New York Divorce Report - New York's Divorce and Family Law Blog

Obtaining an order requiring the payment of child support is only half the battle; actually collecting child support is entirely another story.

Lawyers.com details that: 

According to the latest comprehensive child support numbers from the US Census Bureau, only 41.2 percent of custodial parents receive the full amount of support owed them by their ex-spouses.

This astounding statistic means that more than half of the parents awarded child support will either not be paid any child support or will be shortchanged. While some can point to a weakened economy and a high unemployment rate as a possible explanation for the high default rate, the problem of deadbeat parents has been ever present.

Collecting support from the self employed has always been problematic. Unlike a W-2 employee, an income execution or wage garnishment is ineffective against someone who is self-employed. Likewise, collection of support is difficult from someone working “under the table” for cash.

Then, there are the professional “deadbeats,” who, as detailed in the Lawyers.com article, simply move from job to job simply to avoid making child support payments. By the time the parent, who is to receive child support, tracks down the deadbeat parent and implements enforcement, the deadbeat either quits or moves on to another job.

In New York, when a parent is late or fails to pay court ordered support payments, the following remedies are available to collect support:

•  Credit reporting: Child Support Enforcement will report the failure to pay child support payment to major credit reporting agencies.
•  Passport denial: Anytime a person owes more than $2,500 in back child support, the U.S. State Department will not issue or renew a passport until all past-due support payments (also called “arrears”) are paid.

• License  Suspension: Child Support Enforcementcan request that any permanent, state-issued license be suspended or withheld to collect back child support. This could result in the suspension of both professional, and driver’s licenses.

•  Income tax intercepts: The Internal Revenue Service and the State Department of Taxation can also intercept tax refunds to pay back child support

•  Imprisonment: The failure to pay child support is a contempt of court, and the deadbeat parent can be imprisoned until the contempt is purged. Support would have to be paid to purge the contempt.

Some parents just do not get it; interfere with the other parent’s visitation or attempt to alienate the child from the other parent and risk losing custody of your children.  

In Barrington v. Barrington, a mother was not satisfied with sharing joint custody of her children.   Instead, as the court found at trial:

 the mother persistently engaged in a course of conduct calculated to frustrate the father's efforts to have a meaningful relationship with the son. In particular, she repeatedly refused to allow the father mid-week visitation with the son and, on one occasion, unnecessarily involved the police in an argument that she had with the father when he was returning the son to her after a visit. She also sought to align the son with her in her dispute with the father, even though she was well aware that such conduct was clearly not in the child's best interests

Given the mother’s conduct, the Court granted the father custody of the son.  

  Though New York now recognizes same sex marriage, most states and the federal government do not.   While a valid marriage confers a number of legal rights upon a lawfully wed couple, if the parties find themselves in a jurisdiction that does not recognize same sex marriage, they may not be accorded the rights accorded a heterosexual couple.

  Like heterosexual couples, same sex couples will inevitably have to deal with issues addressing divorce, death, illness and child custody.   As a lawyer, I am always mindful of things that can be done now to prevent future problems.  With that in mind, I present the four tips to protect same-sex couples:

1.  Sign a Pre-Nuptial Agreement

 A  pre-nuptial agreement in its most basic form, defines the parties’ respective rights when the marriage ends in either the case of divorce or death.  The agreement could address issues of the distribution of property, maintenance and inheritance rights.   It the parties are already married, the parties could consider entering into a post-nuptial agreement.

  2. Prepare a healthcare proxy for each family member.

  A health care proxy enables a designee to obtain medical information to make medical decision on behalf of his/her loved ones.  Since not all states recognize same sex marriage, it is uncertain what rights would be afforded to a same sex spouse if the other becomes ill in a jurisdiction that did not recognize the validity of the marriage.  To ensure that your spouse will be entitled to your medical information and to make medical decisions should you be unable, provide him/her with a health care proxy.   

  3. The non-biological parent should adopt the children of the marriage.

  Child custody laws involving same sex marriages are, no pun intended, in their infancy.   Should the non-biological parent (or in the case of adoptive children, the non-adoptive parent) be not deemed the “legal” parent of a child, the party could be denied parenting time, custody or visitation, with children of the relationship.

  4. Develop an estate plan; draft a will.

  In order to ensure that your spouse inherits from you, no matter your jurisdiction, draft a will and all necessary trust documents to ensure that your wishes are respected in the event of your death. 

