Posts Tagged ‘attorney’
Sunday, August 15th, 2010
The no-fault divorce bill has been signed by the Governor Patterson and will go into effect in 60 days. That means that starting on October 15, 2010, someone who wants to be divorced in New York will no longer be required to make allegations of martial fault by the other spouse and will only be required to swear that the relationship between husband and wife has broken down irretrievably for a period of at least six months. The new law will apply to the divorce actions commenced on or after such effective date.
In addition, the Governor signed legislation that will revise the process for setting awards of temporary maintenance while a divorce is pending, by creating a formula and list of factors that would presumptively govern such awards. This would allow for speedy resolution of the maintenance issue, and prevent less well-off parties to divorce proceedings from falling into poverty during litigation, because they lack the resources to obtain a temporary maintenance order. Another bill would create a presumption that a less monied spouse in a divorce case is entitled to payment of attorneys’ fees. Under current law, a party that cannot afford to secure representation in a divorce proceeding must make an application for fees at the end of the process, which can force a poor individual to proceed without a lawyer, or to surrender on important issues due to lack of means. Provisions of the Domestic Relations Law related to temporary maintenance and attorneys fees will go into effect in 60 days as well.
These are important development in New York’s family law and I think that it will take some time to assess their impact. At the same time, I think that they will be welcomed by divorce lawyers in this state and will make divorce easier for the divorcing spouses. With respect to the bill establishing the formula for temporary maintenance, it is highly likely that any such temporary maintenance award is going to be used by the courts as a basis for a permanent maintenance award.
Tags: attorney, attorneys fees, county, Domestic Relations Law, grounds, Livingston, Monroe, new york, New York Law, no fault divorce, Ontario, Orleans, procedure, rochester, rochester ny divorce lawyer, temporary maintenance, Wayne
Posted in Domestic Relations Law, New York Law, Supreme Court, attorneys fees, grounds, jurisdiction, maintenance, marital fault | No Comments »
Monday, August 9th, 2010
During the last few months, I have been involved with a case that involved an acknowledgment of paternity that was signed by someone who was not the child’s biological father. While most of the time the acknowledgment is signed without a great deal of consideration, I think that putative fathers should be careful and only sign the acknowledgment if they understand the full set of legal issues associated with this document.
Once the acknowledgment is signed, there is a limited period of time during which the acknowledgment can be vacated. Usually this comes up in a situation where either the father or the mother discovers that the father of her child is not the biological father and wants to change his name to either hers, or that of the biological father. Unfortunately, it is not that simple.
Most of the time, a child, who has the father’s last name, has acquired it when the father signed the Acknowledgement of Paternity soon after the child was born, particularly where the parties were not married. In this situation, changing the child’s last name to either the mother’s name or the actual father’s name may require several steps in court, because the “notice” (the one who signed the acknowledgment) father can object to any proposed change. In a situation where paternity needs to be established (or re-established), Family Court is the proper venue for filing a petition. The mother can file a petition requesting that the Acknowledgement of Paternity be vacated based on the fact that the father is not the actual father, or; either she or the biological father, can file a Paternity petition. In the first situation, assuming that the filing is timely, the court granting the mother’s request for vacating the Acknowledgement of Paternity does not automatically establish the real father of the child as the father for any purpose. Once the Acknowledgment is vacated, legally, there is no father that the court will acknowledge until there is someone that can be identified and brought to court. Thus, a Paternity petition must be filed by either party to obtain an Order of Filiation, which establishes the father as the “legal” father, from the Court. This is the legal document that is required by the Department of Health and Mental Hygiene (”DHMH”) to issue a new birth certificate with the new name on it, that of the father’s.
In second situation, 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. 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. The courts are reluctant to vacate an Acknowledgement of Paternity where there is currently a child support order against the man, initially believed to be the biological father, unless the court can identify the actual father so that the child has someone to support him.
