Domestic Violence Law | Port Jefferson, NY | Patricia Issberner | 631-509-5509

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Property Distribution | Port Jefferson, NY | Patricia Issberner | 631-509-5509

Child Support

Q: If I leave my job, can I ask the Court to terminate my child support?
A: No, not if you voluntarily left your job.

Q: If I switch to a lower paying job, can I have my child support payments lowered?
A: Not if it was a voluntary lowering of pay.

Q: My company closed and I was forced to take a job in another area of work at a low income and away from my vocation. It is possible to lower my child support payment?
A: Yes, if your industry or vocation has disappeared and you have no choice but to take a different lower paying job.

Q: My ex-spouse gets 25% of my income. But he/she now wants 50% of all child care costs. Do I have to pay this?
A: Yes and no. If you earn less than he/she does, the Courts will allow you to pay less than half. But if you earn more, you will pay more than half. This is based on a pro rate share of the proportions of your incomes. If your ex-partner only asks for half even if you make more, pay it before you are taken into Court in which you may have to pay more. Just make sure that your ex-partner presents canceled checks or receipts and bills, without which the Courts will not make you pay anything.

Q: Can I stop paying child support if my child comes to live with me?
A: No. A Court petition is required to terminate child support.You are bound to a court order unless the Court terminates it.

Q: My child works full time and is therefore emancipated. Can I stop paying my child support?
A: No. Your child may be emancipated, but the Court must make the determination.

Q: My ex-spouse gets Child Support payment for my children I had with him/her. Right now, I have a new spouse and children. Can I lower my support payments to my first spouse?
A: The question comes down to a balancing of resources available to the children of each household. If your ex-spouse remarried, you can only lower your child support payment if your income combined with your current spouse's income is lower than the income of your ex-spouse's and his or her present spouse. If you belong to the high income bracket, this may not be applicable.

Q: Can the terms of my child support or child custody be altered at a later date?
A: You can modify your child support, visitation or child custody agreements. And I can help you determine which modification is possible and necessary.

Custody and Visitation

Q: My ex-spouse lives with our children in a different state where we got divorced. Can I take her to a New York court to enforce my visitation?
A: No, you have to settle it in the state where your spouse lives.

Q: My ex-spouse lives with our children in a different state, but we got divorced in New York. Can I take her to a New York Court to enforce my visitation?
A: Yes, but the Court may determine that the State where your ex-spouse lives in right now has jurisdiction instead of New York. It depends on how long your ex-spouse has lived there, and where other actions involving your children have taken place.

Q: My children are in my custody but my ex-wife tells me she can get custody anytime because she is the mother. How true is this?
A: There's no truth to it. This may be a form of blackmail and extortion which you have to document or record. If your children have been with you long enough, it may be difficult for your ex-wife to get custody. The issue depends on what would favor the children the most and this includes maintaining the same friends, continuing in the same school, or being stable living in the same home with the same caregiver, etc. If you handle your children's problems well or if they're not failing in school, they may remain in your custody. Only an exceptional circumstance would warrant a change.

Q: During my scheduled visitation time, my ex-spouse would always schedule other activities for my children or simply withhold visitation. Nothing changes even if my lawyer has taken the issue into court. What should I do?
A: It is best to petition the Court for a change of custody or to hold your ex-spouse in contempt of Court. The issue may not be corrected immediately but the court might threaten to change custody. Denial of visitation is a sign of parental unfitness. If your ex-spouse does not change, the Court might just change custody.

Q: My ex-spouse has gained custody and tries to rule over the terms and activities for my visitation. Is this allowed?
A: No. Only the court can give orders in visitation terms. This action interferes with your visitation rights. You should therefore take your ex-spouse to Court to make him or her stop.

Q: What is the best thing to do if my ex-spouse withholds visitation?
A: Call the police and get a police report immediately. Do not engage in violence and verbal curses or you may be arrested. If you do not have an order of visitation, call a lawyer to obtain your visitation rights. If you do have an order of visitation, contact your lawyer for Court enforcement and a charge of contempt. Don't wait too long to do this or the Court may think you don't really care.

Q: Can child support be withheld if my ex-spouse withholds visitation?
A: No. Both issues are different from each other. But you can petition the Court to withhold spousal support.

Q: My ex-spouse plans to move with our children to another state. What should I do?
A: If you have either separation agreement or stipulation of settlement, review them for any relocation provisions. If no provisions or agreements were made, you can consult the Judgment of Divorce for such provision. If the provision does not exist, consult a lawyer to go to Court and ask that your ex-spouse be restrained from moving your children to another state or country without getting your permission or written consent from the Court. For this type of situation, it is best to consult an attorney.

