Often times parents do not take into consideration the financial component of having a child. Let’s be realistic, who wants to put a “price tag” on their child? However, this is something that parents are forced to deal with in the context of a divorce or separation when children are involved. Upon the commencement of a divorce or separation proceeding, parents may find themselves asking “what exactly is child support and how is it calculated?”

What is child support?

Simply put, child support is the monetary contribution one parent makes to the other parent to assist with supporting a child financially. In New York, child support includes a “basic child support” figure together with child support “add-ons”. “Add-ons” include but are not limited to unreimbursed health insurance costs, the cost of health insurance, extracurricular activities, and childcare expenses.

Who pays child support?

Child support is paid by the “noncustodial parent” to the “custodial parent”.

How is basic child support calculated?

Calculating the appropriate amount of child support is a process.

The first step is to determine what is known as the combined parental income. In order to arrive at the combined parental income, you simply take each parents income (less the required deductions pursuant to DRL § 240(1-b)(b)(5)(vii)) and add them together. It is important to note, in New York there is a cap utilized for the combined parental income. As of March 1, 2022, the combined parental income cap is $163,000. By capping the combined parental income at $163,000, the court does not need to (but can and often does) consider any combined parental income which exceeds this amount.

The second step is to determine the pro-rata share of the combined parental income for each parent. In order to figure this number out take each parent’s income separately and divide it by the combined parental income.

For the third step you will multiple the combined parental income (up to the cap or above the cap in certain circumstances) by the proper “child support percentage”. The “child support percentages” are as follows: (i) 17% of the combined parental income for one child; (ii) 25% of the combined parental income for two children; (iii) 29% percent of the combined parental income for three children; (iv) 31% percent of the combined parental income for four children; and (v) no less than 35% percent of the combined parental income for five or more children.[1] Therefore, if you have one child, you would multiple the combined parental income (up to a cap) by 17%.

The final step is determining how much your actual obligation for child support may be. In order to arrive at this amount, you take the sum you were left with after step three and multiple it by your pro-rata share that you calculated in step two. This will then provide you with your yearly child support obligation.

Conclusion

The unfortunate reality is that in the context of a divorce or separation action, children do come with a “price tag”, which is calculated using a specific formula. While each situation and fact pattern are different the child support formula explained above is utilized in calculating the presumptive appropriate amount of child support.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Mariselle R. Harrison at (516) 746-8000 or via e-mail at hkirkpatrick@jaspanllp.com mharrison@jaspanllp.com.

[1] DRL § 240(1-b)(b)(3)(i-v).

On June 30, 2022, Governor Hochul signed legislation[i] that: “expands which documents can be used to show identity theft in certain circumstances relating to debt collection.”[ii] “Under current law, a principal creditor shall cease collection activities until completion of the review of certain information submitted by a debtor who claims they were the victim of identity theft. The victim must have filed a police report alleging the identity theft; there is no alternative reporting permitted under the law.”[iii]

However, not all identity theft occurs between parties that do not know each other.  Often identity theft “occurs as a result of a domestic violence or an elder abuse situation, where the perpetrator is known to the victim. Under circumstances where the victim is familiar with the perpetrator, the victim may not be able to or may not wish to pursue criminal charges.”[iv] “The current law compels a victim of identity theft to report such crime to law enforcement, whether they wish to or not or whether it is safe for them to do so or not, in order for collection activities against them to be suspended as further investigation is made into the legitimacy of the debt.”[v]

Recognizing the difficulties presented where the perpetrator is known to the victim, the law now expands the types of documents which can be used to show identity theft relating to debt collection in lieu of a victim reporting the identity theft to law enforcement. Under the new law, these new documents include Federal Trade Commission and law enforcement reports, as well as criminal and family court documents which support the statement of identity theft.[vi]

If you are the victim of identity theft and need assistance with the types of documents needed to report the theft of your identity, please contact Christopher E. Vatter at cvatter@jaspanllp.com

[i] https://www.nysenate.gov/legislation/bills/2021/S9359

[ii] https://www.governor.ny.gov/news/governor-hochul-signs-legislative-package-empower-victims-crime

[iii] https://www.nysenate.gov/legislation/bills/2021/S9359

[iv] Id.

[v] Id.

[vi] Id.

We previously posted a blog discussing how a party may be able to secure a decree of separation and enumerated five (5) ways you can seek a judgment of separation from a court under Domestic Relations Law (“DRL”) § 200. We also previously noted that a party is extremely limited in the circumstances for which they may seek a formal judgment of separation from the court, which is why many spouses opt to enter into a separation agreement instead.

