Family Law/Divorce - New York

Maintenance

MikeyH — Thu, 19 Nov 2009 14:53:29 GMT

In a proposed settlement, her lawyer states that maintenance figure is calculated using "Jeff Specner's Formula". Based on the numbers I was able to work backward to approximate this formula, but would like to know the actual formula. Any ideas??

Cheating Spouse has multiple Bank Accounts

Brian-B — Sun, 15 Nov 2009 00:14:08 GMT

This is related to my previous post "Spouse is a Cheat."

After compiling evidence that the spouse is committing adultery is it possible to supoena their bank accounts to further help my case?

Spouse is a Cheat

Brian-B — Sat, 14 Nov 2009 20:56:54 GMT

I am 100% convinced my spouse has been cheating on me. Should I hire a private investigator and how may the findings help my case? Is it also possible to obtain my spouse's text messages? If so how long would it take?

Vacate Paternity - New York

BAKR08 — Mon, 11 May 2009 15:51:18 GMT

Hello,

My ex husband passed away intestate two years ago. We have a non marital child. I just revceived a petition to vacate paternity from the NYS Family court which my ex mother in law has filed. can she or the court legally bring this action? We have never been or are not currently on any public assistance. I had never sued my ex for child support as he was always a good father. what can I expect to happen in court. I cannot afford an attorney. any help would be greatly appreciated.

Thanks

NCP Owed Credit

NAP — Tue, 10 Nov 2009 00:06:40 GMT

My ex filed for a court order child support claiming I had never payed her anything since Feb 2008. Judge issued a temporary order and I had my wages garnished.

Went to court and judged issued an order of support, now I pay CP less money each month, the child enforcement folks were also ordered to credit me for money paid directly to CP, $1700.

The child support folks have only paid me half the money and told me today that $850 is all I had in my account and I must take the CP to small claims court for the other $850 owed.

I still have a number of days to file objections to the order of support, the Support Enforcement Folks were quick to garnish my wages in the first place, a judge is ordering them to reimburse me, how can they get away with not following a court order ?

What are my options ?

Upward mod request in NY

NYBiasedvsMen — Thu, 05 Nov 2009 16:35:39 GMT

I am the father, non-custodial parent (joint custody). I have our 2 children 3 days per week.

We opted out of CSSA, I'm paying $671/month.

Ex filed for upward modification. At time of agreement, I made $57780. In 2008 I made $69371. This represents a change of 20%.

Their 2008 1040 shows an income of $12000. According to their financial disclosure, they have a mortgage payment of $1080/month. Not sure how this makes any sense to the court.

I was under the impression that there are primarily two factors the court considers; 1) needs of the children not being met by the current level of support, and 2) significant change of circumstances. While I have had an increase in my salary, there are numerous caselaw findings saying that an increase in income by the non-custodial is not a factor to increase support by itself.

According to the IRS living standards, $671 is more than enough to provide for two children.

"Upon application by either party, the court may annul or modify any prior order or judgment as to maintenance or child support, upon a showing of the recipient's inability to be self-supporting or a substantial change in circumstance ... "

and, from Boden v. Boden (1977), the NYS support courts rely heavily on this, "Unless there has been an unforeseen change in circumstances and a concomitant showing of need, an award for child support in excess of that provided for in the separation agreement should not be made based solely on an increase in cost where the agreement was fair and equitable when entered into (see McMurray v. McMurray, 53 A.D.2d 596-597, 384 N.Y.S.2d 1007, Matter of Best v. Baras, 52 A.D.2d 557, 382 N.Y.S.2d 318; Matter of Klein v. Sheppard, 52 A.D.2d 532, 381 N.Y.S.2d 885)."

I don't see how the court can ignore these two basic guidelines when reviewing a case for modification. Obviously the childrens' needs are being met, and the 'unexpected change in cirucumstance (my increase in income)' would not, by itself, warrant a modification.

Both parties are re-married, and we each have other children with our new spouses (I have two new children, she has one).

