Barrows Levy PLLC https://barrowslevy.com Matrimonial, Family Law and Commercial Litigators Tue, 29 Sep 2020 20:07:01 +0000 en-US hourly 1 https://wordpress.org/?v=5.7.1 https://barrowslevy.com/wp-content/uploads/2020/06/cropped-LOGO-BLACK-32x32.png Barrows Levy PLLC https://barrowslevy.com 32 32 Child Support and COVID-19: A Novel Family Law Problem https://barrowslevy.com/child-support-and-covid-19/ Wed, 01 Apr 2020 00:49:20 +0000 http://box5643.temp.domains/~barrows1/best-interests-of-the-child-standard-explained-a-new-york-child-custody-blog-copy/

My Ex-Spouse Lost Their Job Due To COVID-19. What Now?

Recently, I receive a dozen or more calls each day from clients (past, present and potential) asking me what they should do now that their ex-spouse has lost their job or been furloughed due to the COVID-19 crisis. My answer to each of them is the same. “Now is not the time to panic.” Mortgages are being suspended, credit card companies are deferring payments, and the State and Federal governments are providing stimulus packages for those in need.

Simply stated, you will get through this. However, running to Court is not the answer. The Courts are closed, except for emergencies, and a failure to pay support is not considered by the Court to be an emergency. Realistically, you will not see the inside of a courtroom until June or July, and that is if you are lucky. So what do you do? Let me start by explaining the law relating to child support modifications.

In New York, the general rule of law is that in order for a parent’s loss of employment to qualify as a “substantial and unanticipated change in circumstances” warranting a downward modification of child support, the obligor parent must establish not only that the termination was involuntary and “occurred through no fault of the parent“, but also that the parent “has diligently sought re-employment commensurate with his or her earning capacity.” Matter of Lorenzo v. Lorenzo, 146 AD3d 959, 959-60, 48 N.Y.S.3d 677 (2d Dept. 2017).

While it seems obvious that a loss of employment due to a COVID-19 termination or furlough would satisfy the first element of Lorenzo (i.e. an involuntary termination through no fault of the payor spouse), the issue most post-COVID-19 modifications will focus on is whether the payor spouse diligently sought re-employment. This issue becomes somewhat more difficult in cases where the payor spouse was furloughed with the promise or assumption that he or she will be rehired once the pandemic passes. In such instance, is the Court expecting that the payor spouse seek alternative job opportunities in the interim? There are also some cases which seem to indicate that in the case of “extreme hardship” a court may suspend support without the need to prove that the payor spouse conducted a diligent job search. What then? Will the Courts treat job losses due to this unprecedented pandemic as “extreme hardship”? Will the need to seek alternate employment be excused when the whole state is under a virtual quarantine?

The answer to these questions are not known at this time. This is new territory for family law practitioners and jurists alike. However, I can offer you some comfort. First, the law generally makes. Second, the Courts of New York are courts of equity and law, and the judges have substantial discretion in making their rulings. Third, and most importantly, Judges are human beings. In all practicality, they may very well grant some form of temporary relief to the payor. This is not to say that the past balances (arrears) will be forgiven. Most likely they will not, unless you hire an attorney who can immediately file a modification petition for you. (Yes, they can still be filed). This may entitle you to a retroactive reduction in your support payments as of the date of filing of the petition, in the event your modification is granted by the Court, although you will not be in Court for many months due to the COVID-19 closures.

I would further note that if your ex-spouse is truly experiencing a hardship, contempt is highly improbable. The most likely outcome will be some form of payment plan to account for unpaid arrears and a temporary modification or suspension of payments for the foreseeable future.

The take away for this article should be this: Compromise. These are tough times for everyone, especially your children. The best you can do for them is to show your solidarity. Teach them that people should help each other in times of need. That no matter what happens, you and your ex-spouse will protect them and work together to help one another. Show them kindness, understanding and compassion by working things out. The world needs more compassion and caring for others, now more than ever. Put things in perspective. Be a role model and lead by example, for your children’s sake. This is a temporary hardship, and it will end. But you are parents forever and your children look up to you for guidance and direction. They will remember how you acted towards one another during these troubled times and it will shape them for the rest of their lives.

