For Compassionate Counsel When You Need It Most, Rely On Our Family Lawyer
If you have questions or are considering separation; divorce or child support it is often crucial to choose a family lawyer who you can be sure will represent your best interests. With experience in a variety of cases pertaining to family law, from child support modifications, to prenuptial agreements, and more, the Offices of Serrano & Associates, P.C., has the skills necessary to ensure that your rights are protected.
In uncontested divorces, the parties amicably work out issues involving custody, visitation, child support, spousal maintenance and division of the marital assets. The legal fees and the court costs involved in these types of divorces can be relatively minimal. They also go through the courts faster and are much less aggravating than contested divorce cases.
Contested Divorce Cases
In contested divorce cases there are many complex issues which need to be dealt with. To start with, the issue is where do the children live and who do they live with? Is sole custody appropriate or is joint custody a better way to go? Who gets to live in the marital residence? How are the assets going to be divided? Will there be enough money available for both parties to live at the standard of living they had previously enjoyed?
In contested divorce cases, the best way to deal with the issues is to try to negotiate out of court settlements and resolutions of these issues. If negotiations fail, there will usually be motion practice which can be described as small battles before the major battle.
Motion practice involves submission of paperwork justifying each party’s position with regard to the relief they are requesting and the judge writing a decision based on the submission. There are numerous types of motions that can be filed. Some motions are done on an emergency basis. There are motions related to temporary child support, temporary spousal maintenance (alimony), temporary custody, payments of expenses to maintain the marital residence, payment of interim attorney’s fees, and other types of motions. The more motions and/or the greater the complexity of the motions adds to the legal costs involved in a divorce proceeding.
In the State of New York, child support is paid until the child reaches the age of 21. Child support payments can be eliminated after the child is 18 years of age if the child should become emancipated, able to support himself or herself, married, enter the military, or live outside of the marital residence and be self supporting. Child support payments are paid by the non-residential custodial parent to the residential custodial parent. In simpler terms, the party who the child or children don’t live with, pays child support to the parent who the child or children reside with.
The non-custodial parent will pay child support based upon his or her gross income less FICA. For one child, the non-custodial parent will pay 17% of his gross income less FICA, 25% for two children, 29% for three children, 31% for four children, and 35% for five children or more. In addition, there are add-ons to the child support. Parents must contribute to medical expenses for the children, and if the residential custodial parent works, the non-residential custodial parent (parent without custody) must contribute to child care expenses while the other parent works.
There is currently an income cap of $141,000 with regard to child support payments. Courts however have discretion to make awards beyond this $141,000 cap and the usual standards in the Metropolitan New York area as to how much income will be impacted on for child support range from approximately $200,000 to $350,000 depending on which county the case is in.
Modifying Child Support
Circumstances do change. Parents lose their jobs, get downsized, get promoted, retire, become ill and unable to work, among other issues impacting on income from employment. In cases where there has been a substantial change in circumstances, the parent paying child support can bring an application to either the Family Court or the Supreme Court requesting a downward modification of the child support. Parents can also agree among themselves to change the amount of the child support, either upward or downward. This can be accomplished by a written agreement So Ordered by a judge. Even if a parent’s earning ability is reduced, there is no guarantee the court will reduce that parent’s child support financial obligations. Courts take other issues into consideration regarding reducing child support which may involve the financial circumstances of the parties, the best interests of the children and other factors. Individuals who are downsized or who lose their jobs are expected to use due diligence to find new employment.
Failure to Pay Child Support
If one parent fails to pay child support, the other parent can take them to court to enforce the child support obligations. This can result in the loss of a driver’s license, professional licenses, such as licenses to be a doctor, lawyer, dentist, and architect. It can also result in the seizure of bank accounts and tax refunds from the federal and state government. In addition, a contempt application can be brought against the parent who fails to pay child support. In contempt situations, the non-paying parent can be subject to incarceration for up to six months.
Handling Child Support Proceedings
The best way to handle a child support proceeding is to obtain an experienced, competent family law attorney to represent you in these proceedings. Many individuals go into court trying to represent themselves and find that the system is not user friendly.
Bringing or fighting a child support proceeding involves complying with statutes, case law and court procedures. If you do not understand these procedures or do not know them, you may be acting in a manner which is to your own detriment.
Spousal Support / Alimony in New York
If there is a significant difference in the earning capacity of the parties to a marriage, spousal maintenance, formerly referred to as alimony, can be an issue in divorce or Family Court proceedings.
The purpose of spousal maintenance is to equalize the financial ability of both of the parties to the marriage to maintain their standard of living during the pendency of the divorce proceeding and after the divorce is over. The amount of the spousal maintenance and the duration of the spousal maintenance relate to the relative incomes of the parties and the length of the marriage. In divorce cases where an agreement cannot be worked out between the parties concerning the issue of spousal maintenance, this matter is presented to the judge to make a determination on the issue. The judge takes into consideration the following factors when looking into the issue of spousal maintenance:
The age, health of the parties and whether either of the parties has special needs or disabilities.
The incomes of each of the parties over the past three years.
The earning capacities of each of the parties going forward.
The length of time the parties were married.
The standard of living maintained by the parties during the course of the marriage.
Did one of the spouses put their career on hold to raise the children and maintain the marital household?
Judges can also take into consideration the financial arrangements during the course of the marriage between the spouses when considering the issue of spousal maintenance. There are numerous different circumstances, events, and issues within the marriage a judge can take into consideration in dealing with the issue of spousal maintenance.
Dealing with issues of child support, division of property, and spousal maintenance, in a negotiated settlement sometimes is a preferable route to litigating these issues before a judge. When settling financial issues the party making the payments to the other party can figure out what his or her expenses are and make plans for reorganizing their life in the future knowing what their financial obligations are.
Dealing with a spousal maintenance issue is both complex and emotionally charged. Why should you pay to support someone you are no longer married to? Why should you support someone you don’t necessarily like at this point? Unfortunately, the State of New York requires the better financed party to provide spousal maintenance, in some situations, to the lesser financed party. Having the best, most experienced and available attorneys can give you a step up in spousal maintenance negotiations and litigation.