There are several good reasons for someone to establish paternity. For example, although a father whose name is on the child’s birth certificate is considered the “notice” father, his rights with regards to adoption, termination of parental rights and abuse/neglect matters in Family Court are limited, until paternity is established. A father whose paternity has been established is the “legal” father, on the other hand, has no limits with regards to his rights in any case in any court.
In almost all circumstances, it is wise to ascertain who the actual father is as soon as possible after the child’s birth, so as to limit any other legal issues that may arise, such as equitable estoppel.
Tags: acknowledgment of paternity, attorney, county, dna, equitable estoppel, Family Law, Genetic Marker Test, GMT, Livingston, Monroe, Ontario, Orleans, paternity, putative father, rochester, rochester ny divorce lawyer, test, Wayne
Posted in DNA testing, Family Law, New York Law, paternity, procedure | No Comments »
Monday, July 5th, 2010
I have previously written about the slow progress of no-fault divorce legislation though New York’s Senate and Assembly here and here. Finally, it appears that New York is on the cusp of passing no-fault divorce law and joining the rest of the country.
On July 1, 2010, the Assembly passed no-fault divorce bill, which previously was approved in the Senate. If signed by Gov. David Paterson, New York would no longer be the only state that doesn’t allow no-fault divorce.
Under no-fault divorce, couples would be allowed to divorce after six months and the resolution of all financial issues. They would not have to prove fault, such as abandonment or adultery, or develop a separation agreement and live apart for at least a year in order to get divorced. Proponents said the changes would save time and money and court resources.
The Assembly and Senate previously approved two other bills related to no-fault divorce. One would require counsel fees to be awarded at the beginning of a divorce process and the other would address issues related to spousal support. The measure dealing with spousal support would establish temporary spousal maintenance while the divorce proceeding is pending, revise factors for final maintenance awards and require the Law Revision Commission to study the economic consequences of divorce and maintenance actions.
While the elimination of marital fault is extremely important and would greatly benefit people seeking divorce here in Rochester and elsewhere in New York State, it is the bill dealing with temporary spousal support that is likely to present some significant legal issues if it becomes law.
The bill is interesting since unlike the existing law regarding temporary spousal support, it utilizes a formula to calculate a temporary spousal support award. The amount of spousal support and its duration are calculated on the basis of a formula as follows:
3 5-A. TEMPORARY MAINTENANCE AWARDS. A. EXCEPT WHERE THE PARTIES HAVE
4 ENTERED INTO AN AGREEMENT PURSUANT TO SUBDIVISION THREE OF THIS PART
5 PROVIDING FOR MAINTENANCE, IN ANY MATRIMONIAL ACTION THE COURT SHALL
6 MAKE ITS AWARD FOR TEMPORARY MAINTENANCE PURSUANT TO THE PROVISIONS OF
7 THIS SUBDIVISION.
8 B. FOR PURPOSES OF THIS SUBDIVISION, THE FOLLOWING DEFINITIONS SHALL
9 BE USED:
10 (1) “PAYOR” SHALL MEAN THE SPOUSE WITH THE HIGHER INCOME.
11 (2) “PAYEE” SHALL MEAN THE SPOUSE WITH THE LOWER INCOME.
12 (3) “LENGTH OF MARRIAGE” SHALL MEAN THE PERIOD FROM THE DATE OF
13 MARRIAGE UNTIL THE DATE OF COMMENCEMENT OF ACTION.
14 (4) “INCOME” SHALL MEAN:
