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Update of Recent Cases Involving Enhanced Earnings

Friday, November 19th, 2010

I have recently written about a trend in court decisions involving enhanced earnings toward reducing non-titled spouse’s interest to less than a 50% share.  A recent decision, Haspel v. Haspel, 2010 N.Y. Slip. Op. 08530 (2nd Dept. 2010) illustrates this issue very well.

In Haspel, the trial court granted to the wife 50% of the husband’s enhanced earnings which resulted from his acquisition of several professional licenses, including, several securities dealer’s licenses and a real estate broker’s license.  The trial court’s decision was appealed, and the Appellate Division modified the trial court’s decision.

Specifically, the Appellate Division held that the wife was entitled to 25% of husband’s enhanced earnings.  While the court did not provide specific reasons for this reduction, the parties were married for nearly 23 years before the divorce action was commenced, they had two children, and at the time of trial, the plaintiff was 52 years old and the defendant was 49 years old.  The wife was also going to receive spousal maintenance, however, this issue was remanded to the trial court for recalculation since the lower court’s decision improperly engaged in double counting of the same income for enhanced earnings calculations and maintenance calculations.

As I have written previously, the trend toward unequal division of enhanced earnings is continuing.  Divorce lawyers and their clients would be well advised to review evidence related to non-titled spouse’s contribution carefully, if an argument is being made that the non-titled spouse should receive more than 25% of such enhanced earnings.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, Supreme Court | No Comments »

New Temporary Maintenance – How Does It Work?

Saturday, November 13th, 2010

Among recent changes to New York’s divorce laws, the legislature amended provisions of the Domestic Relations Law that deal with temporary spousal maintenance.  DRL §236(B)(5-a)(c) presently includes a formula which, if applied according to the statute, results in the presumptively correct amount of temporary maintenance. DRL §236(B)(5-a)(c)(1) describes how those provisions are applied:

(a) the court shall subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.
(b) the court shall then multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent.
(c) the court shall subtract the income of the payee from the amount derived from clause (b) of this subparagraph.
(d) the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars.

According to the legislative documents, the legislature intended that the temporary maintenance guidelines would only result in an award when there is an income gap between the two parties such that the less-monied spouse’s income is less than two thirds of the more-monied spouse’s income. For instance, if the payor’s annual income is $60,000 per year, the guidelines will only result in an award if the payee’s annual income is less than $40,000. The numerical guideline is only applied to the payor’s income up to $500,000 of her/his income, with a set of factors to be applied by the court to determine any additional amount of temporary maintenance on the payor’s income above this $500,000 cap.

Here are some examples of how the statute works:

Example 1

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $60,000
Payee‘s Income $30,000
Combined Income $90,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $60,000) = $18,000
Minus
20% of Payee‘s Income (20% x $30,000) = $6,000
Result of Calculation # 1: $12,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $60,000
Plus
Payee‘s Income = $30,000
Combined Income Equals $ 90,000
Multiplied by 40% ($ 90,000 x 40%) = $36,000
Subtract Payee‘s Income from Product:
($36,000 minus $30,000 = $6,000)
Result of Calculation # 2: $6,000

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, $6,000, Calculation # 2 controls, and the temporary maintenance award would be $6,000.

Example 2

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $120,000
Payee‘s Income $80,000
Combined Income $200,000
Step # 2:
Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $120,000) = $36,000
Minus
20% of Payee‘s Income (20% x $80,000) = $16,000
Result of Calculation # 1: $20,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $120,000
Plus
Payee‘s Income = $80,000
Combined Income Equals $200,000
Multiplied by 40% ($ 200,000 x 40%) = $ 80,000
Subtract Payee‘s Income from Product:
($80,000 minus $80,000 = $0)
Result of Calculation # 2: $0

Because paragraph (d) provides that the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars, and because Calculation # 2 is the lesser amount, specifically, zero, Calculation # 2 controls and the temporary maintenance award would be zero.

