Posts Tagged ‘new york city divorce’

What is a Collaborative Divorce?

Friday, August 10th, 2018

To many of those who are exploring options for divorce, Collaborative Divorce, a recent addition to the list of ways spouses can get divorced, sounds a lot like mediation. In some ways it IS like mediation, except that in a Collaborative Divorce, both parties still retain their own attorneys to represent them. However, unlike in a traditional divorce setting, both attorneys are working with the mindset of getting the best possible outcome for both parties, as opposed to just representing and fighting for their clients interest only. In fact, the lawyers that specialize and practice in this type of divorce are bound by a different set of rules than those who do not, like putting what is just and fair before their client’s interests. Moreover, if the process breaks down, neither attorney is allowed to represent their client when the case goes to court.

A Collaborative Divorce is a great option for couples who feel that they can work out a divorce settlement amicably amongst themselves, but still want to have an attorney present, to protect them from agreeing to something they don’t understand, and might come back to haunt them later. In addition, much like with mediation, a Collaborative Divorce can be useful in ending the marriage while, in some capacity, preserving and retaining a functional relationship. The process is very organized, and an agenda/plan is set up in advance so that both parties have ample time to prepare for each meeting, in which they will discuss and negotiate (and hopefully compromise) on all the key issues and subjects that must be dealt with in order to move towards a divorce. If you and your spouse have a working relationship, and want to avoid a costly divorce, you should definitely consider a Collaborative Divorce.

How Do I Get A Divorce If I Cannot Afford One?

Monday, August 6th, 2018

There are many common reasons why one of the spouses in a marriage cannot afford a divorce. By “afford a divorce”, I am speaking primarily about being able to afford to retain legal counsel. The reasons for this can vary, from the fact that their spouse is the one that controls the finances, or perhaps they kept their finances separate, and one of the spouses is not in a place financially to hire a lawyer. In any event, there are other ways for someone to get a divorce attorney besides the traditional route of just hiring and paying one.

If your spouse controls both of your finances, you can approach this several ways. One way is to try and see if you can find an attorney that will provide a free consultation, so that at least you are taking one step in the right direction. Some may even be willing to take your case on, and work out a plan on how they will get compensated at a later time. In addition, the court may grant your request for your monied spouse to pay your legal fees.

Another option is an uncontested divorce, which is simple and quick because it does not involve a long, drawn out divorce process. There is one other option, although it is highly unadvised, which is to represent yourself in the divorce, meaning you will be your own attorney. But in the case of not being able to afford most attorney fees, see if you can obtain pro bono, or legal representation without charge.

How Can I Protect Myself If My Spouse Takes Out A Loan In The Divorce?

Monday, August 6th, 2018

Many people who are preparing for divorce get anxious when they begin to think about incurred debt, both their spouses and their own, and if they will be responsible for paying this debt off once they are separated from their spouse. When it comes to debt incurred during marriage, the truth is that it all depends on a few things, mainly who’s name is the debt in, what your state’s laws are, and what kind of debt it is (credit card debt, mortgage, auto, etc).

If your name is on a loan, either as a borrower or a co-signer, you will be held completely responsible for the paying back of this debt. The lender of the initial loan does not care about the circumstances of the borrower – their main priority is to receive money to the fulfillment of the debt (they may not ever even become aware that you got divorced!). The longer this goes unpaid, the more your credit score will suffer, and when you are just getting out of a marriage, and your finances are still a bit in a state of flux, the last thing you want is a mounting debt and a suffering credit score – especially as you look for a new home. So merely by being a co-signer, even if the “debt” is not explicitly on you, the loan and payment of it are applicable to you. A good option here is to try to get your name off the loan, either by refinancing or, if possible, having your name removed entirely. But if that doesn’t work, it is best to have it paid off, and deal with being repaid later, when your credit score isn’t taking a major hit.

In the state of New York, a “common law” state, spouses are only responsible for debts explicitly in their name, which allows one to be very mindful and careful when deciding on entering into a joint account with their spouse. Moreover, a prenuptial agreement can outline something similar, in that it can explicitly detail how finances, and debts, are to be divvied up in the case of a divorce.

Can The Custodial Parent Limit Visitation If The Noncustodial Parent Hasn’t Paid Child Support?

Thursday, August 2nd, 2018

When a non-custodial parent isn’t making child support payments, a common, yet misguided, response by the custodial parent is to withhold visitation rights to the other parent. Especially is this is not done through legal means and simply by but preventing or not allowing the non-custodial parent to see their child. The reason that this move is ill advised is because not only is it very unlikely to get the spouse to pay, but it can also potentially backfire and have negative consequences down the road.

