New York Divorce and Family Law Blog : New York Divorce Lawyer & Attorney : Clement Law Firm : Family Law Serving Manhattan, Westchester County, Brooklyn, Queens, Bronx, New York City

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 not even contemplate families of this size. Moreover, the overnight “celebrity” may skew the child support calculation which will be based on the couple’s reality television income, which I am sure, is substantially higher than their pre-television earnings.
 

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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 should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end.

The Court recognized that if a trial court were to scrutinize every transaction during the marriage, the result would be a cumbersome review by a court, forced to review the reasonableness of every expenditure, measuring the benefit to each of the parties. Instead, the Court declared that “The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected.”

This same conclusion was reached in Johnson v. Chapin, decided the same day.

In reaching this conclusion, the Court noted that:

There may be circumstances where equity requires a credit to one spouse for marital property used to pay off the separate debt of one spouse or add to the value of one spouse's separate property . . .Further, to the extent that expenditures are truly excessive, the ability of one party to claim that the other has accomplished a "wasteful dissipation of assets" (DRL 236 [B][5][d][11]) by his or her expenditures provides protection.

In other words, questionable or wasteful expenditures may be examined, child support and maintenance payments may not.

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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 causes a breakdown in communication with his child, or has made no serious effort to contact the child and exercise his visitation rights, the child will not be deemed to have abandoned the parent.

The parent seeking to have the child “constructively emancipated” has the burden of proof. From my experience, given that this is a drastic remedy, which may punish the custodial parent (who may or may not be at fault) as much as the child, courts strive to discover the true origins of breakdown of non custodial parent-child relationship.

If the evidence shows that the non-custodial parent is in any way at fault for the estrangement, the application will be denied and the obligation to pay support will continue. If the non-custodial parent is blameless, support will be terminated.
 

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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 wife for all purposes. . . . The aforesaid written consent shall be executed and acknowledged by both the husband and wife and the physician who performs the technique shall certify that he [or she] had rendered the service.

The problem in Laura Ww. v Peter Ww was that the husband never signed the consent. In fact, shortly after the wife was artificially inseminated, the parties separated. At the time they separated, parties agreed, in writing, that the husband would not be responsible for paying child support the artificially inseminated child.

The Court declared the separation agreement unenforceable.

Indeed, the agreement left the child fatherless without any hearing or analysis of the child's rights and interests. Given that "the needs of a child must take precedence over the terms of the agreement when it appears that the best interests of the child are not being met," we agree that the parties' agreement which preceded any determination of legal paternity to leave the child without the husband's support cannot stand

The Court relied on New York’s strong presumption that a child born to a marriage is the legitimate child of both parents. In addition the court announced that it would “follow the lead of other jurisdictions that impose a rebuttable presumption of consent by the husband of a woman who conceives by[artificial insemination, shifting the burden to the husband to rebut the presumption by clear and convincing evidence."

In addition, the court stated that the doctrine of equitable estoppel also precluded the husband from "seeking to disclaim paternity of the parties' child, whose best interest is paramount."

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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 court ordered James Spencer to pay $250 a week for each child and to provide medical insurance. The payments were to continue until each child turned 18, when child support terminates in Connecticut.

Spencer's oldest son turned 18 in 2004, ending his father's obligation under the Connecticut order. But Susan Spencer filed a petition in Albany County in June 2005, seeking to continue payments until their son turned 21, that being "consistent with the laws of the state of New York."

The Court of Appeals declined to modify the Connecticut order or to extend Mr. Spencer’s obligation to pay support.

Under the Full Faith and Credit for Child Support Orders Act (FFCCSOS) and the Uniform Interstate Family Support Act (UIFSA), “the state issuing a child support order retains continuing, exclusive jurisdiction over its child support orders so long as an individual contestant continues to reside in the issuing state [28 USC §1738B(d) and Family Court Act §580-205]

Because the respondent continued to reside in Connecticut, the state which issued the original child support order, Connecticut retained continuing and exclusive jurisdiction, even though support for the eldest son terminated upon his reaching 18 years of age. Thus, any change to the respondent’s obligations imposed by New York would constitute an impermissible exercise of jurisdiction modifying the Connecticut order, a clear violation of FFCCSOS and UIFSA.

It would have been impermissible for a New York court to extend the support order for three years (from age 18, when the Connecticut order expired, until age 21, when child support terminates in New York).

A modification is "a change in a child support order that affects the amount, scope, or duration of the order and modifies, replaces, supersedes, or otherwise is made subsequent to the child support order" (28 USC § 1738B [b]). Here, the New York order changed the amount of the initial order (increasing it by $100 per week), the scope of the initial order (adding a provision for college expenses), and the duration of the initial order (extending the father's obligation for three years). Undoubtedly, the New York order was "made subsequent" to the Connecticut order. Therefore, under the plain language of the federal statute, a second order for child support is a "modification" of Connecticut's order.

This decision seems to make a whole lot of sense. If a party was able to modify an existing order merely by relocating, no child support order would be final. There would be nothing to prevent a party to litigate in one state and then move to another with a more favorable law. This decision clearly prevents that from

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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 back from foster care, where the child had been for 10 months.


