Archive for the ‘Family Law’ Category

Updates to New York’s Child Support Standards Chart

Saturday, May 3rd, 2014

According to the Child Support Standards Chart, prepared by New York State Office of Temporary and Disability Assistance, Division of Child Support Enforcement, and released March 12, 2014, the 2014 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,670 and the 2014 self-support reserve is $15,755. These numbers are highly relevant for child support calculations and may have a role in determining child support arrears in situations where payor’s income is less than the guideline amount for a single person. The Chart is found at this link. The Child Support Standards Chart is released each year on or before April 1.

Additionally, as required by the Child Support Standards Act, the combined parental income amount used to calculate basis economic support has been changed to $141,000. This figure is adjusted every two years (effective January 31st) based on the average annual percent changes to the federal Department of Labor’s Consumer Price Index for Urban Consumers. The basic economic support figure is highly relevant in the cases where combined parental income is substantially in excess of it since the court may utilize parental income in excess of the basic economic support figure under appropriate circumstances.

Surrogacy and Adoption

Saturday, May 3rd, 2014

One area where New York still lags behind other states has to do with surrogacy contracts. New York does not recognize surrogacy contracts statutorily since it deems the underlying surrogacy contracts to be against public policy, and they are void and unenforceable in New York. See N.Y. Dom. Rel. L. § 122. However, what happens to a child born as a result of such contract?

In a recent decision, Matter of J.J., 2014 N.Y. Slip. Op. 24089 (Fam. Ct. Queens Co. 2014), New York Family Court held that a child born as a result of a surrogacy contract can be adopted in the State of New York, notwithstanding the fact that such contract would be void and unenforceable.  In that decision, Judge Salinitro held that a man may legally adopt his husband’s biological twins even though they were born to a woman under a surrogacy agreement that is illegal in New York State. According to the court, the best interests of the twins is the most important consideration in weighing the adoption petition, not the surrogacy agreement that resulted in their birth. According to the decision, a home study provided to the court showed that the children are thriving in the care of the parents.

Thus, the court stated that it is not being asked to enforce the surrogacy contract that forms the basis for the adoption, nor does the relief sought include claims relating to the surrogacy agreement itself. Rather, the case involved proposed adoptive parent who wanted to have equivalent legal status as the birth parent, and is prepared to assume the rights and responsibilities that accompany legal parentage.

Therefore, the surrogacy agreement with the woman who bore the children in Mumbai, India, in 2013 was of no consequence to the adoption. The court specifically found that “where a surrogacy contract exists and an adoption has been filed to establish legal parentage, such surrogacy contract does not foreclose an adoption from proceeding”.

Section 122 of Domestic Relations Law declares that “surrogate parenting contracts are hereby declared contrary to the public policy of this state, and are void and unenforceable”. The judge said she found a “paucity” of previous rulings in New York on surrogacy and none directly focused on surrogacy contracts in the adoption context. Accordingly, she called the issue before her an apparent question of first impression in New York courts.

I think that the judge made the right decision. Given that the law does not always keep up with changes in medical technology and society, the courts have to step in and address these types of issues.

Minors and Rescission of Acknowledgment of Paternity

Sunday, February 2nd, 2014

A recent bill signed into law by Governor Cuomo, allows minors who acknowledged paternity of their children to have a brief period of time when they turn 18 to seek to rescind that acknowledgment . Family Court Act §516-a will permit young men who signed the acknowledgment of paternity up to 60 days, starting on their 18th birthday, to file a petition seeking to vacate.

Under the present law, if someone over the age of eighteen has signed an acknowledgment of paternity, the signatory may seek to rescind the acknowledgment by filing a petition with the court to vacate the acknowledgment within the earlier of sixty days of the date of signing the acknowledgment or the date of an administrative or a judicial proceeding (including, but not limited to, a proceeding to establish a support order) relating to the child in which the signatory is a party. The “date of an administrative or a judicial proceeding” means the date by which the respondent is required to answer the petition.

Sponsors of the legislation had said that seeking a rescission of paternity will not necessarily extinguish the paternal rights but could result in a judge ordering a DNA test to conclusively establish or disprove parenthood. Signing the acknowledgment of paternity is a serious matter since it carries responsibilities, such as paying child support for non-custodial children until they turn 21.

According to the legilative history of the statute, the change was prompted by the recognition that minors often sign acknowledgments without guidance from their parents or other adults, or sign them for children they know are not theirs without realizing the long-term ramifications. If acknowledgment is signed and, subsequently, there is evidence that the party who signed it is not the birth father, it may be too late to do anything about it.

