On Behalf of Claudio & Associates, Attorneys at Law
Like other states, New York uses child support guidelines that judges are supposed to follow when deciding how much support each parent is responsible for.
These Child Support Guidelines are supposed to make sure that both parents get treated fairly. They also ensure that the courts in Queens and the rest of the City are consistent when ordering child support so that the amount one pays does not depend solely on the judge.
In practice, for many divorce and family law cases, figuring out child support is a relatively straightforward process. However, for high-earners, the process can get more complicated and can even lead to some contention.
Judges have more discretion in high income cases
When parents who intend to live apart make more than $143,000 a year, the courts have some flexibility to deviate from simply ordering support based on a percentage of a parent’s income. They may use other factors to set an appropriate amount of child support.
While for many families $143,000 might seem like a lot, to put it in perspective, if two divorcing spouses are both established professionals like doctors, their combined income can easily exceed $143,000 a year.
In other words, one need not be a celebrity, business tycoon or professional athlete to exceed the $143,000 a year threshold.
What this means is that the couple will have more room to argue about how much child support is appropriate to maintain a consistent standard of living for the children involved.
For higher earners, income may be harder to calculate
Another factor in support cases involving high earners is that, oftentimes, those with a lot of income are getting all or at least some of it from a number of sources.
For instance, many higher earners receive business income or income from other investments. Investments can conclude a range of items, such as rental income from real estate or regular dividends on stocks or other accounts.
Figuring out a person’s actual income from a business or investments is more complicated than simply looking at one’s paystub or even tax return.
How can I make the divorce easier?
On Behalf of Claudio & Associates, Attorneys at Law
One thing that some married couples forget when discussing divorce is that it does not have to be a hard, complicated process. Instead, an amicable divorce is possible, as long as couples avoid some common mistakes that can throw a wrench into the process.
Agreeing to an amicable process at the beginning
The first step is agreeing to be amicable upfront. If both couples can agree that they will enter the divorce process from a place of seeking amicability and mutual problem solving, it will increase the possibility that an amicable divorce will actually be achieved. And, more importantly, it will go a long way in ensuring a successful co-parenting relationship, post-divorce.
Alternative dispute resolution
Second is choosing a divorce process that is more amicable. A good way to make a divorce more amicable is taking it out of the litigation process entirely. This is usually done through mediation. In the mediation process, an independent, third-party acts as the mediator, who facilitates both parties (and their lawyers) reaching amicable solutions on divorce related issues. This can be done for the entire divorce process, including property division, parenting plans, custody arrangements, etc.
Staying positive and not attacking
Next, it is important to stay positive. Keep those people around that are positive and do not attack the soon-to-be ex-spouse. This includes on social media. Do not insult or even speak about the ex-spouse or the divorce process, generally. It is one of the quickest ways to destroy this newly created amicable co-parenting relationship.
For our Jamaica, New York, readers, the key is entering the divorce with the goal of maintaining a positive co-parenting relationship with the soon-to-be ex-spouse. This extends to the property division process and the years of co-parenting to come.
What is spousal support and maintenance?
On Behalf of Claudio & Associates, Attorneys at Law
In addition to child support, married or divorced spouses may need other support to continue their standard of living or to make up for the loss of income when they raised children or made other sacrifices for the family. New York law governs this support and its requirements.
Spousal support and maintenance
Courts may order spousal support, formerly called alimony. Maintenance or temporary maintenance is court-ordered support for an ex-spouse while a divorce is pending in court.
New York laws set forth the presumptive amount of support and its length following divorce. These guidelines, based on the spouses’ income, are presumed to set forth the proper support amount and its duration. But a court may order different amounts if they provide an explanation.
Family Courts usually issue support orders. But the Supreme Court may also order temporary maintenance payments in a divorce. Family Courts can modify or enforce Supreme Court maintenance orders after the divorce’s completion.
Changes
Support payments can be modified when there is a substantial change in circumstances and a spouse files a modification petition. If the spouses agreed to the support, a spouse seeking modification must show more than a substantial change.