What do you see as the likely outcome if this goes to trial? We are in family court presently.

Thanks.

Dismissed With Prejudice

NYSMustChange — Thu, 05 Nov 2009 02:46:46 GMT

Hi,

After three petitions for the reduction of an existing support order, the third was dismissed for the following:

I did not meet burden of demonstrating a clear picture of present financial circumstances
Self-employed pay stubs are not pay-stubs
Business income used for personal expenses
I did not make a diligent effort of securing additional business

I am self-employed. As requested by the courts, I provided all requested documentation; pay stubs identifying current salary, 1099 tax filing. I provided my 2008 tax return and profit and loss statement. I also provided an affidavit from my single client indicating reduction in per diem requirements by 65%. Client is a dealer-broker and suffered significant lossed dues to the overall economy.

I did not provide any details on my ongoing search for additional or alternate employment as I was not asked, nor saw at the time, the necessity to bring this up.However, I have documentation demonstrating an ongoing effort is being made to substantiate my existing income.

I am in the process of writing my objection - to be filed before December 1, 2009; 1) What can I do to help clarify what is unclear to this court? 2) What provisions are available by NYS to clarify ALL parties income? My revenue is still significantly less than at the time of the current order was made and my personal and business finances are in shambles and I am in significant arrears.

Any help helps!

Violation of Support Order

Ren — Thu, 05 Nov 2009 15:51:55 GMT

I rec'd a violation of support order. I was waiting until January to file a petition to modify my c/s order b/c I lost my job in Jan and court denied my request earlier this year for a reduction.

Can I file a petition for modification now w/ the viloation in process? Or do I have to wait?

Also, I cannot afford an attorney. Do I let the court system know that now or at the first appearance?

Thank you in advance.

What are valid reasons for reducing my child support payment

akarvounakis — Wed, 02 Jul 2008 17:19:23 GMT

Hi i needed to know what were qualified reasons for getting my child support modified to less then what i am paying now. I do i word it whaen i file for modification of support?

Opting out of court

Andre2468 — Fri, 30 Oct 2009 23:24:55 GMT

My son is 15. I pay child support through the NYS child support system. His mother and I both want to opt out of the system and have our own private agreement. Is it possible for us to go to court and tell them to discontinue the order and basically get out of our lives at this point? If not is it possible to just tell the judge to lower it? Do we need to give the court a reason?

Seperation Question

cgr621 — Sat, 17 Oct 2009 13:15:10 GMT

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If in a separation agreement it stipulates that the ex-husband is supposed to take the children every other weekend and he doesn't, is there any legal recourse for the wife? Please note that the divorce is spending but at the moment they are legally separated

Thanks so much, this is always a great site.

Worried about filing for Child Support

mssam — Sun, 21 Jun 2009 03:46:46 GMT

I have a 7 month old son with my fiancee. I want to leave him. I understand that I'll need to file for custody to get child support. Does this have to be done first, or can it be done at the same time? (He did sign the paternity acknowledgement at the hospital.)

Also, he makes over $100k a year, whereas I quit my job when our son was born. My tax return from last year shows that I made about $52k, but this year I've made nothing. Does what I make come in to play at all when getting the CS order? I'd like to go back to school soon, if I got loans, would that decrease my amt of support? Would he still have to pay half of child care?

Lastly, we currently live together, but he told me if I were to file for child support, I would have to leave the house that day. If the baby and I were to go stay with my parents would that have any effect on the ruling? What about if I borrowed money from them to get my son & I into an apartment? (I just don't want him to argue that they're supporting me.)