15 (A) INCOME AS DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED
16 IN SECTION TWO HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED
17 THIRTEEN OF THE FAMILY COURT ACT; AND
18 (B) INCOME FROM INCOME PRODUCING PROPERTY TO BE DISTRIBUTED PURSUANT
19 TO SUBDIVISION FIVE OF THIS PART.
20 (5) “INCOME CAP” SHALL MEAN UP TO AND INCLUDING FIVE HUNDRED THOUSAND
21 DOLLARS OF THE PAYOR’S ANNUAL INCOME; PROVIDED, HOWEVER, BEGINNING JANU-
22 ARY THIRTY-FIRST, TWO THOUSAND TWELVE AND EVERY TWO YEARS THEREAFTER,
23 THE PAYOR’S ANNUAL INCOME AMOUNT SHALL INCREASE BY THE PRODUCT OF THE
EXPLANATION–Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD17166-10-0
A. 10984–B 2
1 AVERAGE ANNUAL PERCENTAGE CHANGES IN THE CONSUMER PRICE INDEX FOR ALL
2 URBAN CONSUMERS (CPI-U) AS PUBLISHED BY THE UNITED STATES DEPARTMENT OF
3 LABOR BUREAU OF LABOR STATISTICS FOR THE TWO YEAR PERIOD ROUNDED TO THE
4 NEAREST ONE THOUSAND DOLLARS. THE OFFICE OF COURT ADMINISTRATION SHALL
5 DETERMINE AND PUBLISH THE INCOME CAP.
6 (6) “GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE” SHALL MEAN THE SUM
7 DERIVED BY THE APPLICATION OF PARAGRAPH C OF THIS SUBDIVISION.
8 (7) “GUIDELINE DURATION” SHALL MEAN THE DURATIONAL PERIOD DETERMINED
9 BY THE APPLICATION OF PARAGRAPH D OF THIS SUBDIVISION.
10 (8) “PRESUMPTIVE AWARD” SHALL MEAN THE GUIDELINE AMOUNT OF THE TEMPO-
11 RARY MAINTENANCE AWARD FOR THE GUIDELINE DURATION PRIOR TO THE COURT’S
12 APPLICATION OF ANY ADJUSTMENT FACTORS AS PROVIDED IN SUBPARAGRAPH ONE OF
13 PARAGRAPH E OF THIS SUBDIVISION.
14 (9) “SELF-SUPPORT RESERVE” SHALL MEAN THE SELF-SUPPORT RESERVE AS
15 DEFINED IN THE CHILD SUPPORT STANDARDS ACT AND CODIFIED IN SECTION TWO
16 HUNDRED FORTY OF THIS ARTICLE AND SECTION FOUR HUNDRED THIRTEEN OF THE
17 FAMILY COURT ACT.
C. THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAINTE-
19 NANCE IN ACCORDANCE WITH THE PROVISIONS OF THIS PARAGRAPH AFTER DETER-
20 MINING THE INCOME OF THE PARTIES:
21 (1) WHERE THE PAYOR’S INCOME IS UP TO AND INCLUDING THE INCOME CAP:
22 (A) THE COURT SHALL SUBTRACT TWENTY PERCENT OF THE INCOME OF THE PAYEE
23 FROM THIRTY PERCENT OF THE INCOME UP TO THE INCOME CAP OF THE PAYOR.
24 (B) THE COURT SHALL THEN MULTIPLY THE SUM OF THE PAYOR’S INCOME UP TO
25 AND INCLUDING THE INCOME CAP AND ALL OF THE PAYEE’S INCOME BY FORTY
26 PERCENT.
27 (C) THE COURT SHALL SUBTRACT THE INCOME OF THE PAYEE FROM THE AMOUNT
28 DERIVED FROM CLAUSE (B) OF THIS SUBPARAGRAPH.
29 (D) THE GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE SHALL BE THE LOWER