My advice is simple. Payor spouses, pay what you can. Don’t use this pandemic as an excuse to avoid your obligations. You have a responsibility to your family, even after the divorce or separation. For payee spouses, be reasonable. Reduce payments temporarily. Work out a payment plan with your ex-spouse that will enable you to get by for now while providing for additional payments towards arrears commencing once he or she returns to work.

I hope this article has helped answer some of your questions and concerns. In the event that you wish to file a modification petition to preserve your filing date or you are unable to reconcile your differences with your ex-spouse, free to contact one of the matrimonial and family law attorneys at Barrows Levy PLLC In most instances, we can file your petition the same day you retain us.

For nearly 20 years, we have be been practicing in the areas of matrimonial and family law throughout the New York Metro area, Nassau and Suffolk Counties. We offer free, confidential consultations by phone or by video conference. Call us today at (516) 744-1880.

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New York Divorce 101 – An Overview https://barrowslevy.com/new-york-divorce-101/ Mon, 30 Mar 2020 11:40:44 +0000 http://box5643.temp.domains/~barrows1/domestic-violence-in-new-york-how-a-lawyer-can-help-copy/

I’m Thinking Of A Divorce. Now What?

If you or your spouse have made the decision to file for divorce, you might be wondering what first steps you should take to get through this difficult process as quickly and amicably as you can.

Knowing how a divorce works before it begins can make the entire divorce process more peaceful, fair and drama-free (or as drama-free as a divorce proceeding can be). This article will help you understand the process and what you can expect when divorcing.

What Are The Grounds For Divorce?

In New York, there are seven grounds for divorce. Of the seven grounds, four of them are based on the “fault” of one of the parties. They are:

  • Cruel and Inhuman Treatment;
  • Abandonment (actual or constructive) for one or more years;
  • Imprisonment for three or more years; and
  • Adultery.

Now that I have listed the four “fault” grounds, you can forget about them. The introduction of the “no fault” divorce ground (defined below) has made all other grounds virtually obsolete. In most cases, I do not suggest asserting these grounds unless you really want to start off on the wrong foot with the Judge.

There are also two grounds for divorce which contemplate that the parties will live separate and apart for one year or more. They are commonly referred to as “conversion divorces.”

The final, and most often used ground for divorce in New York is the irretrievable breakdown ground or “no fault divorce.” To use this ground, one of the parties must state, under oath, that the marriage has irretrievably broken down for at least 6 months prior to filing for divorce.

Will Marital Fault Impact My Rights To A Property Settlement?

Generally, marital fault does not impact on the economic issues of the divorce. However, there are exceptions. Particularly when one spouse is found to have wasted marital assets. Another example may be adultery, which is not a factor with regard to the division of assets but may be a factor in determining spousal support (alimony) and custody. Again, this is the exception as opposed to the rule.

How Is Child Custody Determined?

For most, this is the million dollar question and can be answered in five words: “Best Interests of the Child“. What goes into the Court’s “best interests” analysis you ask? Read our blog below to find out. (I know, the suspense is unbearable.)

Related Topic :   Best Interest of the Child Standard Explained – A Child New York Child Custody Blog

How Is Child Support Calculated?

Child Support in New York is calculated pursuant to the Child Support Standards Act (“CSSA”). A non-custodial parent’s basis child support obligation is calculated by multiplying the combined parental Income by the appropriate child support percentage and dividing that by the parties pro rata share. “Income” is defined as “gross income as was or should have been reported on the most recent federal income tax return” less deductions for FICA medicare and social security taxes and New York City and Yonkers income taxes.

If you or your spouse owns a business, the calculations can get a little tricky. Often times the “expenses” of the business are not normal and customary business-related expenses and can be added back into the net income of the business owner for the purposes of calculating child support. Hiring a matrimonial attorney with real life experience handing divorces involving business interests is critical to obtaining the most favorable child support outcome.

The child support percentages are as follows:

  • 17% of the combined parental Income for one child;
  • 25% of the combined parental income for two children;
  • 29% of the combined parental income for three children;
  • 31% of the combined parental Income for four children; and
  • No less than 35% of the combined parental income for five or more children.

In applying the child support percentage above to the combined parental income, there is currently a statutory income “cap” of $148,000. However, Courts regularly deviate above this cap in determining child support in cases where the parents earn income above $148,000. (Be aware that $148,000 is a number set by statute and subject to increase every other year.)

