The entire world is suffering from the impact of the COVID-19 pandemic.  Those who have a pending family law matter are facing unprecedented issues as the court systems have come to a virtual standstill and the bench and bar are grappling with how to keep cases in the family court system headed toward some type of resolution whether that be settlement or trial.

As we all find ourselves in unprecedented times, the matrimonial attorneys at Jaspan Schlesinger compiled the following tips to guide individuals currently in the midst of a divorce proceeding, whether it be an initial proceeding or a post-divorce proceeding:

Tips for Co-Parenting During COVID-19

By now, we’ve all seen the news story about a Florida Emergency Room physician who was deprived of her custodial rights during this pandemic.  If you haven’t, click here. This case and countless others that may not have made national news, highlight the very real and sometimes heart-breaking circumstances that divorced parents in high-conflict custody disputes may find themselves in.

For this reason, the American Academy of Matrimonial Lawyers and the American Association of Family and Conciliation Courts have issued standards to address these very sensitive issues. The Standards can be found here.

For many families, parents are able to work together and come to resolutions regarding how to navigate custody matters. In other situations, where parents cannot easily communicate, it may be the time where parents put aside past differences and work together in the best interests of the children.  If parents cannot amicably navigate parental access during this time, then the default is the custody orders that are currently in place despite how inconvenient they may be.

At this time, attorneys in Nassau and Suffolk counties are able to seek court intervention to intercede and break the stalemate between parents.  However, just because attorneys may be able to seek court intervention does not mean that the court will entertain the request.  Parents must be able to keep the lines of communication open by putting their past differences aside.

If you find yourself in a situation that requires attorney assistance, please know the lawyers of the matrimonial practice group are available by email, telephone and video conferencing to assist in the resolution of these matters.

Tips for Determining How to Handle Financial Obligations During COVID-19

Two additional blog posts by Samantha Guido will address the standards for modification of support matters in specific detail.  There can be no doubt that the tumult in the financial markets and the record-setting unemployment will cause many individuals to question what the financial future might be for them.  If your financial circumstances have been altered, it is important that you seek the advice of a lawyer to see if anything can be done to help alleviate your current or future financial stress.

Tips for Handling Divorce Negotiations During COVID-19

If you are an individual business-owner in an industry that is suffering from the effects of COVID-19, a new business valuation may be required.  If you and your spouse are dividing retirement accounts, it may be important to consider delaying the equitable distribution of accounts until the market volatility levels out. Once a divorce is finalized, you may no longer receive health benefits from your spouse and require medical insurance coverage.  Now is not the time to be without medical insurance coverage.  Similarly, now is not the time to rush into a settlement out of fear of the unknown.  As previously stated, it is important that you seek the advice of a lawyer to guide you during these unprecedented times.

Jaspan Schlesinger is committed to helping our clients make their way through this very trying time.  Our offices are virtually open and we are monitoring the courthouse operations and available via email, phone or video-conferencing to answer your questions and concerns. 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.   You can reach Marissa Pullano at 516-393-8297 or mpullano@jaspanllp.com or Hanna Kirkpatrick at 516-393-8295 or hkirkpatrick@jaspanllp.com.

On March 30, 2020, in an attempt to lighten the financial burden that COVID-19 is reaping throughout the world, the President signed into law a 2 trillion dollar stimulus package.  One of the key components of the stimulus package is sending funds directly to taxpayers.  The amount that will be provided is dependent on your adjusted gross income and family size.  Those who qualify based on their adjusted gross income will receive the full payment of $1,200 per adult and $500 per dependent child under the age of 17 years old.  If you have yet to file your 2019 tax returns, as the deadline has been extended to July 15, 2020, the IRS will use the information from your 2018 tax filings to calculate your stimulus check payment.  For more information on how much you may be eligible to receive, click here.  For those who provided their bank information for their tax filing, the IRS will use that information to directly deposit the stimulus payment.  If you did not provide your bank information on your tax filing, the IRS will be sending you a check with the stimulus payment.

With the first wave of stimulus checks being issued on April 15th, many attorneys and parties will begin to battle over how the stimulus payment should be divided for those who have recently divorced or are in a pending divorce action.