A safer course of action is not to sign an acknowledgment. If the acknowledgment of paternity is not signed, then paternity will needs to be established, and Family Court is the proper venue for filing a paternity petition. If the either parent files a petition for Paternity, then the father can either consent to paternity or, if he does not, the court can order Genetic Marker (DNA) Test to confirm that he is actually the biological father. Generally, the DNA test is conclusive evidence of who the biological parent is. However, before the DNA test is ordered by the court, it will have to address any equitable estoppel issues that may arise.  Assuming that equitable estoppel issues have been resolved, and the DNA test takes place, then the Court will issue an Order of Filiation, which is provided to the DHMH for the issuance of a new birth certificate.

Equitable estoppel in those situations may be raised both offensively and defensively by either the man initially believed to be the biological father or the man believed to be the true biological father.  Not all fathers cooperate since an Order of Filiation typically results in an order for child support and, possibly, a liability for birth expenses.

Update on Duration of Maintenance

Saturday, October 26th, 2013

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce in terms of both amount and duration.

Thus, family law attorneys have to rely on court decisions as a basis for estimating likely spousal maintenance awards. In Monroe County, in a typical maintenance case, it is likely that a spouse who is entitled to receive maintenance is likely to receive spousal maintenance with length of one third duration of the marriage.  This rule of thumb has been utilized by a number trial court judges and lawyers. However, not every trial judge subscribes to it, and each judge’s views of maintenance are likely to impact such awards.

In a recent case, Zufall v. Zufall, 2013 NY Slip Op 06142 (4th Dept. 2013),  The Appellate Division, Fourth Department, has confirmed this. In Zufall, the parties were married for 21 years and have five children, one of whom was emancipated. During the marriage, plaintiff was primarily a homemaker, raising the parties’ children while defendant worked as a correction officer. Shortly before divorce action was commenced, defendant retired at the age of 50 after 25 years of service. Plaintiff has been determined by the Social Security Administration to be 50% disabled, and she receives partial Social Security disability benefits of $622 per month plus workers’ compensation benefits of $400 per month. She also works 20 hours per week as a bartender, earning $5 per hour plus tips.

The court stated that after considering the statutory factors enumerated in Domestic Relations Law § 236 (B) (6) (a) — particularly, the length of the marriage; the income and property of the parties, including the marital property distributed by the court; and the present and future earning capacity of the parties,  ”[w]ith respect to the duration of maintenance, however, we agree with defendant that the court’s award is excessive insofar as the court ordered defendant to pay maintenance until plaintiff turns 62, i.e., for approximately 18 years. We conclude that a term of seven years from the date of commencement of the action “should afford the plaintiff a sufficient opportunity to become self-supporting”.”

Given the circumstances, the trial level award of 18 years of maintenance was probably too long.  As a result, it appears that the Appellate Division, Fourth Department, has adopted a bright line rule of awarding spousal maintenance for one third of the duration of the marriage.

It will be interesting to see if this standard will survive any changes to the Domestic Relations Law that may come as a result of the Law Revision Commission’s report issued in May.

Shared Custody and Child Support – Number of Overnights Controls

Monday, September 2nd, 2013

I have previously written about the case of Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3d Dept, 1998), where the Appellate Division held that in an equally shared custody case the parent who has the greater income should be considered the noncustodial parent for purposes of child support. This has been the rule in shared custody cases for the last 15 years.

However, in a recent decision, Rubin v. Salla, 107 A.D.3d 60 (N.Y.A.D. 1 Dept. 2013), the Appellate Division held that based on the plain language of the Child Support Standards Act, that a custodial parent cannot be directed to pay child support to a noncustodial parent, and that the “custodial parent”, in an equally shared custody case, is “the parent who has the child the majority of the time, which is measured by the number of overnight time that parent has with the child.”

In Rubin, the parties were the unmarried parents of a 9–year–old son. The mother and father always lived separately. After trial, the court awarded primary physical custody to the father during the school year, with the mother having parenting time on alternate weekends (from Friday after school to Monday morning) and every Thursday overnight. During the summer, the schedule was reversed and the child would live primarily with the mother, but would spend Thursday overnights and alternate weekends with the father. The mother would also have the child each winter vacation, and the other vacations were evenly divided. Additionally, each parent had two weeks with the child during the summer. With respect to legal custody, the court awarded the father decision-making authority, after consultation with the mother, over educational and medical issues. The mother was given authority, after consultation with the father, over decisions on summer and extracurricular activities, and religion.