Time
Courts may impose time limits on maintenance payments. A 2016 law contains a time period formula:
- Maintenance is expected to last 15 to 30 percent of the length of a 15-year marriage.
- Maintenance is expected to last 30 to 40 percent of the length of a 15-to-20-year marriage.
- Maintenance is expected to last 35 to 50 percent of the length of a marriage exceeding 20 years.
Payments end if either spouse dies, or the recipient spouse remarries. Courts may not impose time limitations on support for a current spouse.
Taxes
Support payments are taxable for orders issued before Dec. 31, 2018. Payments under these orders are taxable income for the support recipient and a deduction for the payer. Child support is not taxable, but unseparated child and spousal support is considered taxable spousal support.
Payments are no longer deductible for the paying spouse and taxable income for the recipient if their cases started or their separation agreements were signed after Dec. 31, 2018.
Health care
Family Courts may also order the continuation of health insurance for a spouse. An automatic order is issued when a divorce is filed preventing either party from changing insurance coverage without court approval.
After divorce, a former spouse usually cannot remain on the family policy. They may be eligible for COBRA coverage for 18 months and a court may order their former spouse to contribute to payments.
Attorneys can assist you with seeking an order that meets your needs. They can also help protect your rights.
What happens if I need to move?
On Behalf of Claudio & Associates, Attorneys at Law
Single parents who wish to move, either to another borough in New York City or to a more distant destination, usually have good reasons for doing so. In many cases, a better job opportunity or more affordable housing could be the reason.
In other cases, a person may need to help other family members or may see a good educational or other opportunity for their children.
New York is a little different from other states in that it does not have a detailed relocation statute that spells out what happens when a single parent wants to move with his or her child.
Parents should first consult their custody orders before taking any further steps.
In many if not most cases, the couple will have agreed, or the judge may have ordered, what relocations parents could make without the permission of the court. If a parent’s custody order covers moves, he or she should follow the instructions.
Whether the court’s order addresses relocations or not, in many if not most cases, a New York parent will have to get the court’s permission to move.
Courts will decide relocations based on the best interests of the child
As with other child custody matters, New York courts will allow a relocation if it is in the child’s best interests.
When deciding what is in a child’s best interests, the court will consider a number of factors. Practically speaking, the more significant the move, the more it might take to persuade a court, or the other parent, that the move is a good idea.
Even if he or she plans to negotiate with the other parent, a parent who needs to move will want to be sure he or she is well prepared to persuade a court that the move will be in the best interests of the children.
What happens in custody cases when abuse is alleged?
On Behalf of Claudio & Associates, Attorneys at Law
Like other states, New York has laws on its books which are designed to protect victims of domestic violence.
Unlike some other states, New York’s laws do not go into a lot of detail about what happens in child custody cases where one parent has committed domestic violence or some other sort of abuse against the other parent.
Instead, the law leaves New York’s family judges generally free to consider and weigh evidence of domestic violence in a custody or visitation proceeding.
The good news is that a parent can bring in evidence of abuse without first having to press criminal charges or even file a police report. There is also no time limit on how far a judge can look back in one’s past for evidence of abusive behavior.
It is also worth remembering that in New York, abuse need not be one serious act. It can be a pattern of aggressive behavior.
An abuser may get visitation or custody in New York
On the flip side, New York judges have a lot of discretion to give an accused abuser visitation or even custody.
The person making the accusation will have to prove to the judge that the abusive behavior makes the accused parent a threat to the child health or well-being.
If there is not enough evidence that the parent could harm the child, then a judge may grant visits or custody to the extent that they are in the child’s best interests.
A custody case involving domestic violence requires careful handling
A victim will have to evaluate her legal options carefully. She will also need to be sure that she comes to court with a well-organized case supported by evidence. After all, her safety and the safety of her children may well depend on a court’s decision.