If it comes out that you are withholding visitation from the other parent, you are also seen as withholding visitation for the child to see their parent, and the child has every right to see their parent. The court feels that the child should not have to be punished for their parent not making support payments. Moreover, just because you are not allowed to see your child does not make you exempt from being required to pay child support. So ultimately, you are withholding visitation even while the non-custodial parent will be required to make child support payments.

Finally, it is very unwise to play the role of deciding visitation, especially in the sense that you are in any way restricting visitation, and therefore negatively impacting the relationship between that parent and the child. The court is very opposed to this, as recently there has been an increased emphasis on each parent supporting the child’s relationship with the other parent. Any act against this could become problematic down the road.

Can I Change My Child’s Last Name from the Father’s Surname to My Surname?

Thursday, July 26th, 2018

For a variety of reasons, a parent that is planning on receiving full custody of their child after a divorce may want to change the legal name of the child, specifically their last name, If it comes from the other parent’s side of the family. However, there are some factors that play into the legality of changing the child’s name. Some of these factors are age, the reasoning for the change, and the interests of the child.

If the child is under 16, then a parent is able to change under a deed of change of name, otherwise known as a “deed poll”. A deed poll is a legal, binding document that that commits a person to whatever action is detailed in the document. In this scenario, following the poll, the person will be legally abandoning their name, agreeing to their new name at all times going forward, and living a life in which people will be addressing them by their new name. It is important to note that it is very hard and unlikely to change the original birth certificate, and it may not reflect the change.

There are various reasons that have been considered for a change of name as well, such as the common scenario where a parent is distressed by having to address their child, who shares either a first and/or last name with the father, especially if there is a history of violence between the parents. The court has recognized that this distress can have a serious impact on the parent’s ability to take care of the child. The court also has acknowledged scenarios, in which it would be in the best interest of the child to have a name change. This could be a scenario where the child has not been known by their current name very long, and in fact by NOT changing the name, it could actually cause the child harm .

Is Spousal Support Affected If My Ex Quits Their Jobs?

Thursday, June 21st, 2018

If the spouse who has been ordered to pay child support experiences a significant reduction in their income, like through a demotion or a loss of work, it is not always enough to reduce child support. This type of circumstance, however, can impact spousal support. Regardless, there have been many instances where the loss of work is the result of the supporter quitting or voluntarily leaving, which in some cases is used as a ploy to get a reduction in support requirements.

As made clear in the Federal Child Support Guidelines, the court may attribute income to a spouse, regardless if income is being earned or not. With regard to imputing income, one of the circumstances considered when a court is planning to award spousal support are if the spouse is intentionally underemployed or unemployed, other than instances where the underemployment or unemployment is required by the needs of a child of the marriage or any child under the age of majority, or due to reasonable educational or health needs of the spouse. Moreover, the courts really don’t like when a parent tries to evade support obligations, especially child support.

In the end, quitting your job is a deliberate choice, and not an unfortunate circumstance, and so most judges are going to be very unwilling to significantly lower or even end spousal support obligations. Some courts will even impute income based on how much the payer could realistically earn had they still been employed. This means that those receiving payments should not be overly worried if their ex quits their job, and that those paying spousal support should strongly reconsider quitting their job in an attempt to avoid spousal support.  

Which Parent Is More Likely to Be Granted Sole Custody?

Tuesday, June 19th, 2018

The question of whether a mother or father is more likely to get full, sole custody of their child is an interesting one. In the late 1800’s, a legal principle in family common law, known as the Tender Years doctrine, was commonly called upon to argue that the mother should have custody of the child. The idea behind the doctrine is that in the “tender years” of the child, a colloquial term referring to childhood and adolescence, it would be cruel to create any space between a mother and her young child, and that a child in these tender years needs all of the love and affection that only a mother can give. Granted, it was not written into the law, and it served more as an assumed presumption, one that was adopted by some courts in the U.S. from a custody law that was passed by British Parliament in the mid-1800’s. Still, it persisted in child custody battles for over one hundred years.

However, as time went on, the courts stopped recognizing the presumption, and actually went back and started reversing decisions that were heavily based on the tender years presumption, and the courts began ruling based on rather gender-neutral respects. That is why in most of the country, the court determine custody with the best interests of the child as the primary factor, where the presumption is that the primary caretaker is going to be the best parent to handle the primary responsibilities and custody of their small child.

