New York Divorce Law Blog : New York Divorce Lawyer & Attorney : Law Office of David A. Gabay : Serving New York City, Long Island, Suffolk County, Nassau County

One question which arises frequently in my practice is whether a non-custodial parent can terminate his or her child support obligations by ‘signing away’ his or her ‘rights’ to the child.  How and why a parent gets to the point of seriously considering abandoning their own child is an issue for another day, but the answer to the question is (like almost anything else in New York family law) yes….and no.

1.       Child support is a legal obligation each parent owes directly to a child, and cannot normally be bargained away by the parents.

2.      Visitation and custody rights are separate from the duty of a parent to support their children, so surrendering custody or waiving visitation will never directly affect the payment of child support.

That being said, there are two (2) ways for a non-custodial parent to voluntarily terminate his or child support payments:

1.      Under certain limited circumstances, a judge may approve of a waiver of child support payments for ‘good cause’ and the custodial parent consents to the waiver.

What constitutes ‘good cause’ is a question only the judge assigned to the case can answer, and in my experience each judge has his or her own practices and criteria for deciding whether to approve a waiver request.

2.      Adoption of the child by a step parent or other appropriate person. If the parent paying child support consents to the adoption of the child by another adult (usually the new step-parent of the child), the completion of the adoption automatically terminates the child support obligation of the former parent.

For more information on child support and other New York divorce and family law subjects or to discuss your own questions or case, please visit my website at www.GabayLawFirm.com

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Divorce is a complicated process even under the best of circumstances. However, when your soon to be ex spouse is an attorney you can face very special challenges and problems on the way to obtaining a fair and equitable settlement or decision after trial. 

Here is a list of the top three problems faced by spouses divorcing attorneys:

1.      The Attorney is Known Throughout the Courthouse: If your spouse works regularly in Court, he or she may be well known to the Court and its staff. Even if the spouse works in a different area of the law, say criminal defense or civil litigation, judges and their staffs talk informally among themselves and Courthouse gossip is rampant. This might be the only case in a divorce setting in which the Court is familiar with one of the parties professionally but does not consider recusal. In this case, you and your attorney will have to work extra hard and be extra careful in how you handle your case.

2.        Valuation of the Law Practice: Attorneys whose spouses make a claim for a portion of the value of the law practice tend to raise the same objections time and time again: (1) that the practice has little or no value because it depends entirely on their own efforts and work, (2) that the contingent receivables can’t be accurately valued because of the uncertainties of the cases, and (3) that attorney-client privilege prevents the full disclosure of the information required to properly value the practice.  These arguments can be effectively defeated if your attorney is familiar with the specific rules and case law which govern this issue.

3.        Income “Management”: Attorneys who are planning to divorce their spouse or who know that they will be served with a divorce summons themselves use a wide variety of techniques to manage their income to their advantage. Changes to partnership agreements, decisions to reduce partnership compensation, deferral of revenue, referral and routing of work through other attorneys, and cash fees are familiar ruses designed to depress the income of the attorney and therefore lower the amount of money paid out in spousal support, child support, and equitable distribution. Like the valuation problem, this issue can be effectively countered with aggressive and thorough discovery and an understanding of how to identify and uncover income management in all of its forms.

For more information or to schedule a consultation, please visit my firm’s website at www.GabayLawFirm.com

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The Suffolk County Family Court has recently decided to open its clerk’s office earlier for the filing of a petition for an Order of Protection and simplified the procedure for filing petitions seeking Orders of Protection. As of November 9, 2009, the clerk’s office will open at 8:00 a.m. (the old opening time was 9:00 a.m.), and a party may see a judge as soon as the petition is processed, which can be before 9:00 a.m.

This change should make it easier and quicker for a party to file for an Order of Protection and will allow the Court to handle more requests in an efficient manner.

Previously, a petition for an Order of Protection had to be processed through either the clerk’s office or the Suffolk County Probation Department and could not be filed before 9:00 a.m., and no judge was available prior to 9:00 a.m.

For more information on New York Orders of Protection, please visit my website at www.GabayLawFirm.com

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 Two recent changes to New York state insurance law will have a substantial impact on couples divorcing and separating. Those changes, signed into law on July 29, 2009, are:

1.    COBRA coverage will now be available in New York for 36 months.

2.    Families can now keep dependents on their insurance policies until age 29.

Of course, neither of these new laws apply to self-insured companies.

The practical effect of these extensions of insurance coverage will be to increase the value (or cost) of insurance coverage for divorcing couples, and therefore the impact and importance of insurance coverage as a issue to be considered and resolved in any divorce action.