Following the custody decision, the father sought to dismiss the mother’s cause of action for child support. He argued that, by the terms of the custody order, he was the custodial parent because the child would spend the majority of the year with him. He argued that, as a matter of law, the court could not order him to pay child support to the mother, the noncustodial parent. The father established that during the period from July 2012 to June 2013 there were 206 overnights with the father and 159 with the mother. These custodial periods amounted to the child being with the father 56% of the time and with the mother 44% of the time.

The trial court denied the father’s motion for summary judgment, holding that an award of child support to the mother was not precluded because the parties had “parallel legal custody” of their son and both spent some time with the child, it was impossible to say, as a matter of law, that the father was the custodial parent for child support purposes. The court also focused on the disparity between the parents’ financial circumstances and concluded that, regardless of whether the father was the custodial parent, it had the discretion to award the mother child support because she needed funds to pay her monthly rent and to maintain the type of home she could not otherwise afford without the father’s assistance.

The Appellate Division reversed, holding that under the Child Support Standards Act, the father, as the custodial parent, cannot be directed to pay child support to the mother, the noncustodial parent. According to the decision, the CSSA provides for “a precisely articulated, three-step method for determining child support” awards in both Family Court and Supreme Court. Under the CSSA’s plain language, only the noncustodial parent can be directed to pay child support. Domestic Relations Law § 240(1–b)(f)(10) and FCA § 413(1)(f)(10) state that, after performing the requisite calculations, “the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation.”

After analyzing the applicable case law, the Appellate Division stated that only where the parents’ custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, have courts deemed the parent with the higher income to be the noncustodial parent for child support purposes. Where parents have unequal residential time with a child, the party with the greater amount of time is the custodial parent for CSSA purposes. The great disparity in overnights here—56% to 44%—forced the court to make a finding that the mother was the non-residential parent.

Unlike the trial court which counted the waking hours each parent spent with the child, the Appellate Division decision held that the number of overnights, not the number of waking hours, is the most practical and workable approach. The court stated that:

Allowing a parent to receive child support based on the number of daytime hours spent with the child bears no logical relation to the purpose behind child support awards, i.e., to assist a custodial parent in providing the child with shelter, food and clothing (see e.g. Higgins v. Higgins, 50 A.D.3d 852 (2d Dept. 2008) [food, clothing and shelter costs are inherent to the basic child support obligation]). Furthermore, because a child’s activities are subject to constant change, the number of hours spent with each parent becomes a moving target. Outside of school hours, a child may participate in after-school activities, spend time with a child care giver, be enrolled in tutoring, or attend summer camp. During those times, the child may not be with either parent. The child’s activities may vary day to day and will change as the child ages, unnecessarily creating the need to recalculate the parties’ parenting time and possibly modify the custodial parent designation. Moreover, the use of this type of counting approach could also lead parents to keep their children out of camp or other activities simply to manipulate their time spent with the child so as to ensure that they are designated the “custodial parent”.

Thus, Rubin makes it clear that even in shared custody situations, the courts will seek to determine who is the residential parent for child support purposes.  In some respects, counting overnights makes it easier for the courts, however, under certain circumstances, counting overnights only does not represent a true picture of parental involvement.  At the same time, this decision introduces much needed clarity.

Future Changes to Spousal Maintenance

Sunday, June 9th, 2013

When New York Legislature passed the “no-fault” divorce statute in 2010, it created a formula for calculating temporary spousal maintenance under DRL §236[B]5-a. However, it did not set forth a formula or specific rules for establishing spousal maintenance post-divorce. At the same time, the Legislature directed that a law revision commission be set up to review New York’s spousal maintenance law and make recommendations to the legislature with regard to potential changes.

On May 15, 2013, the Commission issued its “Final Report on Maintenance Awards in Divorce Proceedings”.  The Commission recommended that that a mathematical formula be used to calculate a presumptive award of post-divorce income from one party to the other based on the parties’ combined adjusted gross income of $136,000. It stated that in awarding post-divorce income, the court can adjust the presumptive award based on a set of statutory factors if it finds that the presumptive award is unjust or inappropriate based on the circumstances of the parties.  If the parties’ combined adjusted gross income exceeds $136,000, the Commission recommended that the mathematical formula apply to that portion of the parties’ combined income which is at or less than $136,000, and that the court be guided by a set of factors in considering whether an additional award is justified based on any excess income.