This all seems so complicated that I'm considering just hiring a lawyer, but I really don't have any money to do so right now...

confused

juliet143love — Mon, 12 Oct 2009 05:31:55 GMT

I am currently just waiting for my husband to sign the papers for an uncontested divorce. This process started a year ago when I found out that he was cheating on me. I stopped it because he asked me too and I was pregnant. About 2 and a half months ago I started up the process again when I realized that I couldn't be with someone who cheated on me. My husband vacated our residence and I have since been seeing someone for about a month or so. Tonight my husband barged open the door and [beat up] the guy I am seeing. I did not call the cops because in my mind he has every right to come into his own residence. However, I am wondering if there is anything legal that he could use against me where I could lose custody of my son. My lawyer had me under the impression that beacuse we are technically separated I am allowed to be dating. I guess I just need some guidance and what I could look forward to my husband doing now legally with the fact that this guy was in our marital home.

Visitation and alienation issues without any results

estamul — Tue, 16 Jun 2009 19:21:40 GMT

Hi, I have been going through a matrimonial matter for about 1 1/2 years now which myself and the mother have 4 children. This is in New York State.

Since the start of the proceedings and once an initial visitation schedule was granted there have been nothing but problems with the mother disrupting or denying visitation. For the first 6 months I was denied visitation around 50% of the time. After continuing problems almost all caused by the mother (including her father getting involved and telling the police the kids are never going with me) we had some time at a monitored location to pickup and drop off. Even there the mother would not follow the rules and was repeatedly warned about not complying with their rules. At one point the visitation center sent a letter to the court about this. My attorney about one year ago did have a motion granted that ordered a custodial evaluation due to this an a few other issues that had happened. About 10 months ago the police wrote her up for viloation of a court order and then a couple weeks later called Child Protective Services on her for mental abuse. All of these instances are documented, my attorney is aware, the law guardian is aware,m yet nothing has happened to deter this. For a brief period towards the end of the towards the end of 2008 visitation was actually ok. Then one night the mother came out to my house afterwards and caused all sorts of problems, etc.... After that almost every week there has been an issue, claims some one is sick or some other excuse. Just a couple weeks ago she pulled up dropped off three of the four kids and said the other one might be feeling better next week then drove off. My oldest son said he didn't know where his brother was and then said his mother said it was none of my business where he was. I finally tracked him down and he was at a baseball practice. An hour later the mother showed up with her boyfriend to pick him up. When they noticed me there they decided to drive off.

I have told everyone about all the issues, too numerous to write about. From what I can tell, nothing has been done and is beyond frustrating.

In addition to this my have received probably near to 1000 phone calls, text messages or emails that are all supposedly from my children. Many of them using extremly vulgar language. The phone calls we can tell are prompted by the mother while the text or emails we believe are the mother directly. Almost exactly one year ago we sat in a court room and a judge specifically stated he never wanted to see any of these types of messages again (referring to the language and the children being involved in adult business). Within hours of this happening messages were sent to me, to my friends, on and on. Not only has this not stopped but of recent months this has increased. Again my attorney is aware, the law guardian is more than aware. I am told there is nothing that can be done. In the custodial evaulation it clearly states the mother has clearly alienated the children yet nothing happens.

I am confused at how this can occur. I know if I did 1% of what the mother has done I would be in jail.

Btw, my oldest is still only 12 years old.

Does anyone have any suggestions at all?

Thank you

Pre-op transgender as one party in a divorce

coyote9678 — Mon, 04 May 2009 17:05:19 GMT

I actually live in Florida, but I have a question about the divorce laws for a friend that lives in New York. When she got married in 1996 she was legally male and has since gone through the beginning stages of a sex change to become female. She legally changed her name about 2 years ago and is undergoing hormone treatments in preparation for gender reassignment surgery. Her "wife" has not been in the picture for approximately 9 years. She tried to keep in contact with her "wife" via telephone, e-mail and visitation to the place her "wife" had been living in order to give their son, who she has had custody of since they split up a chance to continue contact with his mother, to no avail as she went to visit her one day with their son and found out that she had moved and left no forwarding address or contact information. Prior to living separately upon finding out that my friend was transexual her "wife" refused her sex which we also read is grounds for divorce in the State of NY. She would now like to file for divorce on the grounds of abandonment and is unsure as far as the custody part of it what the law recognizes. She is still legally a male with all the biological parts of her body intact and does not want the marriage voided as illegal, she just wants to be able to get a divorce and move on with her life. Being unable to afford an attorney at this point in time, any information you could provide would be extremely helpful.

