Child support
- Sometimes the anger of the moment results in a
termination of support for the children. The Court will act to restore
appropriate support immediately.
Spousal support (alimony or
maintenance)
- As with counsel fee awards and no-fault divorce, the changes to the
Domestic Relations Law effective on
October 12, 2010
change how temporary spousal support are to be determined and are
nothing less than revolutionary. The new law provides a fixed formula
for awarding temporary maintenance (in New York alimony is referred to
as “maintenance”).
The
formula provides that temporary maintenance should
be the lesser of:
1)
Thirty percent of the higher-earning spouse’s
income, minus 20 percent of the lower-earning
spouse’s income.
2) Forty
percent of their combined income, minus the
lower-earning spouse’s income.
This
'income shifting" approach has raised more questions
than it has solved as it came with no direction as
to how to deal with other pendente lite
issues as, prior to the enactment of the new law,
the Court would seek to maintain the status quo
(as with carrying charges, below) but once the
income has be redistributed a different approach to
the allocation of economic responsibility would
appear necessary to avoid an inequitable result.
This may result in the non-monied spouse actually
ending up with less than they might have under the
old law, not a result it would appear the
legislature had in mind. Time and court decisions
will unravel this newly created uncertainty.
A
commission has been set up to determine standards
for spousal support after a divorce action but they
have a long time before they have to issue a
recommendation.
Payment of carrying charges -
Although clearly intertwined with both child and spousal support, the
Court may require payment of some or all of the carrying charges on a
marital residence on the marital home or other properties
Restraining Orders - The Court realizes
how important it is to preserve assets to be distributed at the end of a
divorce. Where, previously, upon a reasonable showing the Court will place restraints on
the transfer of property or the sale of assets there are now . Providing banks,
brokerages, etc. with copies of the Court's Order is generally a good
idea just in case the spouse against whom the restraints have been
placed doesn't feel they have to honor the Court's Order.
Custody - For a number of reasons
it may be necessary to have the Court make a temporary decision on the
custody of minor children. Ultimate decisions usually involve having a
law guardian (attorney) appointed for the children and, possibly, a
forensic (psychological or psychiatric) evaluation performed. The best
interests of the children will guide all Court actions.
Visitation
- Frequently, just as
the non-custodial parent uses money (child support) as a weapon the
parent with the child withholds visitation to punish or hurt the other,
the custodial parent will withhold the children. The Court will act
swiftly to avoid damage to the relationship between parent and child. If
warranted, restraints involving location or supervision can be placed
upon all visitation.
Exclusive Use and Occupancy of Marital Residence
- Sometimes things can get so out
of hand that it doesn't make sense for the parties to continue to reside
together during the divorce. The Court can give one spouse the right to
live in the parties' home and remove the other spouse, by force if
necessary.
Orders of Protection - (NOTE: Although authorized
to issue such Orders, the Supreme Court generally has chosen too leave
this relief to the Family Court and Courts with criminal jurisdiction.
Orders of Protection can require a spouse to stay away entirely from a
spouse and/or children or merely require them to refrain from defined
negative conduct directed towards them. It is possible, in
situations where the facts or circumstances are not appropriate for an
Order of Protection, to seek an Order of the Supreme Court which awards
exclusive use and occupancy of the parties' home to one spouse, thereby,
effectively, providing some of the benefits of a 'Stay Away' Order of
Protection by separating the parties without the threat of arrest which
frequently induces parties to contest removal from the home even where
they recognize the benefits of separate residences.
Counsel fees
-
Effective October 12, 2010, the legislature
amended Domestic Relations Law §§ 237 and 238 to create a rebuttable
presumption that counsel fees shall be awarded to the less monied
spouse. Formerly the burden fell on the spouse seeking counsel fees to
prove the need for them. The new law shifts the burden to the spouse
from whom counsel fees are being sought to
It adds actions to obtain maintenance or
distribution of property after a foreign judgment of divorce to the
actions for which such fees shall be awarded. In exercising the court's
discretion, the court is required to seek to assure that each party is
adequately represented and that where fees and expenses are to be
awarded, they shall be awarded on a timely basis pendente lite, so as to
enable adequate representation from the commencement of the proceeding.
In addition the court is authorized to order expert fees to be paid by
one party to the other to enable the party to carry on or defend the
action. The parties and their attorneys are also required to submit an
affidavit to the court with financial information to enable the court to
make its determination.
The monied spouse is now required to disclose how
much he has agreed to pay and how much he has paid his attorney. The
affidavit must include the amount of any retainer, the amounts paid and
still owing thereunder, the hourly amount charged by the attorney, the
amounts paid, or to be paid, any experts, and any additional costs,
disbursements or expenses. In addition, Domestic Relations Law § 238 was
also amended to add to the actions for which such fees shall be awarded
“actions to enforce a court order”.