The Commission also recommended that the duration of any post-divorce income award be based on consideration of the length of the marriage, the length of time necessary for the party seeking post-divorce income to acquire sufficient education or training to enable that party to find appropriate employment, the normal retirement age of each party as defined by the Internal Revenue Code and the availability of retirement benefits, and any barriers facing the party seeking post-divorce income with regard to obtaining appropriate employment, such as child care responsibilities, health, or age. The court would have to state the basis for the duration of the award in its decision granting the award. Further, the duration of temporary maintenance awards would be limited so that maintenance awards do not exceed the length of the marriage.

One suggestion that was made by the Commission that would be a significant departure from the existing law is that the Commission recommended that one party’s increased earning capacity, no longer be considered as a marital asset in equitable distribution under section 326B(5), and that any spousal contribution to the career or career potential of the other party be addressed in an award of post-divorce income. The concept of an “increased earning capacity”, also known as “enhanced earnings“, has created much prior litigation because of the asset’s intangible nature, the need for valuation, the speculative nature of its “value” as well as the costs associated with valuations, and problems of double counting increased earnings in awards of post-divorce income and child support.

The Commission additionally recommended that the provisions of a revised temporary maintenance statute in the Domestic Relations Law be mirrored in section 412 of the Family Court Act governing spousal support awards.

If the Legislature adopts the report, it is likely to represent some of the most significant changes to New York’s Family law since New York adopted its equitable distribution and child support statutes. It remains to be seen if the Legislature will accept some or all of the Commission’s recommendations.

Mother Ordered to Stop Posting About Her Children on Facebook

Friday, April 12th, 2013

As social media continues to permeate every aspect of our lives, there is a continuing controversy about parents should post information about their children on social media sites. The controversy is grounded in both safety concerts, as well as concerns that children, who have not consented to having this information shared with the world, may suffer an invasion of their privacy or emotional harm.   A recent decision demonstrates how these issues can be addressed by the courts in New York.

In Melody M. v Robert M., 103 A.D.3d 932 (3rd Dept. 2013), the Third Department affirmed a Family Court order that among other changes to the prior joint custody, issued an order of protection against the mother that prohibited her from, among other things, posting any communications to or about the children on any social network site. From the decision, it appears that while the parties initially had a joint custodial arrangement, that arrangement broke down primarily due to the mother’s pattern of inappropriate behavior and its effect on the parties’ oldest child, who had mental health issues. The mother did not participate in the child’s counseling because she did not like the therapist, or follow therapist’s  recommendation with respect to household routines. The mother also testified that she frequently called the father for him to take the oldest child away during her parenting time because she could not deal with his behavior. The mother admitted that she swore and yelled at the oldest child, and often resorted to physical means to deal with him.

In addition, the court quoted some of the mother’s testimony which was astounding:

[mother] utilized Facebook to insult and demean the child, who was then 10 years old, by, among other things, calling him an “asshole.” She testified without remorse that she did so because that is what “[h]e is,” and she thought it was important for her Facebook friends to know this. Charitably stated, her testimony reflected a lack of insight as to the nature of her conduct toward her oldest child.

As a result of the mother’s use of physical force and disparagement of the oldest child on Facebook, the father had filed a violation petition. Since there was sufficient evidence regarding the mother’s inappropriate use of the Internet to demean and disparage the oldest child, as well as her lack of remorse or insight into the inappropriateness of such behavior, the Appellate Division held that the lower court was justified in issuing an order of protection.

It is clear that the mother’s behavior was clearly inappropriate and that the court was justified in protecting the child. Just like with anything else involving the children, if you want to maintain custody of your children in the age of social media, it is best not to disparage them on Facebook.

Validity of Prenuptial Agreements in New York

Sunday, March 24th, 2013

I have previously written about prenuptial agreements and issues associated with them. Generally, in New York, a prenuptial agreement may be overturned only if the party challenging the agreement sustains the burden of proof, demonstrating that the agreement was the product of fraud, duress, or it was improperly executed.

In order to prove coercion or duress, a party must establish that he or she was somehow pressured into signing the agreement.  The threat that there will be no marriage unless the agreement is signed is not duress according to numerous court decisions.  If both of the parties were independently represented by counsel, and the agreement was the product of arm’s length negotiations, it may be nearly impossible to prove that the prenuptial agreement was procured by duress.

However, a recent appellate decision, Cioffi-Petrakis v. Petrakis, 2013 N.Y. Slip. Op. 01057 (2nd Dept. 2013), broke with the long-established line of cases and upheld a Long Island judge’s decision to void an prenuptial agreement that the wife of a millionaire says she was forced into signing by false promises made by her husband-to-be, 4 days before the wedding. The wife claimed that she believed her husband to be when he told her orally that his lawyers had made him get a prenuptial agreement signed to protect his business and promised to destroy the document once they had children and put her name on the deed to the house. She also claimed that her future husband gave her an ultimatum four days before the wedding for which her father had already paid $40,000, telling her to sign the document or it wouldn’t occur.