State unjusted child removal

ed.watts — Thu, 18 Jun 2009 16:20:01 GMT

I like to know what legal steps that can be taken after a state removal of children from a home in Nov 06 that was unjust and children was returned in June of 07 and case was stopped in middle of trail in Sept of 08 and case closed in March of 09 with no charges being filed and no testimony was takening from parents at all.

Can I prove my wife is lying & looking to take money

PontiacGuy — Fri, 03 Jul 2009 21:19:16 GMT

I've recently received a counter claim from my wife's attorney seeking $1300 in support per month to cover monthly expenses and medical bills. She also wants me to pay for her legal fees and purchase seperate medical and life insurance for her.

My wife refuses to communicate with me and we have not communicated in a month since she was served divorce papers. Currently I do not know her employment situation, but last time she and I spoke, she was still claiming short term disability. She says she has seizures and can't go back to work, can't go out, can't function normally. All of the medical tests, all of the doctors and specialists have found no problem at all. The seizure specialist found it to be non-epileptic seizures caused by stress and that many people have them, but need to find the stress cause through the help of a phsychiatrist. She didn't like the thought of that and said she wasn't going to anymore doctors and behaved as though she had no plans to go back to work.

Now throughout the last 5 months before we seperated, shortly after we got married in August 2008 she began to treat me with less respect, would scream and yell at me over little things, and would allow her family to treat me like i was dirt and walk all over me.

Also, in 2007 she had taken out a personal loan that I am joint on, and the funds from that were used towards planning our wedding. They were deposited into a joint checking account we setup along with gift money form my parents. When I decided I couldn't go on living with her treatment of me and decidied to go through with divorce, she went to that joint checking account and withdrew the entire amount of money. Also, a week before she wanted half of our tax return money to put in her own account, so I agreed and let her withdraw it from my account.

Also, I think its important to note that just before we seperated, she decided to see a phsychologist, and when we looked one up under my plan, the first one that came up she immediately recognized. I asked her how she knew that name, and she revealed to me that before we began our relationship and during part of our early relationship she had been secretly seeing this psychologist and never once reveal this until this point. She explained to me that she was seeing this psychologist for the same reasons she wanted to now, stress from her aunt and her mother and that the stress was so overwhelming she doesn't want to live. I instantly felt betrayed, that she never revealed this to me, as had I known she had physchological condition that she was hiding I would have never gone through with married.

I apologize for making this so lengthy, but I suppose knowing the backstory will help you give me a better opinion.

So as of a month ago, my wife had the $2000 she took from our joint account, she had $1600 in tax money she demanded, and whatever amount she had in a personal checking account of hers that she would never share with me nor disclose how much was in there.

In past few days I found through online credit card statements I have access to, that since we seperated she is out buying clothes, eating out, taking her cats to the vet several times, bought a new latop, and is making large payments to the credit card.

She also refuses to help pay the joint loan we have and since I bank at the same bank I am forced to make the full payment to avoid the bank freezing my ATM, Credit card, and part of my funds in my accounts there, not to mention to prevent damage my credit.

She also has a myspace page and wrote on there she is single and that currently shes changing jobs. Along with that, right around the timee bought her new laptop, she wrote on there her computer was broken but she's back online and happy. Also, on that facebook website she presenting herself under her maiden name, even though after we got married she changed her last name to mine.

Will all of that show that my wife is putitng on a sharade, that my wife doesn't need money, and that she can go out and function and go to work? Without medical proof or positive tests will her claim of seizures hold up in court? I also have compiled folders of documents to support everything I have explained.