On the other hand, a person falsely accused of abuse will need to defend himself against such charges or risk missing out on a relationship with his children.
What is New York’s domestic violence law?
On Behalf of Claudio & Associates, Attorneys at Law
Committing domestic or family violence is illegal in New York. There are many legal procedures intended to stop violence and courts play a significant role in this process.
Domestic violence
The state’s family law defines domestic violence as abusive behavior occurring between family members or intimate partners. An intimate partner may be a current or former spouse, boyfriend, girlfriend, your child’s parent, or a partner that you live with now or in the past. Domestic violence may involve physical, sexual, psychological, or economic abuse.
Arrest
After arrest, the alleged abuser must appear before a judge at an arraignment. This case is not brough behalf of the victim but on behalf of the People of the state of New York who is represented by an assistant district attorney.
Arraignment is usually held within 24 hours of arrest. An arraignment judge may set bail, hold the alleged abuser in prison without bail or release the accused abuser who must return to court in the future. An abuser may be released any time after arraignment.
Order of protection
The assistant district may ask the judge to issue an order of protection at the arraignment. This is a court order that restricts the alleged abuse from engaging in conduct such as harassing, threatening, assaulting, or stalking the abuse victim. These orders may also prohibit the accused abuser to refrain from having any contact with the abuser.
A person who violates an order of protection may be re-arrested.
An order of protect, however, cannot guarantee safety. Victims should develop a safety plan and consider options such as:
- finding domestic violence shelters
- relocation for senior victims
- participating in individual or group counseling
- seeking assistance from government agencies and non-profit groups that have experience with family court or immigration issues
- submitting public assistance applications
- obtaining transportation to and from court proceedings
- obtaining a cell phone for emergency 911 use in high-risk situations
Non-criminal actions
An abuse victim may also file a petition in family court if a family offense was committed against them. Victims can request that family court issue an order of protection.
Family court is a civil court. Any proceedings will not lead to the abuser having a criminal record.
To pursue a family court proceeding, the alleged victim and abuser must:
- be related by blood
- be legally married
- been formerly married
- have a child in common or
- have been or in an intimate relationship
An attorney can help protect family members’ rights in these volatile situations. They can also guide them through the legal process.
On Behalf of Claudio & Associates, Attorneys at Law
Divorce is never an easy process. The emotions involved can be overwhelming, while at the same time you’re dealing with issues you never before considered. For couples with a high net worth, things can be even more complicated. Asset tracing is a means of making those complexities easier to handle.
Property division and equitable distribution
At the commencement of any divorce, property division is one of the issues a court must tackle. For high-asset couples, this can be much more difficult than most divorces. Their assets are often more varied and unusual, consisting of things like business interests, stock options, inheritances and multiple pieces of property.
The court must first identify and classify all of the couple’s assets. If an asset is considered separate property, it will likely remain with the spouse who owns it. If it’s classified as marital property, it will be subject to the doctrine of equitable distribution – meaning the court will seek to divide all marital property fairly (rather than equally) between the spouses.
Because of the complexity of a high-asset couple’s portfolio, asset tracing can be a critical component of the process. Asset tracing investigates the history of the couple’s property, ensuring that everything is properly identified. It then follows the history of the assets to clarify each spouse’s contribution. Once asset tracing is complete, you can be more confident that everything has been properly classified as either separate or marital property. This clarity makes it easier to accept the subsequent property distribution, so that you move on in a healthy way, rather than second-guessing the final divorce decree.
What is a legal separation in New York?
On Behalf of Claudio & Associates, Attorneys at Law
Many New York couples find themselves in a twilight zone between preserving their marriage and getting divorced. Most of these couples are familiar with the concept of ending their marriage via a legal divorce, but many of these couples are unaware of an alternative that may serve their family and emotional states much better: a legal separation.
The concept
A legal separation is a written agreement between spouses in which they agree to live separately. The separation agreement also contains provisions regarding temporary possession of various assets, child custody, support and alimony and other pertinent aspects of defining the new living arrangement.