For those who have recently finalized their divorce, they may encounter a situation where their last filed tax return was a joint return and as a result the stimulus money has been deposited into an account which is now owned exclusively by one party.  This is a situation which may require the assistance of counsel to ensure that the proceeds are shared in an equitable manner.

An additional issue that may arise for individuals that have recently finalized their divorce is how they should split the portion of the stimulus payment for an eligible child or children of the marriage.  This is an issue that may have varying arguments as to how the proceeds should be divided.  For example, one may argue that the funds should be split in proportion to the Child Support Standards Act percentages.  Others may argue that the parent who has the children the majority of the time should receive the entirety of the portion of the stimulus payment paid for an eligible child or children.  In the event that you and your ex-spouse are unable to resolve this issue, you may want to seek the assistance of counsel.

If you have been divorced long enough and have filed an individual return, you will receive your own stimulus check based upon your adjusted gross income on your last tax filing.  If you claimed your child as a dependent on your last tax filing, you should be the one to receive the $500 stimulus payment for each eligible child. However, this may become an issue as parties tend to rotate claiming a dependent child on their tax filings each year.  Is it equitable to allow only one parent to receive the entirety of the stimulus payment under such circumstance? The courts will likely need to address this in the future.

Another question is who receives the stimulus payment if the parent who claims a child as a dependent in even years only filed a return for 2018 and the parent who claims a child as a dependent in odd years filed a return for 2019?  Will each parent be receiving the $500 stimulus payment or will the parent who filed their 2019 return receive the stimulus payment for the child?  Once again, the courts will likely need to address this in the future.

For those who have a pending divorce action, tax refunds are typically treated as a marital asset to be equitably distributed between the parties if they were earned prior to the date of the filing of the divorce action. Therefore, how the stimulus payment will be equitably distributed between the parties will have to be determined on a case by case basis with the assistance of counsel and/or guidance from the Court.

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 fall into one of the above categories and need legal assistance in securing your portion of the stimulus payment, please contact Marissa Pullano at 516-393-8297 or mpullano@jaspanllp.com or Hanna Kirkpatrick at 516-393-8295 or hkirkpatrick@jaspanllp.com.

In recent days there has been an explosion of news articles projecting a wave of divorce filings expected to break across the country when the COVID-19 confinement ends.  Just a cursory scroll of social media provides a plethora of memes about marital discord – some are just downright funny while others are just painfully on point.  There is no doubt that all of us are living in unprecedented times.  Courts in New York State are (as of the date of this blog) still limited only to “essential” matters, and no new divorce actions can be filed.  If you are in the process of contemplating divorce, this blog focuses on four simple things you can do now while we all wait out this quarantine:

  1. Compile all your financial data.

Every divorce (or virtually every divorce) in New York State requires that each party make full and complete disclosure of their finances to their spouse.  The dynamics of some marriages unfold with one party handling the finances. Now is the time to ask the questions and gather information.  It is important that any person contemplating divorce have an idea of all of their assets (real and personal property, retirement accounts, bank accounts) as well as their debts (mortgages, loans, credit card debt) in the name of either party.  Most banks allow you to retrieve your bank statements, mortgage information and credit card statements online for up to five years. Most financial institutions have your retirement account statements online for the last quarter. Compile three months’ worth of each financial account, including credit card accounts and the last quarterly statement for any retirement account.  Then, gather your tax returns. If you can’t find them or don’t want to tip your spouse off, then contact your accountant to obtain your tax returns for the last five years. Try to make copies of all of these items. Also, don’t hide or accidentally misplace any of these documents, they will need to be exchanged and no one needs the additional grief of trying to find important documents in the midst of a very stressful time.  If you come to your initial consultation (either in person or virtual) with these documents in hand, you will save time and money and allow the attorney to give pointed advice and counsel.