30 OF THE AMOUNTS DETERMINED BY CLAUSES (A) AND (C) OF THIS SUBPARAGRAPH;
31 IF THE AMOUNT DETERMINED BY CLAUSE (C) OF THIS SUBPARAGRAPH IS LESS THAN
32 OR EQUAL TO ZERO, THE GUIDELINE AMOUNT SHALL BE ZERO DOLLARS.
33 (2) WHERE THE INCOME OF THE PAYOR EXCEEDS THE INCOME CAP:
34 (A) THE COURT SHALL DETERMINE THE GUIDELINE AMOUNT OF TEMPORARY MAIN-
35 TENANCE FOR THAT PORTION OF THE PAYOR’S INCOME THAT IS UP TO AND INCLUD-
36 ING THE INCOME CAP ACCORDING TO SUBPARAGRAPH ONE OF THIS PARAGRAPH, AND,
37 FOR THE PAYOR’S INCOME IN EXCESS OF THE INCOME CAP, THE COURT SHALL
38 DETERMINE ANY ADDITIONAL GUIDELINE AMOUNT OF TEMPORARY MAINTENANCE
39 THROUGH CONSIDERATION OF THE FOLLOWING FACTORS:
40 (I) THE LENGTH OF THE MARRIAGE;
41 (II) THE SUBSTANTIAL DIFFERENCES IN THE INCOMES OF THE PARTIES;
42 (III) THE STANDARD OF LIVING OF THE PARTIES ESTABLISHED DURING THE
43 MARRIAGE;
44 (IV) THE AGE AND HEALTH OF THE PARTIES;
45 (V) THE PRESENT AND FUTURE EARNING CAPACITY OF THE PARTIES;
46 (VI) THE NEED OF ONE PARTY TO INCUR EDUCATION OR TRAINING EXPENSES;
47 (VII) THE WASTEFUL DISSIPATION OF MARITAL PROPERTY;
48 (VIII) THE TRANSFER OR ENCUMBRANCE MADE IN CONTEMPLATION OF A MATRIMO-
49 NIAL ACTION WITHOUT FAIR CONSIDERATION;
50 (IX) THE EXISTENCE AND DURATION OF A PRE-MARITAL JOINT HOUSEHOLD OR A
51 PRE-DIVORCE SEPARATE HOUSEHOLD;
52 (X) ACTS BY ONE PARTY AGAINST ANOTHER THAT HAVE INHIBITED OR CONTINUE
53 TO INHIBIT A PARTY’S EARNING CAPACITY OR ABILITY TO OBTAIN MEANINGFUL
54 EMPLOYMENT. SUCH ACTS INCLUDE BUT ARE NOT LIMITED TO ACTS OF DOMESTIC
55 VIOLENCE AS PROVIDED IN SECTION FOUR HUNDRED FIFTY-NINE-A OF THE SOCIAL
56 SERVICES LAW;
In some respects, having a formula creates some predictability with respect to temporary spousal support awards that has been missing in the present law. At the same time, the blind application of the formula is likely to cause a different set of problems. If the bill passes, how these provisions are going to be interpreted by the courts is somewhat uncertain. As far as the divorce lawyers are concerned, this is likely to force divorce lawyers to spend even more time counseling clients with respect to temporary spousal support and post-divorce spousal support issues.
Tags: attorney, bill, grounds, legislation, New York family law, no-fault, rochester ny divorce lawyer, Supreme Court
Posted in Domestic Relations Law, Family Law, New York Law, Supreme Court, divorce, grounds, procedure | No Comments »
Sunday, May 9th, 2010
I have previously written about the court’s ability to consider not only the income one or both parties actually reported but the income as should have been reported. What is not commonly known is that the court, whether Supreme Court or Family Court, can vary from the statutory percentages, by either increasing or reducing child support amounts.
In Irkho v. Irkho, 66 A.D.3d 682 (2d Dept. 2009), the Appellate Division held that Family Court properly denied the father’s objections to the order of the Support Magistrate, which departed from the numerical guidelines of the Child Support Standards Act and directed him to pay 50% of the child’s regular monthly expenses. The Appellate Division held that a hearing court is not bound to apply the statutory percentage established in Family Court Act 413(1)(c), but may determine the child support obligation through the application of the percentage set forth in Family Court Act 413(1)(c), the factors delineated in Family Court Act 413(1)(f), or a combination of both (see Cassano v. Cassano, 85 N.Y.2d 649 (1995)). Family Court providently exercised its discretion in departing from the prescribed percentage.