How Long Must I Pay Or Can I Receive Child Support?

Generally, the custodial parent is liable to provide support for his/her child or children until the age of 21, unless that child or children become emancipated before they attain the age of 21. Examples of an emancipation event include engaging in full-time employment, marriage and entry into military service. The parties can also agree to the payment of child support through the age of 22.

What Property Is Subject To Equitable Distribution?

All marital property may be subject to division. Marital property is defined as all property acquired by either or both parties during the marriage but before commencement of the divorce, regardless of the form in which title is held. Assets which may be divided include bank accounts, real property (i.e. the marital residence) pensions and retirement accounts, cars, brokerage accounts, and businesses. It is important to note that while these properties may be divided, one spouse may be entitled to more than another, whether due to a spouse’s separate property credit or some other exemption.

How Is Marital Property Divided?

The purpose of equitable distribution is to achieve a fair distribution of what the parties acquired during their marriage. The term “equitable” does not necessarily mean that the property will be divided equally. Courts regularly fashion equitable distribution awards which take into account marital waste, separate property credits, passive and active appreciation of assets and the like.

What Property Is Not Subject To Equitable Distribution?

There are several categories of property not subject to distribution. The major ones are (i) property acquired before the marriage which was maintained separately from marital assets and (ii) gratuitous transfers by way of gifts, devise or bequests from third parties.

If you have questions concerning the division of assets in your marriage, call us today at (516) 206-0771. We offer confidential phone and video conferences. You can also email us at info@barrowslaw.com.

How Is Spousal Support (Alimony) Calculated?

Today, alimony is know as “maintenance” or “spousal support.” The presumptive amount of spousal support due to the less monied spouse is now determined by a statutory formula. This formula can be found on the New York Courts website or by clicking the link below and following the directions.

Related Topic :   New York State Temporary Maintenance Calculator

It is important to note that a final award of spousal support, while also subject to a statutory calculation, will also require an in depth case-by-case analysis. The factors considered by a Court in fashioning the amount and duration of a final maintenance award include the following:

  • The disparity of income between the parties;
  • The present and future earning capacities of the parties;
  • The duration of the marriage;
  • The health of the parties; and
  • The presence or absence of young children

Generally, spousal support is granted for a set period of time (often referred to as “durational maintenance”) so that the party receiving support can get back on their feet after the termination of the marriage. The length of time support is required to be paid by the payor spouse to the payee (less monied) spouse is set by formula and consists of a “hi-low” range. It is up to the Court to determine what duration is appropriate on a case-by-case basis. In some, very rare instances, spousal support is awarded on a permanent basis due to a parties age (about 60 or older) or in cases of a physical or mental disability.

Have Additional Questions? Call Us Today. We Are Here To Help.

I hope this overview of the New York Divorce process answered some of the questions you may be facing as you contemplate a divorce. If you have any additional unanswered questions, please call us today. The attorneys at Barrows Levy PLLC regularly represent spouses in simple and complex divorce actions within the New York Metro Area, Nassau and Suffolk Counties. We offer private, confidential FREE consultations. (516) 744-1880.

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Domestic Violence in New York – How a Lawyer Can Help https://barrowslevy.com/domestic-violence-in-new-york-how-a-lawyer-can-help/ Sun, 22 Mar 2020 12:11:14 +0000 https://demo.goodlayers.com/attorna/?p=6437

You Can Stop Domestic Violence In Its Tracks

According to the National Coalition Against Domestic Violence, “[o]n average, nearly 20 people per minute are physically abused by an intimate partner in the United States. During one year, this equates to more than 10 million women and men.” Just let that sink in for a second. What does that mean to you? It means that, YOU ARE NOT ALONE.

Our Matrimonial and Family Law attorneys regularly file petitions with the Family Courts in Nassau and Suffolk County and the New York City Metro Area. These petitions generally result in the immediate removal of your spouse or domestic partner where there has been past or present physical contact or a high probability that physical violence may occur if the Court does not intervene. Again, you may ask, what does that mean to you? Well, it means that you no longer have to live in fear that your will be abused, EVER AGAIN.

If you would like to discuss your matter with one of our experienced Matrimonial or Family Law attorneys today, please call us at (516) 744-1880. We offer private, confidential FREE consultations.

