Frequently Asked Questions
Answers from our General Counsel, Sari Friedman
Q: If I quit my job, will I be able to ask the Court to terminate my child support?
A:No, not if you voluntarily left your job.
Q: If I change jobs to a lower paying job, will I be able to have my child support payments lowered?
A:Not if it was a voluntary lowering of pay.
Q: I was forced to take a job in another area of work and make a lot less money because my company closed and my vocation has disappeared. Can I have my child support payments lowered?
A:Yes, if you can show that your industry or vocation has disappeared so that you had no choice but to take a different lower paying job.
Q: I pay my ex-spouse 25% of my income. Now she wants 50% of all child care costs. Do I have to pay this?
A:Well, yes and no. If you make less than he/she does, the Courts will make you pay less than half. If you make more than he/she does, the Courts will make you pay more than half. It is based on a pro rata share of the proportions of your incomes. If you make more and she only asks for half, pay it before she takes you to Court and the Court makes you pay more. But, make sure she presents you with bills, canceled checks or receipts, without which the Courts will not make you pay anything. Keep her honest.
Q: If my child comes to live with me, can I just stop paying child support?
No. You have to petition the Court to terminate child support. A Court order is a Court order and until the Court terminates the order, you are bound by it.
Q: My child is working full time and is therefore emancipated, can I stop paying my child support?
No. You may be right that your child is emancipated, but you must ask the Court to make that determination, or you may suddenly find yourself owing vast arrears.
Q: I pay child support to my ex-spouse for my children I had with her. But now I have a new spouse and new children. Can I have my support payments to my first spouse lowered?
A:It depends. The Courts believe you knew your obligation to your first children before having more children. The question comes down to a balancing of resources available to the children of each household. Is your ex-spouse remarried? Your income combined with your spouse's income will be compared to your ex-spouse's income combined with his/her ex-spouse's new spouse's income. If the combined income of your household is less than the combined income of ex-spouse's household, you may be able to have your child support lowered. If you are in an exceptionally high income bracket, this may not apply to you at all.
Q: Can I change the terms of my child support or child custody at a later date?
A: Yes, it is possible that you can modify your child support, child custody or visitation agreements. At times, the situation changes and a parent can no longer financially support a child, the child may need more or less support or a parent’s living conditions may have changed to enable additional visitation or perhaps limit visitation or custody further. A skilled New York family law attorney can help determine whether modification is necessary and possible - and can then assist you in changing your divorce or separation agreement.
Q: What is maintenance?
An award by the court of spousal support for a fixed period of time or for an indefinite period of time.
Q: How long is maintenance paid for?
A:It depends on factors set forth in Domestic Relations Law section 236. But to put it simply the primary factors are the amount of time the recipient needs to become self supporting ( such as the educational level of the recipient-is schooling necessary, the health of the recipient) and the financial ability of the party paying support.
Q: What is a usual duration of maintenance?
While there is no set rule, the decision is discretionary with the court, and each case must therefore be decided on it's facts, five years is a very commonaward unless a marriage is ten years or less.
Q: When if at all is maintenance non durational?
Frequently in marriages of twenty years duration or more and where the recipient is in his/her late forties or so with no expectation of becoming self supporting and the party paying support has financial ability. Then the maintenance continues until death, remarriage or upon living with another person that the recipient holds out as a spouse.
Q: Who pays taxes on maintenance?
It is normally taxable to the recipient as income and a deduction to the person who pays it.
Q: How does a court determine the amount of maintenance?
The reasonable needs of the recipient based upon the prior standard of living, the income and assets of the recipient balanced against the financial resources ( income and assets) of the party paying the support. While the Domestic Relations law section 236 lists ten factors to consider in making the award it tends to boil down to an analysis of reasonable needs verses ability to pay.
Q: How much discretion by the court is there in the amount and duration of a maintenance award?
A lot. Unlike child support there are no set guidelines and the practical reality is there can be differences in awards based upon the same facts depending upon the discretion of the court.
Custody & Visitation
Q: My ex-spouse lives in another state with our children. It is the state in which we got divorced. Can I take her to Court in New York to enforce my visitation?
No, you have to go back to the state in which she lives.
Q: My ex-spouse lives in another state with our children, but our divorce was in New York. Can I take her to Court in New York to enforce my visitation?
Yes, but the Court may determine that the State your ex-spouse lives in now has jurisdiction instead of New York. It depends on how long she has lived there, and where any other actions pertaining to your children has taken place.
Q: I have custody of my children and my ex-wife constantly tells me she can get custody at anytime just because she is the mother. Is this true?
A:Without more, no. Document and even tape what is essentially blackmail and extortion. The Courts will frown on it heavily. The longer the children have been with you, the harder it will be for her to get a change of custody. The issue is the children's best interests, which include continuing in the same school, maintaining the same friends, stability of being in the same HOME with the same care giver, etc. If there are no problems with the children's behavior which you are not addressing, if they are not failing in school, if they are not being neglected, the children will probably remain in your custody. Only some exceptional circumstance would warrant a change.
Q: My ex-spouse constantly withholds visitation, or schedules other activities for my children during my scheduled visitation time. My lawyer has taken her to Court many times for visitation enforcement, but nothing ever changes. What should I do?
A:Petition the Court for a change of custody. Such constant denial of visitation may be a case for parental unfitness. In addition, petition the Court to hold your ex-spouse in contempt of Court. This may not correct it immediately, but the Court will get fed up and threaten to change custody. Then if he/she doesn't change, the Court might just change custody.
Q: My ex-spouse has custody and tries to dictate terms and activities for my visitation. Can she do this?