Example 3

Step # 1: Determine Respective and Combined Income:
Payor‘s Income $100,000
Payee‘s Income $20,000
Combined Income $120,000
Step # 2: Perform Calculation # 1: (Subtract twenty percent of the income of the payee from thirty percent of the income up to the income cap of the payor.):
30% of Payor‘s Income (30% x $100,000) = $30,000
Minus
20% of Payee‘s Income (20% x $200,000) = $4,000
Result of Calculation # 1: $26,000
Step # 3: Perform Calculation # 2: (Multiply the sum of the payor’s income up to and including the income cap and all of the payee’s income by forty percent):
Payor‘s Income = $100,000
Plus
Payee‘s Income = $20,000
Combined Income Equals $120,000
Multiplied by 40% ($120,000 x 40%) = $48,000
Subtract Payee‘s Income from Product $100,000
($48,000 minus $20,000 = $28,000)
Result of Calculation # 2: $28,000

Because paragraph (d) provides that ―the guideline amount of temporary maintenance shall be the lower of the amounts determined by clauses (a) and (c) of this subparagraph; if the amount determined by clause (c) of this subparagraph is less than or equal to zero, the guideline amount shall be zero dollars,and because Calculation # 1 is the lesser amount, specifically, $26,000, Calculation # 1 controls and the temporary maintenance award would be $26,000.

There are several issues that are not addressed by the new statute. Initially, prior to its enactment, judges had discretion to set temporary awards based upon the actual needs of the parties. Under the prior statute, temporary maintenance was awarded to allow the non-monied spouse to preserve his or her financial circumstances and maintain the prior lifestyle during the divorce. While the goal of the prior statute was laudatory, unfortunately, the temporary maintenance awards varied greatly from case to case.

Since the new statute creates uniformity by using a formula, temporary maintenance awards are going to be consistent as far as their amount is concerned. At the same time, the new statute doe snot address duration of the maintenance and length of the marriage of the parties. For temporary maintenance purposes, a spouse in a long term marriage would receive the same temporary maintenance award as a spouse in a short term marriage. This is likely to create an incentive for parties in a short term marriage and their lawyers to extend the divorce action as long as possible.

Another problem with the new statute is that it applies to the first $500,000 of income, someone married to person who earns well in excess of that figure would receive less under the new statute than he or she would be entitled to receive under the old law, when the full income was used for determining temporary maintenance.

Finally, the temporary maintenance statute creates certain expectations on part of both litigants and judges. For litigants, there is now an expectation that any maintenance will be at the level set by the temporary maintenance formula. For judges, it is an easy way to set the final maintenance award.

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Posted in divorce, Domestic Relations Law, maintenance, New York Law, Supreme Court | No Comments »

Major Changes in New York’s Family Law Are Now In Effect

Wednesday, October 13th, 2010

Today is the day when New York’s family law begins a new era. The no-fault divorce law is now in effect and grounds for divorce will no longer preclude someone from obtaining a divorce.    In addition to the new no-fault divorce legislation, three new laws applicable to divorces and child support proceedings became effective including:

1.   a new procedure and formula for setting awards of temporary maintenance while a divorce is pending;
2.  a presumption toward grating attorneys fees to the less monied spouse during the divorce; and
3.   new circumstances for reviewing and modifying child support awards.

Here is the summary of the most important provisions of the new laws:

No-Fault Divorce

There is a new no-fault cause of action for divorce that can be granted if the spouse filing for divorce makes a sworn statement that the marriage has irretrievably broken down for a period of six months preceding the commencement of the divorce action.

Temporary Maintenance

The new law provides that maintenance is to be awarded during the divorce when one parties’ income is less than 2/3of the other spouse’s income.

The amount of maintenance is determined by the following formula as the lesser of a) 30% of the payor’s income minus 20% of the non-payor’s income or b) 40% of the combined income minus the non payor’s income.

Attorneys Fees

The  attorneys fee bill creates a  presumption that the “monied”  spouse should pay to the “non-monied” spouse interim attorneys fees in all divorce or family law case.  The purpose of the law is to make both spouses to be able to litigate their divorce case on equal basis.

