How Much Maintenance Will A Court Award?


To begin, maintenance may be defined as payments made from one spouse to another at fixed intervals in accordance with an agreement between the parties or as a result of an award by the Court. In determining whether maintenance is appropriate and the amount and length of such maintenance, the Court will rely on factors set forth in the Domestic Relations Law § 236, Part B. When considering the twelve factors set forth in §236, the Court will analyze all the available information having regard for the standard of living of the parties established during the marriage, whether recipient lacks sufficient property and income to provide for his or her reasonable needs and whether the obligor has sufficient property or income to provide for the reasonable needs of the other spouse.

The factors the Court must consider are: (1) the income and property of the respective parties including martial property distributed as part of equitable distribution; (2) the duration of the marriage and the age and health of both parties; (3) the present and future earning capacity of both parties; (4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary thereof; (5) reduced or lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage; (6) the presence of children of the marriage in the respective homes of the parties; (7) the tax consequences to each party; (8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (9) the wasteful dissipation of marital property by either spouse; (10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (11) the loss of health insurance benefits upon dissolution of the marriage; and (12) any other factor which the court shall expressly find to by just and proper.

Essentially, maintenance is awarded to a party to allow them time to get on their feet. You are not entitled to, nor are you obligated to pay, maintenance to keep the awarding party in a life style on par with the pre divorce standard of living. However, maintenance will be awarded to a party to allow them to “get on their feet.” So for example, if one spouse is a doctor making $300,000.00 a year and the other spouse was not working at all, it is clear that the Court should award maintenance. What if, in contemplation of the divorce, the unemployed spouse gets a job? What if that job pays $70,000.00 a year? Maintenance will in all likelihood still be awarded. First, in this example, the new job just began. The Court will recognize the fact that the nonworking spouse, who just obtained employment, is probably not in the position to rent another place to live. The Court will consider the fact that instead of working and saving money, the spouse was financially dependent on the doctor. Therefore, things like paying for the first month, last month and security deposit will be challenging at best. How about a car to get to this new place of employment? Second, the Court will consider, not only the pre divorce standard of living, but will also consider the disparity of incomes between the two parties in fashioning an award. Because the spouse has obtained employment, the duration of the award may not be as long, nor as much, however with a $230,000.00 gap between the two parties, a maintenance award in all likelihood be awarded.

LEARNING POINT: Maintenance is a complicated matter. The “reasonable needs” of a party is hard to define. The disparity in incomes and other factors will be considered by the Courts in fashioning a just award. The one to be most aware of is the twelfth factor, “any other factor which the court shall expressly find to by just and proper.” This is the catch all which allows Courts the discretion to make a decision based on anything they want! Contact us immediately to allow us to give you the best legal advice possible.

How Much Maintenance Will A Court Award?

Relocating With Children After Divorce


After a divorce is final, the issue of child custody and visitation may be renewed. Typically the noncustodial parent will be allowed to see their child(ren) once a week, and every other weekend, with provisions for summer breaks and holidays. Trouble may arise when the custodial parent wants to relocate to a locale which may interfere with the noncustodial parent’s visitation. Though it is well settled that the residential parent is free to relocate where ever they so desire, this does not necessarily mean that they can also take the child(ren) in question.

In New York, relocation cases are no longer measured by a particular formula or a set of presumptions which must be proven. Instead, each case must be considered on its own set of facts and circumstances with the overriding concern being the best interests of the child(ren). The rights of the child(ren) in question will be accorded the greatest weight in the Court’s determination as to whether the residential parent may be allowed to move. When defining what is in the best interests of the child(ren) in question the Court will look at numerous factors. First, the Court will look at the relationship between the child(ren) and the noncustodial parent with an eye towards continuing to foster the relationship. Perhaps there is an easy solution. For example, if a move will inhibit the weekly mid-week visit but the residential parent is willing to allow extended weekend visits, this might be a situation where the all parties might benefit.

Obviously, economic concerns are a factor and when the move is being made in good faith and for a better paying job, the Courts will take a hard look at allowing the move. Another factor the Court will consider is the suitability of the noncustodial parent to become the custodial parent. A solution may be a simple as changing the residential custody arrangement to the parent who is not moving. Before changing the residential custody arrangements, the Courts will also take into consideration the effect that the relocation and/ or transfer of custody will have on the child and the child’s wants and needs. Ultimately the Court will have to determine, based on all the facts presented, by a preponderance of the evidence, whether the relocation is in the best interests of the child.