No, unless the Court order specifically states this is to be. Otherwise it is interference with your visitation rights and you should take her to Court to make her stop.
Q: What do I do if my ex-spouse withholds visitation?
Immediately call the police and get a police report. Do not engage in a screaming match or exchange curses. This could lead to your arrest. If you do not have an order of visitation, contact an attorney to obtain a Court order for visitation. If you do have an order of visitation, contact your attorney to seek Court enforcement and a charge of contempt. If you wait too long to do this, the Court may think you don't really care, so why should they.
Q: Can I withhold child support if my ex-spouse withholds visitation?
A:No!!! These are separate issues and the Court will come down hard on you if you do. However, you can petition the Court to allow you to withhold spousal support.
Q: I think my ex-spouse is planning to move with our children to another state, what can I do?
A:First consult your separation agreement or stipulation of settlement, if you have either, for any provisions concerning relocation. If there are no provisions, or you do not have any such agreement, consult the Judgment of Divorce for such a provision. If no provision exists, ask your lawyer to immediately go to the Court and ask that your ex-spouse be restrained from moving the children out of the county in which she now resides with the children, without first obtaining your written consent or permission from the Court. It is easier to stop your ex-spouse from moving than it is to get your ex-spouse back after he/she moves. If you find out too late, and he/she has already moved, don't walk, run to your lawyer to go to the Court and petition to have your ex-spouse ordered to return the children to the county in which he/she had lived. It is
always best to have the assistance of an attorney in this type of situation.
Q: Will my child support and/or child custody situation change if I am remarried and either have children with my new spouse or start supporting my spouse’s children?
A:Your child support and child custody terms will only change if you take action to change them. Your child support amount will not lessen simply because you have remarried. You will need to work with an attorney and take action to have your child support agreement modified to fit your new living situation.
Forensics & Law Guardian
Q: What are forensics?
A:Forensics is a process to determine who is the best psychological parent for the children. Who is more in touch with the children's needs, emotionally, psychologically and socially. The Court will appoint a forensic evaluator, usually a psychologist, sometimes a social worker, occasionally a psychiatrist. This professional interviews both parents and the children. Usually they want to see the children twice, once with one parent, and once with the other parent. Do not sit and tell the forensic evaluator how horrible the other parent is. That actually makes you look bad. The evaluator wants to know why you are the best parent for the children. A forensic evaluator's recommendations are listened to seriously by the Court, but not always followed. Some forensic evaluator's take a very active role in the course of the case. Some do not. Some are biased. Some are not. You must disregard this and take the forensic evaluator very seriously.
Q: What is a law guardian?
A law guardian is a lawyer appointed by the court to protect your children's interests. A law guardian's recommendations are listened to seriously by the Court, but not always followed. Some law guardians take a very active role in the course of the case, some do not. Some are biased, some are not. Always treat the law guardian with respect and courtesy.
Hiring a Lawyer
Q: How do I know which attorney to hire?
First, you want to find an attorney whose practice is mostly in the area of family and matrimonial law. Electricians, painters, plumbers, etc. are all contractors, but you wouldn't hire a plumber to paint your house or an electrician to fix your toilet. Second, you want that lawyer to also be familiar with the Court your case is in, and in the County where your case is being heard. Every Judge and every County has their own nuances. It is best if your lawyer is familiar with those nuances, and that the Court is familiar with your lawyer. Third, you want a lawyer who believes in you and whom you believe in. Fourth, if a lawyer promises you the world, walk away. Nothing is certain in the law except uncertainty. You want a lawyer who honestly assess your case and speaks in probabilities. Fifth, you want to feel comfortable with the lawyer.
Q: How do I know which lawyer's prices are better. Some want more money up front. Some want more per hour. How do I know whom I can afford?
Cost is important, but it can be deceiving. Hypothetically speaking, if one lawyer wants more money up front, and the other lawyer wants less money up front, the question becomes what will your case cost start to finish? It may be impossible to be sure how much your case will cost start to finish, but what ever that number will be, it will be. Thus, no matter what you pay up front, you will pay the same total anyway. One lawyer may charge more per hour and another lawyer charges less. But the more per hour lawyer may perform the same tasks faster, thereby saving you money. Further, the one who charges more per hour may have more experience in that area of law. Example: The lawyer who charges less per hour has been in practice for 18 years, but has only practiced family law for 5 years. The lawyer who chargesmore per hour may have only been a lawyer for 12 years, but 10 of those years have been in family law.Price is not as important a factor as the quality of representation. Remember, you usually get what you payfor. Nothing is more expensive than ineffective legal representation.
Q: Can I tape my ex-spouse without her knowing, or would that get me into trouble?
As long as you are a party to the conversation, whether on the phone or in person, you can tape anyone.
Q: I have heard that even if you can prove the things your ex-spouse says by having taped her, the Judge never wants to listen to the tape. So what's the point in taping my ex-spouse?
When you do tape your ex-spouse, label the tape with date and time, and then transcribe the tape word for word. The judge is likely to read a transcript knowing the tape is available to confirm the contents. It can also be used to discredit your ex-spouse on cross-examination, and prove he/she is not believable.
Q: Can I tape my child's phone conversations with my ex-spouse?
A:Absolutely not. Not only are you not a party to the conversation, but to breach your child's confidence in such a manner will be found appalling by the Courts.
In general, it is good to directly consult a family law attorney if you have any questions regarding matrimonial law or family law. It is better to make an informed decision and do the right thing in order to face undue complications in the future. New York family law attorney Sari Freidman takes on family law cases throughout all of Nassau County, Suffolk County and Queens County, New York.