On January 7, 2021, New York Assembly Bill 1128 (“A.B. 1128”) was introduced, entitled “An act to amend the domestic relations law, in relation to allowing for no fault separation” (the “proposed amendment”).[i] Currently, DRL § 200 lists only fault grounds as a basis for a judgment of legal separation. This proposed amendment will permit spouses to obtain a judgment of legal separation based upon an irretrievable breakdown of the marriage for at least six (6) months. The amendment would mimic the language set forth in DRL § 170(7) providing for a no-fault divorce.

Although there has not been much movement on this proposed amendment in the legislature; should this proposed amendment become law, many people could benefit, especially individuals who are attempting to avoid the loss of health insurance coverage (which would occur with the issuance of a judgment of divorce) but also want court-ordered relief.

The information in this blog is subject to change as further developments with the proposed amendment to DRL § 200 may arise. Any person contemplating a legal separation should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com.

[i] 2021 N.Y. A.B. 1128 at “Synopsis”.

We previously posted about Senate Bill S4248 which, if enacted, would add a fifteenth factor to New York’s equitable distribution statute to allow courts to consider the best interests of a companion animal when awarding possession in a divorce action.

Since this previous post, Senate Bill S4248 was signed by Governor Hochul on October 25, 2021, thus officially amending Domestic Relations Law (“DRL”) § 236 to include the following factor:

  • In awarding the possession of a companion animal, the court shall consider the best interest of such animal. “Companion animal”, as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law.

As previously noted, “[t]he purpose of this legislation is to ensure that the best interests of pets are taken into consideration during divorce or separation proceedings.”[1]

Samantha Guido focuses her practice on all aspects of matrimonial and family law, including contested proceedings regarding the equitable distribution of substantial real property and assets, child support and spousal maintenance, paternity, custody and access, and order modification and enforcement. Samantha believes that all clients deserve significant attention as they navigate the court system. She strives to achieve resolutions that minimize conflict but acts as a zealous advocate on behalf of her clients in the courtroom when litigation cannot be avoided.

The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. Readers of this article should seek specific legal advice from legal counsel of their choice. In the event that you need legal assistance regarding matrimonial and/or family law matters, Samantha can be reached at sguido@jaspanllp.com or (516) 393-8250.

[1] https://www.nysenate.gov/legislation/bills/2021/s4248

According to the United States Census Bureau, women make up nearly half of the United States work force.[i] Notwithstanding, as of 2019, women make up only 27% of workers in the fields of science, technology, engineering and mathematics (“STEM”).[ii]  “Women employed full-time, year-round in STEM occupations earned more than their non-STEM counterparts but the gender earnings gap persisted within STEM occupations.”[iii] Men also outnumber women majoring in most STEM fields in college. [iv] “The gender gaps are particularly high in some of the fastest-growing and highest-paid jobs of the future, like computer science and engineering.”[v]

“Women and minorities are severely underrepresented in STEM, often because they were not encouraged to early on. In a 2010 survey by the Bayer Corporation of female and minority chemists and chemical engineers, 77 percent said significant numbers of women and minorities are missing from the U.S. STEM work force because ‘they were not identified, encouraged or nurtured to pursue STEM studies early on.”’[vi]

In an attempt to address this issue, on December 22, 2021, Governor Hochul signed a Bill[vii] “directing the urban development corporation to conduct a study regarding the assistance needed to encourage women and minorities to pursue technology careers in science, technology, engineering and mathematics (STEM)”. It is hopeful that: “[t]his bill will help identify the types of assistance necessary to encourage more women and minorities to enter STEM fields.”[viii]

According to Senator Anna M. Kaplan, “[s]o many employers in today’s high-tech, global economy consistently struggle to find enough qualified individuals to fill the high-skill, high-paying jobs they create, and the workforce has never been truly reflective of the diversity of our community. It’s time we helped more young women and people of color to pursue careers in the fields of science, technology, engineering, and math, and by encouraging these underrepresented groups to pursue STEM studies, we can provide greater opportunities for more young people in our community, and fill a critical need for workers skilled in the areas of demand in today’s economy.”[ix]

According to Assemblymember Linda B. Rosenthal, “[t]his new law will help increase the numbers of women and minorities who pursue technology-based careers. While some of the fastest-growing and highest-paying jobs are in the STEM field, the number of women and people of color employed in these fields continues to lag behind. A better understanding of the availability of grants designed to encourage underrepresented people to pursue careers in STEM is vital to help level the playing field and ensure access to well-paying and intellectually stimulating jobs.”[x]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.census.gov/library/stories/2021/01/women-making-gains-in-stem-occupations-but-still-underrepresented.html (men make up 52% of the workforce).

