Enforcement of Maintenance of Child Support

A common question which clients have been asking deals with the enforcement of a court order to pay child support and/or maintenance. Once a Court issues an order, one would hope that the party to which the order has been directed would follow it to the letter. Unfortunately, this is not always the case. Sometimes, a party simply cannot afford to make the payments as ordered. This usually happens when there is a legitimate loss of income. On the other hand, sometimes people simply do not pay. If this is the case, your remedy may be to seek a contempt order.

The remedy of contempt is available to punish the defaulting party. Domestic Relations Law (“DRL”) allows the matrimonial court to invoke contempt sanctions of Article 19 of the Judiciary Law as a means of enforcing the directions contained in its orders and judgments. The contempt order is the most drastic form of relief because the consequences of contempt can be either a fine or incarceration. Thus, courts view this remedy as a tool of last resort and as such, the Court must first find that the default was willful.

Failure to follow a Court order and pay maintenance and /or child support does not conclusively prove that you are in willful default; however, it is prima facie evidence of willful disobedience. Once this presumption is established, it incumbent on the defaulting party to overcome this presumption and show that their failure was not willful.

Before the Court will find a party in default, it must be shown that payment cannot be obtained in any manner, i.e. income execution, entry of judgment etc. As mentioned, willfulness is linked to the defaulter’s ability to pay. If the defaulting party raises his/her inability to pay, there must be hearing to determine the facts and circumstances of that person’s inability to pay. The typical defense to default is the defaulting party’s loss of their job which creates a financial hardship. When this is the defense, the Court will look to see if the loss of employment was willful. If you purposely quit your job or do something which causes you to be fired, you may be held in contempt. The Court may find your willful loss of a job should not allow you to escape your financial responsibilities.

LEARNING POINT: Contempt of Court is a drastic tool available for those who willfully disobey the Court’s directions. If you are subject to such an order or you are the beneficiary of such an Order, there are things you can do to either enforce the order, or defend yourself from contempt charges. Adequate preparation is key. Call us for a free consultation and allow us to prepare the best possible case for your situation.

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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.

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Fighting For Custody of A Child

Child Custody Lawyer Long Island

If the parties in a divorce cannot agree on who should have residential custody, a full hearing will be needed. At said hearing both sides and the law guardian, the child custody lawyer appointed to represent the children’s interests, will be allowed to present evidence. These hearings are lengthy and may last a couple of days.

To assist the Court in determining what is in the best interest of the children and thus, which parent should retain residential custody, the Court may appoint an expert to assist. The Court may direct the parties to submit to a forensic examination. §251 of the Family Court Act expressly empowers the Court to subject a parent or other person legally responsible for the care of a child to submit to an examination by a physician, psychiatrist or psychologist. The examination is limited to the purpose of assisting the Court in resolving child custody. Non-parties may not be ordered to attend an examination over their objection without prior notice of a Court application for such relief.

As a general rule, the reports generated by the forensic expert will not be admissible unless both sides agree. Generally, the expert must testify and be subjected to cross examination. The expert fees will be paid by the parties on a pro rata basis. The Court is not necessarily bound by the opinions and recommendations of said expert if the Court determines that the recommendation was based on inadequate information, there is a clear bias for or against a party, or the expert ignored significant conduct of one of the parties. In addition to the forensic report, a Court may order a “home study.” Much like it sounds, this is a study to observe the conditions of the home.

Finally, in determining what is in the best interest of the children, their opinions and thoughts will be taken into consideration by the Court. The law guardian is there specifically to ensure their concerns are adequately represented. The law guardian is paid for by the parents, again, on a pro rata basis. Obviously, the younger the children at issue, the less of an impact their wants and desires will have on the Court. On the other hand, if you have teenage children, the older they are, the more weight the Court will give to their opinions.

LEARNING POINT: Custody battles are long and expensive and should not be entered into lightly. You and your children will be subjected to questions by experts. The best practice, if possible, is to amicably settle child custody issues. However, if settlement is not possible, you must be ready for a protracted battle in which you will need top notch representation. Call us immediately for a free consultation to map out the best strategy for your case.

Child Custody Lawyer Long Island

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.

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Ground For Divorce In New York – Cruel and Inhuman Treatment

There are multiple grounds for divorce in New York. This article will briefly describe what you must be able to show to file for divorce pursuant to DRL §170(1), cruel and inhuman treatment. Cruel and inhuman treatment can be defined as such conduct that so endangers your physical or mental well-being making it improper or unsafe to cohabit with your spouse. So the question becomes what constitutes conduct which so endangers your physical or mental well- being.