The details
While the concept of a legal separation is easy to comprehend, an agreement that satisfies the law in New York is not easy to create. The agreement must be in writing, signed by both spouses, with each signature having been notarized. Most importantly, the separation agreement must state that the spouses will live separately at all times. This provision is important if the couple plans to use the separation as the grounds for a later-filed divorce petition. Most other options are optional to one degree or another. The agreement can require one of the spouses to pay support to the other. Likewise, the agreement can provide for custody of any minor children and for payment of child support to the custodial spouse. The agreement must spell out which spouse will pay recurring monthly expenses, such as heat, electricity and food.
Once the agreement is completed and signed by each spouse, it should be filed with the proper clerk of court. At that point, the document becomes legally binding, and either spouse can ask the court to enforce it or penalize the other spouse for a violation.
Pros and cons
Anyone who is considering a divorce may wish to consult an experienced divorce attorney for advice on the pros and cons. A knowledgeable lawyer can evaluate the couple’s situation and offer advice on whether a legal separation agreement will serve the couple’s needs.
On Behalf of Claudio & Associates, Attorneys at Law
Life is often uncertain, and it subjects us to unanticipated changes when we are least ready. New Yorkers who have worked their way through a divorce proceeding often believe that they have suffered the worst experience that life can offer. Unfortunately, living circumstances often change suddenly and with little advance warning. A sudden change in living conditions can often wreck a previous court order for child custody. In such circumstances, people affected by the order will often resort to the internet looking for self-help assistance. New York offers plenty of such help, and people often wonder if they need an attorney to guide them through the process of amending the earlier order. The answer to the earlier question is, unfortunately, “maybe.”
What to do?
An attorney can always offer assistance where a court order is involved; the real question may be “Do I want to pay for an attorney to help me do something that the state is willing to let me do myself?” The first thing to remember is that court proceedings are often unpredictable, and a proceeding that seems simple can suddenly raise questions that no one has previously considered. A custodial parent who is trying to increase the amount of parental time may suddenly be asked questions about the child’s health and the effect of a serious illness that the child suffer in the past year.
Lawyers who are experienced with court appearances have two important skills: knowledge of the applicable law and the ability to deal with unexpected developments. A lay person may not be able to deal with an unexpected issue in the same manner as a court-seasoned lawyer. Having an advocate who is trained to keep the client’s interests front and center in all circumstances may seem priceless in the moment of crisis.
In trying to decide whether to retain a lawyer for a motion to amend a prior order, a person should seek advice, and if the person was previously represented, the earlier attorney is an excellent source of needed advice.
Can I modify my custody agreement?
On Behalf of Claudio & Associates, Attorneys at Law
If you and your ex-spouse have children, the court likely signed an order detailing custody and visitation arrangements when your divorce was finalized. Once an order has been signed, both parents are legally obligated to adhere to the terms of the order. However, if the arrangement specified in the order is not working for your family, you may be able to request the court’s approval for a modification of child custody/visitation.
Do both parents need to agree to the modification prior to requesting the court for approval?
No. In cases where both parents agree to the modification, the process can go much faster, as they can negotiate the terms outside of court and then file the petition for modification together for court approval. However, even in cases where when one parent opposes the modification, the parent seeking the modification can file the petition alone with the help of an attorney. The parent will then have to prove to the court that the modification is necessary to serve the best interests of the child. The other parent can also state their case to show why the modification would not be in the child’s best interest. Once the court has considered arguments from both sides, it will make the final decision.
What circumstances warrant modification?
Generally, New York family law courts will not grant modifications for trivial reasons. However, the court may grant your request for modification if:
- Custodial parent is seeking to relocate with the child.
- Child is being abused or neglected.
- Parent is failing to follow the initial order.
- Parent can no longer care for the child.
- Child’s best interests are not being met with current order.
If you are seeking a modification of custody, a family law attorney in your area can help. Once the modified order is signed by the judge, both parties must adhere to the new order.
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