[ii] Id.

[iii] Id.

[iv] https://www.aauw.org/resources/research/the-stem-gap/

[v] Id.

[vi] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vii] https://www.nysenate.gov/legislation/bills/2021/s531/amendment/b

[viii] Id.

[ix] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[x] Id.

On December 22, 2021, Governor Hochul signed a Bill[i] directing “the department of financial services, in consultation with the department of health to prepare a report with recommendations on their review of covered benefits related to childbirth offered by all health insurance providers in New York state.”[ii]  The purpose of the Bill is: “[t]o uncover hidden costs related to childbirth, shine a light on disparities in rates negotiated by insurers covering the birth, and determine if Statewide standards should be adopted.”[iii]

Pursuant to the Bill, the Department of Financial Services, in cooperation with the Department of Health, is to conduct a review of the benefits related to childbirth and “must include an examination of length of stay periods, costs incurred by patients and reimbursed to providers, and additional benefits offered, or not.”[iv]

Senator Julia Salazar in addressing this Bill stated that: “People expecting a child face many unknowns, which often cause anxiety and uncertainty. One of these is the difficulty many face in ascertaining the costs they will incur for labor and delivery. This bill alleviates that concern by requiring the Department of Financial Services to study and report on the coverage actually provided by insurance companies in New York for these services.”[v]

Assemblymember Chantel Jackson in discussing the Bill stated that:  Maternal Health has been of critical importance across the nation and here in New York State, as more needs to be done to close the gap in maternal mortality among women of color.  Race, poverty and discrimination still play a role in the maternal care and delivery options available and afforded to women of color.  This legislation will focus on creating a study that will shed a light and better understanding on the current insurance benefits and coverage related to childbirth. This legislation will help identify and address the areas where insurance coverage standards must be revised to better serve the maternal health needs of expectant mothers before, during and after delivery.”

The report and recommendations will be used to “determine if state-wide standards should be adopted in addition to taking measure of how the State already fulfills requirements set by the Federal ACA [Affordable Care Act].”[vi]

For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] https://www.nysenate.gov/legislation/bills/2021/s4827

[ii] Id.

[iii] Id.

[iv] Id.

[v] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[vi] https://www.nysenate.gov/legislation/bills/2021/s4827

One of the many unspoken issues facing homeless women is access to feminine hygiene products.  Governor Hochul, recognizing this issue, signed legislation on December 22, 2021, amending Social Services Law by adding a new section 152-c[i], which requires that feminine hygiene products be provided at no cost to menstruating individuals in homeless shelters.  The products include, but not limited to, sanitary napkins, tampons and panty liners.”[ii]  “This bill will provide feminine hygiene products at no cost to adults and children in shelters throughout New York State.”[iii] “Menstrual products can be unaffordable for those already struggling. This bill provides these products free of charge so those living in homeless shelters do not have to resort to using unsafe alternatives that can result in serious infection.”[iv] Senator Michelle Hinchey, who sponsored Senate Bill S6572, stated: “Access to menstrual supplies is a fundamental health necessity, and yet in almost every community across our state, there are people who cannot afford period products – a dilemma that no one should ever have to face.”[v] Assemblymember Linda B. Rosenthal echoed this sentiment and stated that woman should not be forced between deciding whether to buy food or menstrual products.[vi] This legislation is a small step in ensuring that women are treated fairly.

It is important that issues specific to women are brought to light and that women are treated equally and fairly. For further information, please contact Christopher E. Vatter at cvatter@jaspanllp.com or Samantha M. Guido at sguido@jaspanllp.com.

[i] Senate Bill S6572/A.529-A.

[ii] Id. at “Summary”.

[iii] Id. at “Purpose”.

[iv]https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[v] Id.

[vi] Id.