The above is fairly uncommon situation since in vast majority of the cases the courts will apply the CSSA. It is unfortunate that the Appellate Division did not discuss the facts of the case in detail. Whatever the circumstances were that resulted in the court’s decision may applicable in other cases. If the child’s monthly expenses exceed the amount that the father would be obligated under the CSSA, family law lawyers would certainly appreciate knowing under what circumstances their clients may receive or be obligated to pay child support in excess of the CSSA amounts.
Tags: attorney, child support, Child Support Standards Act, county, Domestic Relations Law, Family Court, Family Court Act, modification, Monroe, payment, procedure, rochester ny divorce lawyer, Supreme Court, variance
Posted in Child Support Standards Act, Domestic Relations Law, Family Court, Family Law, New York Law, child support, court orders | No Comments »
Saturday, May 1st, 2010
Marriage of the parties creates binding legal obligations and rights between spouses, including an obligation to support your spouse financially, as well as the right to division of jointly acquired assets in the event of divorce. Once in a while, I am asked about a situation where the parties have been in a relationship for a long time and have treated their relationship as a marriage, but did not actually get married. In this situation, my usual answer is that neither party has acquired a right to support from the other party, and any assets that one of the parties accumulated will remain assets of that party, unless titled in both parties’ names.
A good illustration of the above took place in a recent case of M. v. F., 27 Misc.3d 1205(A) (Sup.Ct. New York Co. 2010). In M. v. F., the parties resided together for approximately 13 years between 1994 and 2007, and have a child together. They have never been married to each other. The girlfriend argued that the boyfriend told her that he would always take care of her, that they would combine their efforts and earnings, and what was his was hers. Once the parties split up, the girlfriend asked for a portion of the boyfriend’s assets, a portion of the profits from his business, and other financial support.
After the girlfriend commenced an action to obtain financial relief under various causes of action, the trial court held that the boyfriend’s promise to support his girlfriend if they ever broke up are unenforceable. The girlfriend is not entitled to “equitable distribution” of the assets acquired during the relationship. The court held that such statements as “I will always take care of you” and “everything that we put in, we will enjoy together” do not constitute legally binding promises.
Specifically, the court stated that even “an explicit promise that, upon separation, [the plaintiff] would be entitled to ‘equitable distribution’ of their assets, it would be unenforceable, as it would be contrary to the long-standing law and policy in New York that unmarried partners are not entitled to the same property and financial rights upon termination of the relationship as married people.” According to the court, the absence of a marriage is the determinative factor of her property rights. The court stated that “Unless and until the law imposes equitable distribution on unmarried couples, in New York, as least, the legal status of marriage remains vitally important to establishing the economic rights of members of a couple.”
This case illustrates the fact that marriage is the critical legal event that creates financial rights and obligations between the parties that can be enforced by the courts. For those couples who choose to cohabit, without getting married, each party should be able to rely on their own ability to earn and not to expect any financial assistance from the other party in the event of breakup. With respect to M. v. F., the answer would likely be different if there was a written agreement to provide support. Any such agreement, assuming properly created and executed, would probably enforceable as any other contract.
Tags: attorney, cohabitation, county, division of property, divorce, Domestic Relations Law, equitable distribution, Family Law, maintenance, Monroe, rochester ny divorce lawyer
Posted in Domestic Relations Law, Family Law, New York Law, equitable distribution, maintenance | No Comments »
Saturday, April 3rd, 2010
I have previously written regarding the problem posed by out-of-state civil unions. Under New York law, while such unions are recognized through the principles of comity, New York does not have any legislation that addresses how these unions may be dissolved once one or both of the parties reside in New York.
The prior decision, made by the trial court, stated that the court would have jurisdiction to address dissolution of the civil union. However, the court was searching for the way to accomplish this and suggested that the complaint be pled to seek dissolution of a civil union, as opposed to a divorce, as a complaint was plead initially. As a trial court decision, B.S. v. F.B., did not carry a significant weight of authority and would not be binding on other trial courts.
