New York Divorce Report - New York's Divorce and Family Law Blog

A finding of emancipation terminates the parental obligation to pay child support. For this reason, the issue is oft litigated. The typical divorce settlement agreement provides that child support will terminate on the happening of an “emancipation event” which is defined by parties’ settlement agreement, but generally includes the child’s death, marriage or entry into the military. Many agreements also provide that a child should be deemed emancipated if the child enters the workforce on a full time employment. However, the Appellate Division, First Department ruled last week that a child’s full time employment alone does not constitute an emancipation... More

In the middle of preparing for a complicated custody trial, I was contacted by Smart Money to discuss the divorce considerations of Jon and Kate. (I may have been the only person in America not to know who they are – fortunately, my wife filled me in.) The article, in which I am extensively quoted, addresses many of the issues to be considered when contemplating divorce. The complexity of the issues is compounded exponentially because of the sheer size of Jon and Kate’s family. Indeed, the child support calculation is simply “off the charts” as the child support guidelines do... More

The Court of Appeals, New York’s highest court announced in a pair of cases that marital funds which were used to pay the separate obligations of one of the parties during the marriage could not be recouped in the divorce. This is a far reaching decision because, for instance, a second wife cannot now recover from her husband marital funds used to pay his first wife spousal maintenance or child support. In short, the divorce court should only consider the assets and liabilities existing at the time of the divorce. The Court in Mahoney-Buntzman v. Buntzman declared that: Courts... More

Within the last month, the Appellate Division, Second Department, has decided several interesting family law cases. One, in particular, directly answers a question I am frequently asked, which, in some form, goes like this: My son refuses to visit me; do I have to pay child support for him? The answer, as supplied by the Court in the case of Gold v. Fisher, is- it depends. . . . .a child of employable age who actively abandons the non-custodial parent by refusing all contact and visitation" may forfeit any entitlement to support In contrast, where it is the parent who... More

On appeal, a court ruled that a husband can be deemed the legal parent of a child born to his wife, where the child was conceived as a result of artificial insemination during the marriage, but where the husband's consent to the artificial insemination was not obtained in writing. Domestic Relations Law § 73  provides that: Any child born to a married woman by means of artificial insemination performed by persons duly authorized to practice medicine and with the consent in writing of the woman and her husband, shall be deemed the legitimate, natural child of the husband and his... More

In this day and age in which parties obtain an order regarding child support in one state and then move to another jurisdiction, it is important to know that the original support order cannot be modified or even extended by a court in the second state, so said the New York Court of Appeals in the case Spencer v. Spencer. As reported in the Times Union, the Spencers divorced in Connecticut in 1994. That same year, Mrs. Spencer and the parties’ three children moved to Albany County. The father remained in Connecticut. At the time of the divorce, a Connecticut... More

The New York Times today reported how in the Bronx Family Court,   Elevator Woes Slow Justice. The eye opening article details how, because of broken elevators, litigants wait in line for hours to get an elevator to a court room resulting in missed court dates or, even worse, dismissed cases.   The Family Court is a court where justice cannot be delayed. Critical rights regarding the welfare, custody and support of children are involved. Consider the case of a client of Ms. Gutfriend’s who was scheduled for a hearing in mid-November to determine whether she could get her daughter... More

The International Family Law Blog reports that new provisions have been drafted by the delegates to the Hague convention to assist in the collection of child support internationally.  According to a press release: A new Convention…designed to respond to the needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair. Unpaid child support – as well as support of other dependent family members – amounts to billions of Euros worldwide. When the person liable for support lives abroad, the difficulties of recovery are often insurmountable. At present, international procedures are typically... More

Question- I had custody of my daughters from birth until they were 12 and 13. I voluntarily let them live with their father. Father didn't pay any child support until 2002 when I applied for it, and he was only ordered to pay $25 a month. Now the father is seeking support from me. Will the court take into consideration the years he didn't meaningfully contribute to their financial needs when they lived with me? Answer-Changes in child custody often cause problems in child support. In New York, child support is awarded retroactive to the date of the application. If... More

If you want or need a new passport to travel abroad, you had better be current on your child support. The State Department will now deny a passport to any non-custodial parent owing $2,500 or more in court-ordered child support. As Janet Langjahr points out, the new passport rules while implemented as a matter of national security, has the effect of benefiting children owed child support. The Governor of Connecticut reported that this policy has had a tremendous effect on child support collections: Since January 2007, when the new federal passport rules were announced, Connecticut has collected nearly $180,000 from... More