Jaspan Schlesinger is proud to celebrate Women’s History Month. March is designated Women’s History Month by Presidential proclamation.[1] “Every March, Women’s History Month provides an opportunity to honor the generations of trailblazing women and girls who have built our Nation, shaped our progress, and strengthened our character as a people.”[2]

“Women’s History Month had its origins as a national celebration in 1981 when Congress passed Pub. L. 97-28 which authorized and requested the President to proclaim the week beginning March 7, 1982 as ‘Women’s History Week.”’[3]   In 1987, “Congress passed Pub. L. 100-9 which designated the month of March 1987 as ‘Women’s History Month.’ Between 1988 and 1994, Congress passed additional resolutions requesting and authorizing the President to proclaim March of each year as Women’s History Month.”[4]  These proclamations celebrate the contributions women have made to the United States and recognize the specific achievements women have made over the course of American history in a variety of fields.[5]

President Biden, in issuing this year’s Proclamation, stated that: “[t]his Women’s History Month, as we reflect on the achievements of women and girls across the centuries and pay tribute to the pioneers who paved the way, let us recommit to the fight and help realize the deeply American vision of a more equal society where every person has a shot at pursuing the American dream.  In doing so, we will advance economic growth, our health and safety, and the security of our Nation and the world.”[6]

Governor Hochul in signing legislature addressing women’s issues stated: “New York must continue to break down barriers for women and fight inequality throughout our state.”[7] “These laws will address a variety of important issues, supporting STEM [ Science, Technology, Engineering, and Mathematics fields] careers and helping to ensure equity and access in women’s health.”[8]

Despite progress being made, women still face obstacles in many endeavors and further progress is needed to ensure that women have the same opportunities as men and are treated equally. Jaspan Schlesinger proudly joins the Nation in recognizing March as Women’s History Month.  As we recognize Women’s History Month, we will be updating our blog with relevant and timely information and resources regarding laws which address and highlight women’s issues.

Christopher E. Vatter cvatter@jaspanllp.com / Samantha M. Guido sguido@jaspanllp.com.

 

[1] Pub. L. 100-9.

[2] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[3] https://womenshistorymonth.gov/about/

[4] Id.

[5] Id.

[6] https://www.whitehouse.gov/briefing-room/presidential-actions/2022/02/28/a-proclamation-on-womens-history-month-2022/#:~:text=NOW%2C%20THEREFORE%2C%20I%2C%20JOSEPH,2022%20as%20Women’s%20History%20Month.

[7] https://www.governor.ny.gov/news/governor-hochul-signs-legislation-addressing-labor-and-healthcare-inequalities-women

[8] Id.

You and your spouse have a separation agreement or judgment of separation . . . now what? Well, as we previously wrote, spouses who enter into a legal separation always have the option of getting back together without having to remarry. However, spouses may also use their separation agreement or judgment of separation to seek a final and binding divorce decree.

Despite the fact that New York State is a no-fault divorce state (all you need to show is that your relationship has irretrievably broken down for a period of six (6) months or more)[1], the law also provides ways for spouses to turn their legal separation, whether it was done by way of a separation agreement or a judgment of separation, into a binding divorce decree. There are two (2) provisions of the Domestic Relations Law (“DRL”) that speak to this point.

First, in order to turn your judgment of separation into a binding divorce decree, DRL § 170(5) provides:

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(5)The husband and wife have lived apart pursuant to a decree or judgment of separation for a period of one or more years after the granting of such decree or judgment, and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such decree or judgment.

DRL § 170(5) is applicable when parties obtain a judgment or decree of separation under New York Law, which (as noted in our previous blog) requires the parties to commence an action for separation in court.

To convert your separation agreement into a binding divorce decree, DRL § 170(6) provides:

An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

(6)The husband and wife have lived separate and apart pursuant to a written agreement of separation, subscribed by the parties thereto and acknowledged or proved in the form required to entitle a deed to be recorded, for a period of one or more years after the execution of such agreement and satisfactory proof has been submitted by the plaintiff that he or she has substantially performed all the terms and conditions of such agreement. . . .

DRL § 170(6) is applicable when parties enter into a separation agreement but do not receive a judgment of separation.[2]

Both DRL §§ 170(5) and 170(6) are avenues for individuals to obtain a judgment of divorce in New York State based upon either a judgment of separation or a separation agreement. Under both provisions, parties are required to wait at least one (1) year before they may obtain a judgment of divorce.

Should you and your spouse decide to get a divorce, a few things can happen to your separation agreement. First, your separation agreement can merge into a judgment of divorce. This means that the separation agreement will no longer exist as a separate and enforceable agreement. Instead, the separation agreement will become apart of the judgment of divorce.