Now we have the first appellate level decision to address this issue. In Dickerson v. Thompson, 2010 N.Y. Slip. Op. 02052 (3rd Dept. 2010), the Appellate Division, Third Department, held that New York court have subject matter jurisdiction “to entertain an action for equitable and declaratory relief seeking dissolution of a civil union validly entered into outside of this state.” The court did not determine the scope of the relief that may be available in such action.
What is obvious from the decision is that the Appellate Division believed that the courts had authority to handle such cases, but was struggling come up with the way to accomplish the dissolution. What makes it difficult, is the fact that when a divorce takes place, the court will address such issues as custody, child support, spousal maintenance, and equitable distribution. All of the above issues are resolved in accordance with the provisions of the Domestic Relations Law. What is unknown is how the courts will handle custody, child support, spousal maintenance and equitable distribution in dissolution of a civil union, something that apparently carries less weight in New York courts than a traditional marriage. Does entering into a civil union create a potential entitlement to a spousal maintenance? I don’t know the answer to that question, I suspect that the courts do not know the answer to it either. It is quite likely that New York legislature will have to address these issues and, until then, the courts will try to come up with some ways of addressing these issues.
For a divorce lawyer, the above represents an excellent example of uncertainty created by the lack of uniformity in the states’ treatment of same-sex relationships. It also brings up a host of interesting legal issues that attorneys must recognize in handling similar situations.
Tags: attorney, civil union, county, dissolution, Domestic Relations Law, Family Law, jurisdiction, Livingston, Monroe, New York family law, Ontario, Orleans, rochester ny divorce lawyer, Supreme Court, Wayne
Posted in Domestic Relations Law, New York Law, Supreme Court, divorce, jurisdiction, same sex marriage | No Comments »
Sunday, March 28th, 2010
I have previously written about vacating settlement agreements on the grounds of mutual mistake. Here is a case where the court actually reformed the parties’ settlement agreement on the grounds of mutual mistake.
In Banker v. Banker, 53 A.D.3d 1105 (3rd Dept. 2008), the parties’ oral stipulation of settlement, which was incorporated but not merged into their 2005 judgment of divorce, provided that the parties would subdivide a parcel of property located in Delaware County. However, despite that provision, after the judgment of divorce was entered, the defendant refused to do so. In response to a motion by plaintiff to enforce the stipulation, Supreme Court, in February 2006, ordered defendant to obtain subdivision approval from the Town. The Planning Board denied defendant’s subsequent subdivision application after discovering that the property was encumbered by a restrictive covenant against further subdivision. In March 2006, defendant moved to reargue and/or renew February 2006 order, and requested a hearing to determine equitable distribution.
Supreme Court reserved decision on all pending matters pertaining to the parties until an appraisal of the property was completed. Because the parties could not agree on an appraiser, the court appointed one and directed the parties, once the appraisal was complete, to settle the matter in a private auction or buyout. The appraiser completed the appraisal in June 2006. By letter dated October 4, 2006, defendant requested the opportunity to offer further proof of value. Plaintiff made a similar request and explained that the parties had not been able to settle the matter or agree on a private auction.
Plaintiff responded with a motion seeking that the parties’ interests in the property be declared in conformance with the terms set forth in the stipulation and the values established in the appraisal, as well as an order allowing her to buy out defendant’s share of the property. Defendant opposed the motion, arguing that the appraisal should not be adopted without an opportunity by the parties to cross-examine the appraiser and submit other evidence of valuation. Supreme Court ordered a hearing to permit the parties to cross-examine the appraiser, but made it clear that no other testimony or evidence of valuation would be permitted.
