Child Support

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.

Published on: September 12, 2024

Does the Family Court have jurisdiction over a child support petition if another court has already issued an order?? Dawson v. Iskhakov 216 A.D.3d 950 (N.Y. App. Div. 2023)

by Stephen Bilkis

The jurisdiction of the New York Family Court encompasses a wide array of familial matters, prioritizing the welfare of children and the resolution of family conflicts. This court has authority over cases involving child custody, visitation rights, child support, and paternity disputes. It also handles matters related to adoption, guardianship, and juvenile delinquency, aiming to ensure the protection and stability of children within the state. Additionally, the New York Family Court adjudicates cases involving domestic violence, issuing orders of protection and facilitating access to necessary resources for victims. Its jurisdiction extends to matters of family offense proceedings, including allegations of abuse and neglect within familial relationships. With a focus on mediation and rehabilitation, the Family Court strives to promote familial harmony while upholding the rights and safety of all individuals involved, making it a vital institution for resolving complex family issues in the state of New York.

Dawson v. Iskhakov, 216 A.D.3d 950 (N.Y. App. Div. 2023) focuses on an issue related to the jurisdiction of the Family Court when it comes to child support matters.

Background Facts

Published on: August 12, 2024

Court considered whether a reduction in maintenance was warranted on the basis of hardship. Valvo v. Valvo 218 A.D.3d 909 (N.Y. App. Div. 2023)

by Stephen Bilkis

Valvo v. Valvo, 218 A.D.3d 909 (N.Y. App. Div. 2023) involves an appeal from the Family Court of Saratoga County regarding a petition to modify maintenance and child support obligations. The dispute arises from a divorce between the petitioner (referred to as the father) and the respondent (referred to as the mother) in 2012.

In New York, Family Court will grant a downward modification in child support only under limited circumstances as follows:

Financial Hardship: One of the most common reasons for seeking a reduction in child support payments is a significant change in the financial circumstances of one or both parents. For example, if the non-custodial parent experiences a loss of income, such as unemployment or disability, they may petition the court for a reduction in child support payments. However, it’s essential to demonstrate that the loss of income is involuntary and not due to willful neglect or avoidance of child support obligations.

Published on: July 31, 2024

Family Court’s authority to modify settlement agreements. Deborah K. v. Richard K., 203 A.D.3d 433 (N.Y. App. Div. 2022)

by Stephen Bilkis

In Deborah K. v. Richard K., 203 A.D.3d 433 (N.Y. App. Div. 2022), a father appealed an order regarding child support and spousal support payments. The court’s decision, entered on March 6, 2020, addressed objections raised by both parties regarding previous orders issued by a Support Magistrate.

Background Facts

In the case before the Family Court of New York County, the dispute stemmed from a stipulation of settlement agreement entered into by the parties on February 26, 2013. A stipulation of settlement agreement in New York is a legal document that outlines the terms and conditions agreed upon by parties involved in a legal dispute, typically in the context of a divorce or family law matter. It serves as a formal agreement reached through negotiation or mediation, whereby the parties agree to resolve their differences and settle their legal issues outside of court.

Published on: July 10, 2024

Leathers v. Smalls 192 A.D.3d 892 (N.Y. App. Div. 2021)

by Stephen Bilkis

In Leathers v. Smalls 192 A.D.3d 892 (N.Y. App. Div. 2021), a case heard by the Family Court of Westchester County, the father appealed from two court orders related to child support obligations. The case involved a dispute over the father’s compliance with a child support order and the subsequent consequences imposed by the court.

In New York, child support is determined based on a standardized formula outlined in the Child Support Standards Act (CSSA). This formula considers several factors, including each parent’s income, the number of children requiring support, and certain expenses such as daycare and medical insurance premiums. The CSSA provides a guideline percentage of the non-custodial parent’s income to be allocated for child support, with adjustments made for various circumstances such as shared custody or extraordinary expenses. Courts typically use this formula to calculate child support obligations, ensuring consistency and fairness in support determinations across cases. However, courts may deviate from the guideline amount under certain circumstances, such as when the application of the formula would be unjust or inappropriate.

Background Facts