LEARNING POINT: Even though residential custody may have been settled in your divorce, circumstances may arise where relocation of the child(ren) of your marriage once again becomes an issue. Whether you are for or against the move, the standard is the best interests of the child(ren) and you must be in a position to present your wishes to the Court. Contact us immediately if relocation of the child(ren) is now an issue for you. Effective representation is the only way to ensure that your wants and needs are effectively communicated to the Court.

relocation of children after divorce

Pensions Are Marital Property Subject To Equitable Distribution


The Court of Appeals has held that vested or matured rights in a pension plan, whether the plan is contributory or not, is to be considered marital property subject to equitable distribution. The basic rational for this decision is that the money that went into the pension, during the marriage, is money that would have been given to the marriage but for the diversion to the pension plan. In distributing the pension benefits, the Court may order the employee spouse to grant the nonemployee spouse survivorship benefits. Should the Court direct this course of action, the non-employee would receive the increased benefits upon the death of the employee.

How do Courts treat non-vested pension plans? The Court of Appeals held that non-vested plans do not preclude equitable distribution. The rationale is that your right to the plan is continually accruing during the years. There are two approaches to the valuation and distribution of a non-vested plan. The first is to calculate the present cash value of the pension, with a discount since the plan has not vested. The discount will take into account factors such as the pension not actually vesting due to termination of employment or other issues which will terminate the pension. The second approach is to allocate a portion of each future payment to the non-employed spouse. The Court of Appeals suggested that the second approach is best only in the event that the present value cannot be determined.

Another concern that must be addressed is how much of the plan is subject to equitable distribution. There are cases were the marriage will terminate as a result of the divorce yet, the plan will continue to grow in value. What you can generally expect is that the Court will consider at the total amount of months from the date of the marriage to the date of the commencement of the action against the total amount of number of months of employment. Therefore, where a spouse continues to work after the commencement date, which is typical, the benefits earned after the commencement date will not be subject to marital distribution.

How is the administrator of a plan to know to make payouts to your spouse and in what amount? You will need to obtain a Qualified Domestic Relations Order, better known as a “QDRO.” The QDRO must specify the name and last known mailing address of the participant and of each alternate payee covered by the order; the amount or percentage of the participant’s benefits to be paid by the plan to each alternate payee or the manner in which the mount of percentage is to be determined; the number of payments or period to which the order applies; and each plan that the order applies to.

LEARNING POINT: Evaluating a pension plan is a complicated process which one should not attempt alone. There are many different approaches in evaluating the plan and if necessary protecting your assets. If you are getting divorced and either you or spouse has a pension plan, contact us immediately to begin preparing your case.

pensions and divorce

Deviating From Child Support Guidelines


Under the Child Support Standards Act, when determining child support the Court will combine the parental income and multiply that sum, up to $136,000.00, by the appropriate percentage based on the amount of children there are in the marriage. The percentages are: (1) 17% for one child; (2) 25% for two children; (3) 29% for three children; (4) 31% for four children; and (5) 35% for five or more children.

If the Court decides that the amount of the child support dictated by the Child Support Standards Act is unjust or inappropriate, the Court may, in its discretion, deviate from the guidelines. The Court may increase or decrease the amount of support ordered. However, before the Court can take such action, it must first determine what the guidelines call for and then specifically explain in its order the reason for the deviation. In deciding to deviate from the guidelines, the Court must consider the following nine factors: (1) the financial resources of the parents; (2) the physical and emotional health of the child and his or her special needs and aptitudes; (3) the standard of living the child would have enjoyed but for the dissolution of the household; (4) the tax consequences; (5) the non-monetary contributions that the parents will make toward the child; (6) the educational needs of the either parent; (7) a determination that the gross income of one parent is substantially less than the other parent’s gross income; (8) the needs of other children that the non-custodial parent is supporting, if not already taken into account, and the financial resources of the person also obligated to support such other children, provided that the resources available to support such other children are less than those available to the children for whom support is now being considered; and (9) provided that the child is not on public assistance, extraordinary visitation expenses of the non-custodial parent or expense incurred by the non-custodial parent during extended visitation that reduce the expenses of the custodial parent. Finally, in addition to these nine factors, the Court may consider any other factor it deems relevant.

What if the combined income is greater than $136,000.00? The guidelines are mandatory up to $136,000.00. For income above the $136,000.00 guideline, the Court may apply the guidelines or it may apply discretionary factors provided for use in determine whether application of the guidelines is unjust or inappropriate. So the bottom line is that if parental income exceeds $136,000.00, the Court may either apply the guidelines or may base its determination on previously mentioned nine factors or a hybrid of the two.

LEARNING POINT: Child support is a complicated. There are tax consequences to be considered and once income exceeds $136,000.00, being able to articulate to the Court how you would like the Court to determine the amount of child support is of paramount importance. Call us today for a free consultation to discuss your options and begin preparing your case.