Following the hearing, at which Supreme Court again denied defendant’s request to submit further evidence, the court determined the interests of the parties in the property to be 83% for plaintiff and 17% for defendant. The court, fixed the parties’ interests as indicated above, appointed a receiver, and ordered the public sale of the property. Defendant appealed. The Appellate Division rejected defendant’s argument that Supreme Court exceeded its authority by reforming the parties’ stipulation of settlement. Where, as here, a mutual mistake rendered a portion of the parties’ settlement agreement impossible or impracticable, “the relevant settlement provision was properly set aside”. No dispute existed that the parties’ agreement to physically divide the property could not occur given the restrictive covenant; and even defendant was not attempting to have the parties’ stipulation enforced. Thus, after giving the parties ample opportunity to reach a new agreement, the trial court was correct to move forward by appointing an appraiser so that an equitable distribution of the property, in as close accordance as possible with the intent of the parties as expressed in their settlement, could be achieved.
The Appellate Division noted that to achieve reformation or recission of the stipulation of settlement, one of the parties should have commenced a plenary action, rather than proceeding by motion but, in the context of this matter, concluded the defect to be nonfatal. However, the lower court erred in resolving this matter without a full hearing permitting the parties to offer proof of valuation. The court is authorized to appoint an independent appraiser in a matrimonial action but, unless the parties have stipulated otherwise, the court must afford the parties the opportunity to review the appraisal, cross-examine the appraiser and offer additional evidence on valuation. Although the record contained evidence that the parties consented to Supreme Court’s appointment of the appraiser, it did not suggest that the parties agreed to be bound by the resulting appraisal.
This is an example of a situation where the mutual mistake allowed the court to reform the parties’ settlement agreement. While those circumstances tend to be limited, the lawyers in Banker recognized that since the property could not be subdivided, it had to be sold or one of the parties would buy out the other party’s interest. The question of valuation was secondary to the remedy chosen by the court as a result of reformation of the agreement. At the same time, it is rather surprising that neither divorce attorney was aware of the covenant, since both parties, presumably, had access to the real property records and the property’s abstract of title.
Tags: attorney, divorce, Domestic Relations Law, equitable distribution, Family Law, judgment of divorce, lawyer, reformation, separation agreement, settlement agreement, stipulation, vacate, valuation, Wayne
Posted in Domestic Relations Law, Family Law, Settlement Agreements, Stipulations, Supreme Court, divorce, equitable distribution, modification, procedure | No Comments »
Sunday, March 14th, 2010
One question that I am often asked with respect to child support arrears is whether there is a limit on the amount of child support arrears that can be accrued. My usual response is that there is only one limitation in the Child Support Standards Act with respect to the limits on child support arrears and it exists solely in situations where the payor’s income is below the amount set by the poverty income guidelines for the single person, as reported by the federal Department of Health and Human Services.
Specifically, where the payor’s annual income is below the poverty income guidelines, then in accordance with the Family Court Act §413(1)(g), then payor’s child support arrears are limited to $500.00. For 2009, the federal poverty guideline for a single person was set at $10,830.00. This provision can be very helpful to family law lawyers and their clients since this provision allows for retroactive limitation on child support arrears, but it is limited to those situation where the party who owes child support has an extremely low level of income.
There are some limitations even in situations where the payor’s income was below the poverty guideline amount. The party charged with paying child support couldn’t have voluntarily reduced his/her income, and must demonstrate inability to earn a higher amount (i.e., cannot have income imputed on the basis of ability to pay or other factors). On practical level, the most likely situation where this provision becomes applicable is typically where a party becomes disabled and does not seek downward modification of the child support obligation until after child support arrears have accrued.
What is also interesting about the Family Court Act §413(1)(g), is that it directly contradicts Family Court Act §451, which prohibits the court from reducing or annulling arrears accrued prior to the filing of a modification petition unless the party shows good cause for failure to make the application sooner. The courts were able to harmonize both sections by deciding that if the payor’s income is below the poverty level guideline, then by operation of section 413(1)(g) the arrears had never accrued. Ronald F. v. Kathy Jo O., 25 Misc 3d 1229 (Fam.Ct. Erie Co. 2009)
Tags: attorney, child support arrears, child support enforcement, Child Support Standards Act, county, Family Court, Livingston, Monroe, Ontario, Orleans, rochester, rochester ny divorce lawyer, Supreme Court, Wayne
Posted in Child Support Standards Act, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, New York Law, Supreme Court, child support, child support enforcement, court orders, divorce, imputed income, procedure | No Comments »
Sunday, March 14th, 2010
I have previously written about the lack of no-fault divorce in New York and the highly uncertain future of the bills creating no-fault divorce in New York. Earlier this month, the New York State Senate Committee on the Judiciary advanced legislation (S.3890/A.9753), sponsored by Senator Ruth Hassell-Thompson and Assemblyman Jonathan Bing, that would allow a judgment of divorce to be granted to either a husband or a wife without assigning fault to either party. The legislation now moves to the full Senate for consideration.
