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.

Modification of Child Support

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(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.

Equitable Distribution of Veterans Disability and Social Security Benefits

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An undecided question in the Second Department (covering Nassau and Suffolk Counties) is how to distribute benefits earned by a military member. The departments are split on this issue and the Court of Appeals, the highest court in New York, has yet to definitively rule.

The fourth department has held that while disability benefits obtained from other sources may be considered for purposes of maintenance, veteran’s disability payments are precluded from consideration. 10 U.S.C. § 1408. The third department held the opposite, stating that veterans benefits can be considered when deciding on equitable distribution. With respect to social security benefits, it is well settled that Social Security Disability Benefits are separate property and are not subject to equitable distribution. DRL § 236(B)(1)(d)(2); Miceli v. Miceli, 78 AD3d 1023 (2d Dept.2010). However, Social Security Disability Benefits, unlike veteran’s disability benefits, are to be considered by the Court when determining a payor spouses ability to pay maintenance.

In Alvarado v. Alvardo, a case decided January 15, 2013, the trial court in Richmond county, dealt with the issue of what should happen to veteran’s and social security benefits. Mr. Alvarado, served in the U.S. Marines from 1965-1969. As a result of his service, he was awarded veterans benefits. The parties were married in 1980 and now seek to dissolve the marriage. Ms. Alvardo seeks to have her husband’s veteran’s benefits as well as the social security he is entitled considered part of the marital property for equitable distribution purposes.

The easier issue is that of the Social Security benefits. Clearly, the benefits he gains from social security will not be considered for purposes of equitable distribution, however, if the Court were to deem maintenance appropriate, the Court will consider the husbands benefits as part of his income when determining his ability to pay maintenance. Addressing veterans benefits, a topic which is hotly contested, the Court held that absent a contractual agreement otherwise, veteran’s benefits are not to be considered when distributing assets as part of equitable distribution.

In addition to the vague guidance given by the Courts regarding this issue, if you are military member, you are entitled to many benefits which civilian courts are not accustomed to seeing. BAH, OHA, special pays etc. will be foreign concepts to most Courts. If you are a military member and are proceeding with a divorce in New York, be sure your attorney is prepared to explain all of these benefits so that you are not being held responsible for monies that you are not actually receving.

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