Temporary Order of Protection


In an effort to help victims of domestic violence, either the Family Court or Criminal Court may issue orders of protection. These orders may be temporarily granted ex parte. In other words, a temporary order of protection may be granted without the offending party present. The Court will consider the following when deciding whether or not to grant a temporary order: what is the alleged condition and will this order alleviate said condition; were there previous orders in place; were there previous incidents of abuse; the nature of the threats; are drugs or alcohol a factor in the alleged abuse; and does the alleged offender have access to weapons.

When presenting your case to a judge, you must be ready not only to articulate what the offenses are in which you are seeking protection, but you must clearly articulate the abuse occurring and be as specific as possible with dates and times. Remember, after the Court grants you a temporary order, its just that, temporary. The offending party will be served with the order and given an opportunity to rebut your allegations.

If the Family Court determines upon initial review of your petition that physical injury to the victim has been caused by the respondent or that other aggravating factors exists, the Court may immediately issue an arrest warrant. The Family Court Act authorizes the Family Court to issue arrest warrants and to set and accept bail for respondents. If the Family Court is not in session and a magistrate judge isn’t accessible, the local Criminal Court will arraign the respondent under §530.11 of the Criminal Penal Law.

After the temporary order is served, a hearing date is scheduled.Both sides are entitled to an attorney to represent your respective interests. Testimony is taken and you have the opportunity to cross examine any witnesses presented to rebut your position. After the hearing the Court will render its decision.

LEARNING POINT: The key to obtaining or defending against an order of protection is preparation. While you are able to obtain a temporary order by simply walking into the family court and presenting your side to a judge, you will need to thoroughly prepare for the hearing. Call us immediately so that we can adequately represent your interests.

temporary order of protection

Joint Custody

Joint Custody In New York

Domestic Relations Law §240 grants the Court authority to award custody of a child to both parents, otherwise known as joint custody. What does this mean? If it works, it can mean equal custody. I’ve seen it done two ways. First, the parents keep the marital home and the children live in there. The parents swap in and out of the house. Second, I’ve seen it where the children split the week between the two parents. This of course normally lasts only until one of the two parents move on and begins a new relationship. Thus, the joint custody arrangement is fragile at best, even if both parents are working together in good faith. An easy example of how this arrangement may break down is if one parent needs to relocate just far enough making joint custody impracticable. In order for joint custody to work, both parents have to agree. If one party does not agree, the Court will not order joint custody especially where it can be shown that the parents cannot work together.

When thinking about joint custody, there are two components. First, there is joint legal custody. Joint legal custody refers to joint decision making in such things as health care, education, religious upbringing and discipline. Then there is joint physical custody. Physical custody is concerned with the child’s day to day residence. Thus, joint legal custody does not necessarily equate to joint physical custody.

Another way to think about this is as follows. Joint legal custody deals with life decisions for your child. Normally, absent Court intervention, you will always have a say in raising your child. You will have input on all major decisions. What you are really concerned about is residential or physical custody. In other words, where will your child sleep at night on a regular basis? Normally, the parent who is awarded residential custody will have final say on major decisions regarding the child. So, if you do not have residential custody, you still have input on major decisions however, if an agreement cannot be reached, then your ex-spouse will ultimately have the final word. All of this will be spelled out in an agreement and or Court order.

LEARNING POINT: Custody is a serious issue which can be hard to navigate, especially if parents cannot get along. While joint physical custody is an option, it is rarely used because of the difficulties in maintaining such an arrangement. Call us for a free consultation regarding what steps you need to undertake and what factors you need to consider when contemplating a divorce with children.

Statement of Net Worth


The Domestic Relations Law (DRL) requires compulsory disclosure by both parties of their respective financial states in all matrimonial actions and proceedings in which maintenance or support is an issue. This is normally done through a net worth statement. Net worth means the amount of total assets including income that exceed total liabilities, including fixed financial obligations. Your Net worth statement must include all income and assets of any kind, wherever they may be located, as well as any assets transferred out of your name within the preceding three years or the length of the marriage, whichever is shorter. Transfer of money for the routine maintenance of your daily life is not necessarily included.

Your net worth statement includes the disclosure of the details of the general family data, expenses, gross income, assets (joint and separate), liabilities (joint and separate) assets transferred during the preceding three years, any support requirements- attorney fees, forensic accounts, valuation experts and the such. In addition to this data, the statement of net worth should include a copy of your most current paystub and the party’s most recently filed state and federal income tax returns. These documents are required to check on the accuracy of the representations in the net worth statement. As you may have read in previous blogs, the tax return is just the starting point. There are many situations in which the tax return may not be the final word. For example, if lost your job right after your taxes were filed, you would not want the Court to make decisions based on income that you no longer earn. On the other hand, if your spouse started a new job in the new year, you would not want the Court basing its decision on numbers that are inaccurate and to your detriment.

