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.

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.

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.

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What Is Maintenance and How Do I Get It?


divorce alimony temporary maintenanceA common question clients ask is how much alimony am I going to have to pay or can I expect to receive. The answer to that question is easy: none! Most people are familiar with the concept of alimony. Alimony was originally developed as a means of providing support for women after the termination of the marriage when, generally speaking, men controlled family property and opportunities in the work place for women were hard to come by. The amount of alimony awarded was supposed to be enough maintain the standard of living during the marriage and the award was usually permanent.

With the passage of the Equitable Distribution Law in 1980, alimony was eliminated. Maintenance replaced alimony and is now a gender neutral concept. Marriage is now viewed as an economic partnership, which in the event of a divorce, will not favor one spouse over the other. Maintenance can be described as payments to be made at fixed intervals from one spouse to the other as provided by a valid agreement or ordered by the Court. Maintenance is designed to rehabilitate the economically disadvantaged spouse with an eye towards economic independence.

When determining the duration and amount of maintenance, the Court will consider the following twelve factors: (1) the income and property of the respective parties including marital property distributed; (2) the duration of the marriage,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 therefor; (5) reduced or lost 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 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 be just and proper

Every case is fact specific. While no one factor may hold significant weight over the others, clearly the duration of the marriage and the ability of both parties to support themselves will be significant. If you were married for five years and both parties are doctors, maintenance will probably not be awarded. If you were married 25 years, you stayed home while your spouse was working, maintenance will probably be awarded. Duration of maintenance is up to the Court. Depending on the facts of your situation maintenance can last a year or for the rest of your life.

LEARNING POINT: Maintenance is a complicated matter with different variables which you and the Court must consider. If contemplating a divorce, call us for a free consultation and discussion regarding maintenance awards and other serious matters.

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Child Custody Stability


Long Island divorce attorneyOne of the hardest decisions to be made when contemplating a divorce, is which parent gets custody of the kids. Before you start moving forward, first lets define custody. Custody is the expression used to describe a parent’s supervisory relationship with their children. Physical custody is the right of the parent to live with his/her children. Legal custody is the right of a father or mother to make decisions for the son or daughter regarding the child’s schooling, religion, medical care, discipline, as well as other such everyday decisions. So although married parents enjoy both physical and legal custody, when they are divorced, a decision as to custody, both legal and physical, has to be reached. Ideally, this decision is reached through a settlement, on the other hand, in case the mother and father are unable to agree, the Court will ultimately decide. Until recently, NY followed the “tender years presumption” which declared that mothers were inherently better fit to assume the custody of children. This presumption has been abolished and the law is currently gender neutral.

How does the Court decide? The Court will consider a host of factors when deciding what’s in the best interests of the children. Factors the Court will consider include: (1) the parent’s physical and mental health; (2) the usage of drugs and/or alcohol; (3) sexual activity; (4) lifestyle; (5) neglect abuse or abandonment; (6) physical or psychological abuse and (7) the parent’s relative economical status. These are just a few of the examples which the Court will take into account. The Court will never give more weight to any particular element it considers. Instead the Court will go through the totality of the instances when producing a determination.

divorce attorney long islandNow, although they are not necessarily giving more importance to any factor, the fact is that stability plays a major role in deciding physical custody. Generally, Courts will look to offer physical custody to one parent with the eye to establishing long term stability for the child. So while recent case law harps to the point that stability is one of many aspects in figuring out custody, in practice stability will play a major part in the Court’s decision making process. Who is the primary care giver? Who’s there to pick them up from school, mend bruises and do homework? When the child wakes up, who do they see?

Clearly, moving out of the house doesn’t sound the death knell for custody. The spouse that moves out does not necessarily miss out on custody. What if your spouse is forced to leave to escape abuse? Clearly that spouse is not expected to stay in an unhealthy situation in order to maintain potential custody rights down the line. What if a spouse moves out to let the child to complete out the school year? Does a spouse who leaves the home implicitly concede custody to the other? Again, depends on the totality of the circumstances.

LEARNING POINT: The totality of circumstance will decide who gets custody. If custody cannot be worked out between the separating parties, consult an attorney quickly. You must start preparing your case immediately and shoring up your position. You do not want early decisions to have a detrimental effect on your ability to maintain custody of your child.

Byron Divins, Jr., Esq. | Long Island Divorce Attorney

long island divorce attorneyByron Divins graduated law school in 1996 and immediately joined the U.S. Navy. He spent thirteen years on active duty serving as a prosecutor, defense counsel and advisor to Commanding Officers throughout the world. He served in Yokosuka, Japan; on board the air craft carriers USS KITTY HAWK and USS THEODORE ROOSEVELT; Manama, Bahrain; Pensacola, Florida; Groton, Connecticut; and Norfolk, Virginia. During his active duty career, Mr. Divins prosecuted and defended Sailors and Marines accused of crimes against the Uniformed Code of Military Justice. In addition to his tremendous litigation experience, Mr. Divins served as a Legal Assistance Officer where he helped Sailors and Marines with issues of divorce, custody, orders of protection, child support and visitation.
At Divins & Divins, P.C., Mr. Divins concentrates his practice on Family Law and Criminal Law. He has successfully represented clients in Nassau, Suffolk and Queens counties on issues varying from orders of protection, divorce, custody, visitation, modification of child support, and child support. He consistently produces positive results for his clients. As a defense attorney, he has expertly represented clients accused of felonies and misdemeanors. His fifteen years of court room experience is an invaluable resource whether you are fighting for your freedom or a divorce.

Byron Divins knows the importance family; in his spare time, he enjoys spending time with his wife and two children, and he also manages to find time to coach his son’s little league team.

Education 

  • Florida State University, MBA (2006)
  • Touro Law Center, JD (1996)
  • State University of New York at Albany, BA (1993)

Bar Admissions

  • New York
  • New Jersey

Court Admissions

  • Court of Appeals U.S. Armed Forces
  • U.S. District Court, Southern District of New York
  • U.S. District Court, Eastern District of New York
  • U.S. District Court, Northern District of New York

Associations

  • Nassau Bar Association

Divorce Attorney Long Island