The hearing was set for 10 a.m., Ms. Gutfriend recalled, but it was a day when only two of the four elevators in the building were working. The lines to get on the elevator and up to the hearing rooms stretched back two city blocks. Her client phoned upstairs to let her know she was stuck in the line, but was not able to get upstairs in time.


The judge agreed to call the hearing again an hour later, but the client was still in line. So the judge, who had something like 70 other cases to try that day, rescheduled the no-shows for the next available date. For this mother, the next chance to plead her case and get her child back was in January.

In any matter involving children’s rights, whether it be custody, support or visitation, time is critical. While the legal system may sometimes move at a snail’s pace, delay caused by the court’s physical intra-structure, which impairs or prevents litigants from having access to the court cannot and should not be tolerated

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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 slow, complicated, costly, and under-utilized. They are simply not serving the needs of the children and other family dependents who, in a mobile world in which multinational families are no longer exceptional, are increasing in number exponentially. The new Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance is designed to respond to the often modest needs of children and other dependents by providing international procedures which are simple, swift, cost-effective, accessible, and fair.

Thus far, only the United States has adopted the convention.

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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 you did not apply for support until some time in 2002, the father had no “legal” obligation to pay child support. The father became legally obligated to pay child support when ordered by the court. Notwithstanding the fact that the father now has custody of the children, the father’s obligation to pay support continues until the children become emancipated or a court order terminates the support payments.

Your obligation to pay support will begin when it is ordered by the court. But, be careful- the support obligation could be retro-active to the date the father first sought support. So you could be in arrears even though there is no court order requiring you to pay support.

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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 44 non-custodial parents who were notified that their passport privileges were in jeopardy -- a significant jump in the normal collection rate from passport denial.”

The rest of the country is seeing a similar effect. In the first six months of 2007, about $22.5 million in child support was collected nationwide through the federal Passport Denial Program. It took all of 2006 to collect about that much through passport denials.

This is an added tool in the child support collection arsenal. In New York, parents who have defaulted in making child support payments faced the loss of their driver’s and professional licenses. Now, if you fail to pay support, not only will your professional license be suspended and your driving privileges revoked, you will not even be able to go vacation.

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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 party's past income or demonstrated earning potential.”

In that case, the father claimed that he had been unemployed and only recently begun to earn $500 per week despite having recently earned as much as $101,000 per year. The Court imputed an income of $96,000 to the father. In doing so, the Appellate Court noted that:


Clearly, in the absence of incurring debt or drawing down on savings, if the party’s expenses exceed his/her reported income, then the reported income must be under-reported. In such a case, the Court should look beyond the filed tax return to calculate the child support obligation

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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 credit was also denied because it is premised on being entitled to the dependent deduction for the child).

The taxpayer's former wife executed a Form 8332 in which she relinquished the dependency deduction for one of their two children beginning in 1995 and for all future years. The taxpayer claimed that he attached the original Form 8332 to his 1995 return, but that a subsequent fire destroyed all of his copies. The IRS was unable to provide a copy because their 1995 tax return information had been destroyed (pursuant to IRS document destruction policies).

This result may seem harsh, but as the Court indicated, "Although we are sympathetic with [taxpayer's] plight, we are bound by the wording of the statute as enacted and accompanying regulations when consistent therewith.

It is clear,  if  you are  seeking to claim the dependency deduction,  make sure the proper forms are filed with the tax return.

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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 the best interests of the children.   It would be virtually impossible to make a best interests determination when the parties are first getting married and before children are even born. For this reason, a custody determination should only be made at the time parents elect to divorce.  

 

 

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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 to provide in a settlement agreement that child support will be paid for so long as a child is registered and attending an undergraduate degree on a full time basis. Indeed, Justice Pines decided this case by applying basic tenets of contract construction, giving words and phrases their plain and ordinary meaning.

If there is a lesson to be learned from this case, it is that the scope and duration of a party’s obligation to contribute to a child’s higher education should be clearly defined in clear and unambiguous language

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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 the income in excess of $80,000. The real question becomes, at what point should the guidelines cease to be applied? Should, for instance, the guidelines be applied to all of 50 Cent’s $33 million annual income?

As the Maryland Family Law Blog points out, there is a presumption that parents who earn more, spend more on their children.

While 50 Cent’s obligation to pay $300,000 per year as child support seems, at first blush, exorbitant, consideration has to be given to the lifestyle the child would have enjoyed if he lived with his father. 50 Cent reportedly came to court in an armored SUV equipped with a satellite dish. Shouldn’t the child be able to enjoy some of the luxuries and the lifestyle commensurate with his father’s income and lifestyle?

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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 as "gross income as was or should have been reported on the most recent federal income tax return" less deductions for, inter alia, social security and New York City and Yonkers income taxes.

The "child support percentage" is fixed at:

a)17% of the combined parental income for one child;
b)25% of the combined parental income for two children;
c)29% of the combined parental income for three children;
d)31% of the combined parental income for four children; and
e)no less than 35% of the combined parental income for five or more children.