A party in a matrimonial action must provide a sworn statement of net worth within 20 days after the receipt of a notice in writing demanding such a statement. Normally, your attorney will make such a demand within days of being retained. This is important. If you are the non monied spouse and are in need of pendente lite relief, you will need your spouse’s last tax return and pay stub to adequately craft your motion.

LEARNING POINT: As you know from our previous blogs, New York is an equitable distribution state. To equitably divide all the assets and liabilities of the marriage, a Statement of New Worth is crucial and a good starting point. In preparing for a divorce and a statement of net worth, gather your tax returns for the last three years, and your last three pay stubs. This will give us a good picture of your financial situation and allow us to adequately represent your needs.

Calculating Child Support Factors


The starting point for the calculation of child support is the previous year’s tax returns. This is simply the starting point, there are many factors which may lead the Court to enhance or adjust your income when determining the proper amount of child support. Courts will also look to your most recent pay stubs. The Court may look at the most recent pay period or the year to date figures. Why? There may have been a dramatic change in your income since the filing of your latest tax return. It is easy to foresee two quick examples where using the last tax return will provide a child support award that is inadequate or unjustified. If you lose your job after your tax return, clearly the award based on job you no longer have will be unduly burdensome (more on this later). If you receive a significant pay raise after your taxes are filed, you may not be paying enough.

When calculating child support the Court will investigate to determine whether or not the non-custodial parent receives a bonus that is not reflected on the tax returns. Such bonuses may be reflected on pay stubs or in an employment contract. The Court will include these bonuses to the child support calculation. Other factors the Court will consider include but are not limited to: (1) investment income; (2) workers’ compensation benefits; (3) disability benefits; (4) veteran’s benefits; (5) pension and retirement benefits; (6) fellowships and stipends; and (7) annuity payments. A personal injury settlement may also be considered when calculating child support payments, especially if part of the award was granted for future and/or loss wages.

Imputation of income: I began this topic with what happens if you lose your job and thus your tax returns may not accurately describe your income. While true, the Court will look into the facts and circumstances of the loss of income. If you lost your job through no fault of your own, i.e. you were terminated as a result of cut backs, or your boss simply let you go, the Court will take that into consideration when calculating child support. If however, you purposefully lost your job, i.e. you quit or you took another job to lower your income and thus lower your child support payments, the Court may impute income to you. In other words, you were making $100,000.00 and you quit your job and now you are making $50,000.00. If the Court determines that you did this to lower your child support obligations, the Court may award child support award based on the $100,000.00 salary regardless of what you are currently earning. This also comes into play when the non-custodial parent owns his/her own business and the tax returns do not adequately reflect the true income to be used in the calculation for child support.

LEARNING POINT: The tax return is simply the starting point in the child support calculations. There are many considerations that must be taken into account to determine the proper child support award. Contact us to help guide you through this process.

calculating child support, factors

 

What Happens to Marital Property?

martial property

"anything that is obtained during the marriage may be marital property subject to equitable distribution"

One of the first questions arising from a divorce, after custody of children if there are any, is what happens to the marital property. NY State is an equitable distribution state, and therefore marital property will be divided equitably-not necessarily equally-between the parties. Marital property is defined as all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held. Of import is that the extent of spousal contribution to the property is irrelevant in the determination of whether something should be classified as marital property.

Thus, anything that is obtained during the marriage may be marital property subject to equitable distribution.  As you might expect, there are some exceptions.  Clearly, if something is not marital property it is considered separate property.  What constitutes separate property?  First, property acquired before marriage or property acquired by bequest, devise or descent…thus something you inherit will be classified as separate property.  Second, compensation for personal injuries regardless of when received.  Third, property acquired in exchange for separate property….you inherit $50,000.00 and you buy a car….that car is separate property.  Lastly, any property agreed to by the parties as separate property.

So, what’s the practical application?  Absent the four categories just mentioned, property acquired during the marriage is subject to distribution.  When considering this, people immediately think of the marital estate bought during the marriage. Additionally, people think of stocks, bonds, cars, summer homes etc…however, there are other things that are acquired during the marriage that people need to be aware of. Consider the following. Pension plans, 401ks, virtually any and all employment related benefits will be considered marital property.  For example, has your spouse made partner in a law firm? That partnership is a martial asset.  Did you attend and graduate from law school during your marriage? That is a marital asset. On the flip side, is there credit card debt? That is marital property that will also be equitably divided.

Learning Point: Division of marital property needs to be examined carefully by an attorney.  There are exceptions that will come into play when determining what constitutes a marital asset. Quick example….three days after you are married, your spouse graduates from medical school….that in all likelihood, even though obtained during the marriage, will not be considered marital property.  Seek immediate legal advice when you decide to divorce your spouse so that your rights are protected.