  1. Secure your online footprint.

It is important that you begin to clean up your online footprint. First, you should get a new email address. This email should be for the sole purpose of communications regarding divorce and it should not be accessed on any joint computer or work-issued computer. Do not allow any of your passwords to autofill on any device.  A new password should be one that your spouse will not be able to guess.  Furthermore, if you use apple devices, make sure that your data is not being backed up in the cloud for your spouse to access.  I cannot even begin to tell you how often I have had a client come to me with concern about their spouse’s access to their text messages and emails. Simple planning now can avoid a lot of stress later. Second, please clean up all your social media accounts. Check and re-check your privacy settings. Do not post any personal matters, feelings, emotions, and even photos on social media. Your spouse’s divorce attorney will look you up on social media. Don’t give them any ammunition.

  1. Research attorneys and ask for referrals.

Your relationship with your lawyer is of utmost importance. Your attorney is your voice and your advocate. Make sure that you understand how your attorney communicates, what their values and belief systems are.  Ask hard questions. Seek the advice of a trusted friend or colleague and do your own research.

  1. Consider counseling.

Divorce is usually one of the most difficult experiences that a person will go through in their life.  Certainly no one enters a marriage with the idea that it will end.  At every end, there is typically a complicated web of emotions that each person will process differently.  Consider attending marital counseling with your spouse before initiating divorce, especially if you have children.  Marital counseling may allow you to choose the path that is right for you and your spouse and arm you with the tools to discuss divorce and the process with your children that will promote healthy emotional growth rather than emotional harm.  There are many qualified mental health professionals that your divorce lawyer can refer you to.

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, please contact Marissa Pullano at 516-393-8297 or mpullano@jaspanllp.com.

Generally, there are three (3) grounds to modify a prior order of child support: (1) a showing of a substantial change in circumstances, (2) the passage of three (3) years since the order was entered, last modified or adjusted, or (3) a change in either party’s gross income by fifteen percent (15%) or more since the order was entered. This post will address each of these three (3) grounds and give you a brief explanation of your rights under the law.

Ground #1 – Substantial Change in Circumstances

One ground to seeking a modification is based upon a showing of a substantial change in circumstance.  Here, a court will generally consider certain factors to determine whether there has been a change of circumstances warranting an upward or downward modification of child support.  For example, when seeking an upward modification of child support the court may consider the increased needs of the children, the increased cost of living if it results in greater expenses for the children, a substantial improvement of a party’s financial condition, and the current and prior lifestyles of the children.  When seeking a downward modification of child support the court may consider a loss of income by either parent, or an increase in income of the party receiving child support (payee’s income) which may result in a lower child support figure for the party paying child support (payor).

Loss of Employment Must Be Involuntary and Diligent Efforts to Secure Employment Are Required

Many times a party will argue for a downward modification of child support based upon a reduction in their income based upon their loss of employment. However, loss of employment will only be considered a ground for modification if it was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.

Grounds #2 and #3 – Passage of Three Years & Change in Gross Income by 15%

A party can also seek to modify a child support order upward or downward based upon the passage of three (3) years or a change in either party’s gross income by fifteen percent (15%), so long as you did not expressly opt out of these statutory provisions in your agreement. In other words, if you are entering into a divorce agreement with your spouse and you would like to preserve your rights to seek a modification of child support based upon the passage of three (3) years or a change in either party’s gross income by fifteen percent (15%) be sure that your agreement includes language which preserves your rights to a modification on these grounds.

If you believe you may be entitled to a modification of child support, you should seek advice from an experienced attorney. 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.   Samantha Guido may be reached at 516-393-8250 or sguido@jaspanllp.com.

 

We recently posted about a modification in child support obligations. In addition to child support, a person may also seek to modify their maintenance obligations or the amount of maintenance they are receiving from their ex-spouse.

What is Maintenance?

Perhaps the most important question, and a very frequent question is, what is maintenance? In order to fully understand this term, we must look historically at a word most people are familiar with, and that is “alimony.” Divorce actions which were commenced prior to July 19, 1980 dealt with alimony. Alimony was a sum paid by one spouse (or ex-spouse) to the other, or to a third party for real and personal property, services furnished to either spouse, or for rent, mortgage payments, insurance, and taxes, amongst others.  In 1980, the New York State Legislature amended the law providing for alimony, and in fact changed the name of alimony to “maintenance” or “spousal support.” Maintenance is defined as “payments provided for in a valid agreement between the parties or awarded by the court . . . to be paid at fixed intervals for a definite or indefinite period of time . . .”[i] The statute also provides for a way to calculate a person’s maintenance obligation based upon the respective incomes of the parties.