Where the combined parental income exceeds $80,000 per year, the court has discretion to depart from the child support percentages as to those portions of income in excess of $80,000.00.

So, what does this really mean? Let's suppose, a mother, with an income of $30,000 after social security and New York City taxes , is the custodial parent of two children. The Father’s income is $50,000 after social security and New York City taxes

The couple’s combined annual income is $80,000. Since there are two children, the applicable guideline percentage is 25% or $20,000 per year.  The father’s share of the child support payment is 5/8 of $20,000 or $12,500 per year or $1,042 per month.

Where the combined parental income exceeds $80,000 per year, the court has discretion to depart from the child support percentages as to those portions of income in excess of $80,000.00.

In addition to ordering the payment of child support, the Court can order the non-custodial parent to pay his\her pro rata share of the children's un-reimbursed health care expenses, the child care expenses when the custodial parent is working or attending school, the children’s educational expenses, as well as the costs of extra-curricular activities.

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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 the way to the Florida Supreme Court, which issued its decision in February in Parker v. Parker. Williams tells what happened:

"The Florida justices ruled 7-0 against Richard Parker. The Court ruled Parker must continue to pay $1,200 a month in child support. Parker's child support payments will total more than $200,000 over 15 years to support another man's child. Unfortunately, however, Florida has a one-year statute of limitations to prove fraud after a divorce, and Parker didn't file in time."

So, what would happen if this was a New York case?   The man would be responsible for child support.  A recent line of cases provide that where a “father,” who acknowledged or in any way accepted paternity of a child he later learns was not his, will be equitably estopped from denying paternity for child support purposes.  

While this may lead to unfair cases for the “wronged” father, the underlying policy is intended to protect the psychological and emotional well-being of the child.  Certainly, the child would be devastated if he/she is disavowed by his “parent.”

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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 husband’s abandonment of his family and failure to contribute any child support created a “substantially unequal burden on the [Wife] to the benefit of the [husband]. This benefit of the non-contributing spouse constituted an unjust enrichment which should be rectified.”

Applying the child support guidelines to the Husband’s income at the time he abandoned the family, the Court calculated the amount of unpaid child support arrears and the husband’s share of the child care, educational and medical expenses even though the Wife had not previously obtained an order requiring the payment of support.   

Since the child support arrears exceeded the value of the Husband’s equitable interest in the marital home, the Court transferred title to martial home to the Wife. 

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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 support. Could the parent paying support further reduce the child support payment to recoup the overpayment? The Appellate Division, First Department answered that question with a unanimous “No.”

In the case Coull v. Rottman, the Court said that it would violate public policy to allow the parent paying support to take a credit against future child support payments in order to re-coup the over-payments. Instead, the Court ruled that the parent paying support is only entitled to re-coup the over-payment of the child support payments against his/her share of the statutory add-on expenses – the portion of child support intended to cover child care and a child’s educational and special needs. 

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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 the non payment of support was the revocation of the very professional license needed by the payor to generate income. Without the license, there could be no income. Without income, there could be no money available to pay support.

On the other hand, if the parent is not paying support, the children, the beneficiaries of the intended support, are not being hurt by the lost income occasioned by the license suspension. In the end, it may be a good lesson to the non paying parent to get a taste of what it is like not to have money for food, clothing and shelter.    

In any event, I have seen firsthand that the loss of a license works. Inevitably, after a parent’s driving privileges have been revoked (because he/she is in arrears and claims that he/she cannot afford to pay child support), he/she miraculously manages to find just enough money to satisfy the support arrears.

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This headline caught my eye:  Boy Tarzan's ma takes swing at dad in divorce.

 "The teenage star of Broadway's "Tarzan" was hurt so much by a bitter feud between his parents it sent him into intense therapy sessions."

"But the pain of talking about the vicious sparring was too much for 13-year-old Daniel Manche, who asked to drop out of the counseling - and to stop seeing his dad, his mother Dawn Manche testified yesterday.

Daniel, who plays Tarzan as a young boy in the Disney musical, is at the center of a nasty custody battle being fought by his divorced parents in Manhattan Supreme Court."

Unfortunately, this is not an isolated case. It is the children who often bear the scares of a bitter divorce battle. In the best of situations, the parties agree that they cannot stay married, but work together to foster the best interests of the children.   However, in the worst of situations, the parties fight over everything, including the children. The children of a marriage merely become pawns in their parents’ battle. 

Minor visitation schedule modifications become epic battles; fights erupt over a drop-off and pick-up time for visitation. In the most egregious cases, one parent openly bad mouths the other parent to the children.  How could a child not become alienated or depressed? 

Every judge admonishes the litigants that the children have two parents and that the children have the right to enjoy the love and attention of both parents. It is sincerely hoped that parents put their differences aside and do what is necessary to support and foster relationships with their ex’s.   The alternative is, I am afraid, a country of depressed alienated children, who will one day promulgate their ills when they, one day, become parents.

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