I am hoping to prove that she doesn't have this medical condition, that she has money and is wasting it away. Also, I am definitly hoping that her secretly keeping information about her needing to see a psychologist for stress issues before we got married secret from me, and never revealing them until she has a relapse of her stree issues again. I mean she knew this all along and never cared to reveal them to me. Wouldn't that fall into some aspect of false represention? After we got married I could definitly see she began to treat me different and I saw change in her.

Any input or opinions would great.

Thanks

Jurisdiction questions

212mom — Fri, 10 Jul 2009 06:15:26 GMT

I don't understand how a change of jurisdiction works with a settlement agreement. I was divorced in NY state--via a stipulation of settlement and agreement that was not merged with judgment of divorce. It resolved all issues between ex and me and said that it is the intention of this agreement that it be interpreted under NY law.

However, at this point, no one who was a party to the divorce lives in NY state--and hasn't for several years. I have sole legal custody of our child and live in Oklahoma. Ex (the NCP) lives in Florida. Again, no one--not me, not child, not ex--lives in NY state anymore, or anywhere near. If I want to enforce stipulation--ex has violated multiple terms and I've finally had enough--do I move for a change of jurisdiction to Oklahoma where I and child live and then seek a motion of contempt? (I obviously can't very readily fly back and forth to NY for court case--and neither can ex.) But then does Oklahoma interpret our stipulation under NY law (which is very complicated, but how would an Oklahoma judge do this)--or is the stipulation then somehow interpreted under OK law? Help!?

Personal Jurisdiction

NAP — Thu, 09 Jul 2009 22:58:17 GMT

I was divorced in 2003 in Germany (US Army). We never had court ordered child support & I have always sent checks for child support each month. My Daughter will be 18 in August 2009, son turns 20 this month they live in New York.

I live in California & out of no where I receive a petition to appear in Family Court for court ordered child support, the petition stated I had not paid child support since 2/20/08. No worries I have the deposit checks to prove I have always paid child support, one of the checks she even signed herself. Trail date is set for August in New York.

I received my childs report card today but only after pulling teething, in the comments section it reads child tranfering to california school 5/1/09.

What I see now is she is attempting to get child support in New York because that runs onto 21, where as here in California it's 18 and she will have the New York order transferred. Bottomline as long as any child of my was pursueing and education I would pay until domesday.

Can she get away with this, I never had residency in New York, have always paid her money, BTW the temporary order is less than what I was paying her.

To add insult to injury, I found out today after requesting a welfare check with a New York police station, that my daugther is in California.

What can I do, what kind of parent would ever block another parent from looking into the eyes of a child and telling them how much you love them ?

I am so distraught & and in so much emotional pain over this, I feel I don't want to live.

Marital Property

Tim Con — Mon, 20 Jul 2009 18:34:43 GMT

My wife and I are getting separated and only have our co-op as a sticking point. I pay the mortgage of $1697 per month and she pays the maintenance and utilities/cable etc for about $1100 per month. I put up all of the money for the down payment (along with a gift from my parents) and was hoping to recoup as much of that as possible but my wife wants 50% of whatever is left after the sale and fees are paid. Since we know we will be selling for a loss and she put up nothing for the down payment do I have any chance of fighting to keep as much as I can or is she entitled to half even though she put up nothing?

HELP

Nagel — Thu, 30 Jul 2009 22:48:04 GMT

Could someone please help me.. I do not have an attorney and can not afford one. I was told that sometimes there are lawyers that do things Pro Bono. I have to go to court August 11 and I can't walk in there alone. PLEASE!!

Visitation Question

MRSN326 — Thu, 01 Oct 2009 22:08:15 GMT

My exhusband and I have Joint Custody. I am the Custodial Parent and he is the Non-Custodial Parent. Our children visit with him 5.5 days out of the month. He used to see them 8 days a month, but the visitation was lowered due to a new girlfriend that the kids did not take a liking to. The Law Gaurdian recommended the girlfriend not be around the children because of incident.