The legislation would allow for divorce when a marriage is irretrievably broken for a period of at least six months, provided that one party has so stated under oath. A judgment of divorce can then only be granted if the following issues have been resolved: the equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and expert fees and expenses, and infant custody and visitation rights. The bill is supported by the New York State Bar Association.
However, the fate of the legislation is still highly uncertain. The bill is opposed by New York State chapter of NOW, as well as other groups.
Tags: attorney, county, divorce, Domestic Relations Law, grounds, Livingston, Monroe, Ontario, Orleans, rochester, rochester ny divorce lawyer, Supreme Court
Posted in Domestic Relations Law, New York Law, Supreme Court, divorce, grounds | No Comments »
Sunday, March 7th, 2010
While I have repeatedly written about various issues involving New York’s Child Support Standards Act, here, here, here, and here, one issue that was not previously discussed and bears mentioning, is the interplay between the Child Support Standards Act and public assistance received by the parent receiving child support. In Gregory v. Gregory, 68 A.D.3d 770 (N.Y.A.D. 2 Dept), the Appellate Division, Second Department decided the amount of child support payable by the non-custodial parent to the custodial parent was receiving public assistance.
In Gregory, the parents physically separated and the mother retained custody of the children. Eventually, the parents agreed that the father would have primary custody of their two sons, and the mother would have primary custody of their daughter. While there was no written agreement or court order concerning child support, the father claimed that he and the mother agreed that each parent would support the child or children in her or his custody, respectively.
Thereafter, the mother applied for and was awarded public assistance. The mother received public assistance from August 1, 2004, until May 31, 2007, totaling $26,830.67, of which $13,415.44 was attributable to the support of the parties’ daughter, who was the child in mother’s custody. In May 2007 the mother commenced a proceeding seeking child support for the parties’ daughter. The Department of Social Services (DSS) intervened in the proceeding, seeking payment of child support from the father, which sum included the money it had paid to the mother on behalf of the parties’ daughter.
After a hearing, the Support Magistrate calculated the father’s support obligation for his daughter for the period to be $26,006.26, and directed him to pay that amount to the DSS. The Appellate Division held that Family Court’s directive that the father pay the DSS the sum of $26,006.26 was proper. Since the support obligation of a parent of a child receiving public assistance is measured by the child’s needs and the parent’s means, not by the amount of public assistance paid on behalf of the child, the Family Court acted properly in declining to limit the amount required to be paid by the father to the DSS to the child’s share of the public assistance grant. Contrary to the father’s contention, he was not entitled to offset alleged unpaid child support from the mother against the amount he owed to the DSS. During the relevant time period, there was no support obligation imposed upon the mother for the children who were in the custody of the father.
The lesson of this case is that whenever the DSS is involved in assisting the custodial parent, this assistance is likely to come at a high price to the non-custodial parent. What is significant in the opinion is that the typical child assistance payment amounts to a few hundred dollars. On the other hand, the amount of child support owed by the non-custodial parent and calculated on the basis of that parent’s income, can be several times higher. The non-custodial parent will not receive the difference between the two figures since it would be retained by the DSS. In similar situations, depending on the incomes involved, a family law lawyer may recommend to the non-custodial parent to pay the custodial parent the total amount of public assistance privately since it may cost a lot less.
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