court, while you have tools to compel enforcement of child support orders, if there is a legitimate change in circumstance, how will spending time in family court help you get child support?  It won’t.  Thus, you have to know the reasons for the lack of support.  If there are valid reasons, we recommend working with your ex-spouse.  If there are no valid reasons, then Court may be your only solution.

If you need to modify your child support, or if you are being asked to modify child support obligations, contact us immediately so we can prepare the best case possible based on your unique set of circumstances.

Calculating Child Support

Contrary to the common perception, the child support calculation is really a black and white issue.  The Child Support Standards Act (“CSSA”) found in Domestic Relations Law §240 (1-b) explains exactly how child support is to be calculated.  Pursuant to the CSSA, child support is a percentage of combined parental income, minus FICA /Social Security taxes, capped at $136,000.00.  The relevant percentages are:  17% for one child; 25% for two; 29% for three; 31% for four; 35% for five or more however, the Court has discretion when setting the percentage for five or more children. So when considering what the child support obligation is going to be in any particular case, the first thing the Court will do is determine what the obligation is pursuant to the CSSA.

For example, if Spouse A earns $60,000.00 a year and Spouse B earns $50,000.00 a year, and there are two children of the marriage, the following calculations apply

Spouse A: Gross Income is $60,000.00. Subtracting FICA/Social Security, for CSSA purposes, Spouse A’s income is $55,410.00.

Spouse B: Gross Income is $50,000.00.  Subtracting FICA/Social Security, for CSSA purposes, Spouse B’s income is $46,175.00

Next, the Court combines the incomes: $55,410.00 + $46,175.00 for a total of $101,585.00  As there are two children in this example, the percentage set by the CSSA is 25%.  Thus, the child support obligation in this example is $25,396.25  a year.  Now that the obligation is determined, that number is split between the spouses on a pro rata basis.

Spouse A: $55,410.00/$101,585 = 55%.  So Spouse A’s obligation is $25,396 * .55= $13,967.80 a year, or  $268.61 a week ($13,967/52 weeks a year) or $1,155.00 a month ($268.61 * 4.3—the average weeks a month).

Spouse B: $46,174/$101,585= 45%.  So Spouse B’s obligation is $25, 396.25 * .45 = $11,428.20 a year or $219.77 a week ($11,428.20 / 52 weeks a year) or $945.02 a month ($219.77 * 4.3—the average weeks a month).

Here is where the battle usually occurs.  The spouse who has residential custody of the children will get child support.  So, in our example, if Spouse A retains residential custody, Spouse A will receive $945.02 a month in child support.  If Spouse B retains residential custody, Spouse B will receive $1,155.00 a month in child support.

If the combined income of the spouses exceed $136,000.00, then the Court will decide on what number to use to determine child support.  It is completely in the Court’s discretion and the Courts  look at a variety of factors in determining where to cap the child support obligation.  However, this will give you the basic idea on how child support is calculated.  There are numerous other factors which can come into play which will effect a person’s income for CSSA purposes.  For example, what if Spouse A must pay child support, but the reality is, even though Spouse A makes $55,410.00 for CSSA, that spouse is already paying child support to another child?  What if Spouse A’s income is not sufficient to provide child support pursuant to the CSSA and be above the poverty line?  These are common questions which need to be addressed when contemplating child support obligations.  Call for an appointment and discuss your options to ensure you are either receiving or paying the proper amount for child support.

Inheritance Rights in a Divorce on Long Island

A common question raised by clients of long term marriages—generally longer than ten years—is what happens with my inheritance which I received during the marriage?  The answer is: it depends what you did with said inheritance.  When the Court looks to make a distributive award of the assets of the marriage, the first thing it does is it defines marital property.  Marital Property, pursuant to DRL§236, is defined as all property acquired by either or both spouses during the marriage and before the commencement of an action for divorce or the signing of a separation agreement.  So, the initial question becomes, when did you receive this inheritance?  If you received your inheritance during the marriage, the presumption is that it is marital property.  Thankfully, there are four exceptions to this general rule.

