Child Support

Published on: December 17, 2024

Appellate Division ordered a hearing to resolve custody disputes and parental access modifications. Trazzera v. Trazzera, 158 N.Y.S.3d 158 (N.Y. App. Div. 2021)

by Stephen Bilkis

In custody disputes, courts prioritize the child’s best interests, considering circumstances that may necessitate modifications to prior agreements. This case addresses a post-divorce dispute where both parents sought modifications to their custody and parental access arrangements. The Supreme Court initially ruled without a hearing, but the appellate court reversed and ordered a hearing to address unresolved issues.

Background Facts

The plaintiff and defendant, parents of one child, divorced in 2019, incorporating a stipulation of settlement into the judgment of divorce. The agreement granted joint legal custody, joint decision-making authority, and residential custody to the defendant, with parental access for the plaintiff.

Published on: December 9, 2024

Was father entitled to a credit for all excess payments? Merritt v. Merritt 188 A.D.3d 886 (N.Y. App. Div. 2020)

by Stephen Bilkis

In New York, when a parent has overpaid child support, they may be entitled to a credit for excess payments. This credit applies to future child support obligations. The process usually requires a formal court order or a judge’s decision confirming the overpayment and approving the credit. This situation often arises after a successful appeal or modification of a child support order that results in a reduced payment obligation. In Merritt v. Merritt 188 A.D.3d 886 (N.Y. App. Div. 2020), a proceeding in Westchester County, New York, a father appealed a Family Court decision that limited the credit he received for excess child support payments.

Background Facts

The parties involved, a mother and a father, were divorced in 2010 after having three children together. As part of the divorce settlement incorporated into the judgment, the father was mandated to pay $3,272 monthly in child support. This amount was subject to an annual recalculation based on his income, which was to be at least $175,000. In December 2014, following a consent order, his child support obligation increased to $4,593 per month.

Published on: November 27, 2024

Plaintiff requested termination of spousal support and recalculation of child support. JJ v. TW, 70 Misc. 3d 1225 (N.Y. Sup. Ct. 2021)

by Stephen Bilkis

In JJ v. TW, 70 Misc. 3d 1225 (N.Y. Sup. Ct. 2021), among other things, the plaintiff requested that the court terminate spousal support. An interesting aspect of New York law when it comes to spousal support modification is that the Family Court Act and the Domestic Relations Law outline different conditions under which spousal support can be modified.

Under the FCA section 412, spousal support orders can be modified upon certain events, including:

A written or oral stipulation or agreement between the parties.

Published on: November 25, 2024

In the absence of marriage, without evidence of a formal agreement or financial contribution, there no right to property or financial support. Farre v. Lours, 2020 N.Y. Slip Op. 33963

by Stephen Bilkis

Common law marriage is a legal concept that recognizes a couple as married without the need for a formal ceremony or marriage license. It typically arises when a couple lives together for a certain period of time and holds themselves out as married, presenting themselves to others as spouses. In common law marriage states, these couples are treated legally as if they had undergone a formal marriage ceremony.

However, New York does not recognize common law marriage. This means that even if a couple lives together for an extended period and behaves as if they are married, they are not considered legally married under New York law. In New York, a valid marriage requires a formal marriage ceremony performed by an authorized officiant and the issuance of a marriage license.

In Farre v. Lours, 2020 N.Y. Slip Op. 33963, a plaintiff brought forth various claims against the father of her children, seeking financial relief and asserting rights related to their shared assets and living arrangements. The case involved complex legal arguments surrounding the nature of their relationship, financial contributions, and promises made during their partnership.

Published on: November 19, 2024

ppellate Division upheld child support and maintenance modifications due to procedural default and emancipation. Feldman v. Feldman, 185 A.D.3d 552 (N.Y. App. Div. 2020)

by Stephen Bilkis

This case centered on a post-divorce dispute involving modifications to child support and maintenance obligations. The plaintiff appealed orders and judgments that adjusted the defendant’s financial responsibilities, arguing against the decisions rendered by the Supreme Court, Kings County. The appeals revolved around procedural defaults, the emancipation of the parties’ child, and the modification of financial obligations.

Procedural default occurs when a party fails to follow legal procedures required in a case, such as appearing in court or filing necessary documents within specified deadlines. In legal matters, this failure can result in significant consequences, including the dismissal of appeals or claims. Courts view procedural default as forfeiting the right to contest certain decisions. To address a procedural default, the party must typically file a motion to vacate the default and provide a valid reason for the failure. Courts often emphasize strict adherence to procedural rules to ensure fairness and efficiency in the judicial process.