Q: Will my child custody or support situation change if I remarry and have children with a new spouse?
A: Your child support and child custody terms will only change if you take action to change them. The amount of your child support will not be lowered just because you have remarried. You have to seek the assistance of an attorney and have your child support agreement changed to fit your new situation.

 

Maintenance

Q: What is maintenance?
A: Maintenance is an award by the court of spousal support for a fixed period of time or for an indefinite period of time.

Q: How long is maintenance paid for?
A: It depends on the Domestic Relations Law section 236. Simply put, the primary factors pertain to the amount of time the recipient needs to become self supporting (eg. recipient's educational level or health) and the financial ability of the party paying support.

Q: How long can one receive spousal maintenance?
A: It really depends on the court. Each case will be determined based on facts. But it usually takes 5 years, unless the marriage is 10 years or less.

Q: When can maintenance be non-durational?
A: This is mostly granted in marriages of twenty years or more, if the recipient is in his/her late forties with no expectation of becoming self supporting, and the party paying support has financial ability. If this is the case, the maintenance continues until death, remarriage or upon living with another person considered as the recipient's spouse.

Q: Who pays the taxes on maintenance?
A: It is taxable to the recipient as income and deducted from the person who pays it.

Q: How is the amount of maintenance determined by the court?
A: The reasonable needs of the recipient based upon the prior standard of living, the income and assets of the recipient balanced against the financial resources ( income and assets) of the party paying the support. While the Domestic Relations law section 236 lists ten factors to consider in making the award it tends to boil down to an analysis of reasonable needs verses ability to pay.

Q: How much court discretion is there with regard to the amount and duration of a maintenance award?
A: A lot. There are no set guidelines and the practical reality is, there can be differences in awards based upon the same facts depending upon the court's discretion. 

Forensics and Law Guardian

 Q: What are forensics?
A: Forensics determine the best psychological parent for the children. This depends on who is more in touch with the child's needs including emotional, social, and psychological needs.

A forensic evaluator, which may be a social worker, psychologist, or psychiatrist, is appointed by the Court. Both parents and children will be interviewed by this professional. It is not recommended to tell the forensic evaluator how bad the other parent is because it will make you look bad. The evaluator wants to know why you are the right parent for the child. The Court takes note of the forensic evaluator's recommendations but it doesn't mean that it will be followed. Some forensic evaluators play an active role in the course of a case but there are also some who do not. Some evaluators can also be biased, but there are others who are also unbiased. You must take an evaluator very seriously.

Q: What is a law guardian?
A: A law guardian is a lawyer appointed by the court to protect the interests of your children. The Court takes the recommendations of the law guardian seriously but they're not always followed. Some law guardians are biased, some are not. Some also play an active role in the course of the case, but some do not. The law guardian should always be treated with courtesy and respect.

Hiring a Lawyer

Q: How do I find the right lawyer?
A: First and foremost, you have to find an attorney who specializes in family and matrimonial law. Second, make sure that the lawyer is familiar with the Court your case is in, and in the County where your case is being heard. Remember, every Judge and every County has their own nuances. It would be good if your lawyer is familiar with those nuances, and that the Court is familiar with your lawyer. Third, find a lawyer who believes in you. Fourth, don't trust a lawyer who will offer you the world. You only need a lawyer who can honestly assess your case and speak in probabilities. Lastly, find a lawyer whom you are comfortable with.

Q: Some lawyers want money up front, while some want money per hour. Which lawyer prices are better? How do I know whom I can afford?
A: Cost may be important, but it can also be deceiving. If Lawyer A wants more money up front while Lawyer B wants less money up front, the question now points to the overall cost of your case from start to finish. It is impossible to determine the cost of a case from start to finish, but take note that in the end, you'll pay the same anyway.

Lawyer A may also charge more per hour but performs tasks faster therefore saving you money. Another lawyer may charge more per hour but he or she has more experience in your case. Remember, price is not as important as the quality of representation. And nothing is more expensive than ineffective legal assistance or representation. 

Taping Conversations

 Q: Would it be OK to tape my ex-spouse without him or her knowing, or would that get me into trouble?
A: As long as you are a party to the conversation, you can tape anyone whether on the phone or in person.

Q: I may prove the things my ex-spouse says by taping what he or she says. But I heard that the Judge never listens to the tape. So what's the point in taping my ex-spouse?
A: When you do tape your ex-spouse, label the tape with the time and date, and then transcribe the tape word for word. The judge may read the transcript knowing the tape is available to confirm the information. It can also be helpful in order to discredit your ex-spouse on cross-examination, and prove he/she is not believable.

Q: Would it be OK to tape my child's phone conversations with my ex-spouse?
A: No because you are a party to the conversation. This is breaching your child's confidence in a manner which the court may find appalling.

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