Modification of Child Support

The Family Court Act (“FCA”) and matching provisions of the Domestic Relations Law (“DRL”) were amended to allow modification of an order of child support due to “substantial change in circumstances” which is now defined in a change in either party’s gross income by 15% or more.  Also, if three years have passed since the last order was entered, modified, or adjusted, the court can modify an order entered after October 13, 2010 order, unless the parties specifically opt-out of that provisions.  Additionally, a reduction in a party’s income shall not be considered as a ground for modification, unless it was involuntary and the party has made diligent attempts to secure employment.

As I have written previously, 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.

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Posted in child support, child support enforcement, Child Support Standards Act, divorce, Domestic Relations Law, Family Court, Family Law, grounds, maintenance, New York Law, Supreme Court | No Comments »

Equitable Distribution of Businesses and Enhanced Earning Capacity Does Not Always Mean Equal Distribution

Sunday, October 10th, 2010

I have previously written about equitable distribution issues here and here.  One of the most important issues that divorce attorneys have to address in dealing with equitable distribution is division of businesses or enhanced earning capacity arising as a result of acquisition of a professional degree or a license by one of the spouses.

In distributing marital property of almost every variety, the courts have focused on the relative significance of the non-titled spouse’s contribution toward the marriage, which would almost always result in equal or almost equal distribution.  However, with respect to distribution of business interests and enhanced earning capacity, as of late, the courts have focused on the degree to which the non-titled spouse’s efforts contributed toward the acquisition of each specific asset.

In the past, the non-titled spouse’s contributions to the other party’s business, career or degree, usually resulted in equal distribution of those assets.  However, the recent trend in court decisions has been to grant the non-titled spouse less than one half of the asset.

The courts have described their reasoning as follows: “[a]lthough in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible. . . there is no requirement that the distribution of each item of marital property be made on an equal basis.”  Kaplan v. Kaplan, 51 A.D.3d 635, 637 (2d Dept. 2008). In equitably distributing a spouse’s business interest, the court must consider the direct contributions the non-titled spouse made to the business as well as the indirect contributions to the ma-rital partnership, including homemaking, parenting, and providing the necessary emotional and moral support to sustain the titled spouse in carrying on the business.  Price v. Price, 69 N.Y.2d 8, 15 (1986).
Unlike other marital assets, in valuing a non-titled spouse’s share in a spouse’s business interest, the trend has been toward awards between 25% and 35% to the non-titled spouse. Chalif v. Chalif, 298 A.D.2d 348, 349, (2d Dept. 2002)(25% award to wife of husband’s medical practice and enhanced earning capacity); Granade-Bastuck v. Granade-Bastuck, 249 A.D.2d 444, 445 (2d Dept. 1998)(25% award to plaintiff of defendant’s law practice); Giokas v. Giokas, 73 A.D.3d 688 (2d Dept. 2010)(10% award to wife of husband’s business); Kerrigan v. Kerrigan, 71 A.D.3d 737 (2d Dept. 2010)(35% award to wife of the husband’s business); Ciampa v. Ciampa, 47 A.D.3d 745, 747 (2d Dept. 2008)(35% award to wife of husband’s business); Kaplan v. Kaplan, 51 A.D.3d 635, 637 (2d Dept. 2008)(30% award to wife of the husband’s dental practice).

This has been a trend state-wide and has been followed by the Appellate Division, Fourth Department, which is located here in Rochester, New York, and to which decisions from Allegany, Cattaraugus, Cayuga, Chautauqua, Erie, Genesee, Herkimer, Jefferson, Lewis, Livingston, Monroe, Niagara, Oneida, Onondaga, Ontario, Orleans, Oswego, Seneca, Steuben, Wayne, Wyoming and Yates Counties are appealed to.

As a result, the non-titled spouses and their divorce lawyers have an uphill fight if they try to obtain a substantial share of such assets as a spouse’s business, educational degrees or professional licenses.