While this post does not directly deal with calculating an initial maintenance obligation, this background information is vital in understanding how to seek a modification of maintenance.

What is a Modification of Maintenance?

While it may seem obvious, it is worth noting that a person seeking a modification of maintenance occurs when either the payor (the person paying the maintenance) or the payee (the person receiving the maintenance) requests that a court either increase or decrease the amount of money being paid as and for maintenance.

Are You Entitled to a Modification of Maintenance?

Unfortunately, obtaining a modification of maintenance obligations is not an easy task. A court may modify a maintenance award, in the absence of a valid agreement which is incorporated, but not merged, into a court order or judgment, upon the showing of either the payee’s inability to be self-supporting or upon a showing of a substantial change in circumstances, including financial hardship, or upon actual full or partial retirement of the payor if the retirement results in a substantial change in the financial circumstances. What constitutes a substantial change in circumstances is determined on a case-by-case basis.

When a payor is seeking a downward modification of maintenance, a court will compare the payor’s financial circumstances at the time of the motion for a downward modification and the payor’s financial circumstances at the time of the divorce to determine whether there has been a substantial change in circumstances. For example, in a 2013 case, a court denied a defendant’s motion for a downward modification of his maintenance obligations despite the fact that the defendant became disabled and retired.  The court’s reasoning in its denial was that the defendant received a substantial lump sum pension payment that rendered him financially capable of meeting his maintenance obligation to the plaintiff until she reaches 65.[ii]

Similarly, courts are also unwilling to find a substantial change in circumstance when a person losses employment or has a decrease in income when such loss or decrease is found to be voluntary.

What If You Have a Settlement Agreement That Was Incorporated Into a Judgment of Divorce?

The standard for a modification of a maintenance obligation is even higher than the standard set forth above. If individuals entered into an agreement after July 19, 1980 which remains valid and was incorporated into a subsequent order or judgment of a court, a court may not modify the terms of said agreement pertaining to maintenance without a showing of extreme hardship on either party. In other words, the party seeking a modification of the maintenance provisions of a divorce decree which incorporates the terms of a settlement agreement, must demonstrate that the continued enforcement of the settlement agreement as is would create extreme hardship. Establishing extreme hardship is not easy. In fact, courts have even held that while loss of employment may be a substantial change, it is not enough to establish an extreme hardship.

Showing extreme hardship is a difficult task; however, it can be done. In a 2005 case out of the Fourth Department, Marrano v. Marrano[iii], the court found that the defendant met his burden of establishing that his continued payment of $40,000 per year to plaintiff in maintenance would result in extreme hardship warranting a reduction in his maintenance obligation. In this case, the defendant earned $174,000 from his real estate business in 1994 but by 1999, his earnings decreased to approximately $18,000. Additionally, the gross income from his business was $1,810,000 in 1995, but decreased to $295,000 in 1999. Moreover, the plaintiff did not refute the evidence presented by defendant that his company, which was valued at $150,000, would produce a yearly income for defendant of $56,557 for the next three (3) years and that his yearly living expenses would be approximately $50,400. At the time of the hearing, the defendant’s only other assets consisted of $300 in a bank account and $15,000 in equity in his home. Based on the above, the court found that payment of $40,000 per year in maintenance would cause an extreme hardship on defendant.

If you believe you may be entitled to modification of maintenance or have questions about support obligations, you should seek advice from an experienced attorney. 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.   Samantha Guido may be reached at 516-393-8250 or sguido@jaspanllp.com.

[i] DRL § 236(B)(1)(a).

[ii] Taylor v. Taylor, 107 A.D.3d 785 (2d Dep’t 2013).

[iii] 23 A.D.3d 1104 (4th Dep’t 2005).