Related Topic :   National Coalition Against Domestic Violence 2019 Statistics

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Best Interests Of The Child Standard Explained – A New York Child Custody Blog https://barrowslevy.com/best-interests-of-the-child-standard-explained-a-new-york-child-custody-blog/ Sat, 21 Mar 2020 11:45:13 +0000 https://demo.goodlayers.com/attorna/?p=6425

What is the “Best Interests of the Child” Standard?

Put bluntly, divorcing your spouse or leaving your significant other is an emotional nightmare. When children are involved, however, the process becomes that much more difficult. Having an experienced Matrimonial or Family Law attorney by your side to help you understand what the Court looks for when making custody determinations before you begin the process is a must.

Whether litigation custody before a Supreme Court Justice in your Divorce proceeding or before a Family Court Jude, the overriding focus in any custody case begins and ends with the child’s “best interests.” This term has a particular meaning in family law when making arrangements for children.

The Child’s Best Interests in Custody Cases

In the context of child custody cases, focusing on the child’s “best interests” means that all custody and visitation discussions and decisions are made with the ultimate goal of fostering and encouraging the child’s happiness, security, mental health, and emotional development into young adulthood. Generally speaking, it’s often in the child’s best interests to maintain a close and loving relationship with both parents, but the practicalities of promoting and maintaining such relationships can be the main challenge in resolving a child custody dispute.

In any custody conflict it’s crucial that you not lose sight of the importance of making decisions in the best interests of your children. The choices you make now (or the decisions a court makes for you) will affect your child’s development, as well as your relationship with them, in a number of crucial ways for years to come.

What Factors Determine the Child’s Best Interests?

Although the best interests standard can be hard to define in some situations, there are some common factors that are part of this analysis in most custody situations, such as the following:

  • The pre-existing custodial arrangement (i.e. who is the primary caretaker of the child);
  • The wishes of the child (if old enough to capably express a reasonable preference);
  • The mental and physical health of the parents;
  • Any special needs a child may have and how each parent takes care of those needs;
  • Religious and/or cultural considerations;
  • The need for continuation of stable home environment;
  • Other children whose custody is relevant to this child’s custody arrangement;
  • Support and opportunity for interaction with members of the extended family of either parent (such as grandparents);
  • Interactions and interrelationships with other members of household;
  • Adjustments to school and community;
  • The age of the child;
  • the overall quality of each parent’s home environment;
  • Whether there is a pattern of domestic violence in the home;
  • Parental use of excessive discipline or emotional abuse; and
  • Evidence of parental drug, alcohol or child abuse

Remember, courts don’t just look at one factor, but instead take a more holistic approach. Their best interests determinations are generally made after considering a number of factors related to the child’s circumstances and the parent or caregiver’s circumstances and capacity to parent, with the child’s ultimate safety and happiness being the paramount concern.

How Do You Determine Custody When Both Parents Are Good Parents?

In addition to the foregoing, and arguably one of the most important factors, is whether a parent actually fosters a relationship between the child and the other parent. I cannot stress to you enough how important this factor is. Generally, both parents are more or less “fit” parents, meaning that they can care for the child and provide a stable home environment. Thus, you may be ask yourself, “what then?” “What goes into a Court’s custody determination if both parents are good parents? ”

This questions was answered by Judge Conrad Singer of the Nassau County Family Court in Matter of T.G. v V.Z. 2019 NY Slip Op 50210(U) (Fam. Ct., Nassau Cty. 2019) and affirmed by the Appellate Division, Second Department in Matter of Golban v Zalmanov, 178 A.D.3d 1037 (2d Dept, 2019):

Overall, the Court finds that factor of “relative fitness” as a parent weighs equally in both parents’ favor. While the Court finds no reason to doubt the mother’s testimony that before the underlying litigation she was the child’s primary caretaker and was primarily responsible for feeding and bathing her, the Court further finds that the mother failed to introduce any competent evidence demonstrating that the father is not equally fit to take care of the child. The Court finds that the testimony from the mother and her sister J. about the father’s alleged physical abuse of the mother was incredible, as was testimony from the mother’s son D. that the father “beat” D. on a weekly basis. Moreover, if D.’s testimony was true, and the mother knew that the father was regularly “beating” D. to such extent as to occasionally leave bruises but took no substantive action beyond “arguing” with the father, then such conduct on the mother’s part calls into question her parental judgment as far as protecting her child’s safety and welfare.