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Posted in divorce, Domestic Relations Law, equitable distribution, Family Law, New York Law, Supreme Court | No Comments »

Upcoming Changes to New York’s Child Support Law and Social Services Law

Wednesday, September 8th, 2010

When New York’s Legislature finally passed the no-fault divorce law and made changes to temporary maintenance and attorneys fees awards, it also passed a number of less publicized changes to the Child Support Standards Act, and related laws, which govern child support in New York. The new legislation modified the Family Court Act, Domestic Relations Law and the Social Services Law, substantially altering the parties’ ability to modify child support awards. It also gave the Family Court additional powers in situations where the party paying child support is unemployed.

The following will describe the most significant changes included in the new legislation.

Family Court Act (FCA) §451 was amended to conform the language of the FCA provision governing the modification of child support orders to the Domestic Relations Law (DRL) so that both provisions provide for a “substantial change in circumstances” as a basis for modification of an order of child support.

This section further provides two new bases for modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party’s income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section would provide that incarceration is not a bar to finding a substantial change in circumstances under certain conditions and also would clarify that retroactive support is paid and enforceable as provided under FCA §440.

DRL §236B(9)(b) was amended to separate out the “substantial change of circumstances” basis for modification of child support orders into its own section for clarity and would provide two new bases for the modification of an order of child support: (1) the passage of three years since the order was entered, last modified, or adjusted; or (2) a 15 percent change in either party’s income since the order was entered, last modified or adjusted provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability and experience. The parties may specifically opt out of the two new bases for modification in a validly executed agreement or stipulation. This section provides that incarceration is not a bar to finding a substantial change in circumstances under certain conditions.

The bill also added a new FCA §437-a to authorize the Family Court to require the non-custodial parent of a child to seek employment, or to participate in job training, employment counseling or other programs designed to lead to employment, where such programs are available, if he or she is unemployed at the time the court is establishing the support order unless he or she is in receipt of supplemental security income (SSI) or social security disability (SSD) benefits.

Another section of the bill amended Social Services Law (SSL) §111-h to provide that if the respondent is required to participate in work programs or activities, and if the order of support is made payable on behalf of persons in receipt of public assistance, the support collection unit may not file a petition to increase the support obligation for twelve months from the date of entry of the order if the respondent’s income is derived from the work activity or program. FCA §461 was also amended to reflect the two new bases for modification of an order of child support.

Sections of the bill dealing with modification of child support only apply to child support orders which incorporate but do not merge stipulations or settlement agreements if the stipulation or agreement was executed on or after the effective date of the bill. The amendments, with exception of certain sections of the Tax Law, become effective 90 days after the passing of the bill.  The effective date of the amendments is October 14, 2010.

This bill represents a substantial change to the prior statutory provisions and case law dealing with modification of child support.  While New York’s child support orders were always subject to modification, these changes will make modification of child support easier. I do not know at this time how these provisions will apply to the orders already in place and whether the party seeking modification of child support will be able to use some of the new provisions to modify existing child support orders.

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Posted in child support, child support enforcement, Child Support Standards Act, court orders, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, New York Law, procedure, Settlement Agreements, Stipulations, Supreme Court | No Comments »

No-Fault Divorce Becomes Law In New York

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 13, 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.

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Posted in attorneys fees, Domestic Relations Law, grounds, jurisdiction, maintenance, marital fault, New York Law, Supreme Court | No Comments »

Acknowledgment of Paternity – Should It Be Signed By the Putative Father?

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.

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Posted in DNA testing, Family Law, New York Law, paternity, procedure | No Comments »

Update on Dissolution of Out-of-State Civil Unions

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.

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Posted in divorce, Domestic Relations Law, jurisdiction, New York Law, same sex marriage, Supreme Court | No Comments »

Limitations on Child Support Arrears and Child Support Standards Act

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)

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Posted in child support, child support enforcement, Child Support Standards Act, court orders, divorce, Domestic Relations Law, Failure to Pay Child Support, Family Court, Family Law, imputed income, New York Law, procedure, Supreme Court | No Comments »

Update on Progress of New York’s No-Fault Divorce Legislation

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.

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Posted in divorce, Domestic Relations Law, grounds, New York Law, Supreme Court | No Comments »

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