However, there is a bit of similarity in these two determinants. In many instances, granting the mother sole custody is in the best interests of the child, either because the father is not a fit parent in his own right, or because the father moved significantly far, to the point that it would do more harm than good to relocate the child. But, keep in mind that, if the roles were reversed, these same reasons could be behind the rationale behind why a court would grant the father sole custody.

Who Decides Upon The Visitation Schedules?

Wednesday, May 23rd, 2018

Because you and your spouse will no longer be living together after the divorce, a visitation schedule will be constructed to preemptively map out the dates and times the child will spend with each parent, and to organize the child’s life in an orderly fashion. This schedule is greatly (and obviously) impacted by the child custody order, as depending on whether there is sole or joint custody will subsequently influence how much time the child spends with each parent. But, who creates the visitation schedule?

As is the case with all child-related matters in family court, the judges primary concern is “what is in the best interest of the child?” Although a judge is not always needed to decide custody and visitation (for example, both of these can be dealt with outside of court by working with a mediator), if it gets to that point, the judge will be the one to decide on what custody/visitation arrangement is in the best interests of the child. By going to court, and not resolving these issues amongst themselves, parents are no longer in control over a huge part of the child’s life.

It would be ideal for the parents to be able to cooperate in the construction of the visitation schedule and create a realistic custody agreement that works for the family, as well as their child. The way that you and your spouse would decide on these issues is most likely not going to be in line with what a judge would rule on, however they will always be focused on ensuring the child’s interests are the top priority.  

 

Can We Agree That There Will Be No Child Support Paid?

Monday, May 21st, 2018

Although there can be no instance where the court will allow that the non-custodial parent is not required to pay any child support, there is a matter of whether or not the custodial parent will collect, or enforce, these payments. In some instances, the court will not always know that a parent is not making custody payments unless the spouse that should be receiving said payments reports that they haven’t received any support. Beyond that, if the custodial parent does not feel like reporting the lack of payments coming in, then the non-paying parent is not likely to face any serious problems.

The reason that a court does not allow for no payments to be made is not actually about the parents, but rather the child. It is the child that is legally entitled to receive these payments (as that is who these payments are intended to benefit), up until they are 18. The most common way that child support orders come about is as part of a divorce process, along with the custody order. An example of this would be when the court is deciding which parent the child will spend the majority of time with, the next logical step would be figuring out how much the non-custodial parent will be paying in child support.

The other instance in which a child support order comes about is if the parents are not married, and the parent who the child resides with seeks some type of support. Although this can only begin after paternity has been established for both parents, herein lies the situation in which a parent is not paying child support without court enforcement. If the parents decide that the parent not living with the child does not need to pay support, as they are going to leave the child’s life or the support is not needed, and they never go to court about the issue, then in this situation, yes, you can agree amongst yourselves that there need not be any child support.

Are Child Support Payments Tax Deductible?

Thursday, May 17th, 2018

 

Many parents that are ordered to make child support payments reasonably assume that those payments can be claimed as a deduction, and are curious as to why they cannot list them as such on their tax returns. Their reasoning often comes from the fact that spousal support, or alimony, which many child support-payers also have to make, is deductible, and so therefore it would only make sense that you can claim child support payments as deductible as well.

However, this is not the case. This is an IRS issue, not a court issue, and so it is important to look at this issue from their perspective. Because these payments go towards supporting your children, these payments are considered as personal expenses. To provide some context, in their eyes, it is the same as if you were paying for your child’s expenses as you would if you and the other parent were married. But since you are separated, the custodial parent acts as a sort of middleman – the money you pay them goes towards payments for the children, just as if you were making the payment yourself for whatever their current needs are (food, clothes, etc).  In addition, not only is child support NOT tax deductible, but the parent who is receiving these child support payments may not list it as taxable income.

There is another way in which tax money and child support are intertwined. Suppose you are behind on your child support payments, and at the same time are expecting a refund from your federal taxes. If you are indeed behind on child support payments, and do not remedy this, don’t expect to see any of that federal tax refund money. The Treasury Department will be made aware of your “maleficence”  and will forward any tax refund you are entitled to, to your child’s state child support agency, who will then redirect that money to your child’s other parent, ensuring that your child receives the money that they are entitled to (remember, it is not the custodial parent that is entitled to receive this money for themselves, but rather for your child). Beyond that, there is no link between child support payments and taxes.