Dutchess County Divorce Law Change

Earlier this year New York State legislature passed a maintenance bill which changed matrimonial law in some significant ways.  Governor Cuomo signed the bill which became effective on two different dates: the section relating to temporary maintenance become effective October 25, 2015, and all other provisions including post divorce maintenance, become effective January 23, 2016.  Recently, Governor Cuomo signed an addendum to the bill that required that all agreements or orders must include two child support calculations; one for when maintenance is paid, and the other for after maintenance terminates.  This legislation is helpful to both practitioners and clients as it takes away some of the guesswork and unknowns in matrimonial cases.

          The biggest change for attorneys who practice matrimonial law was the inclusion of a calculation for post divorce spousal support and guidelines for the duration of such support.   For the first time, if a person is paying maintenance that is deducted from his/her income for child support purposes, and it is added to the other party’s income for child support purposes.  Also, parties are sharing the statutory child support add-ons in proportion to their income, including spousal support.  Prior to this determination, courts were not always deducting the spousal support before determining child support, nor was the payment of spousal support affecting the sharing of the statutory add ons.  

          The challenge for both practitioners and clients will be becoming used to the new formula and its application to collaborative cases.  Practitioners will need to amend their agreements to reflect the language of the new statute, including detailed opting out language, and specific deviation language.

          The new legislation creates both more structure (better parameters) for cases, while still allowing for deviation based upon the actual circumstances of the parties.  In collaborative practice, the attorneys can use this structure to guide clients in an interest based discussion about what each persons goals are, but still allow the unique factors of each case to guide the ultimate resolution.

Attorney’s Fees

Pursuant to Domestic Relations Law 237 (a) an award of counsel fees is “an issue controlled by the equities and circumstances of each particular case, and the court reviews the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ position. (more…)

Joint/Shared Custody

Though not legislative, at least one appellate Court has issued a decision after trial granting parents joint custody with a shared parenting schedule. A decision issued by the Appellate Division, 3rd Department on November 20, 2014, after fact finding hearing, was for joint legal custody, equal half-week parenting time. Matter of Teri v. Elliot. 2014 NY Slip Op 08074.

This has not been the norm. In the past judges have warned parents after trial the Court will not issue a joint custody order since it is clear that they cannot co-parent. However, in the case Teri v. Elliot, the Court found that while both parents had shortcomings, each “demonstrated their ability to parent the child appropriately, and exhibited their strong desire to care for him.” Specifically in that case, both parents were found to be fit and able to provide a stable, nurturing environment for the child. Although the mother was the primary care giver during the child’s infancy, once the father became aware he was the father, he exercised his parenting time, and participated in programs to improve himself. The Court made note that both parents were supported emotionally and financially by their extended families.

Perhaps this case will set a precedent that local judges will follow, i.e. all things being relatively equal, a Court can issue joint custody, shared parenting even after a trial.

Family Offense

Family Court has the ability to punish specific criminal behavior if it occurs within a family. Family is defined by the statute as persons who are related by blood or marriage, have a child in common, or have an intimate relationship. Family Court Act §812. Not all criminal acts are within the jurisdiction of Family Court, so the acts complained of must be specifically outlined in the Statute.


Custody in Best Interest of the Child

The Courts have held that the “essential consideration in making an award of custody is the best interest of the child, under the totality of the circumstances.” Eschbach v. Eschbach, 56 NY2d 167, Friederwitzer v. Friederwitzer, 55 NY2d 89. But what does “best interest” really mean?


Child Support Tips

Child support in New York State is paid from the non-custodial parent to the custodial parent. The calculation is usually based upon last year’s income, and adjusted for Medicare and FICA. After determining the gross income, the resulting number is multiplied by a percentage based upon the number of children you have (17% for one child, 25% for two children, 29% for three children, etc.). That percentage is the presumptively correct amount of annual child support, which can then be divided into a weekly, biweekly or monthly amount based upon the payor’s pay schedule.


Relocation – A Local Dutchess County Example

Relocation is one of the most controversial issues in custody cases. The Courts have held that “a parent seeking to relocate with a child bears the burden of establishing by a preponderance of the evidence that the proposed move would be in the child’s best interest” Bjornson v. Bjornson, 38 AD3d 816, and Tropea v. Tropea, 87 NY2d 727.


Separate Property

One of the more difficult areas in litigated equitable distribution cases is the issue of separate property. When people are first getting married, buying a house, or otherwise combining their lives, they are not planning for a divorce.