Background Facts

Published on: November 13, 2024

Calculating spousal maintenance. AW v PW 2022 NY Slip Op 51177(U)

by Stephen Bilkis

In AW v PW, 2022 NY Slip Op 51177(U) the court was tasked with determining spousal support and child support amounts pendente lite, amidst a divorce proceeding initiated by the Plaintiff in December 2020.

“Pendente lite” is a Latin term meaning “pending the litigation.” Pendente lite spousal and child support refer to temporary financial support orders issued by a court during the course of divorce or family law proceedings. When determining temporary support in New York, courts consider several factors, including each party’s income and financial resources, the marital standard of living, the needs of the children, and any exceptional expenses. They also review financial affidavits detailing both spouses’ incomes, expenses, assets, and liabilities. The goal is to maintain the status quo and prevent financial hardship for the lower-income spouse and children pending the final resolution of the divorce proceedings.

Background Facts

Published on: November 11, 2024

Father incarcerated for willful failure to pay child support. Atkinson v. Atkinson, 181 A.D.3d 590 (N.Y. App. Div. 2020)

by Stephen Bilkis

Under New York law, incarceration is a possible consequence for the willful nonpayment of child support. This punitive measure is considered a last resort and is typically employed when all other enforcement methods have failed to compel compliance with support obligations. The legal framework governing this area is outlined in the Family Court Act (FCA), particularly in sections that address the enforcement of child support orders.

Section 454 of the FCA stipulates that failing to pay child support as ordered by the court constitutes prima facie evidence of willful violation. Once the custodial parent or guardian establishes that the non-custodial parent has not paid support as directed, the burden shifts to the latter to prove their inability to pay. The non-custodial parent must provide credible evidence, such as detailed financial statements or medical documentation, to demonstrate that their non-compliance was not willful but rather due to circumstances beyond their control.

If the court finds the nonpayment to be willful, section 455 of the FCA allows for various penalties, including incarceration. The decision to incarcerate hinges on the non-custodial parent’s continued defiance of the court order without just cause, reflecting the legal system’s commitment to ensuring that child support obligations are taken seriously and that children receive the financial support they are legally entitled to.

Published on: October 30, 2024

Willful Violation of Child Support Order. Wanda R.F. v. Marc A.C., 222 A.D.3d 585 (N.Y. App. Div. 2023)

by Stephen Bilkis

In a recent case before the Family Court of New York County, the court affirmed findings that the respondent father willfully violated a support order dating back to 2010.

In New York, a willful violation of child support occurs when a parent fails to comply with a court-ordered child support obligation without a justifiable excuse. According to Family Court Act § 454(3)(a), a parent is deemed to have willfully violated a support order if they have the means to provide support but fail to do so without a valid reason.

The statute places the burden of proof on the party alleging the willful violation to demonstrate that the non-compliant parent had the ability to meet their support obligation. This can be established through evidence of the parent’s financial means, employment status, and any other relevant factors. Once the prima facie showing of willful violation is made, the burden shifts to the non-compliant parent to provide evidence justifying their failure to pay support.

Published on: October 17, 2024

New York court modified maintenance and equitable distribution from a foreign divorce judgment. Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020)

by Stephen Bilkis

When a divorce occurs in another country, New York courts can address unresolved issues such as property division, child support, and spousal maintenance. Foreign divorce judgments are generally recognized under New York law if they comply with due process and do not violate public policy. However, New York courts can independently adjudicate ancillary matters not addressed in the foreign judgment. Parties may file actions in New York to resolve these issues, following domestic legal standards such as equitable distribution and child support guidelines.

Sufia v. Khalique, 189 A.D.3d 1499 (N.Y. App. Div. 2020) involved a matrimonial action concerning the equitable distribution of marital property, child support, and maintenance following a divorce granted in Bangladesh. The judgment, rendered by the Supreme Court, Queens County, addressed these issues after a nonjury trial. The defendant appealed the judgment, challenging its provisions.

Background Facts

Published on: September 15, 2024

Court addressed maintenance, child support, and reimbursement disputes in a high-income divorce case. Tuchman v. Tuchman, 201 A.D.3d 986 (N.Y. App. Div. 2022)

by Stephen Bilkis

This case involved a divorce and related financial matters, including maintenance, child support, and equitable distribution. The Supreme Court, Westchester County, addressed disputes over payments, income allocation, and financial obligations between the parties. Both the plaintiff and the defendant challenged various aspects of the court’s rulings.

Background Facts

The plaintiff and defendant were married in January 1985 and had four children. At the time of the trial, two of their children were still unemancipated. In November 2012, the plaintiff filed for divorce, seeking ancillary relief. Over the course of the proceedings, the parties entered into a stipulation of settlement in June 2017, resolving issues related to equitable distribution, property, and legal fees. However, other matters, including maintenance and child support, proceeded to trial.