Relevant to this issue, if property is received by bequest, devise or descent it is considered separate property.   So it seems as if your inheritance is protected as separate property.  Yet, nothing is that simple.  Once you received your inheritance, the question now becomes what did you do with it?  Did you open up a separate bank account and deposit said inheritance in that account which is strictly in your name?  If you did, then the Courts will probably consider this separate property.   If you’re like most people, you placed your inheritance in a joint account, and there lies the problem.

Once you placed your inheritance into a separate account, you have comingled funds, and thus the money is now marital property.  (The subject of another blog is the comingling for convenience—all is not lost if you comingle—however the presumption will be that the comingled account is now marital property).   A far more complicated and common issue is what happens when you take your inheritance and purchase a house?  Is that house now marital property?  Probably.  Lets say that you received a three hundred thousand dollar inheritance and you placed it all as a down payment for the martial estate.  Did you lose the inheritance?  In this scenario, you will get a separate property credit of $300,000.00.  If you sell your house and there is a profit of $600,000.00, you can then petition the court to designate the first $300,000.00 as separate property, the money being an inheritance and originally separate property.  The balance of the estate will then be split by the parties.  Of course, what if the house is sold and you break even?  What if you sell your house and there is only a $50,000.00 profit?  Arguably, that money should be designated as separate property.  Either way, your spouse will not be responsible for paying back the down payment.

Inheritance issues are not black and white and can be tricky.  If you are contemplating a divorce and you have concerns about your inheritance, contact us for a free consultation.

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Carrying Costs and Temporary Maintenance in a Pendente Lite Application

Upon commencement of an action for divorce, frequently the “non-monied” spouse will file a pendente lite motion with the Court. Said motion normally seeks temporary relief pending the litigation. Typically one asks for temporary maintenance, temporary child support and attorney’s fees. There are other things a movant may ask for however, these are the three big topics which are sought. Unfortunately, temporary maintenance is not clearly defined, which leads to differing opinions as to what temporary maintenance covers. Recently, in Woodford v. Woodford, a Second Department decision, the Court attempts to shed some light on temporary maintenance.

In Woodford, the wife moved pendente lite, for temporary maintenance, 100% of the carrying costs of the marital estate and for her attorney’s fees. The Supreme Court ruled that the husband was to pay 100% of the carrying costs, temporary maintenance and to pay $10,000.00 as and for attorney’s fees, with leave to apply for more money should the need arise. As you may know, carrying costs are essentially the costs associated with maintaining and running the household. It includes the mortgage or rent, utilities, cable, internet, phone, the other costs associated with the home. Husband appeals to the Second Department arguing that temporary maintenance should include the carrying costs, thus he should not have to pay both carrying costs and additional monies for maintenance.

Domestic Relations Law §236(B)(5-a) sets for formulas in which the Court is to use to determine the presumptive temporary maintenance award. After determining what the presumptive award should be, if the Court wishes to deviate from said award, it must explain why such deviation was deemed necessary. What the statute does not address is what temporary maintenance is to cover. The Court held in this case, that it is reasonable and logical to think that the temporary maintenance statute was intended to cover all of the wife’s basic living expenses. Therefore the Court vacated that part of the ruling which ordered the husband to pay for both the carrying costs and temporary maintenance and directed the Supreme Court to reconsider the wife’s motion.

This ruling seems to say that carrying costs are part of temporary maintenance. One would think then that the Court, if it wants to award both temporary maintenance and have the “monied” spouse pay for the carrying costs, the Court would then award a larger temporary maintenance award to cover both the carrying costs and provide for temporary maintenance. Ultimately, since the statute is vague and ambiguous as to this point, it rests in the particular Court to which you are arguing your motion. Until the legislature either repeals this statute or clarifies it, the Courts will continue to interpret the temporary maintenance statute in their discretion. Each case will produce different results based on the particular facts of the case, which will then be interpreted in the discretion of the particular Court hearing your motion. Therefore, in preparing your motion, it is imperative that you carefully explain to the Court all your needs so as to put yourself in the best position to obtain an adequate temporary maintenance award.

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