For more information on New York state divorce law, please visit my website at www.GabayLawFirm.com

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One of the great mysteries of my divorce practice is the question of when clients decide to begin a divorce. I’ve always wondered what it is that makes any particular client decide that today, now, is the time to commence an action. I’m sure I will never understand exactly what is in my client’s mind at that unique point in time, so I suppose I’m going to be relegated to observing and commenting on what actually happens after the fact.

Here are two (2) very different experiences I’ve had with clients over the past two (2) days:

Yesterday, I met with a woman at her home for about two (2) hours for an initial consultation for a divorce. We covered a myriad of divorce topics, from the anatomy of a divorce case to equitable distribution to tax impacting settlements and post-settlement housekeeping issues. At the end of the meeting I asked how she would like to move forward with her case. She let me know she was not making any decisions right away, but that I should call her in one week.

Today, I received a call from a woman who wanted to come in to this office and discuss her options for a divorce. An hour later, we met and after a 15 minute discussion she retained me to handle her case.

The juxtaposition of these two consultations is an interesting commentary on the utter individuality of all of my clients. It also reminds me that no matter how many times I think I know which ‘box’ a case or client fits into, I’m probably wrong.

If you would like more information on New York divorce law, please visit my website at www.GabayLawFirm.com

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The return of a military parent from activation or deployment will automatically be considered a ‘substantial change of circumstances’ for the purpose of seeking to modify a custody or visitation order made while the member of the military was away on active duty or deployed

The law takes effect on November 15, 2009.

This new law compliments a law passed in 2008 which requires all custody and visitation orders issues when one parent is on active duty be deemed temporary and subject to revision when the parent returns to civilian life.

If you would like more information on New York custody or visitation law, please visit my website at www.GabayLawFirm.com

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Gaining the required two-thirds majority by the smallest possible margin, 100-49, Vermont’s House of Representatives voted to override Gov. Jim Douglas' veto of a bill (PDF) allowing gays and lesbians to marry, the Associated Press reports. The House vote was preceded by a Senate vote of 23-5 to override Douglas’ veto.

The Atlantic’s Washington blog reports that the law will go into effect Sept. 1.

Vermont now joins Connecticut, Massachusetts and Iowa in allowing gays to marry. Iowa’s ban was lifted Friday by way of an Iowa Supreme Court ruling.

"Getting two-thirds of each house of the state legislature to approve gay marriage is a much more impressive feat, in my view, than getting even a unanimous vote from a state supreme court, as occurred in Iowa just four days ago, " Dale Carpenter wrote on the Volokh Conspiracy blog.

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 In 2008, the IRS amended Code Section 152(e), which addresses child dependency exemptions.  The changes affect the procedures and means for claiming the exemption. The new rules should be carefully followed to ensure that the exemption is taken by the parent entitled to it, and that the appropriate language is contained in divorce or separation agreements to reflect the current state of the law.

1. A divorce agreement or court order can no longer be used as a substitute for Form 8332.  The parties must actually complete the form.
2. Beginning in 2009, the custodial parent is the one with whom the child resides the greater number of nights during the year, regardless of the terms of the divorce decree. 
3. Beginning in 2009, the custodial parent can unilaterally revoke the release of a child exemption for calendar years 2009 and beyond regardless of when the release was made.

In light of these developments, all non-custodial parents who plan to claim the exemption must obtain a signed Form 8332. In addition, divorce or separation agreements should address the potential for a release being improperly revoked after it is given. 

The parent claiming a dependency exemption is also entitled to benefit from a Child Tax Credit and any allowable Hope or LIfetime Learning Educational Tax Credits.  Keep in mind that the exemptions and credits are phased out as the income of the parent increases.  This should be factored into decisions as to when and how to claim the exemption.

For 2009, the Chidl Tax Credit phases out from $75,000.00 to $95,000.00 (of Adjusted Gross Income) and Hope or Lifetime Learning Educational Tax Credits phase out from $48,000.00 to $58,000.00 for single and head of household filers. These credits are generally more valuable to lower and middle income filers than the dependency exemption itself.

As with all tax issues in a divorce or separation agreement, you should consult an experienced tax attorney or accountant in order to full understand all of the ramifications of your agreement.

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An item on the front page of today’s New York Law Journal reports that the New York State Court of Appeals has agreed to hear appeals in two cases involving the recognition of same sex marriages validly performed outside of New York. The Court is expected to hear argument in the cases in the fall of 2009.

The two cases are:

Godfrey v. Spano: Motion No. 2009-220: The Second Department upheld the Westchester County Executive’s 2006 order directing that all county departments to honor same sex marriages from other jurisdictions.

Lewis v. New York State Department of Civil Service: Motion No. 2009-219: The Third Department affirmed the grant of health benefits to same sex partners if the marriage was legal when and where it was performed.

Theses appeals will be the first time the Court has considered these issues since its decision in Hernandex v. Robles in 2006.

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