          While many of these same concerns are relevant to heterosexual copies as well, because of the conflicts between the states regarding the rights of same sex couples, it is more important for you to take the necessary to adequately protect your rights.  

Because the client so relies on the experience, knowledge and counsel of his or her divorce attorney, the selection of an attorney can be one of most important decisions the client makes in the initial part of the case. 

In a previous post, I wrote that a client should seek an attorney who is practical, creative and pragmatic. The attorney should be capable of being fierce advocate, but also a dealmaker, able and willing to settle the case.   

But, how do you find such an attorney? The Blog  Mom Talk offers 5 Tips to Picking a Divorce Attorney to which, I add my thoughts.

1.  Get a Referral.

Talk to friends, family and other acquaintances who have been through a divorce; ask them about their attorney.   Was the attorney responsive to their calls and emails?  Did the attorney fully explain the process and properly manage their expectations.  

The number one complaint against attorneys is that they don’t return telephone calls.  In my office, all calls and emails are returned within hours. 

2. How Much Will the Divorce Cost?

In most litigated or contested cases, since the attorney’s fee is time based, the ultimate cost is unpredictable.  The fee is based on the amount of time that the attorney spends working on your case.   The more acrimonious the divorce, the more expensive it will be.   If you make unreasonable settlement demands, in all likelihood, your legal fees will be higher.

On the other hand, in cases where the parties contemplate an agreement or where the divorce will be uncontested, I have found flat fees to be an effective way to limit the costs of divorce or, at least, to make them predictable.

3.  Consult with Attorneys.

Meet with prospective attorneys.  Come prepared to talk about your case, your expectations and your concerns; arrive prepared with relevant information about your income, assets, liabilities and expenses.  You should leave educated about your rights and with a case strategy.  

You should, however, expect to pay for the consultation. After all, would you really want to be represented by the attorney who has so much free time that he can spend his day doing free consultations?  

4.  Experience and Competence.

Use the consultation to learn about the attorney, his or her experience.  Find out what percentage of their practice is devoted to divorce and family law issues.  Does that attorney have the skill set to understand your case and protect your rights?

5.  Is it a good fit?

This person is going to be your advocate, your guide, advisor and friend during an incredibly stressful time in your life.  Are you comfortable with this person?

The college application process can be an extremely stressful experience in a young person's life; adding to the child’s stress about deciding where to apply and which school to attend is the child's awareness that his or her choice of a college will provide yet another opportunity for parental conflict over who is going to pay for college.  In New York, divorced parents oft seek to apply the "SUNY cap."

 The SUNY cap is one of the devises employed by New York divorce attorneys to address the issue how to pay for children’s college education.      

 It is common in New York for divorcing parents to agree in their settlement agreements how college expenses will be paid.  Sometimes the parties agree to split the actual costs of pursuing a higher education; other times one parent solely agrees to bear the burden.   More often, the parties agree to limit their obligation to pay for their children’s college education to a percentage of the cost of a State University of New York (SUNY) school.   This limitation is referred to as a “SUNY Cap.”   

 An agreement to apply the SUNY cap and to limit a parent’s contribution to a child’s college education will be enforced regardless of whether the child attends a public or private educational institution. 

In the absence of an agreement, the Domestic Relations Law empowers a court to order a parent to pay for college.  Among the factors that Courts  consider in determining whether to award college expenses are the educational background of the parents, their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child.

More problematic is when, in the absence of an agreement, college expenses will be paid.   In the recent case, Pamela T. v Marc B., the parties did not have an agreement as to how they would pay for the children’s college education, the court refused to apply a SUNY cap. 

In Pamela T.  v. Marc B., the Court announced that:

There is no basis to impose the SUNY cap, to the extent that it should be imposed at all, where the party seeking to invoke the cap has the financial ability to contribute towards the actual amount of his or her child's college expenses.

The Court noted that even if a SUNY were to be imposed, it would not be determinative as to what school the child would attend.    As the Court noted:

Contrary to what proponents of a wide and liberal application of the SUNY cap might urge, the SUNY system should not be the assumed destination of the children of divorce.

In selecting the college, a litany of factors should be considered, including the educational curriculum, the make-up of the student body, and active alumni networks. “Other considerations might include such things as the size of the school, the type of campus, the architectural distinction of the buildings, the nature of its athletic programs, the services provided to students with either physical or learning disabilities, and the type of city or town in which the school is located. “

In short, the failure to address the how the costs of college will be handled in a settlement agreement only leaves the door open to litigation when the children are college bound.