Second, the separation agreement can survive as a separate and enforceable contract after the judgment of divorce is signed. Thus, all the terms set forth in the separation agreement remain valid and binding on the parties. It is important to note, however, that separation agreements are subject to modification under the law. Thus, a separation agreement may be modified prior to the entry of the judgment of divorce to reflect new or additional terms for you and your spouse.

Although spouses are not required to wait the required year to obtain a divorce and can, at any time, seek counsel of their choosing and file for divorce on the no-fault divorce ground, it is always nice to know you have another option available to you. Even if you decide to file for divorce pursuant to the no-fault statutory provision, you can still submit your separation agreement as part of a divorce decree should you decide to seek a no-fault divorce.

Any person seeking advice on how to obtain a judgment of divorce after being legally separated should consult legal counsel of their choice. The material in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, please contact Hanna E. Kirkpatrick or Samantha M. Guido at 516-746-8000 or via email at hkirkpatrick@jaspanllp.com or sguido@jaspanllp.com.

[1] DRL § 170(7).

[2] The difference between a judgment of separation and separate agreement are more fully laid out in our October 28, 2021 blog.

Thinking about divorce you say?  You really need a fresh start–not just relationship wise but financially, too. You wonder whether you can (and should) file for Chapter 7 bankruptcy without your spouse first, as well as what that means for the primary residence you own together in New York.  The short answer is yes, you can file without your spouse but, whether you should do so before, during or after dissolution of the marriage depends on your specific financial circumstance and the laws that will apply in your jurisdiction. This blog article is only meant to provide a general overview of a few things you should know at the outset.  You should consult with legal counsel before starting either process to determine which makes the most sense for you.

As a general matter, Chapter 7 bankruptcy allows you to discharge unsecured debts.  However, in order to qualify for filing a petition under Chapter 7 of the Bankruptcy Code, you must fall below a certain income threshold (a/k/a the “means test”).  Assuming you qualify, some of your assets, such as your home, may be liquidated if you are unable to, for example, protect them using allowable state or Federal exemptions.

With respect to the primary residence you own with your anticipated ex-spouse in New York, first consider the nature of your ownership interest.  Do you own the home as joint tenants with rights of survivorship, as tenants in common, or as tenants by the entirety?  If the deed does not reflect specific language, the general rule is that if the property was purchased during the marriage and a divorce has not occurred, New York law dictates that the property is held as tenants by the entirety.

Second, keep in mind that as of the date a Chapter 7 bankruptcy case is commenced, if you (as the solo filing spouse) have an undivided interest in the real property (tenancy by the entirety, joint tenancy, or tenancy in common), the trustee may sell both the estate’s interest (a/k/a your interest) and that of the non-debtor co-owner’s interest in the property.

Third, whether or not the trustee sells the home depends on several factors, including the value of the property (not the original purchase price of the home), mortgages and other liens encumbering the property, and homestead exemptions. There are different exemptions under New York State law and Federal law. Which exemptions to take depends on your specific circumstances. As of April 1, 2021, if only one spouse files, the allowable New York State exemption is $89,975, which is higher in some counties. For example, for real property located in Nassau County and Suffolk County, the homestead exemption is $179,975.

However, if a married couple files together, the exemption doubles provided they both own the property.

Also, keep in mind that under section 363(h) of the Bankruptcy Code, a trustee may sell such interests only if:

  • partition of the property is impracticable; and
  • sale of the bankruptcy estate’s undivided interest in the property would realize significantly less for the estate than sale of the property free of the non-filing co-owner’s interest; and
  • the benefit to the bankruptcy estate of a sale of the property free of the co-owner’s interest outweighs any detriment to the co-owners.

Ultimately, filing a Chapter 7 bankruptcy petition jointly with your spouse (assuming you fall below the income requirement for Chapter 7), may allow you and your spouse to take advantage of certain homestead exemptions when you both own the marital home.  Also, if you file for bankruptcy first, the division of assets that needs to happen during the divorce process could become simplified.

Bankruptcy is a unique area of law for which individuals should get detailed legal advice and counsel. The material provided in this blog is meant only to provide general information and is not a substitute nor is it legal advice to you.  Readers of this article should seek specific legal advice from legal counsel of their choice.  You can reach Sophia Perna-Plank at spernaplank@jaspanllp.com or (516) 393-8270 or Marissa Pullano at mpullano@jaspanllp.com or (516) 393-8297.