Here is my question: I have now began working and my ex husband do not want to help financially or with responsibility. If he was ordered to by court he would. I want to know if I go to court and ask he shares responsibility of having the children 1 day per week over night and has, STANDARD VISIATION would they impose that on him? Currently he does not help with taking them for school holidays and vacation and he only takes then 1 week for the summer. With me now working, I need either more financial help or more of his interaction. Would the court help with making him more responsible. Because me asking is a no win situation. He holds too much animosity, but if the court saw it fit he would act differently!

parental Alienation in New York

otabug — Wed, 07 Oct 2009 01:51:19 GMT

My husband has a daughter that is 13 years old. He has never seen her. We have spent the last 11 years trying to see her. We found her again two years ago and took my husbands x wife back to court once again. This is after she said all kinds of things about she was worried for the childs safety. My husband had to go to court ordered doctors and take metal test. All proved there was no grounds for what she said. He was cleared of any wrong doing. She was ordered by the court to take the child to counseling. She has refused. She will not take any calls and has her now husband answer the phone and say don't call anymore just before he hangs up the phone. Our lawyer thinks we can charge her with PAS and win. From everything I can read on the internet I think the lawyer is right. This child has no reason for not wanting to see my husband, other than what her mother has told her. My question is if she is charged with PAS and found to be guilty. What does that mean in the state of NY? Can she then be charged with child abuse? What will they do at the point to let my husband see his daughter?

Who is the Custodial Parent?

BradyBunchMom — Wed, 23 Sep 2009 16:40:31 GMT

My husband and his ex wife went to child support court today. The magistrate told them that he would not change anything if the ex wife, according to the divorce decree, is the custodial parent. She insists that she is, offering the last child support decree as evidence. However, they were back in family court in May of this year and as of June, this new order supercedes all prior orders of custody. It reads:

ORDERED, that the parties shall continue to share joint legal custody of the minor children (names and birthdates here) with joint legal placement of the children as follows: one (1) week the Respondent/mother shall have the children on Monday, Tuesday, Friday, Saturday and Sunday with the Petitioner/Father to have the children on Wednesday and Thursday. The following week the Petitioner /Father will have the children on Wednesday, Thursday, Friday, Saturday and Sunday until 4pm with the Respondent/mother having the children on Monday and Tuesday.

It also outlines that each parent has two weeks of vacation with the children during the summer. The order makes no statements as to custodial parent, just the above paragraph.

He makes more money than she does and therefore she receives support (we assume).

Based on this, who is the custodial parent?

Custody and Restraining order

cjbweb — Sun, 12 Jul 2009 21:34:18 GMT

Ok so heres the problems.

Me and my ex have had a child at a very young age, our son is now almost 7 months old. I have been diagnosed with Bipolar Disorder Type 1 w/o psychosis, and recently haven't been on meds because I have no insurance. She is unwittingly making alot of mistakes in her life and I worry about the safety of my son, she has been seeing my old best friend who is a level 1 sex offender, but for some old reason she thinks he won't be in trouble for this? Her boy toy (old best friend) says he has talked to his p.o. about her and yet legally he shouldn't be around anyone under the age of 18. She has brought my son over there plenty of times and she is 17 until the 31st of this month. If I can't get him violated can I put a restraining order on him for my son? I don't want him around my son what so ever. Also I've been told she has been very lazy not cleaning his bottles and doing his laundry, but her parents are. She has a job but not full time either, and she's staying at her parents as of now, i've heard she would move out soon so... I don't have a job right now, i'm staying at my moms for the moment, but the state is helping me get medicaid, and a place to live, plus food stamps. But if i get custody of him i can get wic for him right?

What I want to know is- can I get custody of him in my situation.

Can i get the court to appoint her to court ordered counsoling, and a restraining order on this guy.

Also how should i go about this whole thing, if i try and get custody of him and she get visitation? I wouldn't mind her and I having joint if she would stay away from this guy and get counsoling and help she needs.

Well thanks.