While the appellate decision is extremely brief, the trial decision is fairly detailed and provided the facts stated above. The key factor according to the trial judge was what he called a fraudulently induced contract and detrimental reliance on the part of the wife. Fraudulent inducement was the oral promise made by the husband to be and, according to the trial court, the bride relied upon that promise. However, most agreements in New York provide that the parties are only relying on the written representations contained in the agreement, and they are not relying on promises or representations not contained in the prenuptial agreement.

This decision is unprecedented. It is likely to create a great deal of litigation in cases where a party feels that his or her prenuptial agreement is unconscionable. I also suspect that it may get appealed to the Court of Appeals.

 

There Is No Right to Grounds Trial In A No-Fault Divorce Case

Sunday, January 6th, 2013

I have previously written on the issue of whether there was a right to trial in a divorce case brought under the no-fault grounds. Earlier, trial level decisions were split, with some courts holding that a party was still required to establish no-fault grounds at trial, and other courts holding that a sworn statement that the marriage was irretrievably broken for a period of 6 months or longer was sufficient to establish that party’s right to divorce.

Finally, the Appellate Division, Fourth Department, issued a decision resolving this issue. In Palermo v. Palermo, 2012 N.Y. Slip Op. 07528 (4th Dept. 2012), the court affirmed Justice Dollinger’s decision holding that there is no right to dispute an allegation of irretrievable breakdown under the no-fault divorce ground provided by DRL §170(7). Appellate Division agreed with the key language in Justice Dollinger’s decision which stated that:

Under DRL §170(7), the grounds cannot be disputed. Either a party swears the marriage is irretrievably broken or they do not. The grounds are established by the oath; there is no legislative requirement of a judicial finding on the reliability or veracity of the oath.

As the no-fault statute requires, in order for a judgment of divorce to be entered, all the issues relating to the divorce, including equitable distribution, maintenance, child custody and support need to be resolved before a party can be granted a divorce.

The Appellate Division’s decision in Palermo is significant since it clarifies the Legislature’s intent in creating a true no-fault divorce in New York. Further, as a result, the parties will be able to avoid costly grounds trials that usually result in added animosity between the parties.

Statute of Limitations and No-Fault Divorce

Monday, September 3rd, 2012

Since no-fault divorce became law in New York State almost 2 years ago, it was still unclear whether a statute of limitations would apply to to a cause of action under Domestic Relations Law §170(7), specifically, allegations that the relationship between the parties was irretrievably broken. Basically, this question can be asked in this way: from what date does the clock begin to run on this cause of action and when does the clock expire?  The answer was recently given by the Appellate Division, Fourth Department.

In a recent case, Tuper v. Tuper, 2012 N.Y. Slip Op 04467 (4th Dept. 2012), the Appellate Division held that the statute of limitations under DRL §170(7) does not begin to run while the relationship between the parties remain broken.  Specifically, the court held that a cause of action for divorce under the no-fault statute should be treated similarly to a cause of action for divorce based upon imprisonment of a spouse (DRL §170 (3), which is also governed by the five-year statute of limitations set forth in section 210).  In holding so, the Fourth Department relied upon the Court of Appeals’ decision in Covington v. Walker, 3 N.Y.3d 287, 291 (2004), which held that a cause of action for divorce based on imprisonment “continues to arise anew for statute of limitations purposes on each day the defendant spouse remains in prison for three or more consecutive years’ until the defendant is released.” The Appellate Division stated that “[l]ike a spouse serving a life sentence, an irretrievable breakdown in a married couple’s relationship is a continuing state of affairs that, by definition, will not change. After all, the breakdown is “irretrievable.” It thus stands to reason that a cause of action under the no-fault statute may be commenced at any time after the marriage has been “broken down irretrievably for a period of at least six months”.

I think that this is the correct result.  Alternatively, a contrary ruling would force a spouse to unwillingly remain in a dead marriage. If the accrual date of a no-fault cause of action were to be determined to arise only on the day that the relationship initially became irretrievably broken, assuming that an exact date could even be identified, the only couples who could get divorced under the no-fault statute would be those whose relationships irretrievably broke down within the past five years but not within the last six months. Couples whose relationships irretrievably broke down more than five years ago would have to remain married.  Clearly, the New York Legislature did not intend such result in passing the no-fault statute.