This is a common scenario - you are seeking a court order for child support, but the non-custodial parent is claiming an annual income far less than you suspect he/she actually earns. One way to prove that a party’s actual income is higher than his/her reported income is to illustrate how his/her reported lifestyle could not be supported by the reported income. The Appellate Division in Strella v. Ferro ruled that: in calculating a party's child support obligation, the court "need not rely upon the party's own account of his or her finances, but may impute income based upon the... More

In order for the non custodial parent to take the dependency deduction, it is essential to file the Form 8332 with the tax return. The Family Law Taxation blog cites a case in which the tax Court announced that this requirement will be strictly applied. In Chamberlain v. Commissioner, the U.S. Tax Court ruled that the former husband (taxpayer) was not entitled to the dependent deduction for one of his children because he didn't attach a valid IRS Form 8332 (Release of Claim to Exemption for Child of Divorced or Separated Parents) to his 2003 Federal tax return (the child... More

James Andrew Miller wrote a compelling op-ed piece in the New York Times, theorizing that expensive and heart wrenching custody battles could be avoided if parties intending to marry, merely entered into a pre marital agreement. He details the understandable outrage of friends, told by their soon to be ex-spouses that they would be allowed to have visitation with their children. However, what Mr. Miller ignores is that parties can contract to virtually any issue of the marriage except child custody and support. Any provisions would be contrary to public policy and would be unenforceable.  Child custody is based upon... More

A father, who had agreed to contribute to his child’s college education, was not responsible for contributing to the costs of the child’s post-graduate degree. In the recently decided case of Robinson v. Gerny (New York Law Journal) (subscription required), the Court ruled that “The word ‘college’ denotes attendance at an undergraduate program resulting in a bachelor’s degree.” The Court ruled that the fact that the child was seeking a graduate degree was not “contemplated as within the plain meaning of college.” This dispute could have easily been prevented by carefully drafting the parties’ settlement agreement. It is not uncommon... More

Rapper 50 Cent is seeking a modification of the order which required him to pay $25,000 as child support for his son. According to ABC News, the mother says this amount is inadequate, particularly since 50 Cent earned $33 million last year. Child support is calculated as a percentage of income. Problems arise when the non-custodial parent’s income is so large that the calculation results in absurd amount of child support. In New York, the child support guidelines are to be applied to the parents’ combined income up to $80,000. The court has discretion to apply the guideline percentage to... More

Child support in New York is calculated pursuant to the Child Support Standards Act ("CSSA") (Domestic Relations Law §240(1-b) and Family Court Act § 413(1)(b)). To simplify, CSSA provides that unless the court finds that the non-custodial parent's pro rata share of the "basic child support obligation" to be unjust or inappropriate after considering the ten enumerated factors, it must order the non-custodial parent to pay his or her pro rata share of the "basic child support obligation". The "basic child support obligation" is calculated by multiplying the "combined parental income" by the appropriate "child support percentage. Income" is defined... More

Robert Ambrogi in his Law.com Network Blog details the case of a man who learned during his divorce, that he was not the father of a child born during the marriage.   Notwithstanding the fact that he was not the child’s biological father, he was ordered to pay child support.   . . . .through a DNA test 16 months after his divorce, Richard Parker learned that someone else had fathered the 3-year-old boy. Facing court-ordered child-support payments of $1,200 a month for 15 years, he immediately turned to the courts, claiming fraud by his wife. His case took him all... More

In a case where a husband abandoned his wife and children and failed for nine years to pay any child support, a Court ruled it was appropriate to set off the husband’s unpaid child support obligation against his interest in marital property.   Since the husband failed to pay child support for nine years, his interest in the martial home was set off against the amount of unpaid support. As a result, the Wife was entitled to full possession and title to the marital home.   In the case Pritchett v. Pritchett ( N.Y.L.J. 4/9/07(subscription required), Justice Darrell L. Garvin ruled that the... More

Motions for modifications of child support are generally effective retroactive to the date the application is made. While the application to modify a support payment is pending, the non-custodial parent is urged to abide by the existing support order. If an upward modification is granted retroactively, the parent paying support is ordered to pay the arrears that accrued from the date of the application to the date of the order. But what happens if the parent paying support is current in making support payments under an existing order and is granted a downward modification? There would have been an over-payment of... More

The Rosen Law Blog  reminds us that there are penalties for the failure to pay child support.. The most obvious penalty is that the “dead-beat” parent can be incarcerated and held in contempt of court. In addition, in New York, the failure of a parent to pay court ordered child support can result in the suspension of driver’s, professional, business and/or recreational licenses. According to the National Conference of State Legislatures, every state has some version of a law that revokes licenses of parents who fail to pay child support  Originally, I thought it an oddity that the penalty for... More