Rather than find that the father is “less fit” to parent the child, the evidence demonstrates that the child is clean, healthy and relatively well-fed while in the father’s care. The Court is not troubled by the fact that the father, like many fulltime working parents, relies on a third party to prepare food for the child. The evidence further demonstrates that both parties love and nurture the child and desire to promote the child’s intellectual and physical well-being, including by encouraging the child’s involvement in extracurricular activities such as ice skating and swimming and working on the child’s English language skills. Overall, the Court finds that the evidence does not indicate that one parent is superior to the other as to their “relative fitness” as a parent.

The Court then went on to highlight the mother’s inability to foster a relationship between the child and the father (our client) as one of the critical factors in awarding father sole legal and residential custody:

However, overall, the Court finds that the father has demonstrated greater flexibility and willingness to work with the mother when it comes to agreeing upon parenting time arrangements. The Court notes the testimony from both parties that the mother has outright rejected past attempts from the father to agree upon alternate parenting time arrangements, including holiday and summer time parenting schedules, which parenting time the mother acknowledged on cross-examination is beneficial for the child. The Court is also troubled by the evidence that when the father made numerous requests that the mother swap parenting time to permit him to take a vacation with the child, the mother rejected each request by responding that she had already made plans for each of the proposed alternate weekends. The Court finds the mother’s proclaimed desire to rigidly adhere to court-ordered parenting time schedules particularly problematic given her demonstrated disregard for other aspects of court orders, including the directive that the child be immediately returned to the Middle Village residence. In total, the Court finds that the father is more likely to successfully foster a relationship between the child and the mother as the non-custodial parent. (Matter of Edwards v. Edwards, 161 AD3d 979 [2d Dept. 2018] (“The record demonstrates that the mother interfered with the relationship between the father and the children in a manner inconsistent with the best interests of the children, and also demonstrates that the father is more likely than the mother to foster a relationship between the children and the noncustodial parent”)].

Find the Right Attorney for Your Child Custody Case

Even though you understand what’s in the best interests of your child, ultimately the court will have the final say. The best way to both express your concerns about your child’s well-being and work within the constraints of the court system is to work with an attorney who is familiar with child custody cases . The attorneys at Barrows Levy PLLC can help you. Call us today for a free, confidential consultation. (516) 744-1880.

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Unmarried Parents in New York – Child Custody Issues https://barrowslevy.com/unmarried-parents-in-new-york-child-custody-issues/ Sat, 21 Mar 2020 11:37:44 +0000 https://demo.goodlayers.com/attorna/?p=6421

How Do I Obtain Custody Of My Child?

If you are unmarried and the child resides in the State of New York, you my petition the Family Court in the County where your or the child resides. An Order of Custody gives responsibility for a child’s care to one or more parent or some eligible third-party, such as a grandparent or relative. There are two aspects to custody: (1) legal custody, sometimes referred to as “decision-making” custody and (2) residential or physical custody.

A New York State Family Law Court can make determinations about a child’s custody only until the child is 18 years old. Generally, if a custody dispute exists, meaning there is a disagreement about which parents shall have legal and residential custody, the Court will appoint an Attorney for Child to represent your child’s interests As the child gets older, his wishes will come into play more and more in the Court’s determination. However, the ultimate decision lies with the Court and is based upon what is best for the child or in the “best interests of the child.”

Related Article :  The “Best Interest of the Child” Standard Explained

What is the Difference Between Legal and Physical Custody?

Whoever has legal custody has the right to make important decisions about a child’s care such as medical care or religious upbringing. If the Judge gives joint legal custody, the parents make major decisions about the child together. It doesn’t matter which parent the child lives with; both parents must agree on the decisions together. If the Judge gives one parent sole legal custody, only one parent has the right to make major decisions for the child.

Whoever has physical custody, also known as residential custody, is responsible for the actual physical care and supervision of a child. If the Judge gives joint physical custody, the child lives with each parent for an equal amount of time. If the Judge gives sole physical custody, the child lives with this adult more than 50% of the time and this person is the custodial party and the noncustodial party will have visitation.

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