The easiest example will be repeated physical abuse. Clearly, if your spouse is physically assaulting you, that would be a strong argument for cruel and inhuman treatment. Must it be “repeated?” Depends- here are two extreme examples. Say your spouse slaps you once. Doesn’t slap you again, and never has before. Is that enough to grant a divorce under DRL §170(1)? Probably not. That does not mean this behavior is excused or that you cannot get divorced if you so choose, but under the cruel and inhuman provisions, this is probably not enough for a Court to grant you a divorce under this section. On the other hand, say your spouse physically assaults you one time, however this one time lands you in the hospital with serious injuries. Your spouse hasn’t done something like this in the past. This may be enough to qualify as cruel and inhuman treatment and the Court may grant you a divorce.

What about mental abuse? Acts of verbal abuse and torment have been held sufficient to establish grounds for cruelty where they have been of a serious nature and where a pattern of such behavior could be shown. Courts have granted divorce based on this section where a spouse was able to show be subjected to constant denigration followed by lengthy bouts of outright ignoring causing severe depression requiring psychological therapy. Flaunting extra marital affairs and refusal to return to the marriage, coupled with taunting a spouse about their physical appearance and shortcomings have also been deemed enough for a Court to grant a divorce.

Courts have also held that intoxication and/or drug abuse, in the right circumstances may qualify. For example, if your spouse is an alcoholic and when your spouse is drunk engages in either physical or mental abuse, the Courts have granted a divorce based on cruel and inhuman treatment as a result of your spouses habit.

Proving cruel and inhuman treatment can be challenging. Generally speaking, such acts which rise to the level of cruel and inhuman treatment happen in the marital residence behind closed doors. Rarely are there witnesses. That being said, while the Court of Appeals (the highest court in the State of New York) has not specifically ruled on this issue, the second, third and fourth departments have expressly held that corroboration is not required to prove cruel and inhuman treatment. Clearly, medical documentation would corroborate abuse or witnesses to said abuse would strengthen your case however, as just mentioned, it not always possible. The final point to be made is that while it is necessary to draft pleadings with enough specificity to allow your spouse to defend the action, the Courts have recognized that an abused spouse rarely if ever keeps a log if every separate incident of abuse, however, generally speaking you need to narrow the times of the abuse enough as to give your spouse an ability to defend the claims you are making. Additionally, claims of abuse should be no more than five years old. Once you start making claims more than five years old, while it might be useful to show a pattern, you may run into a statute of limitation problems. Generally, misconduct occurring more than five years prior to the commencement of the action may not be used to support the cause of action.

LEARNING POINT: Getting divorced pursuant to DRL§170(1) is a complicated matter, which thankfully isn’t necessary because New York has recently allowed for no fault divorces (to be discussed in later blogs) however, if you do want to pursue getting divorced under this provision of the statute, you must be ready to discuss the various forms of abuse you were subjected to and be ready to prove them in Court. Contact us for more detailed information on how to secure a divorce under this provision of the DRL.

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.

Modification Of Child Support

As a general proposition, child support can be modified either upward or downward, only if an unreasonable or unanticipated change in circumstances has occurred. The primary concern with regards to child support is the best interest of the children in question. Thus, even if there is a Court order, either in the form of a separation agreement which was merged into an order, or simply an order regarding child support, a parent can petition the Court for a modification. When considering whether to modify child support, the Court will consider the assets, earnings and obligations of the supporting spouse as well as the financial status of the custodial spouse. Unless there has been an unanticipated and unreasonable change in circumstances, the Court will not change the support order. Factors to be considered by the Court include whether increases of expenses were foreseeable at the time the Court originally made the support order. If the expenses were foreseeable at the time the order was decided and the Court deems that the order was fair and equitable at the time the order was made, you may not get a modification.

What will the Court use to determine if a modification is appropriate? The Court will look to: (1) whether the increased needs of the children are due to special circumstances or to the additional activities of growing children; (2) whether there is an increased cost of living which results in a greater expense for the children; (3) was there a loss of income or assets by a parent or substantial improvement of the financial condition of a parent; and (4) the current and prior life styles of the children. If after the Court considers these factors, it deems that there should be a modification of child support, the Court will utilize the Child Support Standards Act to calculate the appropriate level of child support, and whether there should be a deviation of said support. A downward modification of child support is carefully scrutinized since the primary concern is the best interests of the children. Thus, if you are attempting a downward modification, you must show an unanticipated and unreasonable change in circumstances otherwise the court will in all likelihood deny your request.

Word of caution: 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. The key determination surrounding your loss of income will be how it happened. If you simply quit your job or, as in a recent case of mine, decided to follow your passion and embarked on a new career, one that decreased your salary by $40,000.00, the Court may not grant your modification request.

Learning Point: Modification of child support will be considered keeping the best interest of the children in the forefront of the Court’s mind. Adequate preparation in showing the Court that there has been a significant change in circumstances warranting the Court to modify a current order providing for child support. A downward modification will be given close scrutiny. Preparation and presentation will be crucial in your attempts to convince a Court to modify your current child support order.

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.